Preview:

IN THE COURT OF APPEALS 6/18/96 OF THE STATE OF MISSISSIPPI
NO. 94-KA-00288 COA ANTHONY OLIN COLLINS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOSEPH LOPER, JR. COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMES C. MAYO ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEWITT ALLRED III DISTRICT ATTORNEY: DOUG EVANS NATURE OF THE CASE: MURDER TRIAL COURT DISPOSITION: CONVICTED ON TWO COUNTS. SENTENCED TO SERVE TWO CONSECUTIVE LIFE SENTENCES IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS

BEFORE FRAISER, C.J., COLEMAN, AND KING, JJ. KING, J., FOR THE COURT:

Anthony Olin Collins was convicted and sentenced to two consecutive terms of life imprisonment for the murders of George Scales and Dorothy Edmonds. Aggrieved by the conviction and sentence, he appeals and assigns as error: I. The selection of Juror # 26, Janice Eichelberger Hopkins as a juror because she failed to disclose upon inquiry during voir dire that her brother was a law enforcement officer employed by the Winston County Sheriff's Department;

II. Deprivation of the effective assistance of counsel; III. The denial of his request for a new trial or a judgment notwithstanding the verdict because the verdict of the jury was against the overwhelming weight of the evidence.

Because we find that Collins was prejudiced by Juror Hopkins' lack of candor during voir dire, and therefore denied a fair and impartial trial, we reverse and remand for a new trial. PROCEDURAL HISTORY On November 8, 1993, Collins was tried, convicted, and sentenced to two consecutive sentences of life imprisonment for the murders of George Scales and Dorothy Edmonds. Thereafter, Collins filed post-trial motions requesting that the court order a new trial or enter JNOV. Collins post-trial motions were denied, and Collins moved the court for leave to pursue an in forma pauperis appeal. On January 6, 1994, the court granted Collins' motion requesting appeal in forma pauperis and appointed attorney Richard Burdine, who was also trial counsel, to represent Collins on appeal. Because attorney Burdine failed to perfect the appeal, the court extended the time in which Collins had to perfect the appeal and ordered attorney James Mayo to represent Collins on appeal. On August 10, 1994, Collins filed a motion with the supreme court requesting that the cause be remanded to the trial court for an evidentiary hearing on an "Amended Motion for New Trial and Supplement of the Record." Collins also requested supplementation of the record if the trial court's ruling was adverse. In the motion, Collins alleged that he was prejudiced when juror Hopkins failed to disclose during inquiry upon voir dire that her brother was employed by the Winston County Sheriff's Office. The affidavits of Collins, the Winston County Sheriff, and Claudell Weaver were attached in support of the motion. No response to the Appellant's motion was filed by the Appellee. On January 23, 1995, the court denied Collins' motion requesting that the cause be remanded for an evidentiary hearing; however, the court ordered supplementation of the record with the affidavits, which had been attached to the motion. Thereafter, on July 5, 1995, the Appellee filed a motion requesting that the court rescind its order permitting supplementation of the record with the three

affidavits and also requesting that the court dismiss Issues I and II assigned by the appellant because they were not properly before the court. The Appellee's motion was denied. Issues I and II were passed for consideration upon the merits. ANALYSIS OF THE ISSUE AND DISCUSSION OF LAW During voir dire proceedings, the court inquired of the prospective jurors, "Are any of you related by blood or marriage to any person that presently serves as a law enforcement officer or has at any time in the past served as a law enforcement officer?" For clarity, the court stated, "I want to know any person that is related by blood or by marriage to any law enforcement officer that has served now or any time in the past." Several of the jurors responded; however, Juror # 26, Janice Eichelberger Hopkins, failed to reveal that her brother, Paul Eichelberger was employed by the Winston County Sheriff's Department as a jailer-dispatcher. Voir dire examination is often the most crucial crucible in forging our primary instrument of justice: the fair and impartial jury. Myers v. State, 565 So. 2d 554, 558 (Miss. 1990). In addition, the attorneys rely on the objective candor and responsiveness of prospective jurors when offering challenges for cause and peremptory challenges. Myers, 565 So. 2d at 558. Therefore, our State adheres to the rule that the failure of a juror to respond to voir dire warrants a new trial when the question propounded to the juror is (1) relevant to the voir dire examination; (2) unambiguous; (3) the juror has substantial knowledge of the information sought to be elicited; and (4) when prejudice in selecting the jury can reasonably be inferred from the juror's failure to respond. Odom v. State, 355 So. 2d 1381, 1382 (Miss. 1978); see also Myers, 565 So. 2d at 558 (court did not abuse its discretion in removing juror and replacing with alternate before jury retired for deliberations when it discovered that juror failed to disclose after inquiry that her husband had two federal liquor-related convictions); Laney v. State, 421 So. 2d 1216, 1217 (Miss. 1982) (conviction reversed because juror failed to respond to the following questions: "Is there anybody on the panel related by blood or marriage to any present law enforcement person in Montgomery County, or anywhere else?"; and "Is there any other member related by blood or marriage to any law enforcement officer or has any member ever been employed by law enforcement, at any time in the past?"). The question of determining whether a jury is fair and impartial is one initially for the trial court. Odom, 355 So. 2d at 1383. In the instant case, the court was not given the opportunity to determine whether Collins was prejudiced by Juror Hopkins' presence on the jury. Because the question was (1) relevant to the voir dire examination; (2) unambiguous, and (3) within the knowledge of juror Hopkins, we find the failure to respond to be presumptively prejudicial. We therefore reverse and remand for a new trial. Because we are reversing and remanding the case to the circuit court for a new trial, we do not address the merits of Issue II. THE CONVICTION AND SENTENCE OF THE CIRCUIT COURT OF WINSTON COUNTY MISSISSIPPI IS REVERSED AND REMANDED FOR A NEW TRIAL. WINSTON COUNTY IS TAXED WITH ALL COSTS OF THIS APPEAL.

FRAISER, C.J., THOMAS, P.J., BARBER, COLEMAN, DIAZ, JJ., CONCUR.

SOUTHWICK, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, P.J., MCMILLIN AND PAYNE, JJ.

IN THE COURT OF APPEALS 06/18/96 OF THE STATE OF MISSISSIPPI
NO. 94-KA-00288 COA ANTHONY OLIN COLLINS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

SOUTHWICK, J., dissenting The majority determines on this record that a juror improperly failed to answer a question during voir dire, and as a consequence the case must be reversed for a new trial. The information relied upon by the majority consists of affidavits attached to the appeal. I do not believe these are sufficient to require reversal. I would remand for the trial court's determination of the relevant facts regarding the juror. To reverse now is premature and potentially unnecessary. Initially, it is important that one of the affidavits is from the Defendant himself. He is seeking a new trial because of facts that allegedly are within his personal knowledge. There is no evidence of when this information became part of his personal knowledge. If it was by the time of trial, then it is error to reverse and order a new trial on the basis of facts that could reasonably have been presented to the trial court. Smith v. State, 500 So. 2d 973, 975 (Miss. 1986). Secondly, the matters raised now are properly the subject of Collins' rights under the Post Conviction

Relief Act. See Miss. Code Ann.

Download v. State of Mississippi.pdf

Mississippi Law