Magee v. State

124 So. 3d 71, 2012 WL 6118838, 2012 Miss. App. LEXIS 817
CourtCourt of Appeals of Mississippi
DecidedDecember 11, 2012
DocketNo. 2010-CP-01611-COA
StatusPublished
Cited by2 cases

This text of 124 So. 3d 71 (Magee v. State) 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
Magee v. State, 124 So. 3d 71, 2012 WL 6118838, 2012 Miss. App. LEXIS 817 (Mich. Ct. App. 2012).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Over twenty years after being convicted of robbery and sentenced to life imprisonment as a habitual offender, Johnny Ray Magee claimed to have discovered new evidence entitling him to post-conviction relief (PCR). He argues he recently learned his trial had been tainted because a juror had failed to disclose during voir dire her familial relationship with a law enforcement officer allegedly involved in his arrest. The Marion County Circuit Court held an evidentiary hearing and found Magee was not prejudiced by the juror’s failure to divulge that a person she believed to be her fourth cousin was a sheriffs deputy. The circuit judge also determined the juror had no extraneous knowledge about the case. Magee challenges these findings and also contests several of the circuit judge’s evidentiary rulings from the hearing. Finding no reversible error, we affirm.

[74]*74Facts and Procedural History

¶2. In 1986, a Marion County grand jury returned an indictment charging Ma-gee with armed robbery. The jury found Magee guilty of the lesser-included offense of robbery. Based on his separate prior convictions for burglary and robbery, he was sentenced as a habitual offender to life imprisonment without the possibility of parole. The Mississippi Supreme Court affirmed Magee’s conviction and sentence. See Magee v. State, 542 So.2d 228, 237 (Miss.1989). In 1992, the supreme court dismissed his PCR motion. But in 2009, Magee moved to amend his PCR motion, claiming newly discovered evidence of juror misconduct.

¶ 3. In 2010, the supreme court granted Magee’s motion to amend and directed the circuit court to conduct an evidentiary hearing on Magee’s juror-misconduct claim. The crux of Magee’s post-conviction argument was that he had been denied a fair trial because Judy Ann Echols, a member of the jury at his robbery trial, had not disclosed her familial relationship with a law enforcement officer, despite Magee’s attorney posing the following relevant questions to the venire:

(1) And these first few questions apply to you yourself, your family, and the people you consider to be your close friends. Are any of you or the other people that I have mentioned presently employed as any sort of law enforcement officer, whether it be local, state or federal? Is anybody in that position at this time?
(2) What about in the past, has anybody in your experiences in life so far ever been employed in law enforcement personally? What about your family members or close friends in the past?
(3) Have you yourself or any of your close friends ever been members of any kind of law enforcement association such as the State Sheriffs Association or National Rifle Association or any other group like that?

¶ 4. Though two jurors responded to the questions, Judy Ann did not. Over twenty years later at the evidentiary hearing, Judy Ann testified she believed she was the fourth cousin of Deputy Thomas Echols, who had served as a Marion County Sheriffs Deputy at the time of Magee’s indictment and trial. Judy Ann admitted she had known Deputy Echols and had attended Church with him prior to his death, but she denied ever discussing Ma-gee’s case with him at any time before, or during, Magee’s trial. Judy Ann explained she had not disclosed her relation to Deputy Echols during voir dire because she had misunderstood defense counsel’s questions and was not sure how to conduct herself.

¶ 5. Magee also testified at the eviden-tiary hearing. He believed Deputy Echols and Judy Ann were second, not fourth, cousins. Magee’s sister, Shirlee McLendon, offered similar testimony. Magee further claimed a fellow inmate had recently told him that Judy Ann had learned from Deputy Echols that Magee had robbed the store. Afterwards, Magee maintained that he had called Judy Ann to confront her about the statements. He claimed that during their conversation Judy Ann had admitted discussing his case with Deputy Echols before serving on the jury. Yet notably, Magee did not question her about this alleged conversation during the hearing.

¶ 6. Cass Barnes, the State’s only witness at the evidentiary hearing, had served on the jury with Judy Ann. He testified that he did not recall any improper reference or conduct on Judy Ann’s part during the jury’s deliberations. According to Barnes, there were no improprieties during deliberations and “everything went ... [75]*75smoothly.” Barnes testified that had any of the jurors acted improperly, he would have advised the circuit judge.

¶ 7. After applying the test articulated in Odom v. State, 355 So.2d 1381, 1383 (Miss.1978), the circuit judge found that Judy Ann had lacked substantial knowledge and understanding of the information sought to be elicited during her voir dire examination and that Magee had suffered no prejudice from her failure to respond. Having found Magee received a fair and impartial trial, the circuit judge denied Magee’s PCR motion. Magee now appeals.

Standard of Review

¶8. We review the denial of a PCR motion after an evidentiary hearing for clear error. Poss v. State, 17 So.3d 167, 169 (¶ 5) (Miss.Ct.App.2009) (citing Johns v. State, 926 So.2d 188, 194 (¶ 29) (Miss.2006)). In doing so, we “must examine the entire record and accept ‘that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the [circuit] court’s findings of fact.’ ” Thorson v. State, 76 So.3d 667, 674 (¶ 18) (Miss.2011) (quoting Doss v. State, 19 So.3d 690, 694 (¶5) (Miss.2009)). Deference is given to the circuit judge as the “sole authority for determining credibility of the witnesses.” Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987). But we review questions of law de novo. Thorson, 76 So.3d at 674 (¶ 19) (citing Doss, 19 So.3d at 694 (¶ 5)). The burden of proof at an evidentiary hearing in post-conviction relief cases is on the petitioner to show “by a preponderance of the evidence” he or she is entitled to relief. Miss.Code Ann. § 99-39-23(7) (Supp.2012).

Discussion

¶ 9. On appeal, Magee claims the circuit judge erred in (1) applying the Odom test (2) allowing the State to ask Judy Ann leading questions, (3) limiting Magee’s testimony to relevant matters, (4) permitting Barnes to testify, and (5) allowing the State to ask Barnes a leading question on direct examination and permitting Barnes to offer speculative testimony.

1. The Odom Test

¶ 10. In Odom, 355 So.2d at 1383, the supreme court established a test for evaluating whether a juror’s failure to respond to a question during voir dire prejudices the defendant’s right to a fair trial:

[W]here ... a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion [a] for a new trial, determine [ (1) ] whether the question propounded to the juror was ... relevant to the voir dire examination; (2) whether [the question] was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.

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Bluebook (online)
124 So. 3d 71, 2012 WL 6118838, 2012 Miss. App. LEXIS 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magee-v-state-missctapp-2012.