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WILLIE CARR v. STATE OF MISSISSIPPI

DECEMBER 13, 1989

WILLIE CARR
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, ROBERTSON AND PITTMAN.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

I.

Willie Carr was convicted by a jury in Coahoma County, Mississippi, on each count of a two-count indictment charging robbery and burglary of an inhabited dwelling. He was sentenced

 to 10 years on each count, to run consecutively. He raises two (2) issues on appeal, both concerning the failure to excuse jury members. We affirm.

 II.

 STANDARD OF REVIEW

 The determination of whether a juror is fair and impartial is a judicial question. This Court will not set aside a trial court's determination that a juror is fair and impartial unless such determination clearly appears wrong. King v. State, 421 So. 2d 1009, 1016 (Miss. 1982). See also Brown v. State, 529 So. 2d 537, 539 (Miss. 1988); Odom v. State, 355 So. 2d 1381 (Miss. 1978); Donahue v. State, 107 So. 15 (1921); Jones v. State, 98 So. 150 (1923). With these standards in mind, we now turn to the assignments of error.

 ASSIGNNENT OF ERROR NO. I.

 The Trial Court Erred in Not Excusing Juror #9.

 The trial in the case sub judice commenced on July 16, 1987, with the voir dire of the prospective jurors. The grounds for this assignment comes from that voir dire.

 Carr contends that the trial court erred in not excusing juror #9 on the panel for cause and as a result he was denied a trial by a fair and impartial jury. He contends he was forced to accept juror #9 because he had exhausted his peremptory challenges and cites Mhoon v. State, 464 So. 2d 77 (Miss. 1985), King v. State, 421 So. 2d 1009 (Miss. 1982), Billiot v. State, 454 So. 2d 445 (Miss. 1984) and 47 Am. Jur. 2d. 271 at page 848 as support.

 A.

 The procedure for jury selection in the case sub judice was as follows: 1) Voir dire of jury panel consisting of 42 jurors in open court, first by the Court, followed by the State, and finally, defense counsel; 2) jury selection conducted in chambers. The process followed in chambers was as follows: 1) challenges for cause by the State; 2) challenges for cause by defense counsel, followed by individual voir dire, in chambers, first by the trial court, followed by the State, and finally defense counsel; 3) peremptory challenges exercised by the State and defense counsel, six to a side; and 4) one (1) challenge to alternate jurors by the State and defense counsel.

 The State challenged four (4) jurors for cause, three (3) of which were granted. Defense counsel challenged eight (8) jurors for cause, five (5) of which were granted. Four (4) of the

 jurors challenged by defense counsel were individually voir dired in chambers. Thereafter, all six (6) peremptory challenges were used by the State and defense counsel. The State did not challenge the alternate jurors; the defense exercised its challenge to the alternate jurors.

 B.

 The victim in the case sub judice, Freeman Sherrard, was 84 years old. During the voir dire conducted in open court, the defense asked the following question:

 BY MR. ROSS: Okay. Today the man that had his home robbed - and once again, I do not think we are going to put up any fight that this gentleman was not the victim of any kind of crime - is an older man, Mr. Freeman Sherrard. If you saw him, it was kind of hard for him to get in. And to tell you the truth, I do not know how old he is. Would the fact that he is an older man, does anybody have any sympathy for him that they could not put aside just because he is an older man?

 Obviously, as we said the other day, everybody has got sympathy for victims of crime. But can each of you put that away? I am going to be like Mr. Mellen. Please nod so I can tell if you are saying yes or no or something. Can everybody put away that?

 Does anybody have a parent or friend that is elderly that they might associate Mr. Sherrard with them in the back of their mind? It is a possibility that sympathy may be there and I can understand that.

 Two jurors responded to this question: juror #4 and juror #9.

 Juror Number 4 responded that she had elderly parents and did not think she could put that aside and be a fair juror. Juror #4 was subsequently challenged by the defense for cause. Following examination in chambers by the Court, the State and the defense, juror #4 was excused for cause.

 The other juror who responded, juror #9, is the subject of the assignment. The following is a verbatim account of the exchange between juror #9 and defense counsel that occurred in ...


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