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Posted by: Landry Butler on Jun 7, 2017

Head Comment: With concurring opinion by MONTGOMERY and EASTER

Court: TN Court of Criminal Appeals

Attorneys 1:

Steven E. Smith, District Public Defender; Steve Brown (at trial); Jane J. Buffaloe (at trial); and Jay Underwood (at motion for new trial hearing and on appeal), Assistant District Public Defenders, for the appellant, Tony Edward Bigoms.

Attorneys 2:

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; M. Neal Pinkston, District Attorney General; Lance Pope and Cameron B. Williams, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): THOMAS

Following a jury trial, the Defendant, Tony Edward Bigoms, was convicted of premeditated first degree murder and abuse of a corpse, a Class E felony. See Tenn. Code Ann. §§ 39-13-202, -17-312(a). The trial court imposed a total effective sentence of imprisonment for life plus four years. On appeal, the Defendant contends (1) that jury separations occurred when the sequestered jury members were allowed to go to their individual homes, unsupervised, to pack their belongings at the start of the trial, were allowed to make phone calls to family members during the trial, and were allowed to visit with family members the day before the trial concluded; (2) that the trial court erred in admitting testimony from a Tennessee Bureau of Investigation (TBI) special agent regarding that agent’s testimony during a previous murder trial at which the Defendant was acquitted; (3) that the trial court erred in admitting evidence found as a result of a warrantless search of the Defendant’s cell phone; (4) that the State failed to prove venue by a preponderance of the evidence; and (5) that the evidence was insufficient to sustain the Defendant’s convictions. Following our review, we conclude that jury separations occurred when the jurors were allowed to go home unsupervised and to make phone calls during the trial. Furthermore, we conclude that the State failed to meet its burden to show that no prejudice to the Defendant occurred during these separations. Additionally, we conclude that the admission of the TBI agent’s testimony regarding the Defendant’s previous murder trial violated Tennessee Rule of Evidence 404(b)’s prohibition against evidence of other bad acts and that this error was not harmless. Finally, we conclude that the trial court erred in admitting the evidence found on the Defendant’s cell phone as that evidence was not relevant. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial. With respect to the Defendant’s remaining issues, we will address those issues so as not to pretermit them. See State v. Parris, 236 S.W.3d 173, 189 (Tenn. Crim. App. 2007) (following a similar procedure).