author: COLEMAN, Justice, KITCHENS, Justice,

text:
    Jimmie ROACH a/k/a Jimmie C. Roach a/k/a Jimmy Roach v. STATE of Mississippi.
    No. 2011-CT-00162-SCT.
    Supreme Court of Mississippi.
    June 20, 2013.

      Jane E. Tucker, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   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 hydromor-phone. 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. See Miss.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 Sheriffs 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 flve-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 evidence that 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 also Miss.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. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009) (quoting Miss.Code Ann. § 99-39-23(7) (Rev.2007)). In reviewing a trial court’s decision to deny a petition for post-conviction relief, we give “deference to the circuit judge as the ‘sole authority for determining credibility of the witnesses.’ ” Doss, 19 So.3d at 694 (¶ 5) (quoting Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987)). “A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). In the case sub judice, the trial judge found that the witness lacked credibility and discounted his testimony. Without that testimony, the trial judge found no good cause existed to believe that the jury was exposed to extraneous prejudicial information or to warrant opening an investigation.

Whether Roach made a prima facie case of extraneous influence on the jury such that the trial court was required to reconvene the jury to determine whether it was reasonably possible that the information altered the verdict.

¶ 16. In his petition for certiora-ri, Roach asserts that the Court of Appeals erred in affirming the trial court “for the reasons stated in the dissent by [Judge] Carlton,” and 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.” We recognize a “general reluctance” to reconvene and question jurors “for potential instances of bias, misconduct[,] or extraneous influences” after a verdict has been reached, and such inquiries should not be entertained where it is a “mere fishing expedition.” Gladney v. Clarksdale Beverage Co., Inc., 625 So.2d 407, 418 (Miss.1993) (internal citations omitted). We also recognize that “[p]ublie policy requires a finality to litigation.” Payton v. State, 897 So.2d 921, 955 (¶ 135) (Miss.2003) (citing Martin v. State, 732 So.2d 847, 852 (Miss.1998)).

¶ 17. The need for finality notwithstanding, the Court has established a procedure for trial judges to employ when allegations of juror misconduct or extraneous information arise. Gladney, 625 So.2d at 418. When the trial court is made aware of potential juror misconduct or improper influence on the jury, the first step is to determine whether an investigation is warranted. Id. An investigation is warranted if the trial judge finds that “good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.” Id. at 419. If the trial court determines there is no “threshold showing of external influences,” the inquiry stops there. Id. See also Payton, 897 So.2d at 954 (¶ 135). If the trial judge has “good cause to believe” there was improper influence on the jury, the court should conduct a post-trial hearing. Gladney, 625 So.2d at 419. The second step is to determine whether the communication was made and the nature of the communication. Id. Finally, if the investigation reveals that the communication was made, the court must determine whether it was reasonably possible that the communication altered the verdict. Id.

A. Trial court and opposing counsel should be made aware of potential juror misconduct as expeditiously as possible.

¶ 18. As a preliminary matter, we note that “the trial court and opposing counsel must be made aware of any potential juror misconduct when this evidence is manifested.” Gladney, 625 So.2d at 418. “[I]f a juror approaches an attorney for one of the parties or the court itself, or if either subsequently learns such through alternative means, all parties involved should be made aware of the allegation as expeditiously as possible.” Id. The alleged incident occurred during Roach’s trial on September 80, 2004. Preston Roach testified that the first mention of the incident occurred immediately after the trial and sentencing, when Tate approached Roach’s family outside the courthouse. Preston testified that he told counsel about Tate’s statement between 2004 and 2006, while the direct appeal was ongoing. Tate’s affidavit was not obtained until March 31, 2010. Roach’s motion for post-conviction relief was filed on September 16, 2010, nearly six years after his trial.

¶ 19. In a recent case before the Court, the jury verdict was returned on June 3, 2009, a juror’s affidavit disclosing potential juror misconduct was taken on June 5, 2009, and a motion notifying the court of the misconduct was filed on June 12, 2009. Merchant v. Forest Family Practice Clinic, P.A., 67 So.3d 747, 753 n. 9 (Miss.2011). Although the timeliness of the motion was not an issue on appeal, we took the opportunity to advise counsel that the court and opposing counsel should be made aware of potential juror misconduct when the evidence is manifested, implying that notifying the court of juror misconduct seven days after the juror’s affidavit was taken was not “as expeditiously as possible.” Id. (quoting Gladney, 625 So.2d at 418).

¶20. Given Preston’s testimony that he knew of the alleged incident immediately after the trial and that he informed Roach’s counsel about the alleged incident while the direct appeal was ongoing, the State and the circuit court were not “made aware of the allegation as expeditiously as possible.” Gladney, 625 So.2d at 418. It would not have been error for the trial court to dismiss the issue for failure to notify the court when evidence of the alleged misconduct manifested. However, to ensure Roach his constitutional right to an impartial jury, the trial judge considered the issue. See Miss. Const. art. 3, § 26. Likewise, we will review the merits of the issue here.

B. Roach did not prove that there was good cause to believe the jury received extraneous information or was improperly influenced.

¶ 21. “In any trial there is initially a presumption of jury impartiality.” Carr v. State, 873 So.2d 991, 1005 (¶ 38) (Miss.2004) (quoting United States v. O’Keefe, 722 F.2d 1175, 1179 (5th Cir. 1983)). To warrant an investigation, the party contending misconduct occurred “must make an adequate showing to overcome the presumption in this state of jury impartiality.” Gladney, 625 So.2d at 418. The Court has held:

At the very minimum, it must be shown that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.... Although a minimal standard of a good cause showing of specific instances of misconduct is acceptable, the preferable showing should clearly substantiate that a specific, non-speculative impropriety has occurred.

Id.

¶ 22. The evidence in the instant case regarding the alleged conversation between Tate and the officers is not overwhelming. Tate testified that he did not recognize the names of the officers identified in his affidavit, and he admitted that he did not supply the officers’ names to the investigator. The investigator testified that he determined from the trial court record which officers were called as witnesses at the trial and inserted those names in the affidavit. Further, Tate admitted that he did not read the affidavit before he signed it. Lieutenant Spooner could not recall discussing Roach’s possible sentence with another officer in the hallway during the trial, and he testified that he would not have speculated that Roach’s sentence would be between five and eight years based on what he knew about the case.

¶ 23. Tate was questioned repeatedly — by his attorney, the State’s attorney, and the judge — about whether the officers’ alleged comments influenced his decision to vote guilty. Rule of Evidence 606 does not permit “any inquiry into the internal deliberations of the jurors.” Gladney, 625 So.2d at 419. “[A] juror may testify on the question [of] whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Miss. R. Evid. 606(b). But questioning of a juror must be limited to whether the communication was made and what it contained. Gladney, 625 So.2d at 419. It is inappropriate and a violation of Rule 606(b) “for any juror to be questioned with regard to whether or not the extraneous information actually altered his verdict.” James v. State, 912 So.2d 940, 950-51 (¶ 18) (Miss.2005). The trial court erred in allowing Tate to be questioned about how the alleged extraneous information affected his deliberations.

¶ 24. Although the judge erred by asking improper questions about Tate’s deliberations, the judge believed that the multiple contradictions in Tate’s account undermined his claim of extraneous prejudicial information. The only evidence supporting Roach’s claim that Tate received extraneous information was from Tate. Lieutenant Spooner’s testimony did not corroborate Tate’s story; and Tate testified that he did not tell the other jurors about the alleged conversation or the possible five-to-eight-year sentence, so they could not corroborate his testimony. The circuit court held that Roach “failed to prove sufficient facts upon which” it could grant relief on the newly discovered evidence claim. Under the facts presented, and giving deference to the trial judge’s determination of the credibility of witnesses, we cannot say that the trial judge erred in concluding that Roach failed to prove that there was good cause to believe the jury had been exposed to extraneous prejudicial information.

C. The evidence was not sufficient to warrant opening an investigation or reconvening the jury.

¶ 25. Because Roach failed to make an adequate showing of improper influence on the jury, there is no need to address whether the verdict was altered or the jury must be reconvened. See Gladney, 625 So.2d at 419. However, Roach relies on Judge Carlton’s dissent to argue that the case should be remanded for an evidentiary hearing and that the full jury should be reconvened, so we briefly address that point. Judge Carlton relied heavily on James v. State, 912 So.2d 940 (Miss.2005), which is distinguishable from the instant case.

¶26. In December 1995, James was charged with the murder of two children. Id. at 943 (¶ 4). The trial court allowed James to sever the counts and try the cases separately. Id. During the first trial) “[g]reat efforts were taken to make sure that no one mentioned any alleged injuries to [the second child] in the presence of the jury.” Id. Jury selection began on July 8, 1996, and the potential jurors were questioned about them knowledge of the case. Id. at 943 (¶ 5). At the conclusion of the trial, in which the State’s case had been “based entirely on circumstantial evidence,” the jury found James guilty of capital murder, and he was sentenced to life in prison. Id. at 944 (¶ 6).

¶ 27. The day after the trial, defense counsel learned that the jury may have been exposed to extraneous prejudicial information. Id. at 944 (¶ 7). The court was informed, and a hearing was held on August 14, 1996, at which venire member Wanda Conway was called to testify. Id.

Conway explained that on July 9, 1996, she went to lunch with another prospective juror and Juror Shawn Watson.... Contrary to the trial court’s instructions, the women discussed the case for approximately ten minutes during their lunch. Watson stated that she did not remember the case at all. The other women discussed what they had heard in the media, including that James was accused of murdering another child.... Conway also testified that later that afternoon the entire group was sent to sit in another courtroom ... while the trial court and attorneys were conducting individual voir dire, which took several hours. Conway testified that she heard many members of the venire discussing the case and that there were two children involved. She overheard a woman tell a man, who was ultimately selected as a juror, that James was accused of killing two young children.
Conway testified that she spoke to Watson the day after the trial ended. Watson told her that she had doubts about James’ guilt and thought the mother should be investigated. Watson complained that some members of the jury knew about the second child and kept bringing it up in the jury room. Watson told Conway that several jurors argued that James was guilty because “it was two children.” ... Watson told Conway that several of the jurors who saw the docket sheet discussed it in the jury room and stated that it indicated that James was charged with something else. Watson said the docket sheet said “one of two, or first case, or something like that.”

Id. at 944^45 (¶¶ 7-9). At the end of the hearing, the trial court found “that there had not been a threshold showing that further inquiry was necessary.” Id. at 945 (¶ 10). James appealed, and the Court of Appeals reversed and remanded with instructions for the trial court to “reconvene and poll the jury regarding exposure to extraneous information.” Id. at 946 (¶ 18). We agreed that “Conway’s testimony more than satisfied the minimum requirements of Gladney and provided a sufficient basis for the trial court to hold a hearing” to determine whether extraneous information had been introduced to the jury. Id. at 951 (¶ 19) (quoting James v. State, 777 So.2d 682, 700 (Miss.Ct.App.2000)).

¶ 28. In the instant matter, Tate testified about a two-or-three-sentence conversation that allegedly had occurred six years earlier. Tate testified that he did not tell other jurors about the five-to-eight-years comment, and he only speculated that “other people” may have overheard his alleged interaction with the officers. There was no evidence that other jurors actually overheard the conversation. Tate’s testimony was not corroborated by the officers or by any other evidence. Conversely, Conway testified only one month after trial, and her testimony pertained to multiple statements and occurrences, including: that she and other potential jurors had discussed the second child during voir dire; that members of the jury had discussed the second child while waiting in a separate courtroom during individual voir dire; that members of the jury kept mentioning the second child in the jury room; that some jurors saw James listed twice on the docket sheet; and that Watson heard other jurors say James was guilty because two children had been killed. Further, Conway’s testimony was confirmed by other jurors.

¶ 29. The evidence in the case at hand does not rise to the level of the evidence in James. Tate’s testimony did not satisfy the minimum requirements of Gladney and did not provide “a sufficient basis for the trial court to hold a hearing for the purpose of determining whether extraneous prejudicial information was introduced into the jury’s deliberations^]” James, 912 So.2d at 951 (¶ 19) (quoting James I, 777 So.2d at 700). Again, under the facts presented, and giving deference to the trial judge’s determination of the credibility of witnesses, we cannot say that the trial judge erred in concluding that Roach failed to present sufficient evidence to warrant opening an investigation or to warrant reconvening the jury.

Conclusion

¶ 30. The circuit court’s denial of Roach’s motion for post-conviction relief based on newly discovered evidence that a juror was exposed to extraneous information was not clearly erroneous. The circuit court’s denial of Roach’s motion for post-conviction relief and the Court of Appeals’ judgment affirming it are affirmed.

¶ 81. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND KING, JJ.

KITCHENS, Justice,

dissenting:

¶ 32. The majority finds that the trial court did not err when it determined that Jimmie Roach had failed to make a threshold showing that the jury in his trial was exposed to extraneous, prejudicial information. With respect, I disagree. Juror Derrick Tate consistently testified that he was exposed to outside (and radically incorrect) information regarding the sentence that Roach would receive if the jury found him guilty. The severity or leniency of a defendant’s possible sentence is purposely withheld from juries exactly because of its considerable potential to influence their verdicts. Because I believe that Roach made a threshold showing that at least one juror was exposed to extraneous and presumptively prejudicial information, and the trial court erred in finding otherwise, I respectfully dissent.

¶ 33. Tate was asked multiple times by the defense, the prosecution, and the court, how and to what extent his knowledge of Roach’s purported sentence affected his deliberation. As the majority correctly finds, this was a direct violation of Mississippi Rule of Evidence 606(b), which prohibits inquiry into the effect of extraneous information upon a juror’s decision. The only thing to which Tate properly could have testified is whether he was exposed to outside information, what the information was, how he was exposed to it, and whether he told the rest of the jury. The trial court erred when it permitted Tate to testify about the effect the extraneous information might have had on his deliberation and ultimate decision. The court compounded the error when it relied upon Tate’s “effect testimony” regarding the effect the information had on his decision in deciding to deny relief to Roach:

I asked him a direct question of how much — if this contact occurred, how did it affect his — his deliberations. He said none at all. [Defense Counsel] asked him the same question. He said it affected it a little bit. [The Prosecutor] asked him the same question. He said it didn’t affect it at all.
So if Mr. Tate had just been consistent with what is written in his affidavit, I think this would have been a clear-cut case — that it would have been — the relief would have been granted. But unfortunately Mr. Tate equivocated, as [Defense Counsel] said, on more than one occasion. And on that basis I can’t consider his testimony because he continued to tell whoever asked him the question what they wanted to hear at that time.

¶34. Thus, the trial judge acknowledged that he did not consider Tate’s testimony because Tate had testified inconsistently about the effect his knowledge of Roach’s probable sentence had on his decision. Had the judge properly restricted Tate’s testimony, the testimony would have shown only that Tate heard a police officer say that Roach would receive five to eight years if convicted, that he was unsure about how he had heard that information, that the officer in question claimed not to remember making that statement, and that Tate did not relay that information to other jurors. It is true, as the majority notes, that the details of Tate’s story regarding how he heard about Roach’s potential sentence changed multiple times throughout the hearing. However, he never wavered concerning the only relevant and material fact of the entire proceeding: he heard a police officer saying that Roach would be sentenced to between five and eight years if found guilty. Under what circumstances this information came to Tate is of less importance than that he was exposed to it at all. See Brake v. Speed, 605 So.2d 28, 38 (Miss.1992) (“[I]t is the nature of the information acquired and its relation to material issues in the case which controls, no matter whether the information was accidentally, casually or deliberately acquired.”). Even if the trial court based its decision on the inconsistencies in how Tate actually heard the information, that decision still would be erroneous, because the manner in which Tate received the information was irrelevant to his possession of it. It is important to note that, in every version of his story, Tate claimed he heard the outside information from a police officer — an authority figure who most laypersons would deem to be in the know about such matters. Further, in making its decision, the trial court relied heavily on information that is forbidden from judicial inquiry. Because the trial court stated that, without Tate’s equivocation regarding the influence the extraneous information had on his decision, it would be a “clear-cut case” in which relief would be granted, I find that the trial court’s reliance on that prohibited information amounted to error.

¶ 35. The type of information to which Tate was exposed was inherently prejudicial. The severity or leniency of a defendant’s potential sentence is kept from jurors because they are charged with finding a defendant guilty or not guilty based only on the evidence and the judge’s written instructions. Typically, sentencing is the province of the judge, and “[t]he sole duty of the jury [i]s to pass on the guilt or innocence of the accused.” Smith v. State, 288 So.2d 720, 722 (Miss.1974). “[T]he jury should have no concern with the quantum of punishment to be imposed.” Marks v. State, 532 So.2d 976, 983 (Miss.1988). In determining the impropriety of a prosecutor’s closing argument that a manslaughter conviction would not sufficiently punish a defendant the way that a murder conviction would, this Court has said that “[t]he question of punishment is categorically unrelated to whether the verdict should be murder or manslaughter.” Id. at 984. “The jury have nothing to do with, and should be told nothing of, the character or degrees of punishment in any case whatever....” Ellerbee v. State, 79 Miss. 10, 30 So. 57, 58 (Miss.1901).

¶ 36. It is clear from our jurisprudence that juries must remain insulated from information regarding sentencing, precisely because such information can affect their verdicts. In this case, a juror heard from a police officer that Roach would get five to eight years if convicted. Given that Roach was eligible for, and actually received, one hundred more years than Tate heard that he would, I find that this extraneous information, which minimized the seriousness of the jury’s verdict, was extremely prejudicial to Roach. Additionally, this kind of outside information can cut both ways. Had Tate learned that Roach could be sentenced to 108 years upon conviction, and subsequently determined that he could not vote guilty due to the potential severity of the punishment, it is almost certain that the State would correctly contend that he was exposed to prejudicial, extraneous information.

¶ 37. The fact that Tate testified that he did not tell other jurors about this information is irrelevant. It takes but one dissenting vote to cause a mistrial in a criminal case. URCCC 3.10. Moreover, we do not, nor should we, know the extent of Tate’s influence on his fellow jurors during their deliberations. He may or may not have been a leader on this particular jury. Rule 606 prohibits any inquiry into the effect that extraneous information had on a jury’s decision; so, we are left only with the information that, in this case, was improperly received by one member of the jury. Tate consistently testified that he heard a police officer say that Jimmie Roach would receive five to eight years if convicted. This is all that the trial court should have considered. It cannot reasonably be argued that, if true, this information was not prejudicial to Roach, as he actually was eligible for roughly fourteen to twenty times this sentencing range. Roach has shown “that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.” Gladney v. Clarksdale Beverage Co., Inc., 625 So.2d 407, 418 (Miss.1993).

¶ 38. Because Roach’s trial occurred nearly nine years ago, a new hearing with the jury to determine if they were exposed to the information would be inefficient and of little value. Further, since we are prohibited from inquiring into the effect of any prejudicial information on their deliberations, I fail to see the value of such a hearing. See Rutland v. State, 60 So.3d 137, 146 (Miss.2011) (Kitchens, J. dissenting). Accordingly, well-established and sound Mississippi precedent requires us to assume that the extraneous information affected the juror’s decision. Thus, the only remedy appropriate is for this Court to reverse Roach’s conviction and remand for a new trial. Therefore, I respectfully dissent.

DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . It is worth noting that this hearing was held more than six years after Roach’s trial.

      . The Court affirmed, however, because defense counsel made no contemporary objection to the closing argument and the issue was procedural!/ barred on appeal.

      . This is not the only prejudicial information to which this juror was exposed. The entire jury witnessed Roach’s main witness being arrested in court after testifying. Roach v. State, 7 So.3d 911, 929 (Miss.2009) (Kitchens, J. dissenting).


source: Caselaw Access Project

author: GRIFFIS, P.J., MAXWELL, J.,

license: Public Domain

text:
    Jerry D. VAN WAGNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01631-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2012.
    Rehearing Denied Aug. 21, 2012.
    Certiorari Granted March 8, 2013.
    Certiorari Dismissed June 27, 2013.

      George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Jerry D. Van Wagner appeals his convictions from the Pearl River County Circuit Court stemming from a one-car motor-vehicle accident on U.S. Highway 59 in Pearl River County, Mississippi, that killed Crystal Brasher. Van Wagner was convicted of Count I, kidnapping, and Count II, aggravated DUI, and sentenced as a habitual offender to twenty-five years for Count I and twenty-five years for Count II, with sentences ordered to run consecutively, all in the custody of the Mississippi Department of Corrections. Van Wagner was also ordered to pay: a $2,500 fine; $2,500 to the Pearl River County Public Defenders Fund; $6,500 to the Mississippi Crime Victims Compensation Fund; and restitution of $2,217. On appeal, Van Wagner raises five points of error: (1) the State offered insufficient evidence to support the conviction of Count I, kidnapping; (2) the jury’s verdict on Count II, aggravated DUI, is against the overwhelming weight of the evidence; (3) Van Wagner was prejudiced by a discovery violation; (4) there was no probable cause to administer a blood-alcohol test; and (5) he was illegally sentenced as a habitual offender. We reverse and render Van Wagner’s conviction of Count I, kidnapping, because there is insufficient evidence to support the verdict. His conviction and sentence for Count II, aggravated DUI, is affirmed.

FACTS

¶ 2. In April 2009, Van Wagner and Brasher lived at McLeod Park in Hancock County, Mississippi. On April 25, 2009, deputies with the Hancock County Sheriffs Department were patrolling the park when one of the deputies noticed Brasher had bruises on her face. After a conversation with Brasher, the deputy arrested Van Wagner for domestic violence, simple assault and took Van Wagner to jail. Brasher later posted bond for Van Wagner, and Van Wagner was released from jail.

¶ 3. Around the same time, Brasher and Van Wagner were forced to move from McLeod Park and were living with Van Wagner’s sister in Perkinston, Mississippi. The day after the alleged incident in McLeod Park, the two packed up their belongings into a red Isuzu Rodeo and headed toward Perkinston on U.S. Highway 59. Shortly after their departure, a one-car accident involving a red Isuzu was reported on U.S. Highway 59.

¶ 4. When law enforcement reached the scene of the accident, they found Brasher thrown from the car, lying on the side of the road. A number of cars traveling on U.S. Highway 59 had already stopped and reached the vehicle to assist the injured passenger.

¶ 5. These witnesses testified that they removed Van Wagner from the driver’s seat while Brasher laid on the ground with unlocked chains wrapped around her legs, from her ankles to her knees. Officers who arrived on the scene found the chains already removed and hanging from the car door. Upon searching the debris from the wreck, officers also found two beer cans and the top to a liquor bottle. A state trooper, Trooper James Westbrook, testified that the Isuzu’s front tire on the driver’s side was flat.

¶ 6. Both Brasher and Van Wagner were taken to Highland Community Hospital in Picayune, Mississippi, where Brasher later died. Upon arriving at the hospital, Trooper Westbrook consulted with the Pearl River County Coroner, who understood that Brasher was driving the vehicle. Van Wagner also told Trooper Westbrook that it was Brasher who had been driving when the accident occurred.

¶ 7. Trooper Westbrook testified that on entering Van Wagner’s hospital room, the trooper smelled alcohol. Although a consent form was not produced prior to trial, Trooper Westbrook testified that he received consent from Van Wagner to draw blood for a blood-alcohol test, and then Trooper Westbrook asked a nurse to do so. The blood vials were then sent to the State Crime Laboratory in Jackson, Mississippi. According to the lab results, Van Wagner’s blood-alcohol level was .11, which is over the legal limit of .08.

¶ 8. At trial, Master Sergeant Jay Kelly with the Mississippi Department of Public Safety testified as an expert in motor-vehicle-accident reconstruction. In his opinion, Brasher was the passenger at the time of the accident, and Van Wagner was the driver. Master Sergeant Kelly found no indication that the front driver’s side tire had experienced a blow-out at the time of the wreck.

¶ 9. Prior to trial, the circuit judge allowed the indictment to be amended to charge Van Wagner as a habitual offender. Van Wagner was convicted of Count I, kidnapping, and Count II, aggravated DUI, and sentenced as a habitual offender to twenty-five years for Count I and twenty-five years for Count II, with the sentences ordered to run consecutively, all in the custody of the Mississippi Department of Corrections. Van Wagner appeals his convictions and sentences.

ANALYSIS

1. Whether sufficient evidence supported a conviction of kidnapping.

¶ 10. Van Wagner claims there was insufficient evidence to support his conviction, and the verdict was a result of “speculation, guesswork, and conjecture.” Van Wagner argues that the State never developed the kidnapping charge against him and that there was neither actual nor circumstantial evidence of a kidnapping. Van Wagner claims that the trial judge erred when the judge refused Van Wagner’s motion for a directed verdict.

¶ 11. When reviewing a motion for a directed verdict, this Court looks to the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. The State is allowed to prove its case using circumstantial evidence. However, this evidence must be “sufficient to prove the defendant’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.” Fleming v. State, 604 So.2d 280, 288 (Miss.1992).

¶ 12. Van Wagner asserts the State failed to present sufficient evidence for a reasonable juror to draw a conclusion beyond a reasonable doubt that Van Wagner was guilty of kidnapping using the elements set out in the statute. Mississippi Code Annotated section 97-3-53 (Supp. 2011) states:

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will ... upon conviction shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections.

¶ 13. The State relied on the following facts to support the kidnapping charge: (1) the alleged incident at McLeod Park where Van Wagner was arrested and charged with domestic abuse and (2) the unlocked chains wrapped around Brasher’s legs when she was thrown from the vehicle. Van Wagner argues that the State failed to prove the elements of kidnapping beyond a reasonable doubt. We agree.

¶ 14. First, Van Wagner addresses the State’s evidence of the alleged dispute in McLeod Park. Van Wagner argues that even if the State proved that he had assaulted Brasher in McLeod Park the day before the accident, this does not prove beyond a reasonable doubt that Brasher was “forcibly seized and confined” or “imprisoned against her will” on the following day. The State failed to show through any witness or evidence that Brasher was forced into the vehicle with Van Wagner. Even when giving all reasonable inferences to the prosecution, the evidence presented does not show that on the following day Brasher was “imprisoned against her will.”

¶ 15. Second, Van Wagner argues that a reasonable juror could have found other reasons for the chains to be wrapped around Brasher’s legs such as, “she was merely joking” or “the chains became wrapped around her legs while the vehicle was flipping during the accident.” Van Wagner contends that these hypotheses are consistent with a conclusion of innocence. In addition to these other hypotheses, the State failed to show through the witnesses’ testimonies that Brasher was confined to the vehicle against her will. Brasher was not wearing a seatbelt, as evidenced by the fact she was thrown from the vehicle, and the chains around her legs were unlocked and, according to the witnesses, not tightly bound.

¶ 16. The State did not offer any evidence to show that Van Wagner had seized Brasher or that he had confined Brasher against her will. An eyewitness to the accident and Trooper Westbrook both testified that there were no weapons found at the scene of the accident or locks of any kind. Trooper Westbrook testified as follows:

Q: You did not find any guns or locks or anything of that nature at the scene, did you?
A: No, sir.
Q: Any knife?
A: I don’t recall a knife.
Q: I’m sorry I interrupted you there. Nothing to show that [Brasher] was being held against her will, correct?
A: No, sir.

¶ 17. At the close of the State’s case-in-chief, the State failed to establish the elements for kidnapping beyond a reasonable doubt; therefore, Van Wagner was entitled to a directed verdict. Accordingly, his kidnapping conviction and sentence is reversed and rendered.

2. Whether the weight of the evidence supports the aggravated DUI conviction.

¶ 18. Van Wagner argues that the verdict in Count II, aggravated DUI, is against the overwhelming weight of the evidence. Specifically, Van Wagner argues that the State failed to show that he committed a negligent act while driving intoxicated. The State responds that there is ample evidence to support the jury’s verdict. When reviewing a claim that the verdict is against the overwhelming weight of the evidence, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted).

¶ 19. In cases involving aggravated DUI, “the State must prove that [the defendant] not only consumed alcohol prior to the accident, but that he performed a negligent act that caused the death of another.” Joiner v. State, 835 So.2d 42, 43-44 (¶ 5) (Miss.2003) (citing Hedrick v. State, 637 So.2d 834, 837-38 (Miss.1994)). Van Wagner argues that the State has failed to show by reliable evidence that he committed a negligent act. Van Wagner focuses his argument on the conflicting testimony presented that he was speeding at the time of the accident.

¶ 20. Although there is conflicting testimony about the speed of the car, we do not find that the verdict is against the overwhelming weight of the evidence. “It is elementary in tort law that a person is negligent for failing to maintain control over the vehicle he is driving.” Lepine v. State, 10 So.3d 927, 943 (¶ 45) (Miss.Ct.App.2009) (citing Robertson v. Welch, 242 Miss. 110, 117, 134 So.2d 491, 493 (1961)). The State presented expert testimony by Master Sergeant Kelly using accident reconstruction to show that Van Wagner did not have control of his vehicle at the time of the accident. Master Sergeant Kelly testified:

A: These tire marks here are from a steering motion. Some steering input [is] making these marks here, as the vehicle is coming hard over to the eastbound lane of traffic — or the east side.
Q: So you’re talking about the movement going into the other lane such that it left those tire marks?
A: Yes, sir.
Q: What does that tell you? Is there any significance you show in those tire marks?
A: It’s just an indication to me that there was some steering input hard to the right.
Q: I mean, when most people pass, getting back into the other lane, they don’t leave tire marks do they?
A: No, sir. This is indicating that the vehicle is out of control at this point.
A: He’s got some steering input trying to correct himself and trying to get back into the lane of traffic. When he’s out of control and he’s steering back over to the west, or to the left, it brings the car or SUV there in a — it starts to slide. And he is just out of control still at this point.

¶ 21. Master Sergeant Kelly also testified that the SUV did not suffer a tire blowout. The jury considered this evidence and found Van Wagner guilty of aggravated DUI. The verdict in Count II is not against the overwhelming weight of the evidence. This issue has no merit.

3. Whether Van Wagner was prejudiced by a discovery violation.

¶22. During the trial, both the State and Van Wagner were surprised by Trooper Westbrook’s testimony that he had obtained consent from Van Wagner prior to administering a blood-alcohol test. At trial, Van Wagner’s counsel objected and asserted that this evidence “irreparably prejudiced” Van Wagner because his defense to the blood-alcohol test rested on a lack of consent. The trial judge overruled the discovery-based objection citing no prejudicial effect because both sides were equally surprised. On appeal, Van Wagner argues the trial judge’s reasoning for overruling the objection was not based on an accepted rule of law and was an abuse of discretion.

¶ 23. The standard of review for the trial court’s ruling on a discovery violation is abuse of discretion. Montgomery v. State, 891 So.2d 179, 181 (¶ 6) (Miss.2004). The procedure for the trial court to follow regarding a discovery violation is governed by Rule 9.04(1) of the Uniform Rules of Circuit and County Court, which states:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs, or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or a mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

¶ 24. At trial, the State called Trooper Westbrook to testify about Van Wagner’s blood-alcohol test. Before Trooper West-brook testified, neither the State nor Van Wagner knew that Trooper Westbrook had obtained a written consent to draw blood from Van Wagner for a blood-alcohol test. During a bench conference, the judge ruled that the consent form would be allowed in evidence because of the surprise to both the State and Van Wagner. The trial judge also allowed Trooper West-brook to be on standby and called back the next day to testify if either side had any further questions of him. “[T]he Mississippi Supreme Court has ruled that a violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Gray v. State, 926 So.2d 961, 971 (¶ 25) (Miss.Ct.App.2006) (quoting Wyatt v. City of Pearl, 876 So.2d 281, 284 (¶ 10) (Miss.2004)).

¶ 25. Here, it is clear from the record that any violation of Rule 9.04 did not result in a miscarriage of justice. The State did not know of the consent form’s existence. Van Wagner was given an opportunity to cross-examine Trooper West-brook regarding the newly discovered consent form. Additionally, the trial judge gave Van Wagner the opportunity to recall Trooper Westbrook at a later time if Van Wagner had further questions about the consent form. We find the trial judge did not abuse his discretion in admitting this evidence because: (1) it was a surprise to both the State and Van Wagner, and (2) Van Wagner was given a reasonable opportunity to inquire about the consent form. This issue has no merit.

4- Whether there was probable cause to administer a blood-alcohol test.

¶ 26. Van Wagner’s sole position on this issue is that Trooper West-brook lacked consent as well as probable cause to request a blood-alcohol test in the hospital after the accident. ‘When reviewing a trial court’s ruling on the admission or suppression of evidence, [the appellate court] must assess whether there was substantial credible evidence to support the trial court’s findings.” Culp v. State, 933 So.2d 264, 274 (¶ 26) (Miss.2005). “The admission of evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused.” Id.

¶ 27. Relying on McDuff v. State, 763 So.2d 850, 853 (¶ 8) (Miss.2000), Van Wagner argues that similar to the officer in McDuff, Trooper Westbrook lacked probable cause to obtain the blood sample, and Trooper Westbrook had developed probable cause after the sample had been taken. In McDuff, the officer who requested a blood-alcohol test of Beverly McDuff was never identified and did not testify at trial. Id. After the test was ordered, another officer developed probable cause that McDuff may have been driving while intoxicated. Id. Here, the officer who requested that the test be administered to Van Wagner was identified and testified at Van Wagner’s trial. Further, the smell of alcohol is sufficient to establish probable cause. Id. at 855 (¶ 16).

¶ 28. We find Van Wagner’s argument without merit. In Wash v. State, 790 So.2d 856, 859 (¶ 9) (Miss.Ct.App.2001), this Court found that probable cause existed to administer a blood-alcohol test to Kenyon Wash. Eyewitnesses saw Wash throw a paper bag out the window of the car after the accident. Id. The officers observed Wash staggering and smelling strongly of alcohol, and the accident evidenced negligent driving. Id. Here, Van Wagner argues that at the time of the test he had not been conclusively identified as the driver of the car; however, multiple eyewitnesses told Trooper Westbrook that Van Wagner had been driving. Further, Trooper Westbrook smelled alcohol when encountering Van Wagner in the hospital room, and the accident showed negligent driving.

¶ 29. We find the facts here similar to Wash, where this Court found probable cause existed for the officer to request a blood-alcohol test. There was sufficient probable cause to administer a blood-alcohol test to Van Wagner, and the evidence was properly admitted during Van Wagner’s trial. This issue is without merit.

5. Whether Van Wagner should have been sentenced as a habitual offender.

¶ 30. Van Wagner claims that his sentence as a habitual offender was illegal for two reasons: (1) an improper amendment to the indictment post-trial, and (2) defective proof of prior convictions. To be sentenced as a habitual offender, Mississippi Code Annotated section 99-19-83 (Supp.2011) provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 31. First, Van Wagner contends that the State improperly amended the indictment post-conviction to allow enhancement of his sentence as a habitual offender. Six weeks prior to trial, the State filed a motion to amend Van Wagner’s indictment to charge him as a habitual offender. The trial judge granted the motion at a motion hearing held on August 17, 2010. At Van Wagner’s sentencing hearing, the State amended the indictment again to correct the county in which the prior burglary had occurred. The trial judge allowed the modification after testimony from two witnesses to ensure that the substance of the indictment had not changed.

¶ 32. “[A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Alexander v. State, 875 So.2d 261, 269 (¶ 31) (Miss.Ct.App.2004) (citations omitted). Here, the record is clear that the amendment merely corrected the county of one of the underlying convictions contained in the habitual-offender portion of the indictment. The amended indictment six weeks prior to the trial put Van Wagner on notice that the State planned to use his prior convictions to enhance his sentence in this case. The amendment to Van Wagner’s indictment did not alter Van Wagner’s defense in any way and was, therefore, proper.

¶ 33. Second, Van Wagner attacks the State’s proof of prior convictions claiming that it was “defective.” At the sentencing hearing, the State offered proof of Van Wagner’s prior convictions and sentences of more than one year through Van Wagner’s “pen-pack” and testimony of Kathy Holt, the Director of Central Records Division for the Alabama Department of Corrections. This Court has held that “certified copies of pen-packs suffice as competent evidence of prior convictions.” Frazier v. State, 907 So.2d 985, 991 (¶ 16) (Miss.Ct.App.2005) (quoting Dixon v. State, 812 So.2d 225, 231 (¶ 27) (Miss.Ct.App.2001)).

¶ 34. Van Wagner argues that the State’s evidence is hearsay and inadmissible because it does not fall under any exception, specifically the business-record exception under Mississippi Rules of Evidence 803(6) and (8). To be sentenced as a habitual offender, “[a]ll that is required is that the accused be properly indicted as [a] habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof.” Keyes v. State, 549 So.2d 949, 951 (Miss.1989) (citations omitted). Further, the Mississippi Rules of Evidence do not apply to sentencing hearings. See M.R.E. 1101(b)(3).

¶ 35. Van Wagner was given the opportunity to challenge the pen-pack during the sentencing hearing. The record is clear that the evidence relied on by the State was Van Wagner’s pen-pack and Holt’s testimony. This Court has held that pen-packs are competent evidence to show prior convictions. Frazier, 907 So.2d at 991 (¶ 16). We find this argument is without merit.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF COUNT II, AGGRAVATED DUI, AND SENTENCE OF TWENTY-FIVE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $2,500 FINE, $2,217 IN RESTITUTION, $2,500 TO THE PEARL RIVER COUNTY PUBLIC DEFENDERS FUND, AND $6,500 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. THE JUDGMENT OF CONVICTION AND SENTENCE IN COUNT I, KIDNAPPING, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS AND RUSSELL, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY BARNES AND CARLTON, JJ. FAIR, J., NOT PARTICIPATING.

MAXWELL, J.,

concurring in part and dissenting in part:

¶ 37. I concur with the majority’s analysis and resolution of all issues, other than its reversal of Count I — the kidnapping charge. Examining the bizarre series of events leading to Brasher’s death, as a whole, and with strict adherence to our mandate to view the evidence in the light most favorable to the State, I find sufficient evidence supports Van Wagner’s kidnapping conviction.

¶ 38. The jury’s decision that Brasher had been unlawfully confined against her will turned on both direct and circumstantial evidence. Our review requires we consider this evidence, not as Van Wagner sees it, but in the light most favorable to the State. The incriminating evidence primarily concerned a two-day span beginning with Van Wagner’s arrest for beating Brasher and culminating in her death the following day — when she was ejected from Van Wagner’s vehicle during an accident. A passerby found her bound in a chain from her ankles to up above her knees.

¶ 39. Considering the sufficiency of these facts against our kidnapping laws, I first point out that though the statutory framework criminalizing kidnapping contains explicit intent requirements, the Mississippi Supreme Court has held that “kidnapping is not a specific intent crime.” Williams v. State, 544 So.2d 782, 790 (Miss.1987) (citing Williams v. State, 445 So.2d 798, 809 (Miss.1984); Voyles v. State, 362 So.2d 1236, 1243 (Miss.1978)). Thus, precedent suggests it suffices “that the circumstances resulted in such a manner as to effect a kidnapping as opposed to an actual intent to kidnap.” So a kidnapping conviction may be sustained even if it is based solely on circumstantial evidence. Id. at 789.

¶ 40. The indictment charged that Van Wagner “did wilfully, unlawfully, intentionally and feloniously ... kidnap Crystal S. Brasher, with intent to cause [her] to be imprisoned against her will ...,” in violation of Mississippi Code Annotated section 97-3-53 (Supp.2011). It is important to note that the State charged the crime in a manner that it need not show an elaborate or secretive abduction to establish the kidnapping. Instead, it relied on an imprisonment/confinement theory. And our supreme court has found that a plain reading of section 97-3-53 criminalizes confining or imprisoning another person against his or her will regardless of whether the confinement is secret. Conley v. State, 790 So.2d 773, 796 (¶ 83) (Miss.2001).

¶ 41. Both direct and circumstantial evidence showed that on August 25, 2009, the day before Brasher’s death, a former sheriffs deputy spotted Brasher on the side of the road with “blood in her hair.” Van Wagner was with her. After the deputy stopped to check on Brasher, he noticed “[s]he had a real bad black and blue bruise, swollen eye on the right side of her face.” He also observed “blood under her chin” and that “the back of her head was still bleeding.” Photographs offered at trial depicted deep bruising to both of her eyes.

¶ 42. The deputy arrested Van Wagner for domestic violence and gave Brasher a card for a domestic-abuse shelter. Van Wagner bonded out of jail a little over twelve hours later around 12:15 a.m. on August 26, 2009. The record does not show who bonded Van Wagner out of jail. It is undisputed that later that same day Brasher was found near death, having been ejected from Van Wagner’s car with a chain wrapped tightly around her ankles and extending up her legs and over her knees.

¶ 43. I agree with the majority that the violent attack on Brasher the day before, which resulted in Van Wagner’s arrest for domestic violence, clearly does not itself establish Brasher’s unlawful confinement. But the jury was not required to view this criminal assault in isolation. See Jones v. State, 918 So.2d 1220, 1226 (¶ 15) (Miss.2005) (instructing that neither juries nor appellate courts are required to view evidence in a vacuum). Rather, “[i]n the trial of any criminal case, much less a circumstantial evidence case, the jury has to put the evidence together like pieces of a jigsaw puzzle, and in the end, view the evidence as a whole.” Id.

¶ 44. This is exactly the task the jury performed here after learning that: Van Wagner had been arrested for severely beating Brasher; he later admitted fighting with her; and she was discovered the next day in his presence, bound in a chain, still in possession of the domestic-abuse card the deputy had given her when he arrested Van Wagner the day before. In reaching its decision, the jury clearly rejected Van Wagner’s sister’s testimony that Van Wagner and Brasher had loaded up their belongings and were heading to Perkinston to move in with her.

¶ 45. The guilty verdict on the kidnapping count demonstrates the jury instead believed Brasher had been unlawfully confined, as required by statute. This is certainly a reasonable inference, based on the undisputed direct evidence from two eyewitnesses that a chain was wrapped around Brasher’s legs. Considering our mandated standard of review and based on the totality of the direct and circumstantial evidence favorable to the State, I find there was sufficient evidence presented to establish a kidnapping.

BARNES AND CARLTON, JJ., JOIN THIS OPINION.


author: LEE, C.J., CARLTON, J.,

text:
    Jimmie ROACH a/k/a Jimmie C. Roach a/k/a Jimmy Roach, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00162-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Nov. 6, 2012.
    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 Sheriffs 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.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶ 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.

A. Threshold Showing of Extraneous Prejudicial Information in the Record

¶ 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. Thag-gard 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 conducted by Kesler with Tate. Again, the testimony elicited by Kesler about his own pretrial interview with Tate shows that Tate remained consistent that he heard the conversations of the officers pertaining to Roach’s sentence. The contradiction in the testimony elicited by Kesler pertained not to the actual prejudicial extraneous information but to whether Tate approached the officers in the hallway first to inquire as to the sentence or whether Tate overheard the information from the officers.

B. Discussion of the Law as Applied to these Facts

¶ 15. I would remand this case for further evidentiary hearing since the record supports a threshold showing of the receipt of extraneous prejudicial information by a juror. The parameters of Rule 606(b) limits the proper scope of jury testimony. A review of Tate’s testimony shows that the examination of him as a witness ventured outside the parameters of Rule 606(b) and the standards as set forth in Gladney, 625 So.2d at 418-19, by inquiring as to whether he personally believed or recalled whether the extraneous information impacted his own particular deliberations. Guidance in the supreme court precedent of Gladney explains that the trial court must determine whether it was reasonably possible that the extraneous prejudicial information altered the verdict, and juror testimony should be limited to whether the communication occurred, and if so, it’s contents. This dissent now turns to examine the procedure set forth in Gladney and the application of that precedent to this case.

¶ 16. Since the record supports a threshold showing that extraneous information pertaining to Roach’s likely sentence was heard by a juror (Tate), then the next step required a determination of whether this information was conveyed to the rest of the jury. According to Rule 606(b) and Mississippi precedent, such testimony should not focus on a particular juror’s deliberations. The supreme court in Gladney set forth the procedure to follow when inquiring into a juror’s verdict. The supreme court explained that when the threshold showing is met, the trial judge must limit his questions to whether the communication occurred and the contents of the communication. Id. at 419. Then, the trial court must determine whether it is reasonably possible that the communication altered the verdict. Id.

¶ 17. Recently, this Court, in Wilson v. State, 83 So.3d 421, 433 (¶ 31) (Miss.Ct.App.2011) and the supreme court in James, 912 So.2d at 950-51 (¶ 18), reviewed Gladney’s “systematic method” to be used by trial courts when inquiring into juror verdicts under Rule 606(b) of the Mississippi Rules of Evidence. The Wilson court stated, in part, as follows:

Rule 606(b) states:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Gladney provides that at the beginning of the inquiry, “the trial court and opposing counsel must be made aware of any potential juror misconduct when this evidence is manifested.” Gladney, 625 So.2d at 418. “Once an allegation of juror misconduct arises, then the next step is to consider whether an investigation is warranted. In order for the duty to investigate to arise, the party contending there is misconduct must make an adequate showing to overcome the presumption in this state of jury impartiality.” Id. If the threshold showing is made, then the trial court should conduct a post-trial hearing. Id. at 419. The Mississippi Supreme Court further provided:
The scope of the hearing is, however, limited; the proper procedure is for the judge to limit the questions asked the jurors to determine whether the communication was made and what it contained. Once it is determined that the communication was made and what the contents were, the court is then to decide whether it is reasonably possible this communication altered the verdict.
Id. “Gladney offers no interpretation nor explanation which is inconsistent with, or different from Rule 606(b). That is to say that it would be inappropriate, and in violation of Rule 606(b), for any juror to be questioned with regard to whether or not the extraneous information actually altered his verdict.” James, 912 So.2d at 951 (¶ 18). See also Rutland, 60 So.3d at 142 (¶ 21).

Wilson, 83 So.3d at 433-34 (¶ 31). This Court in Wilson also acknowledged the importance of determining if the entire jury was exposed to extraneous information. The Wilson court, in reviewing supreme court precedent as set forth in James, stated as follows:

In James, Dayon James was charged in a multiple-count indictment for the murder of Shanekque Keyes and the murder of Alonso Smith in December 1995. Id. at 943 (¶ 4). During pretrial motions, the trial court granted James’s motion to sever the counts, and the State elected to try Shanekque’s case first. Id. Great efforts were expended to ensure that no one mentioned any alleged injuries to Alonso in the jury’s presence. Id. Jury selection for James’s trial began on July 8, 1996. Id. at (¶ 5). At the conclusion of the trial, James was convicted of capital murder and sentenced to life in prison. Id. at 944 (¶ 6). On the day after the trial, defense counsel was informed of the possibility that the jury had been exposed to extraneous prejudicial information. Id. at (¶ 7). A hearing was held on August 14, 1996, and Wanda Conway, a member of the venire, testified that on July 9, 1996, when the court recessed for lunch during voir dire, she went to lunch with another prospective juror and Juror Shawn Watson. Id. Conway testified that the women discussed the case during lunch, including that James was accused of murdering another child. Id. Conway also testified that later that afternoon, the entire group was sent to sit in another courtroom while the trial court conducted individual voir dire, and while there, she heard many members of the venire discussing the case and that there were two children involved. Id. at 944-45 (¶ 8). Conway testified that she spoke with Watson the day after the trial ended, and Watson told her that some members of the jury knew about the second child and kept bringing it up in the jury room. Id. at 945 (¶ 9). Conway also testified that Watson told her that several jurors said they found James guilty because “it was two children.” Id. Lastly, Conway testified that Watson told her that while in the jury room, several jurors discussed the docket sheet that they saw posted outside the courtroom which indicated that James was charged with an additional crime. Id. After presentation of this testimony in support of its motion, defense counsel then requested that the trial court conduct further investigation into the jury’s possible exposure to extraneous information, pursuant to Glad-ney. Id. at (¶ 10). The trial court determined that there had not been a threshold showing that further inquiry was necessary under Gladney, and denied James’s motion. Id.
On appeal, we reversed and remanded the James case to the trial court, instructing the “trial court to hold a hearing for the purpose of determining whether extraneous prejudicial information was introduced into the jury’s deliberations concerning the death of the other child.” Id. at (¶ 11) (citation omitted). This Court denied the State’s motion for rehearing, withdrew the original opinion, and substituted a modified opinion. Id. at (¶ 12). James then filed a motion for rehearing, which the Court dismissed. Id. at 945-46 (¶ 12). Both the State and James then filed petitions for writ of certiorari, which the Mississippi Supreme Court denied. Id. at 946 (¶ 12). The James case was remanded to the trial court to reconvene and to poll the jury concerning its possible exposure to extraneous information. Id. at (¶ 13). Ultimately, eleven of the twelve jurors and both alternates were located and summonsed to appear in court. Id. at (¶ 14). A hearing was held on May 15, 2001, and eleven jurors and one alternate appeared to testified. Id. The trial court questioned each juror individually, refusing to allow the attorneys to question the jury. Id. at 946-49 (¶¶ 14-15). The trial court determined that extraneous information had been communicated to the jury; however, the trial court found that “this communication was incidental and that the jury verdict should not be impeached.” Id. at 949 (¶ 15). On appeal, this Court affirmed the trial court’s judgment. Id. at (¶ 16).
After this Court denied James’s motion for rehearing, the Mississippi Supreme Court granted James’s petition for writ of certiorari. Id. (citations omitted). The Mississippi Supreme Court ultimately determined, however, that the trial court’s failure to reconvene the jury fully for the hearing on May 15, 2001, was reversible error mandating a new trial, and the passage of time which made reconvening the jury impracticable was unfairly prejudicial to James and violated his due-process rights. Id. at 951-52 (¶¶ 20-21). Further, the supreme court found, based on the standard established in Gladney, ■ that it was “reasonably possible that the communication altered the verdict” and that a new trial should be granted. Id. at 952 (¶ 22). In support of its finding, the supreme court in James pointed to Conway’s testimony that: Watson told her that many members of the venire discussed the allegations regarding a second child while waiting in the separate courtroom; Watson told her after the trial that some members of the jury knew about the second child and kept bringing it up in the jury room; and Watson indicated that the docket sheet supported the allegation that a second child was involved. Id. at 952 (¶¶ 22-24). Additionally, the supreme court found in James that during the May 2001 hearing, several of the jurors admitted knowledge of the fact that James was accused of killing a second child. Id. at 952-53 (¶¶ 24-26). Finally, the supreme court held that the trial court erred when it refused to allow the attorneys to examine the jurors during the May 2001 hearing. Id. at 953 (¶28).

Id. at 434-36 (¶¶ 33-36).

¶ 18. Significant to this case, as explained in Wilson, the Mississippi Supreme Court reversed this Court’s decision in James, finding that the trial court’s failure to fully reconvene the jury to determine if it was reasonably possible that the extraneous prejudicial information affected the verdict of the jury resulted in a violation of the defendant’s due-process rights. In this case, a review of the record reflects that the trial court heard testimony from only one juror, Tate. However, as established in Rule 606(b) and Mississippi precedent, in order to satisfy constitutional due-process demands, the trial court was required to fully reconvene the jury to determine if the 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. The trial court’s inquiry improperly focused on a particular juror’s deliberations. See James, 912 So.2d at 950-51 (¶ 18).

¶ 19. Based on the foregoing reasons, I respectfully dissent.

      . See James, 912 So.2d at 949-53 (¶¶ 17-28); Gladney, 625 So.2d at 417-19; Wilson v. State, 83 So.3d 421, 433-36 (¶¶ 31-38) (Miss.Ct.App.2011). See also M.R.E. 606(b).

      . Gladney, 625 So.2d at 418-19.