McNeal v. State
| Citation | 617 So.2d 999 |
| Decision Date | 25 March 1993 |
| Docket Number | No. 90-KA-1147,90-KA-1147 |
| Parties | Donald Eugene McNEAL v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
Petition for Rehearing May 27, 1993.
F. Holt Montgomery, Jr., Pass Christian, for appellant.
Michael C. Moore, Atty. Gen., Kenneth C. O'Neal, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and PITTMAN and SMITH, JJ.
I. INTRODUCTION
On June 6, 1986--in the Jackson County Circuit Court on change of venue to Warren County--a jury found Donald Eugene McNeal guilty of murdering his wife, Darlene. Judge Robert T. Mills sentenced McNeal to life imprisonment, and McNeal appealed. This Court reversed and remanded for a new trial after concluding that gruesome photographic evidence should have been deemed inadmissible. See McNeal v. State, 551 So.2d 151 (Miss.1989).
At the second trial--held in Adams County--the jury again found McNeal guilty. Judge Clinton Lockard sentenced McNeal to life imprisonment. McNeal now appeals and presents numerous issues for this Court's analysis. This Court affirms.
The voluminous evidence adduced in the second trial is essentially the same as that adduced in the first trial. For brevity's sake, this evidence will not be recited here. 1 Instead, see this Court's recitation of the evidence in McNeal, 551 So.2d at 152-57.
McNeal presented nine issues for this Court's analysis:
1. DURING VOIR DIRE AT THE TRIAL BELOW, THE JURY PANEL WAS ASKED WHETHER THEY HAD ANY FRIENDS OR RELATIVES THAT HAD BEEN VICTIMS OF CRIME. PANELIST JO ANNA CASSEL FAILED TO RESPOND TO THIS QUESTION AND CONSEQUENTLY WAS ALLOWED ON THE JURY BY DEFENSE COUNSEL AT A TIME WHEN DEFENDANT HAD NOT YET EXERCISED ALL THEIR PEREMPTORY STRIKES. DURING SUBSEQUENT VOIR DIRE JUROR CASSEL ADMITTED THAT HER DAUGHTER HAD BEEN MURDERED APPROXIMATELY ONE YEAR BEFORE THE DEATH OF THE YOUNG FEMALE VICTIM IN THE INSTANT CASE. UPON THIS UNTIMELY DISCLOSURE, THE TRIAL COURT REFUSED TO STRIKE THE JUROR FOR CAUSE OR TO ALLOW DEFENSE COUNSEL TO USE THEIR FINAL PEREMPTORY STRIKE AGAINST JUROR CASSEL. UNDER THESE CIRCUMSTANCES, DID THE TRIAL COURT ERR IN ALLOWING JUROR CASSEL TO PARTICIPATE IN THE TRIAL BELOW AND IN FAILING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THESE GROUNDS?
2. LAW ENFORCEMENT OFFICERS GAVE FALSE INFORMATION TO THE MAGISTRATE WHO ISSUED THE INITIAL SEARCH WARRANT FOR THE McNEAL RESIDENCE. SUCH STATEMENTS WERE KNOWINGLY OR INTENTIONALLY FALSE, OR MADE IN RECKLESS DISREGARD OF THE TRUTH. WHEN PURGED OF SUCH FALSE STATEMENTS, THE FACTS PRESENTED TO THE MAGISTRATE DID NOT AMOUNT TO PROBABLE CAUSE TO ISSUE THE SEARCH WARRANT EXECUTED ON OCTOBER 7, 1985. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE VARIOUS MATTERS SEIZED IN THE SAID SEARCH?
3. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS EVIDENCE SEIZED IN THE SEARCH OF OCTOBER 7, 1985 ON THE GROUNDS THAT SUCH SEARCH CONSTITUTED
AN IMPERMISSIBLE "GENERAL SEARCH?"
5. DID THE TRIAL COURT ERR IN PERMITTING DOCTOR PAUL GARD TO TESTIFY CONCERNING CERTAIN BALLISTICS MATTERS?
6. DID THE LOWER COURT ERR IN HOLDING THAT IT HAD JURISDICTION TO HEAR THE CASE AT BAR?
7. DID THE JURY DISREGARD ITS DUTY TO FOLLOW THE LAW REQUIRING THE STATE TO EXCLUDE EVERY REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE, PRIOR TO RETURNING A GUILTY VERDICT?
8. DID THE LOWER COURT ERR IN REFUSING TO ADMIT THE DECEASED'S "SUICIDE NOTE" OF FEBRUARY 3, 1984?
9. THE TRIAL COURT ADMITTED INTO EVIDENCE FIVE (5) PHOTOGRAPHS OF THE VICTIM'S DECOMPOSED BODY INCLUDING ONE PHOTOGRAPH ON THE AUTOPSY TABLE. GIVEN THIS COURT'S COMMENTS ON THESE SAME PHOTOGRAPHS IN THE APPEAL FROM THE FIRST TRIAL IN THIS CAUSE, WAS THEIR ADMISSION INTO EVIDENCE UNDULY PREJUDICIAL TO DEFENDANT?
See McNeal's Brief at 2-3; McNeal's Reply Brief at 2. These issues are paraphrased and analyzed in the next section.
II. ANALYSIS
During voir dire, the attorneys asked prospective jurors a series of questions. The attorneys did not ask each of the prospective jurors the same questions. Indeed, the attorneys inadvertently failed to ask one of them--Jo Anna Cassel--the following critical question: Whether a member of her family has been a victim of a crime? Had the attorneys asked Cassel this question, they would have learned that her daughter had been victimized six years earlier. Be that as it may, the attorneys--both the State and the defense--were unaware of this information concerning Cassel's daughter when they accepted Cassel as a juror.
Upon accepting Cassel as a juror but before filling the entire panel, the attorneys continued to question the remaining prospective jurors:
State: Has anybody been a victim of a crime? Or anyone's family or close friend been a victim of a crime? You've already answered.
Cassel: No, I didn't. [Remember--This question was not being addressed to Cassel; she had already been accepted as a juror.]
State: Oh, you didn't. Okay. I'm sorry.
Cassel: I had a daughter that was murdered.
State: Okay. How long ago was that?
Cassel: Six years.
State: Was that here in Adams County?
Cassel: No, sir.
....
McNeal (McNeal's attorney): Do you think that--do you feel uncomfortable about that--the fact that this is a murder case, does that have any effect on you?
Cassel: No.
McNeal: You think you could be fair?
Cassel: Yes.
McNeal: Do you feel like ... this ... murder case has any relationship to that?
Cassel: (Shook head, indicating no.)
After filling the panel, McNeal requested that Cassel be excused for cause. The judge explained his decision to deny the request:
The problem that the Court has is, she was accepted, the State has gone on and exercised its challenges and tendered twelve more to you at this time. If I allow you to go back and strike her, I can't reopen it to the State to withdraw their strikes and start over from this point of the trial, because those jurors have been excused. The Court doesn't mind doing something irregular or unusual Vol. IV, at 202-04. McNeal now contends that the judge erred.
if it's going to meet the ends of justice, Mr. Holt and Mr. Kerr. If it would meet the ends of justice, this Court wouldn't hesitate. But I just--at this point, based on what the witness has said before the Court, I would not excuse her for cause, as I've said, and I will not--I don't think the Court should remove her at this point. She said she'd be fair and impartial, so I'm going to overrule your motion to strike her at least. You do have one more strike. Of course, that person has been accepted and, as I said, the State has gone on and we've passed this lady a good ways. The logistics of trying to do it at this time to allow you to go back and strike, I would like to, but I just don't think it's the right thing to do. I think it would throw everything out of kilter. So, I'm going to overrule your motion and let you go on and strike your next defendant, whatever. You've got one more strike and you've been out, considering it. I'll give you a few minutes to decide which ones you want to strike. But I think I'm going to let her remain on the jury. She has been accepted, and I think at this point there is no grounds for the Court to change that.
In their briefs, both parties discuss at great length the law which they perceive to be applicable to analysis of this issue. Neither party, however, cited Myers v. State, 565 So.2d 554 (Miss.1990), which is dispositive.
In Myers, the defendant was being tried for unlawfully selling alcoholic beverages when the State learned that one of the jurors' husbands had been convicted of bootlegging. The State learned of this information after the State and the defense had rested but before the case was submitted to the jury for its consideration. The State requested that the juror, who failed to reveal the information during voir dire, be excused; the judge granted the request. In affirming, this Court provided instruction on analysis of such issues.
"[A] party who fails to object to the jury's composition before it is impaneled waives any right to complain thereafter." Myers, 565 So.2d at 557 (emphasis added) (citing cases). In view of this unequivocal principle, this Court could conclude that McNeal waived his right to complain about Cassel since McNeal failed to object before she was impaneled.
This Court, however, will look beyond the procedural bar--at which point, Miss.Code Ann. Sec. 13-5-67 (1972) will be considered. This statute provides that only two circumstances exist where a juror may be excused once accepted. The first circumstance is where the juror is "unable" to perform her duties. The second is where the juror is "disqualified." In this case, Cassel was not "unable" to serve as a juror; therefore, this Court must decide whether she was "disqualified." Miss.Code Ann. Sec. 13-5-1 (1972) explains qualifications for jury service and declares ineligible anyone who has been "convicted of an infamous crime." Clearly, no one suggests that Cassel had been convicted of an infamous crime. Miss.Code Ann. Sec. 13-5-67 (1972) additionally provides that a juror may be disqualified for withholding or misrepresenting information when a "clearly worded" question was posed during voir dire. In this case, Cassel neither withheld nor misrepresented information. Indeed, Cassel volunteered the information upon realizing the attorneys' oversight or failure to ask her about her murdered daughter.
In short, research reveals no case or statutory law which could be construed to disqualify Cassel simply because a member of her family was the victim of a crime. Accord with Myers, 565 So.2d at 557 (...
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