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Mack v. State

Court of Appeals of Mississippi

June 6, 2017

WILLIAM MACK, JR., APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 02/27/2015

         FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE

          ATTORNEY FOR APPELLANT: SETH MAGILL HUNTER

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON

          DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL

          BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

         ¶1. A Forrest County jury found William Mack Jr. (Mack) guilty of aggravated assault. See Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2006). On appeal, Mack asserts the following issues: (1) the circuit court was not impartial in dismissing members of the venire; (2) insufficient probable cause existed to issue his arrest warrant; (3) the State elicited testimony that violated his right against self-incrimination; (4) the circuit court improperly instructed the jury; (5) the circuit court erred by denying his motion for a judgment notwithstanding the verdict (JNOV); and (6) the jury's verdict was against the overwhelming weight of the evidence.

         ¶2. Finding no error, we affirm Mack's conviction and sentence.

         FACTS

         ¶3. On September 20, 2013, a grand jury indicted both Mack and his father, William Mack Sr. (Mack Sr.), for the aggravated assault of Joseph Scott (Scott). The circuit court subsequently granted Mack's motion to sever his trial from his father's trial.

         ¶4. At Mack's trial, Scott testified that he was standing outside his grandparents' house in Hattiesburg, Mississippi, on January 25, 2013, when Mack shot him. Scott testified that he had known Mack since they were both young and that he had considered Mack to be like a younger brother. The day before the shooting, Scott testified that Mack Sr.'s brother, Steve Mack, accused him of stealing candy from a store Steve operated out of his house. Scott testified that, even though Steve threw a brick at him and then threw a can of paint on him during the argument, he did not fight with Steve.

         ¶5. The morning after the altercation with Steve, Scott testified that he was walking at a park with his girlfriend when he received news that Steve also had an argument with his friend, Warren Randle. Upon returning to his grandparents' home, Scott testified that Mack Sr. drove up and got out of a vehicle holding a baseball bat in his left hand and a gun in his right hand. Scott stated that Mack Sr. swung the bat at him but that he (Scott) managed to grab the bat. Scott further stated that Mack Sr. then got back into his vehicle and drove away. However, Scott testified that Mack Sr. returned a few minutes later and that Mack exited the vehicle holding a gun. Scott claimed that Mack fired several shots at him, hitting Scott in both the arm and the leg and hitting Scott's truck several times. Scott stated that he immediately drove his truck to the police station to report the crime and to seek medical attention.

         ¶6. Officer Demetrius Breland with the Hattiesburg Police Department testified that he was on patrol duty the morning of the shooting. While parked at an intersection, Officer Breland observed a black male in a gray Jeep drive by at a high rate of speed. Officer Breland also noticed that the vehicle had a flat tire, and he attempted to follow the Jeep to see what was wrong. After patrolling several streets, Officer Breland found the Jeep parked in front of a nearby residence. However, the Jeep was unoccupied, and Officer Breland saw no one standing near the Jeep. Officer Breland testified that he continued his patrol but returned to the residence a short time later after receiving a dispatch about a gray Jeep involved in a shooting. Officer Breland stated that the Jeep was no longer parked at the residence by the time he returned. After spending a few more minutes trying to relocate the Jeep, Officer Breland testified that he drove to the police station to take Scott's statement. Upon arriving at the police station, Officer Breland observed Scott's white truck with the windows shattered. He further testified that medical personnel had arrived and were treating Scott's injuries.

         ¶7. Randle testified that he lived down the street from Scott's grandparents and that he was home when the shooting occurred. Randle further testified that he was well acquainted with both Mack and Scott. The night before the shooting, Randle stated that he witnessed an altercation between Scott and Mack Sr.'s brother, Steve. Although Randle testified that the altercation was only verbal, he did state that Steve threw paint at Scott. Following the altercation between Scott and Steve, Randle testified that he went to work around 9 p.m. and then got off work the following morning at 6 a.m.

         ¶8. On the day of the shooting, Randle stated that he saw Mack Sr. driving around the neighborhood with Mack in the passenger seat. About four to six minutes later, Randle claimed he heard the squeal of tires and saw Scott's truck being driven in reverse with the Macks' vehicle in pursuit. Randle testified that he subsequently learned Scott had been shot. According to Randle, however, he already knew what was about to happen when he saw Mack Sr. and Mack driving by because news had spread around the neighborhood that the Macks were out to get Scott.

         ¶9. Jeff Byrd, who collected evidence from the crime scene, testified that he found several .45-caliber shell casings in the middle of the road in front of Scott's grandparents' house. Byrd further testified, however, that he found no physical evidence to directly link Mack to the shooting. Byrd also stated that, to his knowledge, law enforcement never found the weapon used in the shooting.

         ¶10. The jury also heard testimony from Detective Joel Scott (Detective Scott), who investigated the shooting. During the course of his investigation, Detective Scott learned that Mack's grandmother, Evelyn Mack, owned the Jeep identified as the vehicle driven by the shooters. Detective Scott stated that law enforcement issued arrest warrants in the case and arrested Mack Sr. within one or two days of the shooting. However, Detective Scott said that law enforcement was unable to locate Mack until about two weeks later, when they apprehended him in DeKalb County, Georgia, on February 8, 2013.

         ¶11. Although Randle denied during his testimony that he ever spoke to law enforcement about the shooting, Detective Scott stated that he briefly spoke to Randle. According to Detective Scott, Randle said he knew what caused both the altercation and the shooting. Furthermore, Detective Scott testified that Randle reported seeing Mack Sr. and Mack in the Jeep prior to the shooting. Detective Scott also stated that Randle claimed Mack Sr. was driving the Jeep and that Mack, who was hanging out of the Jeep, said to Randle, "I'm going to get you next." In addition, Detective Scott testified that, shortly after seeing the Macks drive by, Randle heard gunshots.

         ¶12. At a later point in his testimony, however, Detective Scott clarified that he never actually obtained a statement from Randle or physically interviewed Randle. Instead, Detective Scott explained that, in the underlying facts and circumstances used to obtain the arrest warrants for the shooting, he summarized everything he had heard about the case, which included statements attributed to Randle.

         ¶13. After the State rested its case-in-chief, Mack testified on his own behalf. Mack disputed Scott's version of events, and he denied shooting Scott. In fact, according to Mack, he was out of town on the day of the shooting. Mack testified that, the day before the shooting, he heard about an altercation his uncle, Steve, had with Scott. That same evening, Mack testified that he rode his bike to visit his grandmother, who lived next to Scott's grandparents. As he left his grandmother's house around 11 p.m., Mack testified that he saw Scott and Randle's older brother, Larry Randle, standing beside a car. Mack stated that Larry grabbed a handgun and threatened him as he (Mack) rode by the car. As he was riding home, Mack testified that he noticed the same vehicle following him. As a result, Mack testified that he got off his bike, hid from the men, and then fled on foot to his father's house. After telling his father what happened, Mack testified that he asked a friend to drive him to Jackson, Mississippi. Once in Jackson, Mack testified that he bought a bus ticket to Atlanta, Georgia, so that he could stay with his mother and stepfather.

         ¶14. On cross-examination, Mack admitted that he never gave a statement to law enforcement about leaving town the night prior to Scott's shooting. Mack also confirmed that neither his friend who drove him to Jackson nor any of his family from Georgia or Mississippi were present at the trial to confirm his alibi. Upon further cross-examination by the State, Mack stated that he did not want to get his friend involved in the trial. Mack also stated that all his family in Georgia were unable to drive to Mississippi for his trial due to illness, work, or other reasons.

         ¶15. After considering the evidence and testimony, the jury found Mack guilty of aggravated assault against Scott. The circuit court sentenced Mack to twenty years in the custody of the Mississippi Department of Corrections, with seventeen years to serve, three years suspended, and three years of postrelease supervision; to pay a $2, 500 fine; and to pay a $100 assessment to the Mississippi Crime Victims' Compensation Program. Mack subsequently filed both an original and supplemental motion for a JNOV or, in the alternative, a new trial. Aggrieved by the circuit court's denial of both motions, Mack appeals.

         DISCUSSION

         I. Whether the circuit court was partial in dismissing members of the venire.

         ¶16. Mack asserts that the circuit court failed to impartially dismiss members of the venire. He further contends that this partial jury-selection process denied him a fair trial and resulted in a jury that was biased against him from the outset.

         ¶17. "Our supreme court has continuously held that a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter." Carr v. State, 190 So.3d 1, 7 (¶26) (Miss. Ct. App. 2015). As the record reflects, Mack never raised an objection before the circuit court as to the jury-selection process or the ultimate composition of the jury. He therefore waived his right to complain on appeal. See id. As a result, any review of this issue must be conducted under the plain-error doctrine. See id. at (¶¶26-27). Under the plain-error doctrine, we may review obvious errors that affect the defendant's fundamental, substantive rights even though the defendant failed to properly raise the errors at trial. Id. To establish plain error, Mack must demonstrate "(1) an error at the trial level (2) that resulted in a manifest miscarriage of justice." Id. at (¶27).

         ¶18. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." Batiste v. State, 184 So.3d 290, 291 (¶3) (Miss. 2016) (quoting U.S. Const. amend. VI). See also Miss. Const. art. 3, § 26 ("In all criminal prosecutions the accused shall have a right to . . . a speedy and public trial by an impartial jury of the county where the offense was committed . . . ."). "The right to a fair trial by an impartial jury is fundamental and essential to our form of government. It is a right guaranteed by both the federal and the state constitutions." Johnson v. State, 476 So.2d 1195, 1209 (Miss. 1985) (citing Adams v. State, 220 Miss. 812, 815-16, 72 So.2d 211, 213 (1954)).

         ¶19. In applying the plain-error doctrine to Mack's argument, we acknowledge the following:

In general, voir dire is presumed sufficient to ensure a fair and impartial jury. To overcome the presumption, a party must present evidence indicating that the jury was not fair and was partial and must show that that prejudice resulted from the circuit court's handling of voir dire. Voir dire is conducted under the supervision of the court, and a great deal must, of necessity, be left to [the court's] sound discretion.

Keller v. State, 138 So.3d 817, 843 (¶47) (Miss. 2014) (internal citations and quotation marks omitted). We further recognize that "[t]he linchpin is whether the venire members stated that they could be fair and impartial jurors if chosen." Hughes v. State, 983 So.2d 270, 284 (¶63) (Miss. 2008) (quoting Howell v. State, 860 So.2d 704, 720 (¶37) (Miss. 2003)).

         ¶20. Mack first argues that the circuit court erred by sua sponte removing Juror 26 from the venire. During voir dire, Juror 26 stated that she knew both Mack and Scott because she lived in the same neighborhood as them. In response to Juror 26's disclosure, the circuit court judge said, "I'm going to go ahead and let you go, ma'am. Okay. There's no reason for you to stay around. Okay. Thank you though." As previously noted, the defense raised no objection to the circuit court's dismissal of Juror 26. Later, outside the presence of the venire, the circuit court stated, "It should be noted that Juror [26] was excused by agreement of the parties and the fact that she lived in the [same] neighborhood [as] and knew both the defendant and the victim." The record again reflects that the defense asserted no objection to the circuit court's statement regarding Juror 26's dismissal.

         ¶21. Mack also claims error regarding Jurors 19, 20, 21, and 28, who each indicated they knew potential witnesses for the State. Juror 20 stated that he was a casual acquaintance of Byrd, who collected evidence from the crime scene. Juror 19 stated that, years before, he had worked with Detective Scott, who investigated the shooting. Juror 21 also indicated that she was casually acquainted with Detective Scott, and Juror 28 stated that Detective Scott had attended the same high school as her children. Upon further questioning by the court, however, each of the four jurors stated that nothing about their relationships with the potential witnesses would affect their ability to be fair and impartial jurors in Mack's case.

         ¶22. Next, Mack claims error with regard to Jurors 15, 19, 23, and 28, who all indicated that either they or someone close to them had been the victim of an aggravated assault. Mack also assigns error to the circuit court's failure to dismiss Jurors 7, 20, 21, 25, 29, and 32, who all previously served on a jury that found a criminal defendant guilty. As the record reflects, however, Mack failed to raise an objection to these jurors remaining on the venire. Furthermore, all of the jurors informed the circuit court that their past experiences would not impact their ability to remain fair and impartial.

         ¶23. Upon review, we find that Mack not only waived his objections with regard to these jurors but also fails to present evidence to demonstrate plain error. As discussed, the undisputed record evidence establishes that Mack did not object either to the dismissal of Juror 26 or to the circuit court's statement that the parties agreed to her dismissal. As to his other arguments related to the makeup of the venire, Mack never objected to the potential jurors who remained on the venire. In addition, each potential juror affirmed that he or she could remain fair and impartial if selected for Mack's trial. We therefore find that Mack fails to meet his burden to demonstrate that a manifest miscarriage of justice occurred. See Carr, 190 So.3d at 7 (¶26). This assignment of error lacks merit.

         II. Whether sufficient probable cause existed to issue Mack's arrest warrant.

         ¶24. For the first time on appeal, Mack challenges the validity of his arrest warrant. Mack alleges that Detective Scott's affidavit contained fraudulent information and that, without the fraudulent information, insufficient cause existed to issue his arrest warrant. Because Mack failed to raise this argument before the circuit court, he now asserts the issue under the plain-error doctrine. See Conerly v. State, 760 So.2d 737, 739-40 (¶5) (Miss. 2000). ¶25. In Conerly, the Mississippi Supreme Court stated:

To obtain an arrest warrant for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe that a felony has been committed; and (2) reasonable cause to believe that the person proposed to be arrested is the one who committed [the felony]. Arrest warrants or search warrants shall be issued only by the judge after a judicial determination that probable cause exists based upon the affidavit or other evidence before the court. Furthermore, in Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court established a totality[-]of[-]the[-] circumstances standard for determining the existence of probable cause: The task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, ...

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