Lead Opinion
¶1. Eric Sharkey was found guilty of two counts of armed robbery and one count of possession of a firearm by a convicted felon and received three sentences-fifteen years for each armed robbery and ten years for possession, all to run concurrently. Sharkey appeals his convictions and sentences. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Eric Sharkey, Madison Magee, and Marvin Bolden were indicted on two counts of armed robbery and possession of a firearm by a convicted felon. The State moved to amend Sharkey's indictment to reflect his status as a habitual offender.
¶3. During Sharkey's trial, Don Patterson, Woodrow Berry, Bolden, and Magee gave essentially the same account of the facts. Berry was visiting Patterson when both men were robbed by Sharkey, Bolden, and Magee. Bolden came in Patterson's home and asked for beer, cigarettes, and change for a $ 100 bill. Patterson told him that he did not have change. Magee then entered Patterson's home with a gun and ordered Patterson and Berry to lie face down on the floor. When Sharkey came inside, Magee told him to check the back bedrooms. Sharkey attempted to remove a television from one of the back bedrooms, but it fell. When Sharkey came back into the living room, Patterson noticed that Sharkey had Patterson's pistol. Magee then told Sharkey to get the television from the living room. Sharkey took the television outside and then came back into the house. As Magee began looking for drugs, Sharkey told Magee to hurry up and to get out of the house. Magee took Patterson's watch, ring, wallet, and Berry's money. Patterson testified that, aside from those items and the television, a gun, whiskey, and medicine were also taken.
¶4. Patterson testified that Sharkey was the only person who entered his bedroom, where his pistol was located. Patterson and Berry testified that the three men were all working together. Both men testified that Sharkey had tattoos on his neck and face.
¶5. Kevin Hinds, a patrol lieutenant for the Stone County Sheriff's Department, testified that he responded to a call regarding an armed robbery. Hinds identified Sharkey as one of the men he had arrested for the armed robbery.
¶6. Captain Ray Boggs with the Stone County Sheriff's Office testified that he spoke with Patterson, who informed him that Patterson and Berry had been robbed at gunpoint. Patterson knew Bolden by name and was able to give a description of the other men. Once Boggs got to the scene of the arrest, he noticed a light-skinned, African-American male with tattoos on his face in the front passenger seat. Boggs, both at the scene and at trial, identified the passenger as Sharkey.
¶7. Boggs searched the vehicle and found a "Hi-Point 40 caliber pistol tucked in the [front passenger] seat." He also found a silver .380 pistol tucked between the front seats. In addition to the weapons, Boggs found bottles of medication prescribed to Patterson, a television, a watch, a diamond ring, and money. Boggs testified that Patterson came to the sheriff's office and identified his recovered items, including the .40 caliber pistol. Boggs showed Patterson and Berry photographic lineups, and both were able to identify Sharkey as one of the men who had robbed them.
¶8. Immediately before the State rested, the trial court read an agreed stipulation to the jury that Sharkey previously had been convicted of the felony uttering a forgery. Sharkey moved for a directed verdict on all three counts; his motion was overruled. Sharkey elected not to testify in his defense, and no other witnesses were called.
¶9. The jury was instructed and found Sharkey guilty of all three counts. Sharkey was found to be a habitual offender and was sentenced to a term of fifteen years for Count I, fifteen years for Count II, and ten years for Count III, to run concurrently. Sharkey's motions for a new trial or, alternatively, a judgment notwithstanding the verdict were denied.
STATEMENT OF THE ISSUES
¶10. On appeal, Sharkey raises the following issues:
I. WHETHER THE VENIRE WAS TAINTED, RENDERING SHARKEY'S TRIAL UNFAIR.
II. WHETHER THE PROSECUTION'S GIVING NONVERBAL SIGNALS TO A STATE'S WITNESS DURING THAT WITNESS'S TESTIMONY WAS IMPROPER.
III. WHETHER THE TRIAL COURT ERRED IN REFUSING A DURESS JURY INSTRUCTION.
IV. WHETHER THE TRIAL COURT ERRED IN REFUSING LESSER-INCLUDED-OFFENSE INSTRUCTIONS FOR ROBBERY OR LARCENY.
ANALYSIS
I. WHETHER THE VENIRE WAS TAINTED, RENDERING SHARKEY'S TRIAL UNFAIR.
¶11. Sharkey argues that the trial court erred in denying his motion for mistrial. He urges that he is entitled to a new trial, because during voir dire the jurors were informed that witnesses Bolden and Magee had been indicted, had pled guilty, and were serving time for the same crime for which Sharkey was on trial. One venire member responded that he would have "a little trouble getting over the statement about the other two being convicted. ..." The State interrupted and asked to approach the bench. During the bench conference, the venire member indicated that he had already formed an opinion about Sharkey's guilt. He was struck for cause.
¶12. Sharkey moved for a mistrial. In opposing the motion, the State argued that (1) the statement was made during voir dire and was not evidence, (2) a guilty plea was less prejudicial than a conviction by a jury, and (3) the State anticipated calling both men to testify. The State informed the court that it would not ask either witness about their guilty pleas unless Sharkey inquired about them on cross-examination.
¶13. The trial court found that the State should not have mentioned the guilty pleas in voir dire and directed the State not to reference the pleas during examination. The trial court denied the motion for mistrial. Sharkey did not question either Bolden or Magee about their guilty pleas, and the State did not mention the pleas during their testimony.
¶14. This Court employs an abuse-of-discretion standard of review to determine whether a trial judge erred in denying a request for a mistrial.
Pitchford v. State
,
¶15. We find no abuse of discretion in the trial court's denial of the motion for mistrial. The statement was made during voir dire, and the only juror who told the court that he could not be impartial in light of the two accomplices' convictions was excused for cause. When Magee and Bolden were called as witnesses, their pleas and sentences were not discussed. Sharkey failed to present evidence that he had suffered substantial or irreparable prejudice.
II. WHETHER THE PROSECUTION'S GIVING NONVERBAL SIGNALS TO A STATE'S WITNESS DURING THAT WITNESS'S TESTIMONY WAS IMPROPER.
¶16. Sharkey claims that the prosecutor erred by giving a nonverbal cue to a witness during the witness's testimony. During direct examination of Patterson by the State, the following exchange occurred:
Q. Could you see anything on the defendant that stood out to you?
A. No.
Q. How were you able - was there any distinctive markings on him?
A. The tattoos.
MR. DAVIS: Objection to the State leading by making facial - to get testimony out of the witness, Your Honor.
THE COURT: That's overruled. Go ahead.
BY MR. BURRELL:
Q. What did you see on the defendant that stood out to you?
A. The tattoos.
¶17. Sharkey relies on
Williams v. State
,
¶18. Today's case is distinguishable, because the record does not reflect that the prosecutor gave any hand signals to the witness in front of the jury. We find that the trial court did not abuse its discretion in overruling Sharkey's objection.
III. WHETHER THE TRIAL COURT ERRED IN REFUSING A DURESS JURY INSTRUCTION.
¶19. The standard of review for issues involving jury instructions is well-established. Jury instructions must be read as a whole to determine if the instructions were proper.
Milano v. State
,
¶20. Sharkey offered a proposed jury instruction on his affirmative defense of duress. Sharkey contends that he did not willingly agree to participate in the robbery and complied with Magee's commands out of fear of being shot. Sharkey submits that duress was a theory of his defense; therefore, he was entitled to proposed jury instruction D-18. In denying the instruction, the trial court noted that no evidence was offered that Sharkey was afraid of Magee.
¶21. While a defendant has a right to jury instructions that present his theory of the case, that right is not absolute.
Davis v. State
,
(1) the defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in the situation; (3) that he had no reasonable legal alternative to violating the law; (4) that a direct causal relationship may be reasonably anticipated between the criminal action and the avoidance of harm.
Banyard v. State
,
¶22. While Sharkey's attorney suggested in his opening statement and closing argument that Sharkey was in fear of Magee and committed the robbery under duress, no evidence was offered to support that suggestion. Sharkey failed to offer any evidence that he was threatened in any way while he was committing the crime. Because Sharkey failed to introduce evidence to support a defense of duress, he was not entitled to a jury instruction on duress.
IV. WHETHER THE TRIAL COURT ERRED IN REFUSING LESSER-INCLUDED-OFFENSE INSTRUCTIONS FOR ROBBERY OR LARCENY.
¶23. Sharkey argues that the trial court erred in denying his proposed jury instructions on simple robbery and petit larceny. Sharkey contends that he did not know a robbery was going to occur and that he did not actively join in the robbery. Sharkey argues that he is entitled to a new trial because the jury was not allowed to consider the lesser-included offenses.
¶24. With regard to Sharkey's claim that he was entitled to a lesser-included-offense instruction, this Court conducts a
de novo
review, because this is a question of law.
Downs v. State
,
¶25. The crime of armed robbery is codified at Mississippi Code Section 97-3-79, which provides, in pertinent part,
Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery...
¶26. The jury was instructed on robbery with a deadly weapon. Sharkey contends that the trial court erred in refusing to give jury instructions D-10 and D-12 on the lesser-included offense of simple robbery, an offense that does not require the exhibition of a deadly weapon.
See
¶27. During the trial, no conflicting testimony was adduced about (1) whether a robbery occurred, (2) whether the victims were held at gunpoint, and (3) who was involved-Magee, Bolden, and Sharkey. "Participation in an armed robbery is sufficient to make one a principal in the crime regardless of whether that participant was the person holding the weapon."
Strickland v. State
,
CONCLUSION
¶28. Finding no error, we affirm Sharkey's convictions and sentences.
¶29. AFFIRMED.
COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, C.J., BEAM, CHAMBERLIN AND GRIFFIS, JJ.; COLEMAN, J., JOINS IN PART. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.
Sharkey was previously convicted of uttering a forgery, two counts of possession of a controlled substance, and burglary.
Magee was sentenced as a habitual offender to a term of twelve years, and Bolden was sentenced to a term of ten years.
Concurrence Opinion
¶30. The majority is correct that there is no reversible error. But I write separately to address the propriety of both the State and the defendant probing potential jurors about their
biases
and preconceived views of accomplice guilty pleas. I suggest such inquiries are within the trial judge's discretion when an accomplice has pled guilty and is expected to testify.
¶31. It is obvious to our bench and bar that criminal practice has changed tremendously in recent years. Gone are the days of demurrers and slews of much simpler one count, one defendant indictments. Multi-defendant, multi-count prosecutions-where defendants, through plea agreements, become accomplice witnesses-now comprise much of our criminal dockets. And unfortunately, until today, this Court has had very little opportunity to specifically discuss in any great depth whether parties may inquire into potential jurors' biases for or against these types of witnesses who have accepted plea bargains.
¶32. Without question, voir dire is the appropriate procedural stage for the parties to test whether prospective jurors are challengeable for cause. And one immediate and obvious cause for removal is
bias
. "Trial judges must scrupulously guard the impartiality of the jury and take corrective measures to insure an unbiased jury."
Scott v. Ball
,
¶33. Jurors bring with them a variety of life experiences and preconceived notions when they enter a courtroom. Individual views about self-interest, favorable treatment, leverage, motivation, and credibility run the gamut in cases involving accomplice testimony. Some potential jurors harbor very negative and hardened views of the veracity of a codefendant who cuts a plea deal and then shows up repackaged as a State witness. They may see the witness as a "snitch" not to be trusted. Other venire members cling to a completely opposite preconceived idea-that because an accomplice has already admitted guilt, the accused defendant must be guilty too.
¶34. Here, the State probed the venire about their views of the accomplice guilty pleas. This resulted in the later scenario presenting itself-the judge removing a biased juror for cause. And I agree with the majority that there was no reversible error in this process.
¶35. With that said, I am quite aware and respectful of our longstanding precedent that evidence of an accomplice's guilty plea or conviction is not competent substantive evidence to prove the remaining defendant's guilt by association.
¶36. Here, the State did not hold out the accomplices' guilty pleas as substantive evidence that Sharkey was guilty simply because he associated with them. Instead, the State questioned potential jurors about their preconceived views and biases about accomplice guilty pleas. Our evidentiary rules certainly authorize ferreting out bias and self-interest at trial.
It has long been the rule in this Commonwealth that it is improper to show that a co-indictee has already been convicted under the indictment. However, ... [the rule] bars only the "blatant use of the conviction of a co-indictee as substantive evidence of guilt of the indictee now on trial." ... [To the contrary], a statement posed during voir dire is not substantive evidence. Secondly, it is quite routine practice for the Commonwealth to question prospective jurors about whether previous charges or convictions of its witnesses and/or deals made with them by the Commonwealth will prohibit the jurors from giving such witnesses a fair hearing.
Mayse v. Commonwealth
,
¶37. Furthermore, while I have the utmost respect for my dissenting colleague, I strongly disagree with the dissent's assertion that the mere mention of an accomplice's guilty plea always amounts to reversible error-unless the defendant desires to bring it up. Such a view misses the intent of the original rule, is one sided, and is not the law in Mississippi. And I have not found a single American court that shares this notion in cases like this, where the plea agreement is not being offered as substantive evidence.
¶38. We must keep in mind that the original prohibition against mention of accomplice
guilty pleas was aimed to curb a sharp practice that is not at issue here-the State offering an accomplice's confession,
¶39. Instead of recognizing this distinction, the dissent brushes with broad strokes, stretching the original protection beyond its intended purpose. In doing so, it places heavy emphasis on
Ivy
,
Johns
, and similar cases like
McCray v. State
, in which this Court's "primary concern [was] with the consequences" of a deputy circuit clerk being called as a witness to introduce "a certified copy of the co-indictee's conviction and sentence" as
substantive evidence
of the remaining defendant's guilt.
McCray v. State
,
¶40. Another pertinent truth that the dissent misses is that in recent years our Court has consistently refused to reverse where accomplice guilty pleas were broached-even by the State-for purposes other than substantive evidence. On balance, I find that stare decisis requires this Court to also recognize these more recent precedents-several of which expressly distinguish the very cases the dissent relies on and illustrate that the dissent's narrative is overly broad and incorrect.
¶41. For example, in
White v. State
-a post-rules-of-evidence case, in which the State informed the venire "that White's accomplices had earlier pled guilty to the burglary at issue"-this Court found no reversible error in mentioning the guilty pleas to the venire or in the later testimony about them.
White v. State
,
¶42. Among those permissible purposes mentioned in
White
was that a guilty plea may also be a prior consistent statement with the testimony that the accomplice gives at the trial of his codefendant.
¶43. In fact, in
Wallace v. State
, this Court expressly distinguished the State impeaching a codefendant turned witness with his guilty plea from the tactics used in
Ivy
,
McCray
,
Buckley
, and
Pieper
¶44. I mention these cases because a balanced analysis requires an understanding and acknowledgment of why this Court originally prohibited the mention of guilty pleas, while also recognizing this Court's more recent and relevant pronouncements, which are more in line with today's widespread handling of accomplice guilty pleas.
¶45. Credibility issues are always front and center in cases built on accomplice testimony. And there is no rational reason why either the State or defendant should be hamstrung from addressing early on the inherent biases that are always afoot on jury panels about guilty pleas of accomplices expected to testify. Mention of such
plea agreements could be made as early as voir dire or opening, addressed through vigorous impeachment by the defendant when cross examining an accomplice, or brought up preemptively by the State to blunt credibility attacks.
¶46. Contrary to the dissent's assertion, the pendulum obviously swings both ways on this issue. As the Missouri Court of Appeals has noted:
Such voir dire questions are allowed as being relevant because, any time the State enters into a plea agreement with a witness, the issues of bias and self interest arise, since plea agreements are "double-edged swords," that not only support a witness'[s] credibility by showing an interest to testify truthfully, but also impeach a witness'[s] credibility by showing an interest in testifying favorably for the government, regardless of the truth.
State v. Dudley
,
RANDOLPH, C.J., BEAM, CHAMBERLIN AND GRIFFIS, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS THIS OPINION IN PART.
I have previously explained that there is "nothing improper about the State or a defendant bringing up a co-conspirator's plea agreement during opening statement, so long as the reasons serve
a proper evidentiary purpose, such as suggesting bias
[.]"
Harper v. State
,
See
Buckley v. State
,
See Miss. R. Evid. 616 ("Evidence of a witness's bias, prejudice, or interest-for or against any party-is admissible to attack the witness's credibility.").
See
State v. Baumann
,
West v. State
,
State v. Thornhill
,
Ivy v. State
,
Specifically, the Court noted that "a plea of guilty ... is[ ] a prior admission of guilt, which is consistent with the testimony at trial. This is a significant distinction because prior statements have evidentiary value different from prior findings of other tribunals."
White
,
Pieper v. State
,
The Fifth Circuit has held that, where a co-defendant testifies at trial and is "subject to the rigors of cross-examination," the government's "disclosure of the guilty plea to blunt the impact of attacks on [the co-defendant's] credibility serves a legitimate purpose and is permissible."
United States v. Veltre
,
According to the Fifth Circuit, "[a] witness-accomplice guilty plea may be admitted into evidence if it serves a legitimate purpose and a proper limiting instruction is given."
United States v. Marroquin
,
Dissenting Opinion
¶47. A prejudicial error occurred in this case. During voir dire examination, the prosecutor informed the potential jurors that Eric Sharkey's co-indictees already had pled guilty to the crime for which Sharkey was about to be tried. The circuit court took no curative action, even after one venireman announced-in the presence of the entire venire -his inability to be fair and impartial in light of "the other two being convicted." This Court's precedent directs us to reverse under these circumstances. With much respect to my learned colleagues, I dissent.
¶48. Eric Sharkey, Madison Magee, and Marvin Bolden were indicted for two counts of armed robbery and possession of a firearm by a convicted felon. Prior to Sharkey's trial, Magee and Bolden had pled guilty and were serving time for the same crime for which Sharkey was to be tried.
¶49. The following colloquy took place during voir dire examination:
PROSECUTOR: Now, as I kind of referenced a minute ago, Mr. Sharkey was one of three people that has been indicted for this .... And the law in the [S]tate of Mississippi is that everybody gets their own day in court.... Today and tomorrow is Mr. Sharkey's day.... Is anybody going to hold it against the State of Mississippi or the defense, the fact that they did not get to hear the other two cases, Mr. Magee and Bolden ?
....
Now, the reason you're not going to hear their case is because Mr. Bolden and Mr. Magee have already plead [sic] guilty to this crime and are currently serving a jail sentence . Does anybody - -
DEFENSE: Objection to that. Your Honor, can we approach?
THE COURT: Yes.
(Bench conference not reported)
THE COURT: I'm going to overrule it. Anybody can impeach a witness.
....
PROSECUTOR: Now, given the fact that Mr. Magee and Mr. Bolden are serving a jail sentence on that , is anybody going to give - - automatically going to give their testimony less weight? Are you able to judge it just like you do every other piece of evidence that's come before you?
Soon after the above exchange, the dialogue continued, in the presence of the entire venire , as follows:
PROSECUTOR: Is there anything that you guys need us to know that you think may affect your ability to be fair and impartial in this case? Yes, sir. Number 42, Mr. Gonzalez.
VENIREMAN: Yes, sir.
PROSECUTOR: Yes, sir.
VENIREMAN: I have a little trouble getting over the statement about the other two being convicted. I - -
PROSECUTOR: May we approach on this matter, Your Honor?
The remaining conversation consists of a bench conference that took place outside of the presence of the venire .
VENIREMAN: I just wanted to be honest. I had an issue once I heard that statement . I've raised my kids that when you're flocked together, who you hang with, what they do, it's who you represent[;] it's who you are. Once I heard that, I'm honestly having an issue.
PROSECUTOR: You think you may not be able to be fair to both sides?
VENIREMAN: Once I heard that, in all honesty, my first thought in my mind was if he was with them there, they're obviously not in the right, and he's probably not in the right as well. So that's just the way I feel.
PROSECUTOR: So you've kind of formulated an opinion already?
VENIREMAN: Unfortunately, yes, sir, I have.
PROSECUTOR: You feel it would be hard to set that aside?
VENIREMAN: I actually paused - - through the whole questions, I was trying to figure that out in my mind, but I am having a hard time. Yes, sir. The first thing that came to my mind.
THE COURT: There are no right answers or wrong answers. We just want truthful answers.
PROSECUTOR: Since those two men have pled guilty and this man is here, it makes you feel that he's guilty also, is that what you're trying to say?
VENIREMAN: Yes, sir .
¶50. Subsequently, the venireman was struck for cause, and Sharkey moved for a mistrial. The trial court not only denied the motion but also failed to give any curative instruction to the remaining venire members or the empaneled petit jury. This was error.
¶51. The longstanding rule in Mississippi is that when two or more people are indicted jointly for crimes arising from the same event or occurrence, a judgment of conviction against, or a plea of guilty by, one of them is not competent evidence against the party being tried.
Robinson v. State
,
¶52. On many occasions, this Court, employing strong language, has reversed and remanded cases when the conviction or guilty plea of a co-indictee had been revealed improperly to a jury.
Johns v. State
,
¶53. In
Pickens
, three men, including Pickens, were charged with murder.
Pickens
,
¶54. In Buckley , we observed the following:
Appellant assigns as error the action of the trial court in overruling his objection to that part of the testimony of Pitts wherein he testified that he had been jointly indicted with Buckley on the charge of Kidnapping Jack Watkins and that he had plead [sic] guilty to that charge, and as a result of his plea of guilty, had been sentenced to serve a term of five years in the state penitentiary. The overruling of this objection and admission of this testimony was reversible error. The law is well settled in this state that whe[n] two or more persons are jointly indicted for the same offense but are separately tried, a judgment of conviction against one of them is not competent evidence on the trial of the other because such plea of guilty or conviction is no evidence of the guilt of the party being tried.... Not only was this testimony designed to lead the jury to believe that since Pitts had plead [sic] guilty to the charge, that his co-indictee, Buckley, was also guilty, but it was also designed to bolster the testimony of Pitts.
Buckley
,
¶55. In Ivy , the Court reiterated these principles:
The jury thus had before it evidence of the co-indictee's conviction and sentence from which it could very likely conclude that Ivy was guilty because his associate and co-indictee was convicted and sentenced, or more modernly put, the jury could find that he was guilty by association.
We have consistently held evidence of this nature to be inimical to fair trial .
Ivy
,
¶56. These prior decisions all assign as error use of evidence of a co-indictee's conviction and sentence. That being beyond dispute, the question becomes whether the error requires reversal.
¶57. The State argues that the error here was harmless because the statement was made during voir dire and was not introduced into evidence. First, this Court has suggested that this type of error falls under a "definitive standard" that requires reversal as a violation of a defendant's right to a fair and impartial trial, rather than a "case-by-case evaluation of [harmless] error" analysis:
The very essence of liberty and justice requires that fundamental rights be measured and enforced by certain standards and uniform rules. These standards should not be compromised to attain a good but temporary purpose [14 ] since it is inevitable that some wrong will be found to exist under any rule, and extreme cases will arise making a departure from fixed principles seem advantageous for the moment. It is this Court's opinion, however, that adherence to a definitive standard will result in less injustice and enhance stability in law in the long run more than would a case-by-case evaluation of error to determine whether it was 'harmless,' 'probably harmless,' 'not so harmless,' 'harmful,' 'grossly harmful,' the last category equating to prejudice, requiring reversal.
McCray
,
This is not one of those cases for the application of the rule that a conviction will be affirmed unless it appears that another jury could reasonably reach a different verdict upon a proper trial than that returned on the former one, but rather it is a case where the constitutional right of an accused to a fair and impartial trial has been violated. When that is done, the defendant is entitled to another trial regardless of the fact that the evidence on the first trial may have shown him to be guilty beyond every reasonable doubt . The law guarantees this to one accused of crime, and until he has had a fair and impartial trial within the meaning of the Constitution and Laws of the State, he is not to be deprived of his liberty by a sentence in the state penitentiary.
Id.
at 809 (emphasis added) (quoting
Scarbrough v. State
,
¶58. Second, the prejudicial nature of the statement is not somehow lost because it was said during
voir dire
rather than in the evidentiary stage of trial. In
McCray
, the prosecutor revealed the co-indictee's conviction in his opening statement,
id.
at 807, and opening statements, like statements made in
voir dire
, do not constitute evidence.
Slaughter v. State
,
¶59. Third, the reason that the Court has announced this rule many times is demonstrated by this record. The prosecutor gratuitously and improperly revealed that the codefendants, both of whom were State's witnesses, had been adjudicated guilty of the offense for which Sharkey was about to be tried. In response to the prosecutor's revelation, a potential juror said, in the presence of the entire venire, "I have a little trouble getting over the statement about the other two being convicted." During the subsequent bench conference, the venireman affirmed the following statement: "Since those two men have pled guilty and this man is here, it makes you feel that he's guilty also." The venireman articulated, clearly and succinctly, the principal reason Mississippi courts have adhered to the rule for more than one hundred and fifty years.
¶60. The other reason courts disallow the prosecution's revelation of the convictions or guilty pleas of co-indictees is that they inform the jury that a judicial determination has been made respecting the
corpus delicti
¶61. Even if this Court were inclined to overrule its holding in
McCray
, which it has not done, the error in the present case cannot be deemed harmless. This Court has suggested that, under the right circumstances, a statement pertaining to the guilt of a co-indictee can be cured by proper and timely instruction from the trial judge. In
Reid v. State
,
¶62. But
Reid
does not extend to those cases in which the trial court undertakes no curative action after a defense objection. Indeed, courts throughout the United States have recognized that, after a co-indictee's guilt is revealed, a trial court's failure to instruct the jury or to otherwise cure the prejudice necessarily renders the error reversible as opposed to harmless.
Babb v. United States
,
¶63. Respectfully, I disagree with the special concurrence's characterizations of some of the changes in our State's criminal practice.
¶64. The special concurrence also implies that our one-hundred-and-fifty year old rule somehow restricts defendants from addressing the guilt of their co-indictees. However, the accused is not hamstrung by the rule. As noted in
McCray
and
Ivy
, defendants have a "constitutional right" that protects them from having the guilt of their co-indictee made known.
McCray
,
¶65. By contrast, the State has no constitutional right against having the guilt of a defendant's co-indictee exposed. "[T]he United States Constitution protects individuals from government action[,]" not the government from individual action.
Dissmeyer v. State
,
¶66. I fail to see how the prejudice this issue causes is at all diminished by any changes in our criminal practice, especially when this record so poignantly demonstrates otherwise. Although the prosecutor's purpose in this case ostensibly was to uncover bias-as opposed to offering the prior guilty pleas as substantive evidence-the revelation of the prior guilty pleas induced a venire member to believe the defendant was guilty by association with his already convicted codefendants. Since such a result is possible and, moreover, actually occurred in this case, how can we say that merely offering the evidence for a different purpose mitigates its damage?
¶67. Despite this problem, courts have held, as the special concurrence notes, that it is possible for the prejudice to be cured, but only when trial courts take timely curative action.
United States v. Davis
,
¶68. In the case at hand, though, no limiting or cautionary instruction was given by the circuit court. No steps were taken to cure the prejudice inflicted upon Eric Sharkey, and many of the foregoing decisions found reversible error under less deleterious circumstances.
¶69. To reiterate, the prejudice in this case was compounded by Juror Number 42's announcement, in the presence of the entire
venire
, that "I have a little trouble getting over the statement about the other two being convicted." In light of this statement, the other prospective jurors were left to wonder whether they too had trouble getting over the revelation, especially in the absence of a judicial admonition to disregard it. On this record, we cannot know how the jurors were affected, because they were not polled, and the circuit court did not otherwise instruct the jurors following the defense's objection. The circuit court should have ordered a mistrial. In the absence of such a ruling, at the least it should have admonished the jury in accordance with
Davis
and
Reid
. It cannot be said that this error was harmless beyond a reasonable doubt.
McCray
,
¶70. We would do well to heed the pronouncements of our early Court:
The legal theory of a trial by jury is the selection of an impartial body from the county, and its trial of the case free from any influence except that produced by the testimony and law and legitimate argument, and any subjection of the jury to any other influence is carefully guarded against. Twelve men must concur in preferring a charge of felony before one can be held to answer; and twelve men, elected, impaneled, and sworn to try the issue joined, must concur in a verdict of guilty before the humblest can by our law be deprived of his liberty; and such is the jealousy with which trial by jury is guarded that, when it is made to appear that anything has occurred which may have improperly influenced the action of the jury , the accused will be granted a new trial, although he may appear to be ever so guilty , because it may be said that his guilt has not been ascertained in the manner prescribed by law, and every one is to be judged by the law.
Lamar v. State
,
¶71. Our precedent, and the principles of a fair and impartial trial espoused by the Constitutions of the United States and Mississippi, demand reversal of this conviction. Because the majority does otherwise, I respectfully dissent.
KING, P.J., JOINS THIS OPINION.
The "good but temporary purpose" to which the McCray Court referred was affirming the judgment of conviction against Leroy McCray, because "abundant evidence establishing the commission of a crime [had been adduced.]" Id. at 808.
Corpus delicti translates literally as the "body of the crime," which means the collection of evidence used to establish the fact that a crime has occurred, as distinguished from the person who committed it. Corpus delicti , Black's Law Dictionary (10th ed. 2014).
We do not speculate whether this testimony was introduced for the purpose of deliberately prejudicing McCray's defense by the use of evidence which this Court has repeatedly condemned or that it was introduced under the mistaken belief that the conviction of a co-indictee was the best evidence that a crime had been committed so that McCray's guilt as an accessory could be established since in either event it was prejudicial .
McCray
,
For example, the special concurrence discusses how multi-defendant, multi-count prosecutions now comprise much of the criminal dockets. However, multi-defendant prosecutions existed in Mississippi before it became the nation's twentieth state.
Statutes of the Miss. Territory
, § 47 (1807). And one of the first few cases decided under statehood recognizes the propriety of multi-defendant prosecutions.
State v. Blennerhassett
,
Mult-count indictments first were authorized by statute effective July 1, 1986. Miss. Code. Ann. § 99-7-2(1) (Rev. 2015);
see also
McCarty v. State
,
That said, if the defendant opens the proverbial door to a co-indictee's guilt, then it is axiomatic that the State then would have an opportunity to address the issue as well.
In
Isom v. Mississippi Central Railroad Co
.
,
But the natural tendency of power and wealth to accumulate inordinately, the strong proclivity of every department in popular governments, to consult the good of the many, at the expense of the rights of the few, here as elsewhere, in all time past, leave but little hope that the utmost caution, formally embodied in written constitutions, will ever secure that perfect protection to individual right, which was designed, and is desired, by the great body of the people.... Hence the great necessity, on the part of the judicial department, to scrutinize well, not only the conduct of the other departments, in cases appealing to it for protection against such encroachments, but especially to guard itself against the natural influences, which the clamors of the powerful many are calculated to exert. So that the humblest, weakest citizen, claiming a legal right, may assert it, against the interests or combinations of the many, or the public even, with a full confidence that neither public necessity, public utility, nor public convenience, the pleas of all despotism, shall prevail against a single private right, secured by our constitution and laws.