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Posted by: Tanja Trezise on Oct 1, 2013

Court: TN Court of Criminal Appeals

Attorneys 1:

Bruce E. Poston and Jamie Poston, Knoxville, Tennessee, for the appellant, Nicholas Wyatt Barish.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

After a trial by jury, the defendant was convicted of first degree (felony) murder as well as one count of especially aggravated robbery, a Class A felony. Prior to trial, the defendant also pled guilty to one count of burglary of an automobile, a Class E felony. The defendant was automatically sentenced to life in prison for the felony murder, and he received concurrent sentences as a Range I, standard offender of eighteen years for the especially aggravated robbery and one year for the burglary of the automobile. On appeal, the defendant claims that the evidence is insufficient to support his convictions and that the trial court erred by instructing the jury that they could not consider lesser-included offenses until after they reached a unanimous decision with respect to the first degree murder charge. We find these claims to lack merit. In addition, the defendant claims that the trial judge’s ex parte contact with the jury during its deliberations exerted an improper influence on jury’s verdict. Upon review, we conclude that on the unique facts of this case public confidence in jury’s verdict has been so undermined as to necessitate reversal of the defendant’s first degree (felony) murder conviction. We affirm the defendant’s remaining convictions and sentences and remand the case to the trial court for further proceedings consistent with this opinion.