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RICKY STEVENS v. STATE OF MISSISSIPPI

SEPTEMBER 30, 1987

RICKY STEVENS
v.
STATE OF MISSISSIPPI



EN BANC.

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Ricky Stevens was convicted of armed robbery in the Circuit Court of Marion County and sentenced to serve twenty (20) years in the custody of the Mississippi Department of Corrections. We affirm.

The facts are virtually undisputed. At approximately 4:30 p.m. on November 27, 1985, Stevens and an accomplice, Tommy Dale Holmes, drove to the Midway Grocery Store, owned by Charles Russell. While Holmes waited in the

 car, Stevens entered the store and asked for a pack of Marlboro cigarettes. Russell, his teen-aged daughter Jenny, and her friend Margaret Hammond were present in the store. When told that the store did not stock his particular brand of cigarettes, Stevens left.

 About two hours later the two men returned to the store when Russell was alone behind the counter. Stevens entered, purchased matches and asked for a cold beer. Holmes then appeared with a rifle. While Holmes held the rifle on Russell, Stevens took the money from the cash register, and the pair fled. Later in the evening, Russell and the two girls spotted Stevens and Holmes in their car at Cox's Triangle Gulf Station and told the police that these were the two men who robbed the store.

 Stevens testified that the robbery was Holmes' idea, and that he took the money from the cash drawer because "I was just like Mr. Russell, I was about scared to death."

 Stevens assigns two errors. The first concerns the dismissal of a regular juror and her replacement with an alternate. After the testimony was completed but before the jury commenced its deliberations, the trial judge excused a regular juror and allowed the alternate to go forward in the deliberations. After the jury retired to the jury room, defendant moved for a mistrial:

 Comes now the defendant and moves the Court to declare a mistrial because the court excused one of the primary jurors, who gave no reason whatsoever, but she didn't want to go on. We feel that this -

 The Court interrupted:

 All right, the Court wants to let the record be clear that the Court did view the juror, and that she was very concerned, and she did pay attention throughout the trial and seemed to be a very good juror, and that there was some problem that she - some serious problem other than just wanting to to home and not deliberating, and rather than to get into that out here in the open courtroom and all, since we did have an alternate, and that's the purpose of the alternate, and I did go ahead and accept the alternate, and the motion will be overruled.

 The dismissal of a juror for good cause and her replacement with an alternate is within the sound discretion

 of the trial judge. Mississippi Code Annotated 13-5-67 (1972); Russell v. State, 220 So. 2d 334 (Miss. 1969). Although the trial judge here obviously talked with the juror and concluded that she was no longer able or qualified to perform her duties, the manner in which that decision was made was imperfect. If, for whatever reason, the judge chose to hear the matter in chambers, counsel for both sides should have been informed and given the opportunity to be present or, at least, to object and make a record. Also, the lower court should have put in the record the specific reasons for excusing the juror. This Court now has no way to review the reasons for the dismissal and the objection to the dismissal. Counsel has cited no actual prejudice to the appellant arising out of the substitution of jurors, and we must assume that the juror was excused for good cause.

 The appellant also urges that the lower court erred in denying a motion for new trial when it was revealed that a juror concealed material information on voir dire. No record was made of voir dire, and no bill of exceptions was filed, but attached to the motion for new trial was a stipulation of counsel that jurors were asked on voir dire:

 Have any of your family members of a close personal friend (that you would regard like a family member) ...


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