TRIAL JUDGE: HON. RICHARD WATSON COURT FROM WHICH APPEALED: WILKINSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION AFFIRMED - 11/20/97 MOTION FOR REHEARING FILED: 12/4/97 MANDATE ISSUED:
Before Prather, P.j., Roberts And Mills, JJ.
The opinion of the court was delivered by: Mills, Justice, For The Court:
¶1. On July 1, 1993, a jury in the Circuit Court of Wilkinson County found Calvin McFarland guilty of two counts of vote fraud. On August 2, 1993, the circuit court sentenced McFarland to serve five years and pay a $1,000 fine for each count, with one of the five-year sentences suspended. After the circuit court denied McFarland's motion for a new trial, McFarland perfected his appeal to this Court, assigning as error the following issues:
I. WHETHER THE TRIAL COURT ERRED IN DENYING McFARLAND'S MOTION FOR INDIVIDUAL SEQUESTERED VOIR DIRE.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE'S BATSON MOTION.
III. WHETHER THE TRIAL COURT ERRED IN DENYING McFARLAND'S BATSON MOTION AND IN FAILING TO ALLOW DEFENSE COUNSEL TO MAKE A FULL RECORD.
IV. WHETHER THE TRIAL COURT ERRED IN EXCUSING VENIRE MEMBERS WITHOUT ALLOWING DEFENSE COUNSEL TO FULLY QUESTION THEM.
V. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO CALL WEVLYN JAMES AS A HOSTILE WITNESS.
VI. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENSE COUNSEL A FULL OPPORTUNITY TO CROSS-EXAMINE SAM SMITH.
VII. WHETHER THE JURY WAS SWORN PRIOR TO HEARING THE CASE, DELIBERATING AND RENDERING A VERDICT.
VIII.WHETHER THE EVIDENCE DID NOT SUPPORT A CONVICTION ON COUNT III.
IX. WHETHER THE EVIDENCE DID NOT SUPPORT A CONVICTION ON COUNT I.
X. WHETHER THE JURY INSTRUCTIONS WERE IMPROPER IN THAT THEY DID NOT FULLY INFORM THE JURY OF THE ELEMENTS OF THE CRIMES CHARGED.
XI. WHETHER THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM SITTING IN THIS TRIAL.
¶2. Calvin McFarland was an incumbent candidate in the 1991 elections for the Wilkinson County Board of Supervisors. The Democratic Primary in September resulted in several run-off elections, including one for the nomination to McFarland's seat. McFarland was unsuccessful in the run-off election held on October 8, 1991, and his opponent was named the Democratic candidate for the general election. There were challenges to several of the run-off elections, which were formally contested.
¶3. On June 5, 1992, agents from the Attorney General's office seized all of the ballots at the Wilkinson County Circuit Clerk's office in an investigation into allegations of vote fraud, which investigation resulted in fourteen indictments against various then-current and former elected officials in the county, including Calvin McFarland. In September of 1992, the indictment against McFarland was dismissed, and he was re-indicted on December 4, 1992.
¶4. The indictment charged McFarland with six counts of vote fraud under Section 23-15-753 of the Mississippi Code. Count I charged him with falsely signing the name "Lottie James" to the affidavit on the envelope containing the absentee ballot marked by Lottie James. The count also charged McFarland with signing the "Attesting Witness Certificate," which falsely signified that the true signature of Lottie James had been placed on the envelope. Each of the remaining five counts charged McFarland with falsely signing another person's name to that person's application for an absentee ballot.
¶5. After a trial in the Circuit Court of Wilkinson County from June 29 to July 1, 1993, the jury found McFarland guilty of Counts I and III, and found him not guilty of the other four counts. On August 2, 1993, the trial court sentenced McFarland to serve five years and pay a $1,000 fine for each of the two counts, with one of the five-year sentences suspended. Discussion
I. WHETHER THE TRIAL COURT ERRED IN DENYING McFARLAND'S
MOTION FOR INDIVIDUAL SEQUESTERED VOIR DIRE.
¶6. During the course of voir dire of potential jurors, it became apparent that many venire persons had seen media coverage of the election challenges and vote fraud cases in the county. Defense counsel requested that he be permitted to conduct individual sequestered voir dire of the jurors, which request the trial court denied. Later, during jury selection, the following exchange occurred:
MR. SWEET: And I say this wholeheartedly, Your Honor, and I'm only trying to select a fair jury. Your Honor, I asked about going to a sequestered, you know, and I asked the Court about that
I know you did, and I said it wasn't necessary.
MR. SWEET: So, Your Honor, I couldn't go into everything that they've heard. But when
I think it's been gone into by the Court and counsel for both cases, that the news media, they've seen it in the newspapers; it's been repeatedly in the newspapers, and the Court takes judicial knowledge of that fact.
McFarland argues that in light of the extensive pretrial publicity about election challenges and vote fraud cases, the trial court erred in denying his motion for individual sequestered voir dire.
¶7. At the time of trial, the manner in which voir dire shall be conducted in criminal cases was governed by Mississippi Uniform Criminal Rule of Circuit Court Practice 5.02, *fn1 which provided:
In the voir dire examination of jurors, the attorney shall direct to the entire venire questions only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge a particular verdict will be asked.
We have held that this rule allows a circuit court, in its own discretion, to utilize individualized, sequestered voir dire. Carr v. State, 655 So. 2d 824, 842 (Miss. 1995). We have further held, however, that the rule does not require more than what it states on its face, and that trial Judges who denied individual sequestered voir dire acted within their discretion granted by the rule. Carr, 655 So. 2d at 842; Russell v. State, 607 So. 2d 1107, 1110 (Miss. 1992); Hansen v. State, 592 So. 2d 114, 126 (Miss. 1991). In fact, we have never found error where a trial Judge denied a motion for individual sequestered voir dire.
¶8. In the capital murder case of Carr v. State, supra, the trial court denied the defense's request for individual sequestered voir dire regarding the jurors' exposure to extensive pretrial publicity. 655 So. 2d at 842. On appeal, we noted that in Mu'Min v. Virginia, 500 U.S. 415, 427 (1991), the Supreme Court stressed the wide discretion trial courts enjoy in conducting voir dire with respect to the issue of pretrial publicity. Carr, 655 So. 2d at 843. The Supreme Court stated in Mu'Min:
Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The Judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire.
¶9. In Carr, the trial court asked the collective venire about the effect of pretrial publicity or information about the case, and asked if there was any reason that a juror felt that he or she could not be fair and impartial. 655 So. 2d at 843. Any juror who responded affirmatively was further questioned, and those who stated that they had already formed an opinion in the case were excused. Id. We found no abuse of discretion in the court's denial of individual sequestered voir dire. Id.
¶10. In the case sub judice, the trial Judge inquired of the entire venire concerning pretrial publicity and knowledge of the case. Two jurors raised their hands, and the Judge questioned them further to determine whether their knowledge might affect or prejudice them in any way. When the jurors indicated that they could not be fair and impartial, they were excused. The attorneys then conducted extensive examination of the venire regarding exposure to pretrial information, and every juror who indicated an inability to be fair and impartial was excused. We find that the trial court did not abuse its discretion in denying McFarland's motion for individual sequestered voir dire.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE'S BATSON MOTION.
¶11. In selecting the first twelve jurors during jury selection, the defense exercised peremptory challenges on four jurors, all of whom were white. The State then made the following Batson challenge:
MR. EMFINGER: Your Honor, pursuant to Georgia v. McCollum and the State case after that, as we recall the defendant has used all of his preemptory challenges here against white jurors, and we would call upon him to exercise or show some reason other than race as to why they were struck.
All right, what's the first --
MR. EMFINGER: Janet McCarstle.
MR. SWEET: We'd like to lodge a, on the issue the defendant believes, Your Honor, we submit he doesn't have to justify any challenges, but I understand the Court is asking us to, and I'll be happy to.
Janet McCarstle, Your Honor, she was juror number 1; she said she had read about the case; she was aware of the prior case in the newspaper, that she had heard about the challenge to the election, that she had followed the challenge on the election. And, Your Honor, she on every case - we questioned her about either hearing about the prior case, challenge, the investigation; she answered in the affirmative on every one of those. Now, Your Honor, it was hard to go over it with her in front of all the jurors and prejudice them with what she had heard, but the extent and the fact that she had heard something on each of them and challenged and said she followed the challenge is the basis of our strike.
MR. EMFINGER: Your Honor, the questions were asked repeatedly from the Court, from both the State and the defense about people's level of knowledge. Some jurors were questioned seemingly at random or not necessarily at random about details of it, but all of the jurors indicated similar knowledge following, the ...