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Avery v. State

Supreme Court of Mississippi, En Banc

August 8, 2013

William Antonio AVERY a/k/a William A. Avery a/k/a William Ken Avery a/k/a William A.

Page 318

Imhotep Alkebu-Lan, attorney for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

WALLER, Chief Justice

¶ 1. William Antonio " Ken" Avery was convicted of selling cocaine and felony fleeing. The Court of Appeals affirmed his conviction and sentence. This Court granted certiorari to address Avery's claim that the trial court committed reversible error in refusing to sequester the witnesses at the post-trial hearing. Finding no reversible error, we affirm Avery's conviction and sentence.

FACTS & PROCEDURAL HISTORY

¶ 2. On March 30, 2010, law enforcement officials arranged for a confidential informant to purchase drugs from Avery while wearing an audiovisual recording device. The informant purchased crack cocaine from Avery and turned it over to the police. The police attempted to arrest Avery immediately thereafter. Avery fled in his vehicle, and police pursued him, ultimately resulting in his arrest. Avery was tried in Lauderdale County, and a jury convicted him of selling cocaine and felony fleeing.

¶ 3. After his conviction and sentencing, Avery discovered that the trial judge may have communicated with Juror Kim Watts. While the exact nature of the communication is disputed, the following is a general recounting of the relevant events. On the night before jury deliberations, the trial judge had a conversation at a local restaurant with Jamie Cater, a caterer and the employer of Juror Watts. Cater told the judge that she needed Watts back at work. The judge replied that he thought the case would be over by noon the next day. The following morning, Juror Watts was the last juror to arrive at the courthouse. She mentioned to the judge that she needed to get back to work soon. The judge responded that the jury would likely begin deliberations that morning, and that they should be finished by noon. After the defense rested, the jury deliberated for

Page 319

approximately twenty minutes and then returned a guilty verdict.

¶ 4. Avery sought a post-trial hearing regarding the judge's alleged communication.[1] At the beginning of the hearing, Avery requested invocation of Rule 615 of the Mississippi Rules of Evidence, mandating that the witnesses be sequestered. The judge denied Avery's request and allowed the witnesses to testify in each other's presence. At the beginning of the hearing, the trial judge explained his version of the events to the attorneys and witnesses. He acknowledged that he had told Juror Watts that the jury probably would begin deliberations on the morning in question. Juror Watts testified that she had told the judge she needed to return to work, but she did not recall a response from the judge. Juror Elaine Moss testified that Juror Watts had told her that they should be finished with the case by noon. Juror Moss could not remember if any other jurors were present at the time. Avery's wife and mother testified that Watts had told the judge that she had gotten his message that " court will be over by 12:00 and to bring a pan of dressing." The judge denied Avery's post-trial motions.

¶ 5. Avery appealed, raising several assignments of error, including the judge's failure to sequester the witnesses upon his request at the post-trial hearing. The Court of Appeals affirmed the trial court in all respects. Avery v. State, 119 So.3d 329 (Miss.Ct.App.2012). Avery then filed a petition for certiorari with this Court, raising substantially the same issues addressed by the Court of Appeals. We may limit the issues we address upon a grant of certiorari. Jones v. State, 95 So.3d 641, 645 (Miss.2012) (citations omitted); Miss. R.App. P. 17(h). Thus, we limit our review to Avery's claim that the trial court committed reversible error by failing to sequester the jurors at the post-trial hearing.

STANDARD OF REVIEW

¶ 6. Avery argues that the trial court committed reversible error by refusing to sequester the witnesses upon his request at his post-trial hearing. When a violation of Rule 615 is alleged on appeal, this Court is limited to an abuse-of-discretion standard of review. Douglas v. State, 525 So.2d 1312, 1318 (Miss.1988). However, " [t]he discretion of the trial court must be exercised within ...


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