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ROBERT CARTER v. STATE OF MISSISSIPPI

JULY 30, 1986

ROBERT CARTER
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, PRATHER and ROBERTSON

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Robert Carter was convicted in the Circuit Court of Madison County, Mississippi, Honorable R. L. Goza, presiding, on a charge of murder less than capital and was sentenced to life in custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns four errors in the trial below.

I.

 THE LOWER COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR A DIRECTED VERDICT AND REQUEST FOR A PEREMPTORY INSTRUCTION OF NOT GUILTY OF MURDER; AND THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

 Appellant resided at 586 Johnson Street, Canton, Mississippi. He was divorced from his former wife, Bobbie Carter Poole. The ex-wife had moved to the State of Michigan, but returned to Canton and, being unable to find a place to live, was temporarily staying in appellant's home. On July 30, 1983, Linda McGee, appellant's fiance, came by his home to pick up some personal articles. Ms. Poole apparently did not like Ms. McGee and asked her to leave. Appellant went to his bedroom, picked up his pistol and was escorting Ms. McGee to her automobile. Ms. Poole followed them outside to Ms. McGee's car, an argument ensued, and blows were exchanged. Zachary Goff, Ms. Poole's son, ran out of appellant's house toward them and appellant shot him in the left temple with the pistol, resulting in Goff's death.

 Appellant's defense was a hybrid self-defense and accidental shooting. He testified that Goff was attacking him and, while he was attempting to switch the pistol from his left hand to right hand, his arm was pushed against a fence and the gun accidentally discharged. However, appellant never claimed to arresting officers that the shooting was accidental. He does not cite authority to support his first assignment of error. In the absence of citations, this Court is not required to consider the assignment. Smith v. State, 430 So.2d 406 (Miss. 1983); Pate v. State, 419 So.2d 1324 (Miss. 1982); Ramseur v. State, 368 So.2d 842 (Miss. 1979). Even so, an issue of guilt was submitted to the jury on conflicting evidence, and resolved against the appellant. We

 are of the opinion that the evidence fully supports the verdict of the jury. Griffin v. State, 480 So.2d 1124 (Miss. 1985); Tigner v. State, 478 So.2d 293 (Miss. 1985); Hammond v. State, 465 So.2d 1031 (Miss. 1985); Jackson v. State, 440 So.2d 307 (Miss. 1983); Saik v. State, 387 So.2d 751 (Miss. 1980); Warn v. State, 349 So.2d 1055 (Miss. 1977).

 II.

 THE JURY WAS SEQUESTERED BUT SEPARATED. IN ATTEMPTING TO DETERMINE WHETHER THERE WAS JURY TAMPERING, THE LOWER COURT IMPROPERLY IMPEACHED A DEFENSE WITNESS.

 The jury retired to the jury room and was in recess while a bailiff escorted one of the jurors to a restroom. During this period, two witnesses, Sheila McCullough and Linda McGee Carter, inadvertently entered the jury room to obtain coffee. Appellant contends that the sanctity of the jury was violated and the incident requires reversal of the case.

 When the matter was brought to the attention of the trial judge, he conducted an inquiry outside the presence of the jury to determine whether or not anything was done or said in the jury room while the two women were present, which related to the trial and charge against appellant, or influenced the jury in any way. Without contradiction, it was developed that the women went into the jury room by mistake; that no conversation was had with any juror; and that nothing occurred, which would influence or affect the jury in its deliberation and decision of the case.

 Appellant argues that the court's manner of investigation caused the improper impeachment of Linda McGee Carter, who was an important defense witness.

 Appellant cites Woods v. State, 43 Miss. 364 (1870) and cases following Woods to support his position. The reasoning of Woods is not pertinent to the case sub judice, where there was an inadvertent separation of the jury for a brief time. See Lampley v. State, 291 So.2d 707 (Miss. 1974). In the trial of cases during modern times, inadvertent or brief separations can hardly be prevented, regardless of accommodations and the number of bailiffs. Every case has to be decided on its own facts in regard to what happened. The possibility that influence might have been used on a jury is not enough to set aside a conviction and any presumption of prejudice may be rebutted by an affirmative showing that no such prejudice exists. Anderson v. State, 231 Miss. 352, 95 So.2d 465 (1957); Pepper v. State, 200 Miss. 891, 27 So.2d 842 (1946).

 The trial judge's inquiry included placing Ms. McCullough and Mrs. Carter under oath and interrogating them outside the jury's presence, and inquiring of the jury as to whether anything occurred that would influence them in their decision. We are of the opinion that nothing tainted or influenced the jury and that there is no merit to ...


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