Roach v. State

Decision Date20 June 2013
Docket NumberNo. 2011–CT–00162–SCT.,2011–CT–00162–SCT.
Citation116 So.3d 126
PartiesJimmie ROACH a/k/a Jimmie C. Roach a/k/a Jimmy Roach v. STATE of Mississippi.
CourtMississippi Supreme Court

OPINION TEXT STARTS HERE

Jane E. Tucker, Jackson, attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

COLEMAN, Justice, for the Court:

¶ 1. Jimmie Roach filed a motion for post-conviction relief claiming he was entitled to a new trial based on newly discovered evidence that during his trial a juror was exposed to extraneous information supplied by law enforcement personnel involved in the case. The motion was denied. Roach appealed, and the Court of Appeals affirmed. Roach filed a petition for writ of certiorari, which the Court granted.

Facts and Procedural History

¶ 2. In 2004, Jimmie Roach was convicted by a jury in the Hinds County Circuit Court, First Judicial District, of possession of cocaine and possession of hydromorphone. Roach was subject to enhanced sentencing under Mississippi Code Sections 41–29–147 and 99–19–81 as a subsequent drug offender and habitual offender, respectively. SeeMiss.Code Ann. §§ 41–29–147 (Rev.2009); 99–19–81 (Rev.2007). He was sentenced to forty-eight years on the cocaine-possession charge and sixty years on the hydromorphone-possession charge, the sentences to be served consecutively in the custody of the Mississippi Department of Corrections. Roach appealed, and the Court of Appeals reversed and remanded for a new trial on a search warrant issue. Roach v. State, 7 So.3d 932, 933 (¶ 1) (Miss.Ct.App.2007). The State filed a petition for writ of certiorari, which was granted; the Court reinstated and affirmed the trial court's judgment of conviction and sentence. Roach v. State, 7 So.3d 911, 928 (¶ 42) (Miss.2009).

¶ 3. In May 2010, Roach filed an application for permission to file a motion for post-conviction relief in the trial court. We granted Roach's application, and he filed, pro se, a motion for post-conviction relief on September 16, 2010. Roach asserted, inter alia, that he was entitled to a new trial based on newly discovered evidence. He claimed that a juror had been exposed to extraneous information supplied by law enforcement personnel during his trial. Roach submitted the affidavit of Juror Derrick Tate, in which Tate explained that during Roach's trial he had approached two police officers, who were the State's witnesses, and asked them how much time Roach would get if he was found guilty. According to Tate's affidavit, the officers replied that Roach would get five to eight years. The affidavit provided, “As a result of being so advised[,] I voted guilty[.]

¶ 4. A hearing on Roach's motion for post-conviction relief took place on December 15, 2010. Roach's brother, Preston Roach, testified at the hearing that, after the trial and sentencing, he was standing outside the courthouse with family members discussing Roach's sentence when Tate approached. Tate joined the conversation and made a statement that he had heard the sentence would not be more than five to eight years. Preston testified that he mentioned Tate's statement to Roach's appellate attorney some time between 2004 and 2006, while Roach's appeal was ongoing. Tate's affidavit was procured March 31, 2010.

¶ 5. Tate provided testimony at the hearing inconsistent with his affidavit. Tate testified that he did not approach the officers initially, rather, the officers were talking among themselves and he overheard them say if Roach was convicted he would get five to eight years. At that point, Tate turned to them and asked, “Five to eight years?” The officers responded, “Yes.” Tate testified that he did not tell any other jurors about the alleged conversation, but that it was possible that other jurors overheard it because he was not the only one in the hall.

¶ 6. Tate's affidavit identified Officers R.W. Spooner and Shannon Bullock as the two officers he spoke with in the hall. During the hearing, Tate said he did not even recognize those names and that he did not supply the officers' names to the investigator who prepared the affidavit. The investigator determined from the trial court record which officers were called as witnesses at the trial, and he inserted those names in the affidavit when he typed it for Tate. Tate admitted that he did not read the affidavit before he signed it.

¶ 7. Spooner, a lieutenant with the Hinds County Sheriff's Department, testified as a witness for the State during Roach's trial. He also testified at the hearing on Roach's motion for post-conviction relief. Spooner testified that he could not recall discussing Roach's possible sentence with another officer in the hallway during the trial. Further, Spooner stated that he would not have speculated that Roach's sentence would be between five and eight years because he was aware of the amount of narcotics found with Roach and he knew Roach had turned down a plea offer of twenty years.

¶ 8. At the hearing, Tate was asked multiple times by his attorney, the State's attorney, and the judge whether the information from the officers affected his verdict. Tate's response was different each time. His affidavit indicated that he had voted guilty based on being advised that Roach would get only five to eight years, and at the hearing, his testimony initially supported the veracity of his affidavit. At another point, he testified that the information “may have” influenced his decision. Later, he said that his decision was “mainly based” on the evidence, then later, that the information “had some influence” on his decision. Then he testified that he would have found Roach guilty even without hearing the speculation of a five-to-eight-year sentence, and that he “derived that [Roach] was guilty” based on the testimony and the evidence. He said several times that he “felt that [Roach] was guilty” but he felt that five to eight years was a “fair sentence.”

¶ 9. At the close of the hearing, the circuit judge stated that Tate had responded to each questioner with what that person wanted to hear. The judge concluded that he could not consider Tate's testimony because it was inconsistent. The judge held that Roach had failed to present sufficient facts upon which relief could be granted, and he denied Roach's motion for post-conviction relief.

¶ 10. Roach appealed on the newly discovered evidence issue, and the Court of Appeals affirmed. Roach v. State, 116 So.3d 149, (Miss.Ct.App.2012). The Court of Appeals noted the trial court's finding that Tate had given at least five different versions of what happened with the two officers and that Tate had tailored his story to “what the asking party wanted to hear.” Id. at 151 (¶ 8). On that basis, the Court of Appeals found the issue to be without merit. Id. Judge Carlton dissented and discussed the issue of extraneous information received by a juror. The majority did not address Judge Carlton's dissent.

¶ 11. Judge Carlton explained that Tate's testimony was consistent in regard to hearing the extraneous information from law enforcement officers, and the “contradiction” in Tate's testimony pertained only to whether he approached the officers first or whether he overheard the officers discussing the sentence. Id. at 151–52 (¶¶ 12, 14) (Carlton, J., dissenting). Judge Carlton found that the record supported “a threshold showing of receipt of extraneous prejudicial information by a juror.” Id. at 152 (¶ 15). Therefore, she would have remanded the case for further evidentiary hearing and to fully reconvene the jury “to determine if other jurors were exposed to the information regarding Roach's sentence and, if so, if it was reasonably possible that the information impacted the verdict.” Id. at 152–53, 156 (¶¶ 15, 18).

¶ 12. The Court of Appeals denied Roach's motion for rehearing. Roach timely filed a petition for writ of certiorari, which the Court granted. Roach asserts that the Court of Appeals erred in affirming the trial court “for the reasons stated in the dissent by [Judge] Carlton.” He asserts that the case should be remanded “for an evidentiary hearing to determine whether it was reasonably possible that the extraneous communication testified to by Derrick Tate altered the verdict.”

Discussion

¶ 13. The only issue on appeal is whether Roach was entitled to post-conviction relief based on newly discovered evidencethat a member of the jury was exposed to extraneous information. To warrant relief on the ground of “newly discovered evidence,” the petitioner must prove that the evidence “will probably produce a different result or induce a different verdict, if a new trial is granted.” Crawford v. State, 867 So.2d 196, 204 (¶ 9) (Miss.2003) (internal citations omitted). The instant matter does not present a true case of “newly discovered evidence,” because the “evidence” at issue—that a juror heard an officer say Roach could get five to eight years if convicted—would not have been introduced as evidence at trial and does not go to the weight or sufficiency of the evidence against Roach. Based largely on Judge Carlton's dissent, Roach's claim has morphed into a claim that the trial court incorrectly handled the alleged extraneous communication with a juror, which is how we will address the issue.

¶ 14. “Post-conviction proceedings are for the purpose of bringing to the trial court's attention facts not known at the time of judgment.” Williams v. State, 669 So.2d 44, 52 (Miss.1996) (citing Smith v. State, 477 So.2d 191 (Miss.1985)). The Post–Conviction Collateral Relief Act provides for limited review of “those matters which in practical reality, could not or should not have been raised at trial or on direct appeal.” Williams, 669 So.2d at 52 (citing Turner v. State, 590 So.2d 871 (Miss.1991)). See alsoMiss.Code Ann. § 99–39–3(2) (Rev.2007).

¶ 15. The burden of proof “is on the petitioner to show ‘by a preponderance of the evidence’ that he is entitled to relief.” Doss v....

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