Avery v. State
2013 Miss. LEXIS 403
Miss.2013Background
- Avery was convicted of selling cocaine and felony fleeing in Lauderdale County based on an audiovisual-recorded drug sale and a police pursuit arrest.
- Post-trial, Avery learned the trial judge may have communicated with Juror Watts; the nature of the communication is disputed but described as the judge's remarks about the noon finish time.
- Avery requested a Rule 615 sequestration at the post-trial hearing; the judge denied sequestration and witnesses testified in each other's presence.
- The Court of Appeals affirmed the conviction and sentence; the Mississippi Supreme Court granted certiorari limited to the sequestration issue.
- The Court held the trial court erred in not sequestering witnesses, but the error was harmless beyond a reasonable doubt, so the conviction and sentence were affirmed.
- There is a dissent arguing the taint of the hearing should require remand for a new post-trial hearing on improper influence by the judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court violated Rule 615 by refusing to sequester witnesses at the post-trial hearing | Avery argues Rule 615 required sequestration | State contends discretion applied; argues any error was harmless | Harmless error; conviction affirmed |
| Whether the failure to sequester was harmless beyond a reasonable doubt given the record | Avery asserts prejudice and taint invalidates the hearing | State contends overwhelming evidence and innocuous statements rendered error harmless | Harmless beyond a reasonable doubt; conviction affirmed |
Key Cases Cited
- Douglas v. State, 525 So.2d 1312 (Miss. 1988) (Rule 615 and witness sequestration standard; discretion limited by rule’s mandate)
- Finley v. State, 725 So.2d 226 (Miss. 1998) (Remedies for Rule 615 violations; prejudice not required for remedy choice)
- Conley v. State, 790 So.2d 773 (Miss. 2001) (Harmless-error standard and de novo review for Rule 615 violations)
- Stokes v. State, 548 So.2d 118 (Miss. 1989) (Harmless-error analysis in Rule 615 context)
- Brashier v. State, 20 So.2d 65 (Miss. 1944) (Judge-witness conflicts and issues of credibility)
- Geders v. United States, 425 U.S. 80 (S. Ct. 1976) (Purpose of Rule 615 to guard against falsification and collusion)
- U.S. v. Warren, 578 F.2d 1058 (5th Cir. 1978) (Remedial options for Rule 615 violations; prejudice considerations)
- U.S. v. Jimenez, 780 F.2d 975 (11th Cir. 1986) (Remedies for Rule 615 violations and credibility assessments)
- U.S. v. Blasco, 702 F.2d 1315 (11th Cir. 1983) (Contempt and remedy considerations for Rule 615 violations)
- Arizona v. Fulminante, 499 U.S. 279 (U.S. 1991) (Harmless-error framework applicable in criminal trials)