Knox v. State, 2003-KA-00768-COA.
| Decision Date | 20 October 2005 |
| Docket Number | No. 2003-KA-00768-COA.,2003-KA-00768-COA. |
| Citation | 912 So.2d 1004 |
| Parties | Marlon C. KNOX, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Supreme Court |
Ross Parker Simons, Attorney for Appellant.
Office of the Attorney General by John R. Henry, Attorney for Appellee.
Before LEE, P.J., MYERS and CHANDLER, JJ.
MYERS, J., for the Court:
¶ 1. This case originated in the Circuit Court of Jackson County where Marlon Knox was convicted of murder and sentenced to life imprisonment.
¶ 2. Knox and his roommate, Jermaine Williams, traveled to the "504 Club" where Williams became involved in an altercation with a man named Charles Witherspoon concerning a defective stereo Witherspoon had recently sold to Williams. Knox joined in the altercation and was struck on the shoulder by a beer bottle thrown by Willie McGill. Two days after the altercation at the "504 Club", Knox, Williams, and Charles McKinney were riding in McKinney's vehicle to obtain some marijuana. The three decided to try to make their purchase on 26th Street. While on 26th Street, the three approached a vehicle on the side of the road, and noticed a man leaning into the trunk of this vehicle working on the car's stereo. Upon seeing the vehicle, Knox told McKinney to stop the car. Knox then got out of the car and shot the man working on the stereo four times with a .22 caliber pistol. The man he shot was McGill, the individual who struck him with a beer bottle two days prior during the "504 Club" altercation.
¶ 3. After being shot, McGill possibly, though it is not clear from the record, obtained a pistol from Witherspoon, but collapsed on his way back to confront Knox. An ambulance soon arrived but McGill was pronounced dead upon arrival at the local hospital.
¶ 4. Knox was subsequently arrested for the murder of McGill and tried in the Circuit Court of Jackson County, Mississippi. Knox was convicted of murder and sentenced to life imprisonment.
¶ 5. On appeal, Knox raises four assignments of error:
I. WHETHER A MISTRIAL AND SUBSEQUENT RETRIAL CONSTITUTE DOUBLE JEOPARDY.
II. WHETHER THE JURY WAS NOT PROPERLY SWORN.
III. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
IV. WHETHER KNOX'S SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.
¶ 6. Finding no error, we affirm.
LEGAL ANALYSIS
¶ 7. Knox's first assignment of error is that after his first trial ended in a mistrial, his subsequent retrial was a violation of the Double Jeopardy Clause under the Fifth Amendment of the U.S. Constitution and Article 3, Section 22 of the Mississippi Constitution.
STANDARD OF REVIEW
"A reviewing court examines the entire record to determine if a manifest necessity exists for a mistrial." Jenkins v. State, 759 So.2d 1229, 1232(¶ 8) (Miss.2000) (citing United States v. Bauman, 887 F.2d 546, 550 (5th Cir.1989)).
DISCUSSION
¶ 8. On November 13, 2001, Knox was tried for the murder of McGill. It was during the prosecution's direct examination of Williams that the prosecutor determined that Williams, charged as an accessory after the fact, was no longer represented by counsel. The prosecutor became aware of this fact after Williams made several incriminating statements. After this determination was made, the prosecutor asked the judge to excuse the jury. Outside of the presence of the jury, the State made a motion for a mistrial, as a fundamental right of Williams, not Knox, had been violated. Both the State, and defense counsel, felt that a mistrial should be granted. On appeal, the State argues that by failing to object, and actually agreeing to the mistrial, Knox has not properly preserved this issue for appeal. In support of this contention, the State refers us to the Virginia case of Commonwealth v. Washington, 263 Va. 298, 559 S.E.2d 636 (2002), which held that when a defendant expressly states that there is no objection to the motion for a mistrial, this express statement acts as a waiver of the issue. This is not the proper test in Mississippi. Rather, the Mississippi Supreme Court has held that double jeopardy is a basic constitutional right that can not be waived. Johnson v. State, 753 So.2d 449, 454(¶ 13) (Miss.Ct.App.1999).
¶ 9. In making the determination of whether a criminal defendant has been subjected to double jeopardy, this Court looks to the language of the Mississippi Supreme Court, which has stated, "[i]f a mistrial is granted upon the court's motion or upon the State's motion, a second trial is barred because of double jeopardy, unless taking into consideration all the circumstances a `manifest necessity' existed for the mistrial." Jenkins, 759 So.2d at 1234(¶ 18) (citing Watts v. State, 492 So.2d 1281, 1284 (Miss.1986)). In the case sub judice the trial court made the determination that the "manifest necessity" present which warranted the granting of a mistrial, was the witness's right to counsel under the Sixth Amendment of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution.
¶ 10. The Mississippi Supreme Court has stated, "[m]anifest necessity is applied case-by-case, and a critical element is the focus of a specific situation on the `broad spectrum of trial problems.'" Jenkins, 759 So.2d at 1236(¶ 28). With this language to guide the decision of the trial court and to guide our appellate review, we find that the constitutionally protected right to counsel is one of "manifest necessity" and warrants the trial court's grant of a mistrial, without offending Knox's Fifth Amendment right to be free from double jeopardy.
¶ 11. In order to accurately make the determination that the trial court did not infringe upon Knox's right to be protected from double jeopardy, we must further look at the prior opinions of both the Mississippi Supreme Court as well as the United States Supreme Court. The Mississippi Supreme Court has previously stated "[w]ithout proof of judicial error prejudicing the defendant, or `bad faith prosecutorial misconduct,' double jeopardy does not arise." Id. at 1234(¶ 17) (citing United States v. Jorn, 400 U.S. 470, 482, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971)). It cannot be stated that judicial error was the cause of Knox's mistrial. It further can not be stated that by granting the mistrial, Knox was prejudiced in any way. A review of the record shows that Williams was the first witness to be examined and the prosecutor was yet to complete his direct examination. Knox continued to be out on bond during the time between the mistrial and subsequent retrial giving further credence to the contention that he was not harmed. Also, in following the precedent set forth in Jenkins, we cannot make the determination that the prosecutor's actions were of the level of "bad faith prosecutorial misconduct." As the record clearly demonstrates, Williams was at one point represented by counsel. The State was under the impression that Williams was still represented by counsel. There was nothing present in the court file which gave any indication that he was no longer represented, and when the State contacted Williams's former attorney, the attorney did not inform the State that he was no longer representing Williams. As such, the actions of the State do not rise to the level of bad faith prosecutorial misconduct.
¶ 12. The Mississippi Supreme Court in its 1981 decision, which brought Mississippi's review of double jeopardy into line with the federal approach for the issue, gave trial judges guidance on how to effectively approach the issue so that the reviewing court could accurately make a determination of whether the trial court's decision may implicate double jeopardy concerns. The court stated:
Although it may not be necessary in each case to do so, we believe a prudent procedure for any trial court before declaring a mistrial would be to state into the record the reasons for declaring a mistrial. It is in his sound discretion to determine the necessity of declaring a mistrial, and upon any appeal his reasons as stated for the record will be accorded the greatest weight and respect by an appellate court.
Jones v. State, 398 So.2d 1312, 1318-19 (Miss.1981).
¶ 13. This protocol was followed in the present case. In determining that it was necessary to grant a mistrial, the trial court stated:
BY THE COURT: All right. The Court wasn't aware either one of these gentlemen were charged as accessories, and it came out just in the testimony without any prior knowledge by the Court so that the Court could give any type of instructions with respect to their right to testify or not testify and so forth, the warnings that should have been given. Mr. Taylor, the attorney for one of the parties and who has represented the other witness at one time or another, was not here and should have been here, should have been here to represent his client.
So, with great reluctance—and, certainly, I understand these things, you know, do happen, but I'll grant the motion for a mistrial. I feel like that's the appropriate thing to do in view of what's transpired with respect to these witnesses. So, I'll grant the motion for a mistrial, and the case will be rescheduled for trial at the next term of court.
¶ 14. As the above excerpt demonstrates, the trial court outlined its reasoning for the grant of the mistrial, which was warranted. As such, we find this issue to be without merit.
DISCUSSION
¶ 15. Knox's next assignment of error is that the jury was never sworn and, thus, a reversal is required. Knox points out that the record does not reflect that the trial judge administered the necessary oath to the jurors after they were selected and before opening statements. We find this issue to be without merit.
¶ 16. Mississippi case law clearly states that even when the trial record does not indicate whether or not...
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