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L. G. SHAW v. STATE OF MISSISSIPPI

FEBRUARY 27, 1989

L. G. SHAW
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, ANDERSON, AND ZUCCARO

ANDERSON, JUSTICE, FOR THE COURT:

This is an appeal from the September 12, 1986, judgment of the Benton County Circuit Court wherein L. G. Shaw was convicted of manslaughter and sentenced to twenty years' imprisonment with five years suspended. Shaw assigns four errors by the trial court. In affirming, we find it necessary to address only two of those assignments.

Shaw was indicted for murder. At trial, the state's evidence indicated that Shaw, who was angry because his goat had been shot earlier in the day, went to a gambling establishment in North Benton County around 9 p.m. on November 27, 1985, and approximately one-half hour later, without provocation, shot and killed J. B. Richardson. Shaw's testimony was that he shot Richardson in self defense as Richardson was approaching him with a knife. On this evidence, the jury returned its manslaughter verdict.

 I. DID THE TRIAL COURT ERR IN EXCUSING FOR CAUSE JUROR OSCAR NUNNALLY AT THE CONCLUSION OF CLOSING ARGUMENTS?

 During voir dire Lawrence Little, who was then a Third Circuit Assistant District Attorney, asked the following questions:

 I'm one of the assistant district attorneys for our Third Circuit Court here in North Mississippi. I have been doing this for a period of several months and do any of ya'll know me? I don't believe any of you do. I don't recognize anyone. I live in Oxford. Have any of your families ever been involved in any way in a case that our district attorney, Mr. Kenneth Coleman or Mr. John Gregory, the other assistant district attorney, has prosecuted? Have any of ya'll ever been involved with any of that? . . .

 Venireman Oscar Nunnally did not reply.

 At the conclusion of the trial, after both sides had given their closing arguments, but before the jury retired to deliberate, there was an in-chambers conference during which the state moved to have Nunnally excused for cause because Nunnally did not respond to the above noted question during voir dire. The state noted that Nunnally" was indicted by a grand jury of Benton County, Mississippi, was served with a capias, and I have in my hand Benton County file 2813, styled State of Mississippi v. Oscar Nunnally wherein it is charged that Oscar Lee Nunnally committed a crime of murder of one Jake Nunnally. "Defense counsel pointed out that Nunnally's

 case was retired to the file and never brought up. He argued that Nunnally could not have been expected to answer the voir dire question in light of the way in which it was phrased. Defense counsel also argued that Nunnally properly did not answer the question since he was innocent until proven guilty. Finally, defense counsel argued that removing Nunnally would violate Batson v. Kentucky. The trial court sustained the state's motion stating that Nunnally would be excused" because he did not respond to the voir dire of the jury. "

 On appeal, Shaw argues that the trial court's action violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986) and, further, that the trial court did not have grounds to excuse Nunnally for cause. The state rebuts by arguing that the court's ruling was correct as to the sufficiency of the showing of cause and that Batson applies to peremptory challenges not to challenges for cause.

 Shaw's Batson argument is without merit. First, and as the state notes, Batson applies to the state's use of peremptory challenges and not to the court's excusals for cause. Second, except for defense counsel's statement to the trial court that Juror Nunnally was the only black juror, the record is silent on the racial composition of the venire and the final jury panel. Batson was not raised during the jury selection process, and Shaw's case was tried over four months after the United States Supreme Court's Batson decision was rendered. Therefore, any challenge to the racial composition of the jury is waived.

 Turning to the issue of the sufficiency of the showing of cause, Mississippi Code Annotated, Section 13-5-67 (1972) in pertinent part provides:

 . . . Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.

 One question before this Court, then, is whether the regular juror, Nunnally, became disqualified. The statute governing the disqualification of veniremen does not include a disqualification where a venireman has been indicted, but not convicted. See, MCA 13-5-1 (1972) which defines" competent jurors. "

 However, the dismissal of a juror for good cause and his replacement with an alternate is within the sound discretion of the trial judge. Stevens v. State, 513 So.2d 602, 604 (Miss. 1987), citing Russell v. State, 220 So.2d 334 (Miss.

 1969) and MCA 13-5-67 (1972).

 In our opinion, the trial court erred in summarily excusing the regular juror. The trial court should have conducted a hearing in chambers and made certain fact determinations. For example, was the voir dire question ambiguous? Should the juror have known that the question might apply to him?

 Nevertheless, Stevens and Russell, supra, also require that the defendant show actual prejudice resulting from the excusal and substitution. Stevens, 513 So.2d at 605, Russell, 220 So.2d at 337. There is nothing in the record to indicate that the trial court's action, in excusing juror Nunnally and replacing him with an alternate juror, denied Shaw his right to a fair and impartial jury or in any other way prejudiced him. We therefore hold that the trial court's error was harmless.

 II. DID THE TRIAL COURT ERR IN GIVING ADDITIONAL INSTRUCTIONS TO THE JURY DURING ITS DELIBERATIONS?

 The record on this issue is sketchy. The following relevant instructions were given to ...


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