Osborne v. State

• Decision Date: 10 March 2011
• Docket Number: No. 2009–KA–00658–SCT.,2009–KA–00658–SCT.
• Citation: 54 So.3d 841
• Parties: Emerson OSBORNE a/k/a Emmerson Osbornev.STATE of Mississippi.
• Court: Mississippi Supreme Court

54 So.3d 841

Emerson OSBORNE a/k/a Emmerson Osborne

v.STATE of Mississippi.

No. 2009–KA–00658–SCT.

Supreme Court of Mississippi.

Jan. 6, 2011.Rehearing Denied March 10, 2011.

Office of Indigent Appeals by Justin T. Cook, attorney for appellant.Office of the Attorney General by Ladonna C. Holland, attorney for appellee.Before WALLER, C.J., LAMAR and PIERCE, JJ.WALLER, Chief Justice, for the Court:

¶ 1. This appeal arises from Emerson Osborne's conviction for capital murder in the Bolivar County Circuit Court. Osborne received a life sentence without the possibility of parole. Finding no error, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Eighty-six-year-old Lucy Jackson lived alone in Shelby, Mississippi. Jimmy Giles had attended church with Jackson, so occasionally he would check on her. Osborne and Otis Braboy had observed their arrangement and planned to rob Jackson. On January 14, 2006, Osborne and Braboy approached Giles and demanded that he knock on Jackson's door. Giles complied. After he identified himself, Jackson unlocked and opened the door. Osborne and Braboy rushed in and assaulted Jackson. Giles subsequently fled the scene. Osborne and Braboy ransacked the house but managed to flee with around forty dollars. Police discovered Jackson's body two days later. She had died from a head injury resulting from blunt-force trauma.

¶ 3. Osborne, Giles, and Braboy were indicted on one count of capital murder with the underlying felony of robbery. The jury found Osborne guilty of capital murder, and the trial court sentenced him to life imprisonment without the possibility of parole. Osborne filed a Motion for New Trial or in the Alternative, a Judgment Notwithstanding the Verdict, which the trial court denied. The trial court also denied Osborne's two pro se motions as both procedurally barred and without merit. Osborne now appeals to this Court.

DISCUSSION

I. The trial court did not abuse its discretion in refusing to declare a mistrial.

¶ 4. The decision to grant a mistrial rests within the sound discretion of the trial court. Evans v. State, 725 So.2d 613, 649 (Miss.1998) (citations omitted). This Court will reverse the trial court's decision only for an abuse of discretion. Id. Osborne contends that the trial court erred when it denied his motion for a mistrial after his counsel informed the court of a juror's improper statement made during voir dire. We disagree.

¶ 5. Following the guilt phase of the trial, Christopher Hull, a former member of the venire panel, told Osborne's attorney that a sitting juror had made inappropriate comments during voir dire. Defense counsel informed the trial court of the allegation and stated that Hull had identified the juror as Susie Pitts. The trial court then instructed that Hull must be brought in for sworn testimony on the matter. Within the hour, Hull testified before the trial court.

¶ 6. Hull testified that, while in the jury room, he had stated that he wanted to know whether he would serve on the jury rather than just “sitting and waiting.” In response, a panel member had stated in front of at least two other jurors that, “I wish we would just hang him and get it over with and get out of here.” Hull reprimanded the juror for her attitude, given the nature of the situation, but she did not respond. During Hull's testimony, he identified the juror by ethnicity, but he did not know the juror's name or where she worked. He also admitted that her statement may have been made out of frustration and that other members of the jury panel seemed anxious to “get out” of jury duty.

¶ 7. Defense counsel again told the court that Pitts was the juror who had made the statement, and the trial judge subsequently questioned her. Pitts could not recall making the remark, and she confirmed her impartiality prior to trial. Ultimately, the court determined her alleged statement was ambivalent and perhaps merely a poor choice of words indicating a desire to avoid jury duty like many others on the panel. The trial court also noted that it had asked a “litany of questions [during voir dire] with regard to her ability to render a fair and impartial verdict.” Based on these facts, the trial court refused to grant the defense's motion for a mistrial.

¶ 8. Osborne now argues that Pitts's statement during voir dire expressed a “conclusion of guilt” and a conclusion regarding the appropriate outcome. He further argues that when questioned during voir dire about her ability to remain impartial, Pitts should have disclosed her bias, and her failure to do so is grounds for reversal.

¶ 9. If a prospective juror does not respond to a question posed during voir dire, this Court must determine whether the question was “(1) relevant to the voir dire examination; (2) ... unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.” Odom v. State, 355 So.2d 1381, 1383 (Miss.1978). If all answers to the above questions are affirmative, then we must determine if prejudice could be inferred from the juror's failure to respond. Id.

¶ 10. In order to reach the Odom questions, Osborne must show Pitts failed or refused to respond to a specific question on voir dire. While Osborne does not point to a particular question Pitts failed to answer during voir dire, the record does not indicate that she withheld information when she was questioned about her impartiality. Hull's allegation is the only evidence supporting this conclusion, and the trial court found that it lacked merit. But, assuming all the Odom questions are answered in the affirmative, Osborne suffered no prejudice from Pitts serving as a juror during the guilt phase of his trial.

¶ 11. To show prejudice, Osborne must demonstrate the trial court's determination that the jury was fair and impartial was clearly erroneous. Ross v. State, 954 So.2d 968, 988 (Miss.2007). Before trial, the court and both attorneys repeatedly asked venire members about their ability to remain impartial and decide the case on the evidence presented. Venire members confirmed their ability to render a verdict solely on the evidence presented at trial. During individual questioning about her views on the death penalty, Pitts affirmed that she would follow the law. Her post-trial questioning did not contradict her answers on voir dire. On each of these occasions, Pitts confirmed that she could perform her duties as required by law and that she had been impartial before Osborne's trial. The trial court determined that her statement reflected an aversion to jury duty rather than bias or a preconceived notion of guilt. The trial judge repeatedly expressed the intent to grant defense counsel's request to replace Pitts with an alternate juror for the sentencing phase of Osborne's trial, although the record does not specifically state whether he acted on that intention. By virtue of his immediate perception of the witness and the events, the trial judge was in the best position to determine whether the jury was impartial. Therefore, the trial court properly exercised its discretion in refusing to grant a mistrial, and Osborne's claim for relief on this ground is denied.

II. The trial court did not err in allowing the State to impeach its own witness.

¶ 12. This Court's standard of review of a trial court's admission or exclusion of evidence is abuse of discretion. Ladnier v. State, 878 So.2d 926, 933 (Miss.2004). Reversal is proper only where “the error adversely affects a substantial right of a party.” Id. (citation omitted). Osborne contends that the trial court erred by allowing the State to impeach its own witness without an on-the-record determination that the witness was hostile. We disagree.

¶ 13. The State called Robbye Braboy, the mother of Osborne's accomplice Otis Braboy. While walking in Jackson's neighborhood on the night of the incident, she had encountered Otis, Osborne, and Giles hanging out on the street. Robbye testified that, during the encounter, Osborne had told her to go home, and she did indeed go home because she was already headed there. Believing Robbye had changed her story, the State began asking leading questions to establish that she had gone home because she feared Osborne. Defense counsel objected, arguing that the State could not impeach its own witness. The State opined that any witness could be impeached and further claimed it was “surprise[d]” by Robbye's testimony. The trial court determined the State had not crossed the line by asking leading questions. Eventually, the State asked Robbye if she had gone home because she was afraid of Osborne. Robbye answered affirmatively, and the trial court overruled the defense's objection.

¶ 14. Mississippi Rule of Evidence 607 provides that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” Miss. R. Evid. 607 (emphasis added). Before a party may introduce unsworn pretrial inconsistent statements of its witness for impeachment purposes, a party must show “surprise or unexpected hostility....” Wilkins v. State, 603 So.2d 309, 322 (Miss.1992) (emphasis added). We approved a disjunctive reading of the language in Wilkins; thus, a party may show either surprise or unexpected hostility before impeaching its own witness. Wharton v. State, 734 So.2d 985, 986–87 (Miss.1998).

¶ 15. Because the trial court did not have to determine whether Robbye had become hostile, Osborne's claim lacks merit. Further, any determination of whether the State was indeed “surprised” by her testimony would be premature. First, the record does not clearly indicate that Robbye's testimony at trial differed from her pretrial statement. Second, Osborne suffered no prejudice from the admission of any testimony elicited from Robbye. The record does not indicate that Robbye's prior inconsistent statement was ever offered for impeachment purposes, and her testimony did not provide any evidence linking...