Lampley v. State, 47446

• Decision Date: 04 March 1974
• Docket Number: No. 47446,47446
• Citation: 291 So.2d 707
• Parties: Jesse LAMPLEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 707

291 So.2d 707

72 A.L.R.3d 124

Jesse LAMPLEY v. STATE of Mississippi.

No. 47446.

Supreme Court of Mississippi.

March 4, 1974.

Rehearing Denied April 8, 1974.

Sekul, Hornsby, Wallace & Blessey, Biloxi, for appellant.

A. F. Summer, Atty. Gen., by T. E. Childs, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

GILLESPIE, Chief Justice:

Jesse Lampley appeals from a conviction in the Circuit Court of Harrison County of the crime of rape. Sentence: life imprisonment.

The defendant and two friends arrived at the residence of Tiwana Harris where a party was in progress. Loretta Stewart, the prosecutrix, and her friend, Kenny Little, were at the party, and defendant offered to drive them home. Instead of driving them to their home, he drove to a secluded place where he forced Little from the car and then forceably raped Loretta Stewart. While defendant denied that he raped Loretta Stewart, the evidence amply supported the verdict of the jury.

Of the several questions raised, the only proposition that requires discussion is the contention that a new trial should have been ordered because two jurors were separated from the other jurors for a period of time and were unattended by a bailiff during the separation.

The jury consisted of men and women and were under the charge of two bailiffs, a man and a woman. The jury was quartered at the Holiday Inn, about a five-minute drive from the courthouse. During the progress of the trial, two of the jurors were inadvertently separated from the others for a period of approximately fifteen or twenty minutes. On the second day of the trial, Mrs. Alena Ladner, in transporting the jury to the courthouse before the opening in court, left with part of the jury before the other bailiff, John Bosarge. When Bosarge reached the front of the hotel, he missed two jurors. He returned and knocked on the doors of the rooms where the jurors were staying, but no one answered. Bosarge then brought his group to court, but the missing jurors were not there. Mrs. Ladner telephoned the rooms of the missing jurors and told them to stay there. She then drove to the hotel and brought the two jurors to the courtroom. The record indicates that the two jurors were separated for a period of about fifteen or twenty minutes. There is no suggestion that the separated jurors were contacted by anyone.

The rule respecting the separation of the jurors in capital cases is of common law origin. In several early capital cases, including Woods v. State, 43 Miss. 364 (1870), the Court said that separation of the jury under circumstances where the purity of the verdict might have been affected requires the conviction to be set aside even in the absence of any proof of an attempt to exert any pernicious influence on the jury; and that the separation of any of the jurors from their fellows during the progress of the trial, without being attended by a proper officer, would be conclusive evidence of an irregularity vitiating the verdict and rendering a new trial necessary. But the strong language of Woods must be read in light of the facts of that case. The opinion states that the jury was permitted to disperse for two nights during the trial and go at large until ten o'clock the next day. During the morning after the first day's trial, members of the jury were in the courthouse yard talking and mingling with citizens who were not members of the jury. Applied to the facts of that case, the Woods case was and is sound law, although the language of the opinion is inappropriate to an inadvertent separation for a brief time such as that involved in the present case.

In Skates v. State, 64 Miss. 644, 1 So. 843 (1887), the jurors were allowed to go to a privy while the officer in charge was some seventy-five yards away and out of sight of the jurors. There was no showing that any other persons talked to the jurors, but since the privy was a public one, other persons might have been in the privy with the jurors. In rejecting the contention that the separation of the jury vitiated the verdict, the Court in Skates said:

There are to be found many expressions in our reported cases to the effect that where circumstances were shown which exposed the jury to the possibility of being tampered with, the verdict must be set aside unless it is affirmatively made to appear that no improper influences were brought to bear upon it. But this language must be interpreted by the circumstances of the case in which it was used. . . .

In all these cases the verdicts were set aside, and new trials awarded. It will be noted that in all of them it was either shown that other persons had been brought in contact with the jury, or that there was a separation of the jury under such circumstances as to afford a reasonable presumption that communication was had with others; there was in each case something more than a remote possibility that such communication was had, though in many of the cases observations are made by the court indicating that any separation of one juror from his fellows would be sufficient to annul the verdict unless it was affirmatively shown that no communication was had with others.

We find no fault with the result reached in either of the cases cited, but we do not concur in the language used in some of them from which the conclusion is sought to be drawn, and reasonably, that the mere withdrawal of a juror from the sight of his fellows and of the officer is under any and all circumstances a separation of the jury. Whether it is or is not must, as it seems to us, be dependent upon the circumstances of each particular case. Judges and jurors are but men, and we know of no reason why, in dealing with the action of jurors, any impracticable and unapproachable standard shall be adopted by courts to measure their conduct,-a standard which, if applied to the judges of the courts, would produce frequent miscarriages of justice. If the mere possibility of unlawful communication or influence is sufficient to annul a verdict, when shall one be said to be pure and free from suspicion? All our court-houses are in public places, and the public have right of access to them. At sessions of court many persons are there congregated, either from curiosity or by reasons of business for themselves or others. Jury-rooms open into the court-rooms, frequently filled with spectators, or by windows overlook the yards. Communication by writing, by signs, and by words is always possible, but it would be destructive to the ends of justice to hold that such possibility as this of unlawful influence should avoid verdicts upon which no just suspicion rests. To this all must agree. 64 Miss. at 651, 653, 1 So. at 845, 847.

In Haley v. State, 123 Miss. 87, 85 So. 129, 10 A.L.R. 462 (1920), the separation was brought about by a juror's illness and the Court reaffirmed the language in Skates, and added that 'the true test there (in Skates) indicated is whether the judicial mind would conclude that unlawful influence has been exerted.' 123 Miss. at 109, 85 So. at 133, 10 A.L.R. at 469.

In the recent capital case involving the question of separation of jurors, Wilson v. State, 248 So.2d 802 (1971), the opinion quoted approvingly from Woods, but in Wilson, as in Woods, the Court allowed the jury to disperse and go to their respective homes for the night. The opinion in Wilson stated the rule where the Court allows the dispersal of the jury overnight, but, as stated in Skates, the language must be interpreted according to the circumstances of the case in which it was used. In Glass v. State, 278 So.2d 384 (Miss.1973), the temporary separation was held not...