Davis v. State, No. 98-KA-00130-SCT.

• Decision Date: 29 June 2000
• Docket Number: No. 98-KA-00130-SCT.
• Citation: 767 So.2d 986
• Parties: David L. DAVIS a/k/a David Latrell Davis v. STATE of Mississippi.
• Court: Mississippi Supreme Court

767 So.2d 986

David L. DAVIS a/k/a David Latrell Davis v. STATE of Mississippi.

No. 98-KA-00130-SCT.

Supreme Court of Mississippi.

June 29, 2000.

Rehearing Denied October 5, 2000.

Herman F. Cox, Gulfport, Attorney for Appellant.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

EN BANC.

COBB, Justice, for the Court:

¶ 1. David Latrell Davis was indicted for capital murder while in the commission of the crime of robbery and tried in the Jackson County Circuit Court. The jury found Davis guilty of capital murder and sentenced him to life in prison without parole. Aggrieved, Davis appealed to this Court.

STATEMENT OF THE FACTS

¶ 2. On the night of September 18, 1996, Elsie McCorvey was working the 10:30 p.m. until 6:00 a.m. shift at the Circle K convenience store in Pascagoula, Mississippi. Sometime after midnight that night, after drinking alcohol and smoking marijuana with Robert Evans, Andrea Smith and others earlier in the day, Davis went to the home of Vincent Jenkins. Jenkins was keeping a shotgun for Andrea Smith, and Davis said he wanted the gun. When Jenkins refused to give him the gun, Davis made threatening remarks, and Smith called out to Jenkins to give the gun to Davis. Davis then took the gun, returned to the car where Evans had waited, and they drove to the Circle K where McCorvey was working. Davis and Evans entered the store, and Davis carried the shotgun to the counter and shot McCorvey in the chest. After trying unsuccessfully to open the cash register, Davis walked around behind the counter and took the cash register and its contents. McCorvey died only a few minutes after being shot by Davis. Davis, identified from the store video camera, was indicted, tried and found guilty of capital murder committed while in the commission of robbery. He was sentenced to life in prison without parole. He appealed to this Court raising the following issues, which are here quoted verbatim:

I. THE TRIAL COURT ERRED IN IMPANELING THE JURY WHICH WAS DRAWN BY A SPECIAL VENIRE AND IN EXCUSING TWENTY-EIGHT JURORS OUTSIDE THE PRESENCE OF THE DEFENDANT AND COUNSEL FOR THE DEFENDANT.

II. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR CHANGE OF VENUE MADE ON BEHALF OF THE DEFENDANT.

III. IT WAS ERROR FOR THE TRIAL COURT TO RULE THAT JURORS 5, 10, 15, AND 42 WHO WERE PER-EMPTORILY STRUCK BY THE STATE WERE DONE FOR RACIALLY NEUTRAL REASONS.

IV. THE TRIAL COURT ERRED IN NOT ALLOWING INTO EVIDENCE DURING THE GUILT PHASE THE TWO VIDEO STATEMENTS OF THE DEFENDANT TAKEN BY THE POLICE AUTHORITIES.

V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION IN LIMINE PERTAINING TO CERTAIN EXPECTED TESTIMONY OF THE STATE'S WITNESS, VINCENT JENKINS, AND IN ALLOWING THIS WITNESS FOR THE STATE TO TESTIFY CONCERNING THREATS MADE BY THE DEFENDANT TO HIM.

VI. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL.

Finding no reversible error, we affirm.

DISCUSSION

I. THE TRIAL COURT ERRED IN IMPANELING THE JURY WHICH WAS DRAWN BY A SPECIAL VENIRE AND IN EXCUSING TWENTY-EIGHT JURORS OUTSIDE THE PRESENCE OF THE DEFENDANT AND COUNSEL FOR THE DEFENDANT.

¶ 3. Davis argued that the trial judge excused some twenty-eight¹ members of the special venire before he or his counsel were present and thus the trial judge should have quashed the entire jury panel. Citing Strickland v. State, 477 So.2d 1347 (Miss.1985), Davis argues that he had an absolute right to be present during the impaneling of the jury. His reliance on Strickland is misplaced, however. The trial judge in Strickland was notified "during pretrial proceedings" that a prospective juror had been contacted by a friend of the defendant. The judge then conducted an in-chambers examination of apparently each prospective juror, outside the presence of the defendant or the attorneys for either side, to determine the extent of the contact. Three prospective jurors were extensively questioned by the judge when they indicated they had been contacted by someone who attempted to influence them in favor of the defendant. Two other prospective jurors indicated that the sheriff or his deputies had come to their homes the night before, but the judge did not question them further. One of the jurors contacted by the state ultimately served as jury foreman. Id. at 1348-49. Finding that this was a perfect example of the injustice which can result when the defendant or his counsel is excluded from a critical stage in the trial proceedings, this Court properly reversed and remanded.

¶ 4. The facts in Strickland, however, are in stark contrast to the situation before us in the present case. Here Davis was absent only during the routine statutory qualification of the prospective jurors. He was present when the State and defense counsel announced "ready" and the trial judge's voir dire of the prospective jurors began and for the remainder of the trial.

¶ 5. In the present case, the record reflects that the customary procedure of the Jackson County Circuit Court is to begin the qualifying process for a special venire at 7:45 a.m., even though the docket reflects that court starts at 9:00 a.m. When defense counsel arrived at approximately 8:05 a.m., the judge had already begun the process of explaining the court procedures, introducing various court personnel, swearing the prospective jurors, and going through the general qualifying procedures. After explaining the qualifying process, the trial judge methodically asked the full venire the routine questions regarding age, residency, prior convictions, illness, hardships, etc. pursuant to Miss.Code Ann. §§ 13-5-1, -23 & -25 (1972 & Supp.1999). The prospective jurors who were excused by the trial judge during this qualifying process included one who was not a resident of Jackson County; fourteen who had various illnesses and medical excuses; one who had an ill family member; three who were over 65 years of age; seven for serious financial or business hardships; and eight for other reasons including a death in the family and students and teachers required to be in class.

¶ 6. The record is not clear as to the exact point at which defense counsel arrived, but he made no objection at the time, and apparently was present in the courtroom throughout most of the jury qualification process. After a brief break at the conclusion of the qualifying process the judge, Davis's counsel, and the prosecutors returned, and Davis was brought into the courtroom. Before the drawing of the names of prospective jurors who would be considered further by counsel for the parties, defense counsel moved to quash the jury panel, based on his initial absence and the absence of Davis during the jury qualification and excusal process. The judge denied the motion, and the drawing of the jury began.

¶ 7. In Chase v. State, 699 So.2d 521, 534 (Miss.1997) (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987)) this Court stated that "a criminal defendant `is guaranteed the right to be present at any stage of the criminal proceedings that is critical to its outcome if his presence would contribute to the fairness of the procedure.'" As early as 1876 this Court recognized that a defendant had a right to be present during the impaneling of a jury, stating: "We think the deduction from our own decisions, and the rule of safety, is to require the presence of the prisoner in all material and important steps taken during the progress of the cause. Of these are attendance during the impaneling of the jury...." Rolls v. State, 52 Miss. 391, 396 (1876). In Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136,137, 36 L.Ed. 1011 (1892), the Supreme Court affirmed that voir dire is a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present, writing "where the indictment is for a felony, the trial commences at least from the time when the work of empaneling the jury begins." See Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 2246, 104 L.Ed.2d 923 (1989). See also Simmons v. State, 746 So.2d 302, 308 (Miss.1999), in which we stated "Voir dire" is considered by this Court as "a most critical stage" of the criminal proceedings.²

¶ 8. Davis contends that the trial court "impaneled the jury and began general voir dire of the jury and excused twenty-eight jurors" while Davis was not present. In actuality all that happened in his absence was the statutory qualifying process, during which the trial judge ascertained which, if any, of the prospective jurors should be excused or exempt based on the factors set forth in Miss.Code Ann. §§ 13-5-1, -23, & -25 (1972 & Supp.1999). ¶ 9. A review of the terminology used throughout the sections found in Miss. Code Ann., Title 13, Chapter 5, as well as many cases involving jury issues, reveals a definite lack of precision. Does "impaneling of the jury" begin when the prospective jurors report for duty and continue until those actually chosen to serve are sworn, seated and testimony begins? Or does it begin only after completion of the statutory qualifying process, when those disqualified or exempt have been excused and the questioning begins of the remaining prospective jurors by the court and the attorneys for each side? Does "voir dire" include the trial judge's questions regarding qualifications and exemptions, or only the questions asked of the qualified prospective jurors who remain after others are excused for statutory reasons?

¶ 10. Today we adopt a bright line rule that the trial judge's general questioning of prospective jurors, to ascertain those who are qualified for, or exempt from, jury service is not a critical stage of the criminal proceedings during which a criminal defendant is guaranteed a right to be present. Such statutory matters as whether a prospective juror is a resident of the county, is ill or has an illness in the family, or is over 65 years of age are not matters...