Avery v. State
119 So. 3d 329
Miss. Ct. App.2012Background
- Avery was convicted in Lauderdale County of selling cocaine and felony fleeing, and sentenced to 60 years and 5 years, respectively, to run concurrently but consecutive to other Lauderdale County sentences, all MDOC custody without parole or probation.
- Avery appealed raising several issues including mistrial, Rule 3.05 violation, compulsory process, right not to testify, post-trial procedures, and cumulative error.
- In March 2010, a CI bought crack from Avery; after the sale, Avery fled and was arrested following a police pursuit.
- The State’s trial included voir dire questions and officer testimony about prior knowledge of Avery, which Avery challenged for plain error.
- The court affirmed, finding no reversible error on the asserted grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mistrial entitlement | Cole's voir dire comment prejudiced Avery. | Officers’ testimony of prior knowledge was improper character evidence. | No reversible error; mistrial not required. |
| Rule 3.05 violation | Prosecutor's voir dire urged verdicts based on facts. | Statements were not a direct plea to verdict and did not prejudice. | Not reversible error; no prejudice shown. |
| Compulsory process | Avery was denied right to compel MDOC witness. | Court properly excluded irrelevant testimony; no abuse. | No reversible error; issue without merit. |
| Right not to testify (admonition and closing) | Admonition chilled testimony; prosecutorial comment violated rights. | No improper comment; no chilling effect shown. | Procedurally barred and meritless; no reversal. |
| Rule 615/juror misconduct | Judge's conversations with juror Watts tainted deliberations. | No demonstrated prejudice; juror impartiality presumed. | No reversible error; issue without merit. |
Key Cases Cited
- Sipp v. State, 936 So.2d 326 (Miss.2006) (mistrial when error causes prejudice; substantial prejudice required)
- Tate v. State, 912 So.2d 919 (Miss.2005) (prejudice standard for mistrial determinations)
- Corbin v. State, 74 So.3d 333 (Miss.2011) (plain-error review for fundamental rights)
- Brawner v. State, 947 So.2d 254 (Miss.2006) (right to a fair trial by impartial jury is fundamental)
- Cotton v. State, 790 So.2d 235 (Miss.Ct.App.2001) (reversal not required for Rule 3.05 lack of prejudice)
- Robinson v. State, 726 So.2d 189 (Miss.Ct.App.1998) (voir dire not to compel verdict; guidance on improper questions)
- Simmons v. State, 805 So.2d 452 (Miss.2001) (verdict-pledging questions improper; prejudice analysis)
- Wright v. State, 958 So.2d 158 (Miss.2007) (comment on absence of defense v. failure to testify)
- Sea v. State, 49 So.3d 614 (Miss.2010) (impeachment of defendant with prior convictions requires balancing test)
- Douglas v. State, 525 So.2d 1312 (Miss.1988) (evidence exclusion and prejudice considerations)