Avery v. State


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Docket Number: 2010-KA-02058-COA
Linked Case(s): 2010-KA-02058-COA ; 2010-CT-02058-SCT ; 2010-CT-02058-SCT

Court of Appeals: Opinion Link
Opinion Date: 06-19-2012
Opinion Author: Irving, P.J.
Holding: Affirmed

Additional Case Information: Topic: Sale of cocaine & Felony fleeing - Mistrial - Inappropriate comment by juror - Violation of URCCC 3.05 - Compulsory process - Decision not to testify - Juror misconduct - Sequestration of witnesses - M.R.E. 615
Judge(s) Concurring: Lee, C.J., Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ.
Non Participating Judge(s): Griffis, P.J.
Concur in Part, Concur in Result 1: Barnes, J., Concurs in Part and in the Result Without Separate Written Opinion.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 10-13-2010
Appealed from: Lauderdale County Circuit Court
Judge: Lester F. Williamson, Jr.
Disposition: CONVICTED OF COUNT I, SALE OF COCAINE, AND SENTENCED TO SIXTY YEARS; COUNT II, FELONY FLEEING, AND SENTENCED TO FIVE YEARS; WITH THE SENTENCES TO RUN CONCURRENTLY BUT CONSECUTIVELY TO THE SENTENCES IN LAUDERDALE COUNTY CAUSE NUMBERS 645-02 AND 691-06; ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION
Case Number: 439-10

Note: On August 8, 2013, the Supreme Court affirmed the Court of Appeals and circuit court.

  Party Name: Attorney Name:  
Appellant: William Antonio Avery a/k/a William A. Avery a/k/a William Ken Avery a/k/a William A. "Ken" Avery a/k/a Ken




CHOKWE LUMUMBA IMHOTEP ALKEBU-LAN



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND  

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Topic: Sale of cocaine & Felony fleeing - Mistrial - Inappropriate comment by juror - Violation of URCCC 3.05 - Compulsory process - Decision not to testify - Juror misconduct - Sequestration of witnesses - M.R.E. 615

Summary of the Facts: William Avery was convicted of selling cocaine and felony fleeing. The circuit court sentenced Avery to sixty years for the sale-of-cocaine conviction and five years for the felony-fleeing conviction. He appeals.

Summary of Opinion Analysis: Issue 1: Mistrial Avery argues that he was entitled to a mistrial after a prospective juror stated during voir dire that she was aware of his case because, on the day of his arrest, she was “run off the road by him” during his flight from the police. Avery also argues that the circuit court erred in allowing law enforcement officers to testify that they knew him prior to his arrest for selling cocaine. The circuit court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case. A defendant fails to show the necessary prejudice where the defense counsel fails to question jurors about an inappropriate comment, and the venire members have made general declarations that they could set aside their prejudices and reach a decision based on the evidence. Here, after the juror’s comment that Avery had run her off the road while he was fleeing from the police, she was removed from the venire panel. The remaining prospective jury members declared that they would be able to reach a decision based solely on the evidence presented. In addition, the officers never testified to any additional crimes that Avery had committed, if any. Instead, the officers’ testimonies were offered to identify Avery and, therefore, did not constitute inadmissible character evidence. Issue 2: Violation of URCCC 3.05 Avery argues that he is entitled to a new trial because the State violated URCCC 3.05 when it asked the venire to commit to a guilty verdict based on a hypothetical set of facts. Rule 3.05 provides, in pertinent part, that “[n]o hypothetical questions requiring any juror to pledge a particular verdict will be asked.” Reversal is not required where the prosecutor does not specifically request or require that the venire pledge a verdict one way or another in response to his question and comments during voir dire. In this case, the prosecutor’s statements were not a direct request for a verdict; thus, Rule 3.05 was not violated. Issue 3: Compulsory process Avery argues that he was denied the right to confront the witnesses against him because he was not allowed to call MDOC General Counsel David Scott as a witness. When testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal. Avery failed to make a proffer of Scott’s testimony after the circuit court excluded it. Issue 4: Decision not to testify Avery argues that the circuit court erroneously told him that his prior convictions could be inquired about on cross-examination. Avery did not make a proffer of his testimony. Thus, this issue is procedurally barred. In addition, the record clearly indicates that Avery made his decision not to testify prior to any comments from the circuit court regarding prior convictions. He also argues that the prosecutor impermissibly commented upon his failure to testify. The State’s argument was not an improper reference to Avery’s failure to testify. The State was simply pointing out that Avery’s position–that the sale was not a drug transaction–was not supported by the evidence. Issue 5: Juror misconduct Following Avery’s trial and resulting guilty verdict, he discovered that the circuit court may have improperly communicated with a juror and influenced the jury’s decision. He filed a motion seeking a hearing on the matter. Prior to the commencement of the hearing, Avery requested that the witnesses be sequestered. The circuit court denied the request, and Avery argues this was error. Under M.R.E. 615, when a party asks the court to sequester the witnesses, the circuit court must comply. Therefore, the circuit court erred when it failed to sequester the witnesses per Avery’s request. However, Avery must show that he was prejudiced by the circuit court’s failure to invoke the rule. The judge admitted that he had a conversation with the juror’s boss on the night before the jury began deliberations, because the boss indicated he needed the juror back at work. The judge explained that he told him that he thought that the jury would begin deliberations the following morning and might have a decision by noon. Based on the evidence, Avery has failed to present sufficient evidence to overcome the presumption of jury impartiality.


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