Davis v. Powell

781 So. 2d 912, 2000 WL 1819746
CourtCourt of Appeals of Mississippi
DecidedDecember 12, 2000
Docket97-CA-00646-COA
StatusPublished
Cited by6 cases

This text of 781 So. 2d 912 (Davis v. Powell) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Powell, 781 So. 2d 912, 2000 WL 1819746 (Mich. Ct. App. 2000).

Opinion

781 So.2d 912 (2000)

Angel DAVIS, Individually and On Behalf of the Heirs-At-Law of Baby Boy Davis, Deceased, Appellant
v.
William E. POWELL and The Walley Clinic, Appellees.

No. 97-CA-00646-COA.

Court of Appeals of Mississippi.

December 12, 2000.
Certiorari Denied March 22, 2001.

*913 Isaac K. Byrd, Jr., Felecia Perkins, Jackson, Attorneys for Appellant.

Robert D. Gholson, Craig Newman Orr, Laurel, Attorneys for Appellees.

EN BANC.

ON MOTION FOR REHEARING

IRVING, J., for the Court:

¶ 1. The motion for rehearing is denied. However, the original opinion issued in this case is withdrawn, and this opinion substituted.

¶ 2. Angel Davis, individually and as the representative of the heirs at law of her deceased baby, Roy Davis, filed a medical negligence action against Dr. William E. Powell, the Walley Clinic and Dr. W.W. Walley. Prior to trial, Dr. W.W. Walley was dismissed from the lawsuit. A jury returned a verdict in favor of Dr. Powell and the Walley Clinic. After Angel's posttrial motions were denied by the trial *914 court, she perfected this appeal, assigning for appellate review one issue which we quote verbatim:

THE APPELLANT, ANGEL DAVIS, FAILED TO RECEIVE A FAIR AND IMPARTIAL TRIAL BECAUSE THE CIRCUIT JUDGE BELOW ERRED IN REFUSING TO REMOVE POTENTIAL JURORS CHALLENGED FOR CAUSE BASED ON THEIR RELATIONSHIP AS CURRENT OR FORMER PATIENTS OF DR. POWELL AND THE WALLEY CLINIC.

We find merit in the assigned issue and reverse and remand for a new trial.

¶ 3. It is not necessary to relate the facts giving rise to the medical negligence action filed by Angel against Drs. Powell and Walley and the Walley Clinic because the issue raised on this appeal involves only the issue of jury selection. Thus, we go directly to the facts undergirding this issue.

FACTS

¶ 4. Before the trial judge began striking jurors for cause, the venire was composed of fifty-three jurors. Of this number, thirty jurors indicated, by raising their hands, that they were patients of the Walley Clinic although they were not necessarily all patients of Dr. Powell. Twenty-one jurors indicated by the same means that they had not been to the Walley Clinic. However, three jurors raised their hands with both groups, i.e., with those who said they were patients of the Walley Clinic as well as with those who said they had not been to the Walley Clinic, and five jurors did not raise their hands with either group.

¶ 5. Of the thirty jurors who indicated that they were patients of the Walley Clinic, five of them: Frankie J. Everett, Alison Slater, Ronald Moody, John Lewis Everett, and Prince Staten served on the jury. Dr. Powell was the family physician for two of them: Frankie J. Everett and Prince Staten. Of the five jurors who did not raise their hands with either group, two of them, Sue W. Beard and Joseph M. Davis, served on the jury.

¶ 6. Twenty jurors had received the Wayne County Hospital newsletter within the last six months. One of the issues carried a positive feature story on Dr. Powell. Of these twenty that received the newsletter, six actually served on the jury. Those six were: Sue W. Beard, Joseph M. Davis, Ellen Ann Walters, Alice Powe and Kelli Bowles.

¶ 7. Nineteen jurors said that if they had a need for medical services they would go to Dr. Powell, Dr. Walley or the Walley Clinic. Of the nineteen, three jurors, Sue W. Beard, Alice M. Powe, and Prince Staten, served on the jury.

¶ 8. After voir dire, Judge Bailey and counsel retired to chambers where the following occurred:

BY JUDGE BAILEY: We're going to take up strikes for cause first. Each side will have four peremptory challenges.
BY MR. BYRD: Judge, before we begin, the Plaintiffs would like to make a general or attunes [sic] motion to strike the entire panel and move for a change of venue on the basis of these relationships between almost 60 to 75 percent of the panel and the physician, whether it's a friendship, other relationships, relatives, patients, present, past and even future employees of the hospital or employees of the clinic.

¶ 9. The court took the motion under advisement until after consideration of strikes for cause. Then the trial judge, sua sponte, struck twelve jurors for cause, and counsel for Davis asked the court to strike an additional eighteen jurors for cause. These jurors were: Lorena Bunch, *915 Donna J. Jones, Norma J. Gardner, W.G. Sanders, Sue W. Beard, Ruby B. Coleman, Kelli A. Bowles, Prince Staten, Alice M. Powe, Jimmy T. Walker, Mack Daniels, Randy Wayne Hodge, Mrs. Charles Rigney, Lyle Jones, Chrissy McCollough, Jimmy E. Gandy, Ro Repsher and Ellen Ann Walters. The trial judge denied the request except as to Mack Daniels. The judge also granted a defense request to strike one juror for cause. Prior to the Plaintiffs' exercising their peremptory challenges, the following exchange took place:

BY JUDGE BAILEY: All right. If my math is correct, the Court is now granting 14 challenges for cause. We started with 53. That leaves 39. I can grant an additional 2 strikes, 2 additional peremptory challenges, giving each side 6. We'll have 2 alternates and each side will have 1 strike for the 2 alternates. And we could still pick a jury.
BY MR. WILLIAMSON: Your Honor, may I address that?
BY JUDGE BAILEY: Yes.
BY MR. WILLIAMSON: We think just giving additional strikes to both sides would further place the Plaintiffs in an even more disadvantageous position because the overwhelming number of persons who are friends and say they could still be fair or either who, for example, are the Doctor's—that there are—some objections have been made to are jurors that we at least think would be—come in biased against the Plaintiff one way or the other.
To give them more challenges would only enhance their position. We suggest to Your Honor that that should be possibly on an "as you go" basis as we consider the jurors themselves. We do need additional peremptory challenges Your Honor, but if we give—if we turn around and give those to the extent that—For example, if we need—Just hypothetically to make my point, Your Honor—
BY JUDGE BAILEY: I understand your point. Just wrap it up.
BY MR. WILLIAMSON: If we had 10 that we thought we needed to peremptory-challenge out of this great number of jurors and they had 3, obviously, we'd run out and we'd have 6 that we really thought needed to be off the jury, whereas it wouldn't affect them in the same kind of way.
BY JUDGE BAILEY: All right. Well, I'm going—That will be denied to give Plaintiff more challenges than the Defendant. I'm going to give you an equal number. I'm trying to accommodate both sides pursuant to Hudson versus Tatum. I'll leave it up to you. You can either take 4 or 6.
BY MR. WILLIAMSON: 4, Your Honor.
BY JUDGE BAILEY: All right. Each side will—Mr. Gholson, is 4 acceptable to the Defendants?
BY MR. GHOLSON: Yes, sir.

¶ 10. The plaintiffs then used their four peremptory challenges to strike four of the eighteen jurors whom they had asked the trial judge to strike.

ANALYSIS OF THE ISSUE PRESENTED

¶ 11. As stated, the plaintiffs peremptorily struck four jurors after the trial court declined to do so. Those four jurors were: Lorena Bunch, Donna J.

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Cite This Page — Counsel Stack

Bluebook (online)
781 So. 2d 912, 2000 WL 1819746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-powell-missctapp-2000.