Roach v. State
| Citation | 116 So.3d 149 |
| Decision Date | 06 November 2012 |
| Docket Number | No. 2011–CA–00162–COA.,2011–CA–00162–COA. |
| Parties | Jimmie ROACH a/k/a Jimmie C. Roach a/k/a Jimmy Roach, Appellant v. STATE of Mississippi, Appellee. |
| Court | Court of Appeals of Mississippi |
OPINION TEXT STARTS HERE
Jane E. Tucker, attorney for appellant.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
Before LEE, C.J., ISHEE and FAIR, JJ.
LEE, C.J., for the Court:
¶ 1. Jimmie Roach appeals the Hinds County Circuit Court's denial of his motion for post-conviction relief (PCR), asserting a juror was exposed to extraneous information supplied by law enforcement. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. A Hinds County jury convicted Roach of possession of cocaine and possession of hydromorphone. Roach was sentenced as a habitual offender and ordered to serve forty-eight years on the cocaine-possession charge and sixty years on the hydromorphone-possession charge, with both sentences to be served consecutively in the custody of the Mississippi Department of Corrections. This Court reversed and remanded Roach's conviction on a search-and-seizure issue. Roach v. State, 7 So.3d 932, 941 (¶ 20) (Miss.Ct.App.2007). However, the Mississippi Supreme Court granted the State's petition for certiorari and reinstated and affirmed the judgment of conviction and sentence. Roach v. State, 7 So.3d 911, 928 (¶ 42) (Miss.2009).
¶ 3. Roach received permission to file a motion for post-conviction relief. This motion was filed September 16, 2010. After a hearing, the trial court denied Roach's motion for post-conviction relief. Roach now appeals, asserting a juror was exposed to extraneous information supplied by law enforcement; thus, his conviction should be reversed for a new trial. Finding no merit to this argument, we affirm.
STANDARD OF REVIEW
¶ 4. A trial court's denial of a motion for post-conviction relief will not be reversed absent a finding the trial court's decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, the proper standard of review on appeal is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).
DISCUSSION
¶ 5. In his only issue on appeal, Roach contends a juror, Derrick Tate, overheard two law enforcement officers discussing Roach's possible sentence. This occurred during a recess in Roach's trial. Tate contends he heard the officers stating Roach could get five to eight years in prison if convicted. Tate then asked the officers, “five to eight years?” The officers responded affirmatively. During the post-conviction hearing, Tate stated this may have influenced his vote. However, Tate did admit the evidence produced during trial indicated Roach's guilt. Tate stated, “I still feel that based from [sic] the testimony that he's still guilty.”
¶ 6. R.W. Spooner, a lieutenant with the Hinds County Sheriff's Department, testified during the hearing. Spooner, who had previously testified during Roach's trial, denied he had been in the hallway discussing Roach's possible sentence with another officer. Spooner stated he knew Roach had turned down an offer of twenty years, and he was aware of the amount of narcotics found with Roach; thus, he had no reason to think Roach would get sentenced to as little as five to eight years.
¶ 7. Tate also told Thomas Kesler, a Hinds County District Attorney, he did not approach the officers. This conversation occurred when Kesler and R.D. Thaggard served a subpoena on Tate. Tate admitted to Kesler that some of the information in the affidavit Tate was asked to sign by Roach's counsel was inaccurate. Although a member of Roach's family contends Tate approached him after Roach's trial and informed him of Tate's conversation with the two officers, Tate denied this had happened. Upon questioning by the trial court, Tate admitted he voted guilty because the evidence was sufficient to convict Roach. Tate also stated he would have found Roach guilty regardless of what he may have heard the two officers saying.
¶ 8. Post-conviction relief shall be granted when there is evidence of material facts, not previously presented or heard, that requires vacation of the conviction or sentence. Miss.Code Ann. § 99–39–5(1)(e) (Supp.2011). Newly discovered evidence sufficient to warrant a new trial must be evidence that “could not have been discovered by the exercise of due diligence at the time of trial, as well as being almost certainly conclusive that it would cause a different result.” Frost v. State, 781 So.2d 155, 158 (¶ 7) (Miss.Ct.App.2000). At the conclusion of the hearing, the trial court denied Roach's request for relief, noting Tate had given as many as five versions as to what occurred the day he purportedly overheard the two officers. The trial court stated each version of Tate's story “was what the asking party wanted to hear unfortunately.” Upon review of the record, we agree with the trial court; thus, we find this issue is without merit.
¶ 9. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST–CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
¶ 10. Because I submit that this case should be remanded to the trial court for further evidentiary hearing consistent with Gladney v. Clarksdale Beverage Co., 625 So.2d 407 (Miss.1993) and James v. State, 912 So.2d 940 (Miss.2005), I respectfully dissent from the majority's opinion. I will first review the evidence presented at the evidentiary hearing in the trial court and then review Mississippi law as applied to the facts of this case.1
¶ 11. I respectfully submit that the evidence in the record clearly supports a threshold finding that Tate heard extraneous prejudicial information about Roach's possible sentence. The supreme court addressed the sufficiency of threshold showings in Lattimore v. State, 958 So.2d 192, 204 (¶ 39) (Miss.2007), explaining that, at a minimum, good cause must exist to show improper outside influence or extraneous prejudicial information to overcome the presumption of an impartial jury. While recognizing the minimal standard of good cause, the supreme court further provided that the preferable showing should clearly substantiate that a specific, non-speculative impropriety has occurred. Id. (quoting Gladney, 625 So.2d at 419).
¶ 12. Tate's testimony under oath at the evidentiary hearing before the trial court and his post-trial affidavit were consistent about the key concern of the prejudicial extraneous information regarding Roach's sentence if found guilty. Tate remained consistent about hearing information from law enforcement officers in the hallway during trial even when questioned by the State's investigator and by the prosecutor. I respectfully submit that the record shows that Roach met at least the minimal threshold showing of good cause to believe that he heard extraneous prejudicial information during trial warranting an inquiry into whether the jury heard the extraneous prejudicial information and, if so, whether it was reasonably possible that the information altered the verdict. Highlighting the need to conduct further inquiry, Tate testified that other people were also in the hallway during trial when the officers communicated with Tate about Roach's sentence for the offenses being tried. I now turn to examine Tate's testimony about the extraneous prejudicial information.
¶ 13. At the post-trial evidentiary hearing considering Roach's post-conviction relief petition, Tate was impeached as to the details of his affidavit, but Tate remained consistent that he heard extraneous information from the officers in the hallway pertaining to Roach's sentence in the event of a guilty verdict. The record shows that Tate was impeached as to the details in his affidavit pertaining to whether he initially stopped the officers in the hallway to inquire as to Roach's sentence. Tate testified that he overheard the officers discussing Roach's sentence, and upon hearing the sentence, he then turned to them and inquired. In contradiction to his affidavit, Tate denied approaching the officers first in the hallway. Tate was also questioned and impeached as to whether this information impacted his vote on the verdict, notwithstanding the limits of Mississippi Rule of Evidence 606(b) and the passage of approximately six years between the trial and the post-trial hearing. When investigating juror misconduct or the influence of extraneous prejudicial information, we must acknowledge that Mississippi precedent and Rule 606(b) prohibits one from asking a juror such questions and leaves the determination of the impact on the jury for the trial judge to decide. Interestingly, Tate testified that after receiving his affidavit about the communication, the State's investigators told him that they were going to investigate him, but Tate denied receiving any overt threats. Tate never wavered in his testimony that he overheard the officers' conversation in the hallway during trial.
¶ 14. The testimony of the State's investigator, R.D. Thaggard, an investigator with the Hinds County District Attorney's Office, also shows that Tate remained consistent about hearing the officers' conversation in the hallway during trial. Thaggard testified that Tate admitted not reading his affidavit before signing it, but Thaggard testified that Tate did not deny hearing the officers' conversations in the hallway during trial. Thaggard also admitted telling Tate that he (Tate) would be investigated. Then, Thomas Kesler, a Hinds County district attorney, examined Kenny Lewis on the stand as to what Lewis observed during a pretrial interview...
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Roach v. State
...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 happen......
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