Johnny Ray Magee, appellant, pro se.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
ON WRIT OF CERTIORARI
¶ 1. In 1987, Johnny Ray Magee was convicted of robbing a liquor store and sentenced to a term of life imprisonment as a habitual offender. We affirmed his conviction in 1989  and dismissed his motion for post-conviction relief (" PCR" ) in 1992. In 2010, however, we granted Magee's request to amend his PCR on the basis of his claim of newly discovered evidence of juror misconduct. The Marion County Circuit Court held an evidentiary hearing to consider this new evidence. The judge found that, when the prospective jurors were asked whether any of
them had family or close friends in law enforcement, a juror's failure to disclose her belief that a local deputy sheriff was her fourth cousin did not amount to juror misconduct and did not prejudice jury selection. The Court of Appeals affirmed the circuit court's denial of the amended PCR petition. We granted certiorari on the issues of whether the circuit court erred in finding no juror misconduct and whether the circuit court violated Rule 9.04 of the Uniform Rules of Circuit and County Court by allowing the last-minute testimony of a witness at the evidentiary hearing. We affirm the circuit court's denial of post-conviction relief, holding that no juror misconduct occurred and that, even if a violation of Rule 9.04 occurred, the error was harmless and the issue was waived due to lack of a defense request for a continuance or mistrial.
¶ 2. After serving more than twenty years of a life sentence without the possibility of parole, Johnny Ray Magee learned that Judy Ann Echols, a member of the jury that convicted him, was a somewhat distant cousin to the late Thomas Echols, the deputy sheriff who served Magee his indictment and conducted his arrest. During jury selection, Judy Ann did not respond to any of the following questions asked by Magee's attorney:
(1) And these first few questions apply to you yourself, your family, and the people you consider to be your close friends. Are any of you or the other people that I have mentioned presently employed as any sort of law enforcement officer, whether it be local, state, or federal? Is anybody in that position at this time?
(2) What about in the past, has anybody in your experiences in life so far ever been employed in law enforcement personally? What about your family members or close friends in the past?
(3) Have you yourself or any of your close friends ever been members of any kind of law enforcement association such as the State Sheriff's Association or the National Rifle Association or any other group like that?
Two jurors responded that they had brothers-in-law in law enforcement. Both of those jurors were empaneled without objection from the defense.
¶ 3. When asked at the evidentiary hearing why she did not respond to these questions, Judy Ann answered that she did not understand the questions and was not sure how to conduct herself, as it was her first time in court. She stated she believed Thomas to be her fourth cousin. Thomas lived five minutes from Judy Ann and they attended the same church. She " knew of" him but did not " know" him. She testified she had never discussed law enforcement matters with him. Judy Ann also " knew of" both Magee and Thomas because all three were in close (but not the exact same) grades of school together growing up. Testimony from other family members was admitted to show Thomas was likely a closer degree of kinship to Judy Ann than fourth cousin, but in no case closer than a second cousin.
¶ 4. Magee also testified at the evidentiary hearing. He learned about Judy Ann's kinship to Thomas after Magee's daughter married Judy Ann's nephew. Magee claimed that Judy Ann told a prison-mate of his that Thomas had told her Magee was guilty. Magee also alleged he
called Judy Ann from prison to confront her, that she had admitted to talking with Thomas about the case before jury selection, but that she would not volunteer to testify because she did not want " to lose her freedom." Magee did not question Judy Ann about this alleged conversation at the ...