Young v. State

• Decision Date: 30 November 1977
• Docket Number: No. 50023,50023
• Citation: 352 So.2d 815
• Parties: Billy Joe YOUNG v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 815

352 So.2d 815

Billy Joe YOUNG v. STATE of Mississippi.

No. 50023.

Supreme Court of Mississippi.

Nov. 30, 1977.

Joe B. Timmons, Tupelo, for appellant.

A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

SUGG, Justice, for the Court:

The defendant, Billy Joe Young, was convicted of armed robbery and sentenced to a term of twenty years imprisonment by the Circuit Court of Lee County. Defendant first contends that the trial judge should have granted his motion for a mistrial. The motion follows:

May it please the Court, at this time the defendant would like to move for a mistrial today for the following reason: That one of the members of the jury panel has indicated that they are concerned because they have had a former relationship with the defendant or his family. Shows not only concern but seems to be upset concerning this matter.

It is our position that with one of the members of the panel being upset, showing concern, it has to influence the rest of the jury panel. Of course, we cannot know whether they have discussed it or what has been said among them, but they have been together now for a day and a night. They have been together at three meals.

We feel that the jury as it is made up now could not give the defendant a fair trial in that one of the members has shown concern or may have consulted with some of the other members of the jury panel concerning the defendant and concerning her past relationship with the defendant.

The circumstances that led up to this motion are rather unusual. Before the jury was questioned for cause defendant was permitted to sit in the courtroom rather than with his counsel at the counsel table within the bar of the court because the defendant felt that a critical question would be the identification or lack of identification of the defendant by witnesses to be presented by the state. At the beginning of the second day of the trial, the trial judge informed both the state and defense attorneys that he was advised by one of the bailiffs for the jury that a juror stated to the bailiff that she recognized the father of the defendant in the courtroom and she now knew who the defendant was and what family he belonged to. The judge further advised the parties that the juror told the bailiff this fact gave her some concern and the bailiff stated that the juror appeared to be upset. Defendant moved for a mistrial for the reasons stated above and the juror was then examined by the trial judge and the attorneys. The judge satisfied himself that the juror could act fairly and impartially even though she was acquainted with the family of defendant. The state had no objection to excluding the juror and using the alternate juror. However, the defendant did not want to excuse the juror and use the alternate juror, but insisted on his motion for a mistrial.

The juror had not discussed the case with any of the jurors except to tell the juror with whom she shared a room that she knew defendant's family and, had she been aware of that, she would have preferred not to have been on the jury. Based on the above events the trial judge ruled as follows:

All right. We'll proceed on that basis.

Incidentally, the reason I overruled the motion for a mistrial is that the Court requested that the jurors not talk about the case even among themselves. The juror states that she has not talked about this case. That the only thing she did was tell the lady that she stayed with last night that she did know the family and had she been aware of this fact, she would preferred not to have been on the jury. The Court would not think that is sufficient to have any effect on another juror one way or the other, nor does it consider that a discussion of the case.

All right. I'm going to let the jury stay constituted as it is.

Defendant argues that the juror's conversation with another juror, her concern, and her admitted condition of being upset would have the effect of influencing the other jurors on the panel with possible prejudice to the defendant. We have not been able to find any authority on facts identical or similar to those outlined above and none has been cited. The juror's reluctance to serve as a juror because of her acquaintance with the defendant's family, coupled with her expressed concern to one juror without indicating how she felt about the defendant or his family, without more, does not convince us that the other members of the panel would be influenced or prejudiced either for or against the defendant. The trial judge was satisfied that the juror would decide the case on the law and evidence and not on the basis of her acquaintance with defendant's family. We are of the opinion that the judge handled this very delicate situation in the proper manner and did not commit error by overruling the motion for a mistrial.

Defendant also contends that he was denied a public trial contrary to the provisions of Section 26 of the Mississippi Constitution of 1890. After the jury was empanelled the state moved that an individual, who was possibly the brother of defendant and who resembled the defendant, be excluded from the courtroom during the questioning of witnesses for the state who would be called on to make an in-court identification of the defendant. The state's attorney noted that defendant was sitting in the part of the courtroom reserved for spectators rather than at the table with his counsel, and had no objection to the defendant sitting in the courtroom among the spectators. The state argued that having a person with a marked resemblance to defendant sitting near the defendant among the spectators was for the purpose of confusing any in-court identification of the defendant by the state's witness. The trial judge sustained the motion, whereupon, defendant moved for a mistrial and, on appeal, argues two propositions: (1) Exclusion of any person from a courtroom denies defendant a public trial and (2) a witness should be so positive in his in-court identification of the accused that the removal of any person from the courtroom was unnecessary.

In our opinion the first argument under this assignment of error is not well taken because exclusion of one person from the courtroom did not deny defendant a public trial. In Norwood v. State, 258 So.2d 756 (Miss.1972) the court conducted a hearing on motions of the defendant to suppress evidence and suppress declaration of the defendant from approximately 4:00 o'clock p. m. until 6:00 o'clock p. m. The hearing was held outside the presence of the jury and during the course of the hearing the courthouse doors were locked at 5:30 p. m. Defendant moved for a mistrial on the grounds that he was denied a public trial. The motion was overruled, and the trial judge commented that he had no knowledge of any door being locked, that many spectators had been in attendance from 8:30 in the morning until after 5:00 p. m., and that spectators were present in the courtroom during the hearing on defendant's motions. We stated in Norwood :

The term 'public trial' contemplated by our Federal and State Constitutions is a trial which is not secret and one that the public is free to attend. To a great extent it is a relative term and its meaning depends largely on the circumstances of each particular case. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970). (258 So.2d at 763).

We hold that exclusion of one person from the courtroom does not violate the right of the defendant for a public trial as...