COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/19/2011. TRIAL JUDGE: HON. JEFF WEILL SR. TRIAL COURT CONVICTED OF POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED, AS A HABITUAL OFFENDER, TO TEN YEARS, AND AN ADDITIONAL TEN YEARS AS AN ENHANCEMENT FOR THE USE OF A FIREARM IN THE COMMISSION OF A FELONY, WITH THE SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION.
FOR APPELLANT: DENNIS C. SWEET III, WILLIAM ROLAND, TERRIS CATON HARRIS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ELLIOTT GEORGE FLAGGS.
IRVING, P.J. LEE, C.J., GRIFFIS, P.J., ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. BARNES AND JAMES, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE, J.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. A Hinds County grand jury indicted Charles Johnson for murder, unlawful possession of a firearm by a convicted felon, and two counts of armed robbery. The indictment also provided that Johnson was a habitual offender and sought an enhancement of the sentence based on Johnson's use of a firearm. After a two-day trial, a Hinds County jury acquitted Johnson of
murder and both armed-robbery charges. The jury, however, convicted him of being a convicted felon in possession of a firearm. The circuit court sentenced Johnson, as a habitual offender, to ten years in the custody of the Mississippi Department of Corrections and also sentenced him to an additional ten years pursuant to the firearm-enhancement statute.
¶2. Feeling aggrieved, Johnson appeals and argues that the circuit court improperly restricted voir dire of the jury panel regarding pretrial publicity, erred by allowing a juror to return to deliberations after an allegation of misconduct, erred by prohibiting Johnson from introducing evidence regarding events related to the voluntariness of his confession, erred in finding that he was a habitual offender, and erred by using the firearm-enhancement statue to enhance his sentence.
¶3. Finding no merit to Johnson's first four issues, we affirm the circuit court's judgment as to those issues. However, we find that the circuit court erred in enhancing Johnson's sentence without having allowed the jury to determine whether the facts justified an enhancement in accordance with the firearm-enhancement statute. Therefore, we reverse and render the enhanced portion of Johnson's sentence.
¶4. On February 15, 2011, Johnson shot Eugene " Boosie" Roberts as Roberts sat in the passenger seat of a car parked at a home located on Culbertson Avenue in Jackson, Mississippi. As Johnson fled the scene of the shooting in his vehicle, he collided with a vehicle driven by Brenda Davis. He then aimed his gun at her and attempted to take her car, but the car would not start. A FedEx driver, Glen Coleman, witnessed the collision and stopped to see if he could help. As he stopped to offer assistance, Johnson approached him, aimed his gun at Coleman, and demanded the FedEx truck. Coleman complied. Johnson drove the truck to Clinton, Mississippi, where he abandoned it outside the home of Charles and Gabrielle Wells.
¶5. The next morning, Johnson turned himself in to Deputy Danny Johnson (no relation to the appellant) of the Hinds County Sheriff's Department. Deputy Johnson transported Johnson to Jackson and released him into the custody of the Jackson Police Department (JPD). JPD Detectives Eric Smith and Felix Hodge interviewed Johnson at JPD headquarters. Detective Smith informed Johnson of Johnson's rights, and Johnson confessed to killing Roberts but insisted that he did so in self-defense because Roberts and his friends, allegedly members of a local gang, were planning to kill him after robbing him of his drugs and money. He denied trying to take Davis's car at gunpoint. He also denied that he used a gun to take the FedEx truck from Coleman. He stated that he only wanted to get back to Clinton, where he thought that he would be safe. Johnson then led Detective Smith and other JPD officers to the gun that he used during the incident. Thereafter, JPD transported Johnson to the Hinds County Detention Center in Raymond, Mississippi, where he was allegedly assaulted by several officers from the Hinds County Sheriff's Department.
¶6. Prior to trial, the circuit court conducted a suppression hearing, where both detectives testified. Each of them testified that Johnson was informed of his rights prior to giving his confession and that neither of them threatened Johnson before, during, or after his confession. The court denied Johnson's suppression motion, and his confession was admitted during the trial.
¶7. During the State's case-in-chief, Baraka Buckley, who witnessed the shooting, testified that on the day of the incident, she and Roberts were sitting in her car talking. She saw Johnson arrive in his truck. He exited the truck, approached the home and talked with people who were standing around, and thereafter walked to the passenger side of Buckley's vehicle where he spoke briefly with Roberts. Johnson then pulled out a gun and shot Roberts several times. After the shooting began, Buckley grabbed her son, who was sitting in the backseat of the vehicle, and ran to an abandoned house down the street and remained there until she felt that it was safe to return to her vehicle. She later positively identified Johnson as the shooter.
¶8. After closing arguments, the State reported that it had been contacted by Patricia Stamps, Roberts's aunt, who informed the State that juror Vivian Manning had a preexisting relationship with a member of Roberts's family. However, the State was not informed of the identity of the family member or the details of the possible relationship with the family member. Johnson requested a mistrial based on juror Manning's alleged misconduct, which the circuit court denied.
¶9. The court allowed the State and Johnson's counsel to question Stamps. Stamps testified that she knew juror Manning as Vivian Green and that they had spoken to each other outside of the courthouse. According to Stamps, the two only greeted each other. Stamps further testified that Manning did not know Roberts, but had come to Roberts's grandmother's house to offer her condolences approximately two months after the incident.
¶10. Manning testified that she did not know Roberts. She admitted that she had visited Roberts's aunt Michelle  and Michelle's mother several months before Roberts's death, but claimed that she was unaware at the time that either woman was related to Roberts. Manning denied visiting Michelle's mother, who was also Roberts's grandmother, after Roberts's death. Manning also testified that she did not know Stamps. Even though both Manning and Stamps testified during the investigative hearing, neither Johnson's counsel nor the State requested that Stamps appear in the presence of Manning to resolve the question of whether Stamps and Michelle were the same person.
¶11. Manning further testified that even though she knew members of Roberts's family, she had not discussed the case with any of them before the trial or during the trial; had been a fair and impartial juror throughout the trial; and would continue to be fair and impartial throughout deliberations. The circuit court allowed Manning to return to deliberations. Shortly afterwards, the jury returned with not-guilty verdicts on the murder and armed- robbery charges, and a guilty verdict on the felon-in-possession-of-a-firearm charge.
¶12. Additional facts, as necessary, will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
I. Voir Dire
¶13. Johnson contends that the circuit court violated his constitutional right to a fair and impartial jury by improperly restricting voir dire of the jury panel regarding pretrial publicity. At trial, Johnson's counsel requested individual sequestered voir dire of each potential juror that had
heard or read information about Johnson's case or the subsequent assault of Johnson by Hinds County law enforcement officials. According to Johnson, the court's limitation on voir dire led to impaneling a biased jury.
¶14. " [T]he decision of whether to allow individual sequestered jury voir dire should be left to the sound discretion of the [circuit] court." Le v. State, 913 So.2d 913, 923 (¶ 14) (Miss. 2005); see also URCCC 3.05. Therefore, " [w]hen reviewing the conduct of voir dire, [appellate courts apply] an abuse of discretion standard." Jordan v. State, 995 So.2d 94, 102 (¶ 11) (Miss. 2008) (citing Jackson v. State, 791 So.2d 830, 835 (¶ 21) (Miss. 2001)). An " abuse of discretion will only be found where a defendant shows clear prejudice resulting from undue lack of constraint on the prosecution or undue constraint on the defense." Id. (quoting Jackson, 791 So.2d at 835-36 (¶ 21)). The jury-selection process is proper if it gives the defendant " a fair opportunity to ask questions of [the potential] jurors which may enable the defendant to determine his right to challenge that [potential] juror[.]" Stevens v. State, 806 So.2d 1031, 1062 (¶ 139) (Miss. 2001) (quoting McLemore v. State, 669 So.2d 19, 25 (Miss. 1996)) (internal quotation marks omitted).
¶15. During voir dire, Johnson's attorney opined to the court that the case was " well publicized for two reasons. One, it was about the FedEx truck. It was all over the news. And, two, Charles Johnson was beaten[,] and there were [thirteen] officers fired in relation to his beating." The State agreed that the case received some publicity for a couple of weeks, but could not say that the general public would connect the FedEx-truck case to the " jail-beating case." Johnson's attorney suggested that the parties be allowed to individually voir dire the venire members who indicated that they had " read or heard about this case." In response, the State suggested filtering the venire by asking those members that had heard about the case if they could " disregard anything [they] read in the media and decide this case solely on what you see and hear in this courtroom." The State was not opposed to individual voir dire if some extraordinary response necessitated it. The court agreed by stating, " I [am] sure a good number have heard about it, but that [does not] exclude them or even mean that they [cannot] be a fair and impartial juror." Although Johnson's counsel disagreed with the process, he agreed to ask the general question and then request individual voir dire of venire members based on their responses.
¶16. Johnson's attorney then asked if any of the members of the venire had heard or read anything about " a shooting[,] . . . a man fleeing in [a] FedEx truck, . . . [and] Mr. Johnson being beaten by law enforcement officials." Out of the forty-six members of the venire, twenty-five responded affirmatively to the compound question. The court did not prevent Johnson's counsel from asking those twenty-five members of the venire which of the three incidents they were familiar with. When Johnson's counsel requested individual voir dire of those twenty-five venire members, the circuit court denied the request. However, the court allowed counsel to ask whether any of the twenty-five venire members had formed an opinion regarding Johnson's guilt or innocence, and if they had formed an opinion, whether they could set that opinion aside. Johnson's counsel continued:
Ladies and gentlemen of the jury - - potential jury, for anybody who raised their hand, have any of you all formed an opinion as to Mr. Johnson's guilt or ...