Wilson v. State

• Decision Date: 28 July 2022
• Docket Number: 2021-KA-00473-SCT
• Citation: 343 So.3d 1041
• Parties: Dwayne Leland WILSON v. STATE of Mississippi
• Court: Mississippi Supreme Court

343 So.3d 1041

Dwayne Leland WILSON
v.
STATE of Mississippi

NO. 2021-KA-00473-SCT

Supreme Court of Mississippi.

July 28, 2022

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson, HUNTER N. AIKENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALLISON KAY HARTMAN

EN BANC.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Dwayne Wilson appeals his conviction of aggravated assault under Mississippi Code Section 97-3-7(2)(a) (Rev. 2020). Wilson contends that his second trial violated the constitutional protection against double jeopardy. Additionally, Wilson claims that the verdict was against the overwhelming weight of the evidence.

¶2. Although the protections against double jeopardy had attached, the trial court did not abuse its discretion by finding manifest necessity to grant a mistrial. Furthermore, Wilson's verdict was not against the overwhelming weight of the evidence. Accordingly, this Court affirms the judgment of the Jones County Circuit Court.

PROCEDURAL HISTORY

¶3. A grand jury indicted Wilson on one count of aggravated assault under Section 97-3-7(2)(a). The indictment charged that Wilson "unlawfully, willfully, purposely and feloniously attempt[ed] to cause or knowingly caused bodily injury to ... Stacy Pierce[ ] by striking him multiple times in the ribs and mouth with a bat, a means likely to produce death or serious bodily harm[.]" Wilson pled not guilty.

¶4. Trial was set for November 17, 2020 (the first trial). During the first trial, defense counsel, during opening statements, improperly referenced the fact that Pierce, the victim and witness, was incarcerated on an unrelated felony DUI. The State moved for a mistrial, which the trial court granted.

¶5. The trial was reset, and Wilson moved to dismiss the charges based on double jeopardy, arguing that there was no "manifest necessity" for a mistrial. Before the next trial, the State and defense counsel filed numerous motions relating to the

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admissibility of Pierce's prior convictions. The trial court found that evidence of Pierce's convictions could be admitted if Wilson laid the proper foundation and followed the procedure for introducing character evidence under Mississippi Rules of Evidence 609, 403, and 404. In fact, at Wilson's second trial, information about Pierce's convictions was admitted.

¶6. The second trial began on April 6, 2021. A Jones County jury convicted Wilson of one count of aggravated assault under Section 97-3-7. Wilson was sentenced to fifteen years in the custody of the Mississippi Department of Corrections.

¶7. This appeal followed. Wilson makes two arguments. First, Wilson argues that the second trial violated the constitutional right against double jeopardy because there was no manifest necessity for a mistrial. Next, Wilson argues that his conviction is against the overwhelming weight of the evidence because Wilson's actions had been in self-defense.

DISCUSSION

I. Double Jeopardy

¶8. On appeal, double jeopardy is reviewed de novo. Brent v. State , 296 So. 3d 42, 49 (Miss. 2020) (citing Stewart v. State , 131 So. 3d 569, 574 (Miss. 2014) ).

¶9. "[T]he Fifth Amendment protection against ‘double jeopardy attaches in any criminal proceeding [in Mississippi] at the moment the trial jury is selected and sworn to try the case.’ " Montgomery v. State , 253 So. 3d 305, 310 (Miss. 2018) (quoting Jones v. State , 398 So. 2d 1312, 1314 (Miss. 1981) ). In Wilson's first trial, the jurors were empaneled and sworn in before the trial court granted a mistrial. Therefore, the protections afforded by double jeopardy had attached.

¶10. Wilson argues that the second trial violated the constitutional protection against double jeopardy because his counsel's inflammatory comment during opening statements did not create a manifest necessity to end the first trial. Wilson claims that one improper statement is not so "highly prejudicial as to warrant a mistrial." The State argues that the trial court did not abuse its discretion because defense counsel's inflammatory statement created a manifest necessity to warrant a new trial.

¶11. "If a mistrial is granted upon the court's motion or upon the State's motion, a second trial is barred because of double jeopardy, unless taking into consideration all the circumstances that there was a ‘manifest necessity’ for the mistrial." Jenkins v. State , 759 So. 2d 1229, 1234 (Miss. 2000) (citing Watts v. State , 492 So. 2d 1281, 1284 (Miss. 1986) ).

[T]here is no simple rule or formula defining the standard of "manifest necessity" or when exceptional circumstances exist justifying a declaration of mistrial by the trial court. The question is not easily answered. ... [T]he determinations must be made by the trial judge fulfilling his somber responsibility as to when justice requires him to declare a mistrial.

Harris v. State , 321 So. 3d 556, 561 (Miss. 2021) (emphasis added) (quoting Jenkins , 759 So. 2d at 1235 ). "The fact that there is no explicit finding on part of the trial court of manifest necessity is not reversible error if the record supports such a finding." Spann v. State , 557 So. 2d 530, 532 (Miss. 1990) (citing Arizona v. Washington , 434 U.S. 497, 513-14, 98 S. Ct. 824, 54 L.Ed. 2d 717 (1978) ).

¶12. Manifest necessity may be found when the jury fails to agree on a verdict; when jurors are biased; when the jury is otherwise tainted; when the jury is

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improperly separated; and "when jurors demonstrate their unwillingness to abide by the instructions of the court." Jenkins , 759 So. 2d at 1235 (citing Spann , 557 So. 2d at 532 ). Manifest necessity may also exist when a juror failed to divulge familial relations to a law enforcement officer during venire. Id. at 1235 (citing Box v. State , 610 So. 2d 1148, 1152-53 (Miss. 1992) ).

¶13. When the trial court declares a mistrial based on a biased or deadlocked jury, the trial court "is entitled to ‘broad deference.’ " Montgomery , 253 So. 3d at 311 (citing United States v. Fisher , 624 F.3d 713, 718 (5th Cir. 2010) ). Yet when a mistrial is granted because of "the unavailability of critical prosecution evidence[,]" then the trial court's decision "must survive the ‘strictest scrutiny.’ " Id. at 311 (internal quotation marks omitted) (citing Fisher , 624 F.3d at 718 ). Furthermore, a trial court's decision is also reviewed under the strictest scrutiny "when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused." Washington , 434 U.S. at 508, 98 S.Ct. 824 (citing Downum v. United States , 372 U.S. 734, 736, 83 S. Ct. 1033, 10 L.Ed. 2d 100 (1963) ).

¶14. During opening statements at the first trial, defense counsel said, "I've not spoken with Mr. Pierce. I know he's in custody right now for a drug charge." The State objected and moved for a mistrial. Defense counsel responded and said that Pierce's incarceration for an unrelated drug charge was relevant to Pierce's "bad" character. The trial court excused the jury and asked the court reporter to repeat defense counsel's statement. The trial court also requested a copy of Mississippi Rule of Criminal Procedure 23.5.

¶15. The State noted that Pierce had not been convicted of the charge. The State's position was that defense counsel was trying to impugn Pierce's character with an irrelevant charge that had not yet been proved. Notably, the State agreed that Pierce's prior aggravated assault convictions were permissible in opening statements.

¶16. Defense counsel countered and argued that Pierce's character could be attacked. Defense counsel argued that any reference to Pierce's character was far from prejudicial because, as the State had earlier admitted, Pierce had been convicted of aggravated assault and had a questionable character.

¶17. The trial court noted that Pierce's recent arrest was for something unrelated to Wilson's aggravated assault charge. The trial court said that Pierce's unrelated arrest occurred after the alleged aggravated assault and "would not have any relevance to this incident that we're here on trial for today." The trial court said that "something that has happened since this incident – I mean, the implication is to try to say to the jury that since he's been subsequently arrested for a drug offense, he must have been acting in conformity back at the time ... [of the aggravated assault]."

¶18. At the first trial, the trial court grappled with whether a limiting instruction could purge the taint of defense counsel's opening statement. The trial court emphasized the "irreparable prejudice" caused by defense counsel's statements. After consulting the rules, the trial court found that even if Pierce, the victim, were convicted of his drug charges,

it would not necessarily be relevant in this case because the charge has nothing to do with his character for truthfulness ; and the second thing is that he's not been convicted of that. But you all now have it before you that the man that is – that the State claims to be the victim in

343 So.3d 1047

this case is coming over to the trial straight from the jail ; and in my judgment , that is substantial and irreparable prejudice to the case of the State of Mississippi, the movant in this case.

(Emphasis added.) Therefore, the trial court granted a mistrial for concerns that the jury would be biased. Consequently, the trial court's decision is "entitled to broad deference." Montgomery , 253 So. 3d at 311 (citing Fisher , 624 F.3d at 718 ).

¶19. Wilson argues that the trial court should have issued a limiting...