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FEBRUARY 12, 1986




This is an appeal from a criminal conviction in the Circuit Court of Jackson County. The appellant, Clifton" Kip "Fairley, was convicted of the murder of Leepolia Freeman and sentenced to life imprisonment.

On December 29, 1982, Jackson County deputies found the body of Leepolia Freeman slumped in his car with his foot on the brake pedal, the car in drive, the motor running and the front passenger door standing open. It was stipulated that Freeman died of three gunshot wounds to the head. $670 cash was also found on the body of the victim.

 Miss Doris Stalworth, the appellant's live-in girlfriend testified that she and the appellant had an argument on the night of December 29. She phoned Mr. Freeman, with whom she was also sexually involved, and asked him to pick her up on Shamrock Street to aid her in getting away from the appellant. She met Freeman on Shamrock Street shortly afterwards and got into the car with him. As she leaned over the back of the seat to fix herself a drink, she saw the appellant approaching the car (6 to 8 feet away) on foot. She jumped from the automobile in an attempt to flee, but the appellant caught her. She and the appellant scuffled briefly and she managed to break free. As she fled the scene, she left the appellant standing just outside the passenger door of Freeman's car and she heard three gunshots. Stalworth informed the police of this episode approximately three weeks later. The appellant was subsequently arrested and charged with murder.

 The state offered other evidence and testimony

 to corroborate Stalworth's version of the incident. Another state witness testified that the appellant had admitted the crime to him. It was also shown that the appellant had borrowed the gun used in the commission of the crime several days before the shooting and had returned it several days after.

 The appellant alleged however that Mrs. Stalworth, against his advice, had masterminded a plan to rob Freeman. Accordingly, she had lured him to Shamrock Street and the shooting stemmed from her attempt to rob him. The appellant contends that he did not participate in the robbery or the shooting.

 After trial on the issue, the appellant was convicted of murder. Appellant assigns several points of error, but we find it necessary to consider only the assertion that the court erred in requesting the jury to deliberate after more than twelve hours of trial.

 According to the record, the trial began July 25, 1983, at 11:00 a.m. and at 5:00 p.m. the state rested its case. Appellant's counsel moved for recess until the following morning, stating that he had planned to call ten witnesses and that he felt the jury might be tired. The prosecuting attorney urged the court to continue in light of the heavy docket scheduled for the next day. The court gave the following reasons for overruling the motion to recess:

 BY THE COURT: I think your motion is a little premature. I certainly couldn't sequester a jury at 5:00 in a motel room with no magazines, no newspapers, no TV and let them sit there from 5:00 in the evening until 9:00 the next morning. I feel that that would prejudice the rights of the defendant. Any time a jury is sequestered overnight, it is my policy to go much later than this particular hour. So, I will overrule your motion at this time. The defense can begin putting on its case and I will reconsider it if we should get into the very late hours. But, it has been my observation of jurors that they would rather be here in the courtroom working than sitting in a motel room staring at four blank walls with no entertainment of any kind, which the Court does not permit when they are sequestered.

 . . .

 Let me say that I too am concerned with the rights of the defendant, and you cannot be concerned about the defendant without being concerned about the jury. You can have jurors in pure boredom and discomfort for a long period of time and then to ask them to go out and deliberate the fate of the defendant, I think is certainly prejudicial to the defendant. Your motion will be overruled at this time. Bring the jury in.

 Defense counsel renewed the motion for recess at 7:00 p.m. The judge overruled this motion stating:

 BY THE COURT: Mr. Hurt, let's go on with the testimony. I don't think we've had any undue length of testimony today. It has not been my practice in the past to recess a case this early, and the jury is being fed at this time and they will be refreshed and I can assure you that I will keep an eye out for fatigue on the part of the jury and if they be in any type of distress, I will certainly take note of that. In fact, it has been my policy in the past to confer with the jury about ...

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