BEFORE ROY NOBLE LEE, PRATHER and ANDERSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
William Paul Swindle and Steven Wayne Anderson were jointly indicted, tried and convicted in the Circuit Court of Lee County, Mississippi, on a charge of possessing more than one (1) kilogram of marijuana with intent to distribute. Swindle was sentenced to twelve (12) years in the custody of the Mississippi Department of Corrections and was fined
fifteen thousand dollars ($15,000). Anderson was sentenced to sixteen (16) years in the custody of the Mississippi Department of Corrections and was fined fifteen thousand dollars ($15,000). They have appealed the judgment of conviction and sentences to this Court and have assigned four (4) errors in the trial below.
THE LOWER COURT COMMITTED REVERSIBLE ERROR BY DIRECTING SEQUESTRATION OF THE JURY LIST UNTIL THE DAY OF THE TRIAL, BY DENYING THE RIGHT OF THE DEFENSE TO INQUIRE INTO THE FACTUAL BASIS OF SUCH ORDER, AND BY FAILING TO GRANT A CONTINUANCE.
Appellants were indicted at the August 1983 Term of the Lee County Circuit Court and a trial was held upon the indictment, resulting in a mistrial when the jury was unable to agree upon a verdict. The case was tried a second time in April, 1984, and the trial judge sustained appellant's motion for a mistrial when narcotics agent Clay McDonald, a witness for the State, testified contrary to an order of the court entered on a motion in limine. During that trial, a juror reported to the court that one Andy Wilson had offered her two hundred dollars ($200.00) for the purpose of influencing her verdict in the case. Thereupon, the jury was sequestered until the motion for mistrial was sustained upon another ground. The case was set for retrial on June 11, 1984, and was tried June 12-13, 1984.
Prior to the June, 1984, trial, the lower court made known its intention to sequester and keep confidential the names of jurors and jury lists drawn for jury service beginning the week of June 11, 1984, and ordered the circuit clerk to summons the jurors by mail. The court held a hearing on the matter and the defense and prosecuting attorneys were given full opportunity to present their views, objections and arguments. The appellants strenuously objected to keeping the jury list confidential, apparently thinking that the prosecuting attorney and the sheriff's office would know the names of the jury lists. The court advised all attorneys that the order of confidentiality and sequestration provided that no person would have information as to the jurors summoned except the clerk and deputy who actually prepared the mail summonses. The jury list would not be made public until the jurors reported at 8:00 a.m. on the morning when court convened and the juror information sheets would be made available to the Bar after the juries were seated and impaneled. (This refers to juries impaneled for the week).
Appellants filed a motion for continuance because of the court sequestering the jury list. In denying the motion, the lower court set out the procedure in impaneling juries in the First Circuit Court District, which was strictly followed in the present case:
THE COURT: The motion for a continuance filed by the defendant, William Paul Swindle, will be denied. The Court takes note of the practice in this district as follows: The prospective jurors are assembled on Monday morning at eight-thirty; they are seated by the clerk of this Court, who at that time checks the list to be sure that they are present and obtains from them the juror information sheet. That sheet is, after having been collected by the clerk, is kept by her or some member of her staff until qualification of the entire panel has been completed by the Court.
When that has been done, it is then known who will actually remain and serve as jurors. They are seated in order, at a random order, as they are drawn from the jury box; and when the jury list has been prepared, the jury information slips are placed in the order in which the jurors are seated in the courtroom and in the order in which the jury list appeared. And at that time, the information slip made available to Counsel. That has been the practice as long as I can remember, and it continued to be the practice. There is no deprivation to the defendant in this particular case, save and except that I ordered the jury list, that is, the entire 100-name list, to not be made public until eight o'clock this morning.
According to Counsel advises that as far as he knows it was available at eight. He didn't see it until nine, but that's not my doing. The motion for a continuance will be denied.
On the hearing for confidentiality of the jury list, an indictment charging Andy Wilson with jury tampering was introduced in evidence. The lower court refused to permit the appellants to call Andy Wilson to testify about the charge.
Although Valentine v. State, 396 So. 2d 15 (Miss. 1981), was reversed on other grounds, the Court did discuss the question of sequestering the jury list as was done here. The Court said:
Another proposition argued is that under recently enacted Mississippi Code Annotated 13-5-32 (Supp. 1980) the trial judge erroneously sequestered the jury list. The statute reads:
13-5-32. Names of jurors drawn from jury box to be made public, exception.
The names of jurors drawn from the jury box shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.
Reversal of the case is being ordered for reasons discussed above having to do with cross-examination limitations. Nevertheless, the Court sets forth its opinion that only in rare and exceptional cases should a presiding judge sequester or keep secret the names of jurors drawn from the jury box. Here the trial judge ordered that names of the jurors drawn would be kept confidential by the clerk" until the said Juror's [sic] have reported to the Courthouse for Jury service. "Before the trial judge makes a determination not to make a jury list available to litigants or trial attorneys whose clients will have a cause for trial, he should cause the record clearly to demonstrate good and sufficient reason" in the interest of justice "as 13-5-32 provides. Before making his determination to keep confidential or secret the names of the jurors drawn from the jury box, the litigants or counsel (in this case the defendant) should have notice that such action is being considered by the trial judge. Then the court should make its decision only after a hearing is accorded the defendant on the issue.
At the sequestration hearing in the case sub judice, the court found the following:
I have never . . . felt that the sequestration of the jury list was appropriate or did anything to see that it was done. But when a prospective juror of this county is approached by someone who attempts to influence their decision or participation
in the trial of a case that comes to my attention, then I think it is my responsibility to do whatever is reasonable in the exercise of my power as a judge to see that that does not happen again.
I am not finding the defendant in the indictment returned, Mr. Wilson - I'm not indulging in any speculation as to whether or not he is guilty at all, but I think that the returning of an indictment certainly places me in the position of I must give that some weight. I know no other way to be reasonably sure that that kind of thing does not happen again save and except to sequester the list. I know of no hardship that would befall the defendant or the State. The State's not going to have them; no one's going to have them except the clerk.
Now I do now find that the fact that on a prior occasion there was an attempt made to influence a juror. I believe that constitutes a rare and exceptional circumstance and I so find. I likewise find that that constitutes good and sufficient reason. . . .
The lower court determined that a sensitive situation existed, when the present case came on for trial in June, 1984. It made no difference to the court on whose behalf the man Andy Wilson was tampering with the jury. The court's concern was to insure that a fair and untainted jury heard the case. Only the clerk knew the names on the jury list. No other persons knew the names of the potential jurors. Neither side had an advantage over the other. Under the circumstances here, we are of the opinion that the lower court followed the statute and the guidelines set forth in Valentine v. State, supra. Appellants' ...