BEFORE ROY NOBLE LEE, P.J.; PRATHER AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
The matter arises out of a November 28, 1984 incident at a carwash near the intersection of Capitol Street and Prentiss Street in the city of Jackson. At approximately 1:00 in the afternoon on that day, Kenneth Lee Griffin, Defendant below and Appellant here, took from Latrice B. Hill's automobile the sum of $380.00 which belonged to Hill.
On March 4, 1985, the Hinds County Grand Jury returned an indictment charging Griffin with the armed robbery of Ms. Hill. The matter came on for trial on July 15, 1985, whereupon Griffin took the witness stand and admitted that he took the purse and money belonging to Ms. Hill but denied emphatically that he was armed at the time. The jury in due course found Griffin guilty of robbery, Miss. Code Ann. 97-3-73 (1972), as distinguished from armed robbery, and thereafter the Circuit Court pronounced the 15 year sentence mentioned above. Miss.
Code Ann. 97-3-75 (1972). Following presentation and denial of the usual post-trial motions, Griffin perfected his appeal to this Court.
Griffin complains that the jury before whom he was tried was not sequestered, a violation of a supposed rule that in capital cases, juries must be sequestered, period. The record reflects no pre-trial motion on behalf of either Griffin or the State requesting sequestration. The only allusion to the lack of jury sequestration appearing in the record is a motion tendered orally by defense counsel at the conclusion of all of the evidence but prior to the making of final arguments to the jury. Defense counsel then said:
For the record, Your Honor, I would like that Defendant Kenneth Griffin move for a mistrial because during this break, Your Honor, which occurred at approximately 4:15 to 4:30 I have personally noticed that the Jury, even though they leave the courtroom, they do not remain in the juryroom, Your Honor, and are in fact wandering all around the courthouse in the proximity of witnesses for the State as well as the Defense, Your Honor.
The motion will be denied.
Rule 5.07, Miss.U.Crim.R.Cir.Ct.Prac., reads as follows:
In any case where the defendant is charged with a crime punishable by death and the state seeks to impose the death penalty, the jury shall be sequestered during the entire trial.
In all other criminal cases, the jury may be sequestered on request of either the defendant or the state made at least 48 hours in advance of the trial. The trial judge may, in the exercise of sound judicial discretion, either grant or refuse to the request to sequester the jury. In the absence of a request, the trial judge may, on his own initiative, sequester a jury at any stage of a trial. [Emphasis added]
We have on three prior occasions considered Rule 5.07. In Barnes v. State, 374 So.2d 1308 (Miss. 1979), defense counsel agreed that the jurors might separate for the night. The Court held that the defendant, Barnes, had waived such rights as he may have had under Rule 5.07. In this connection we note that Griffin argues that the right to have a sequestered jury in a capital case is one that may not be waived. We disagree. If the right to trial by jury at all may be waived, it follows on principle that the right, if any, to a sequestered jury may be waived. Barnes v. State, 374 So.2d at 1309.
In Witherspoon v. State, 441 So.2d 1363 (Miss. 1983), a murder prosecution which resulted in a manslaughter conviction, defendant moved that the jury be sequestered but less than 48 hours in advance of trial. The trial judge denied the motion. This Court refused to reverse in the context of a claim that there had been an unauthorized communication with one of the jurors. The point to be recognized is that Rule 5.07 makes mandatory sequestration of the jury only in death penalty cases. In cases such as Witherspoon, Rule 5.07 provides
the trial judge may, in the exercise of sound judicial discretion, either grant or refuse the ...