King v. State, 07-KA-59203

Decision Date03 May 1991
Docket NumberNo. 07-KA-59203,07-KA-59203
Citation580 So.2d 1182
PartiesJames Albert KING, Hattie Ray King and Johnny Wayne King v. STATE of Mississippi.
CourtMississippi Supreme Court

James W. Burgoon, Jr., Fraiser & Burgoon, Greenwood, J.P. Coleman, Coleman & Coleman, Ackerman, James D. Franks, Hernando, for appellants.

Mike C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the court:

I. INTRODUCTION

This Tallahatchie County case involves three appellants: Johnny Wayne King and his parents, James Albert and Hattie Ray King. All three were indicted for conspiracy, obstruction of justice, and bribery--charges which stemmed from unsuccessful attempts to influence jurors in a drug trial in which Johnny was the defendant. 1

James is appealing his conviction of all three charges. Hattie is appealing her conviction of the conspiracy charge. And Johnny is appealing his conviction of conspiracy and bribery. This Court affirms James and Johnny's convictions and reverses Hattie's conviction.

A. The Facts

The facts of this case are disputed but uncomplicated; they are presented in this opinion as they were presented by the State at trial. The Kings did not present their own version; they simply denied guilt.

In the fall of 1986, Johnny Wayne King was indicted for sale of a controlled substance. Soon after empanelment of the jury, Johnny, James, and Hattie King decided to "fix" the trial. They hired their friends, William Taylor and L.B. Govan, to contact several jurors and offer them "incentives" in exchange for their agreement to cast a "not guilty" vote or "hang up" the jury. 2

Taylor contacted jurors, Charlotte Truly and Gwendolyn Harris, in person at their homes and "insisted" that they vote "not guilty" at Johnny's trial. 3 Both Truly and Harris refused Taylor's request and ordered him to leave.

Meanwhile, Govan contacted another juror, Irene Edwards, in person at her home. Edwards testified that Govan promised her that the Kings would "make it worth her while" if she "hung up the jury" by casting a "not guilty" vote.

Finally, Minnie Smith testified that James and Johnny one night entered the Mr. Jiffy Convenience Food Store where she works. The Kings did not say anything to her; they simply purchased a coke and some cigarettes and then left. Smith noted that the store manager and another employee were present at the time and that, over the past ten years, she had never before seen the Kings in the store.

The three jurors--Truly, Edwards, and Harris--immediately informed the bailiff that they had been contacted by Taylor and Govan. Judge Carlson immediately held a hearing in chambers and declared a mistrial.

After an investigation, the Kings were indicted for conspiracy, obstruction of justice, and bribery. On July 21, 1987, Judge Carlson held a trial. After four days of testimony, the jury found James guilty of all three charges; it found Hattie guilty of conspiracy; and it found Johnny guilty of conspiracy and bribery. Judge Carlson subsequently sentenced: (1) James as an habitual offender to a total of 14 years' imprisonment and fined him $6,500; (2) Hattie as an habitual offender to 5 years' imprisonment and fined her $5,000; and (3) Johnny as an habitual offender to a total of 10 years' imprisonment and fined him $6,000.

B. The Issues

The appellants presented numerous issues. These issues are addressed in the following section and, for the sake of brevity and clarity, some issues have been consolidated and some paraphrased.

II. ANALYSIS

In Section II(A), James and Hattie's issues are addressed. Johnny's are addressed in Section II(B).

A. James and Hattie's Issues
1. Issue: Whether the Indictment Was Legally Sufficient?

Prior to trial, James and Hattie filed a motion through which they contended that the indictment failed to set forth facts which would have sufficiently apprised them of the "nature and cause of the accusations against them." Judge Carlson disagreed: "I've ... stud[ied] the indictment and the statutes, and, also, the applicable case law and also Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice ... [and] I'm satisfied the [motion] should be overruled." James and Hattie appealed this decision.

"Questions regarding the adequacy of indictments are tested by Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice." Winston v. State, 479 So.2d 1093, 1095 (Miss.1985). "The major purpose of an indictment is to furnish the accused such a description of the charges against him as will enable him to adequately prepare his defense." Williams v. State, 445 So.2d 798, 804 (Miss.1984) (citing Westmoreland v. State, 246 So.2d 487 (Miss.1971); Woods v. State, 200 Miss. 527, 27 So.2d 895 (1946)). The description should include a "concise and clear statement of the elements of the crime charged." Id. (citing Love v. State, 211 Miss. 606, 52 So.2d 470 (1951)). "Nothing more is required." Id.; see Cantrell v. State, 507 So.2d 325, 329 (Miss.1987) ("The rule in this state is that an indictment which states the statutory language is generally sufficient to inform the accused of the charge against him.").

This Court has perused the nine-page indictment and concludes that it comported with relevant law--i.e., the Kings were sufficiently apprised of the offenses with which they were charged. The indictment cites and "tracks," or quotes, relevant statutory language and, in accordance with Rule 2.05 and case law, it provides a concise description of the essential facts pertaining to each offense. See MISS.CODE ANN. Sec. 97-1-1 (1990 Supp.); id. Secs. 97-9-55 & 97-9-5 (1972). In sum, Judge Carlson properly overruled the motion.

2. Issue: Whether James' Summary Incarceration Prior to Trial Was Improper?

On July 14, 1987, James filed an "Application and Affidavit for Continuance." James requested a continuance because he had scheduled a "doctor's appointment" in Memphis, Tennessee, on July 20, 1987--the day before the trial was set to begin. More specifically, James explained that, as result of an auto accident which occurred several months earlier, he scheduled himself to undergo medical testing at a Memphis hospital; therefore, he would be unable to attend the trial on the date set.

On July 17, Judge Carlson held a hearing on James' "application." At the conclusion of the hearing, Judge Carlson rejected James' application. James appealed this decision and now contends that his so-called "summary incarceration" violated his constitutional and statutory rights.

Disposition of this issue is unnecessary; whether the judge improperly incarcerated James has nothing to do with the merits of this case and, as a consequence, reversal is not a possible remedy. 4 This Court therefore rejects James' contention without prejudice. If James continues to feel aggrieved, he may opt to seek a remedy, if any, other than reversal of this case.

3. Issue: Whether Violation of the Sequestration Order Should Have Resulted in a Mistrial?

Pursuant to Judge Carlson's sequestration order, the jurors along with the bailiffs stayed at a Holiday Inn each night of the four-day trial. On two occasions, three of the jurors visited the Inn's "Tadpole" Lounge. Upon learning of the jurors' visits, James and Hattie filed a post-trial "Motion to Set Aside Verdict, Declare Mistrial, and Grant a New Trial." During a hearing on the motion, the three jurors testified that they did not discuss the case with each other nor with anyone else. At the conclusion of the hearing, Judge Carlson denied the motion and reasoned:

It is admittedly regrettable and disturbing that 3 of the younger male jurors took it upon themselves to consume alcohol at the motel lounge and in their rooms during the overnight recesses, and the Court is disappointed in their conduct. But disappointment does not bring about vitiation of the guilty verdicts. The record is clear that any consumption of alcohol in no way affected their ability to perform their duties as jurors, and there was at no time discussion with any one about the case during this period of time.

....

Based on the facts and circumstances peculiar to this particular case, as revealed in the record of the post trial motion hearing, and based on the entire record in this case, the Court is satisfied that a fair and impartial jury reached verdicts based on the evidence and the law. This is true of the guilty verdicts returned, and this is true of the not guilty verdicts returned. This Court is satisfied that, except for the aforementioned consumption of alcohol, the jurors followed the instructions of the Court regarding their conduct. This Court will admit that it could not, and did not, give these Defendants a perfect trial; but they did receive a constitutionally fair trial.

Record Vol. III, at 198 & 201-03. James and Hattie appealed this decision.

In Weaver v. State, this Court held that a "presumption [exists] that jurors follow the instructions of the court relative to their conduct during the course of the trial." 272 So.2d 636, 638 (Miss.1973), quoted in Stringer v. State, 279 So.2d 156, 160 (Miss.1973). The Court added that it will not conclude that prejudice resulted by separation of the jury "in the absence of any evidence to the contrary." Id. "Separation of jurors, under proper instructions by the court in a criminal case less than capital, is not error." Id. (emphasis supplied by this Court in Stringer v. State ).

In Schwarzauer v. State, 339 So.2d 980, 981 (Miss.1976), this Court concluded that a determination of whether an improper separation of sequestered jurors resulted in prejudice must be made on an ad hoc basis. Restated, the "rule is that such cases must be decided upon the particular facts and circumstances of each case and considerable discretion is vested in trial judges when confronted with [such an issue]." Id. (citing United States v. Perez, 22...

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