Jimmie Roach v. State of Mississippi ( 2010 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-CT-00162-SCT
JIMMIE ROACH a/k/a JIMMIE C. ROACH
a/k/a JIMMY ROACH
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 12/16/2010
TRIAL JUDGE: HON. S. MALCOLM O. HARRISON
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JANE E. TUCKER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 06/20/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Jimmie Roach filed a motion for post-conviction relief claiming he was entitled to a
new trial based on newly discovered evidence that during his trial a juror was exposed to
extraneous information supplied by law enforcement personnel involved in the case. The
motion was denied. Roach appealed, and the Court of Appeals affirmed. Roach filed a
petition for writ of certiorari, which the Court granted.
Facts and Procedural History
¶2. In 2004, Jimmie Roach was convicted by a jury in the Hinds County Circuit Court,
First Judicial District, of possession of cocaine and possession of hydromorphone. Roach
was subject to enhanced sentencing under Mississippi Code Sections 41-29-147 and 99-19-
81 as a subsequent drug offender and habitual offender, respectively. See Miss. Code Ann.
§§ 41-29-147 (Rev. 2009); 99-19-81 (Rev. 2007). He was sentenced to forty-eight years on
the cocaine-possession charge and sixty years on the hydromorphone-possession charge, the
sentences to be served consecutively in the custody of the Mississippi Department of
Corrections. Roach appealed, and the Court of Appeals reversed and remanded for a new
trial on a search warrant issue. Roach v. State, 7 So. 3d 932, 933 (¶ 1) (Miss. Ct. App.
2007). The State filed a petition for writ of certiorari, which was granted; the Court
reinstated and affirmed the trial court’s judgment of conviction and sentence. Roach v. State,
7 So. 3d 911, 928 (¶ 42) (Miss. 2009).
¶3. In May 2010, Roach filed an application for permission to file a motion for post-
conviction relief in the trial court. We granted Roach’s application, and he filed, pro se, a
motion for post-conviction relief on September 16, 2010. Roach asserted, inter alia, that he
was entitled to a new trial based on newly discovered evidence. He claimed that a juror had
been exposed to extraneous information supplied by law enforcement personnel during his
trial. Roach submitted the affidavit of Juror Derrick Tate, in which Tate explained that
during Roach’s trial he had approached two police officers, who were the State’s witnesses,
and asked them how much time Roach would get if he was found guilty. According to Tate’s
affidavit, the officers replied that Roach would get five to eight years. The affidavit
provided, “As a result of being so advised[,] I voted guilty[.]”
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¶4. A hearing on Roach’s motion for post-conviction relief took place on December 15,
2010. Roach’s brother, Preston Roach, testified at the hearing that, after the trial and
sentencing, he was standing outside the courthouse with family members discussing Roach’s
sentence when Tate approached. Tate joined the conversation and made a statement that he
had heard the sentence would not be more than five to eight years. Preston testified that he
mentioned Tate’s statement to Roach’s appellate attorney some time between 2004 and 2006,
while Roach’s appeal was ongoing. Tate’s affidavit was procured March 31, 2010.
¶5. Tate provided testimony at the hearing inconsistent with his affidavit. Tate testified
that he did not approach the officers initially, rather, the officers were talking among
themselves and he overheard them say if Roach was convicted he would get five to eight
years. At that point, Tate turned to them and asked, “Five to eight years?” The officers
responded, “Yes.” Tate testified that he did not tell any other jurors about the alleged
conversation, but that it was possible that other jurors overheard it because he was not the
only one in the hall.
¶6. Tate’s affidavit identified Officers R. W. Spooner and Shannon Bullock as the two
officers he spoke with in the hall. During the hearing, Tate said he did not even recognize
those names and that he did not supply the officers’ names to the investigator who prepared
the affidavit. The investigator determined from the trial court record which officers were
called as witnesses at the trial, and he inserted those names in the affidavit when he typed it
for Tate. Tate admitted that he did not read the affidavit before he signed it.
¶7. Spooner, a lieutenant with the Hinds County Sheriff’s Department, testified as a
witness for the State during Roach’s trial. He also testified at the hearing on Roach’s motion
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for post-conviction relief. Spooner testified that he could not recall discussing Roach’s
possible sentence with another officer in the hallway during the trial. Further, Spooner stated
that he would not have speculated that Roach’s sentence would be between five and eight
years because he was aware of the amount of narcotics found with Roach and he knew Roach
had turned down a plea offer of twenty years.
¶8. At the hearing, Tate was asked multiple times by his attorney, the State’s attorney, and
the judge whether the information from the officers affected his verdict. Tate’s response was
different each time. His affidavit indicated that he had voted guilty based on being advised
that Roach would get only five to eight years, and at the hearing, his testimony initially
supported the veracity of his affidavit. At another point, he testified that the information
“may have” influenced his decision. Later, he said that his decision was “mainly based” on
the evidence, then later, that the information “had some influence” on his decision. Then he
testified that he would have found Roach guilty even without hearing the speculation of a
five-to-eight-year sentence, and that he “derived that [Roach] was guilty” based on the
testimony and the evidence. He said several times that he “felt that [Roach] was guilty” but
he felt that five to eight years was a “fair sentence.”
¶9. At the close of the hearing, the circuit judge stated that Tate had responded to each
questioner with what that person wanted to hear. The judge concluded that he could not
consider Tate’s testimony because it was inconsistent. The judge held that Roach had failed
to present sufficient facts upon which relief could be granted, and he denied Roach’s motion
for post-conviction relief.
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¶10. Roach appealed on the newly discovered evidence issue, and the Court of Appeals
affirmed. Roach v. State, __ So. 3d __, 2012 WL 2305375 (Miss. Ct. App. June 19, 2012).
The Court of Appeals noted the trial court’s finding that Tate had given at least five different
versions of what happened with the two officers and that Tate had tailored his story to “what
the asking party wanted to hear.” Id. at *2 (¶ 8). On that basis, the Court of Appeals found
the issue to be without merit. Id. Judge Carlton dissented and discussed the issue of
extraneous information received by a juror. The majority did not address Judge Carlton’s
dissent.
¶11. Judge Carlton explained that Tate’s testimony was consistent in regard to hearing the
extraneous information from law enforcement officers, and the “contradiction” in Tate’s
testimony pertained only to whether he approached the officers first or whether he overheard
the officers discussing the sentence. Id. at *3 (¶¶ 12, 14) (Carlton, J., dissenting). Judge
Carlton found that the record supported “a threshold showing of receipt of extraneous
prejudicial information by a juror.” Id. at *4 (¶ 15). Therefore, she would have remanded
the case for further evidentiary hearing and to fully reconvene the jury “to determine if other
jurors were exposed to the information regarding Roach’s sentence and, if so, if it was
reasonably possible that the information impacted the verdict.” Id. at **4, 7 (¶¶ 15, 18).
¶12. The Court of Appeals denied Roach’s motion for rehearing. Roach timely filed a
petition for writ of certiorari, which the Court granted. Roach asserts that the Court of
Appeals erred in affirming the trial court “for the reasons stated in the dissent by [Judge]
Carlton.” He asserts that the case should be remanded “for an evidentiary hearing to
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determine whether it was reasonably possible that the extraneous communication testified
to by Derrick Tate altered the verdict.”
Discussion
¶13. The only issue on appeal is whether Roach was entitled to post-conviction relief based
on newly discovered evidence that a member of the jury was exposed to extraneous
information. To warrant relief on the ground of “newly discovered evidence,” the petitioner
must prove that the evidence “will probably produce a different result or induce a different
verdict, if a new trial is granted.” Crawford v. State, 867 So. 2d 196, 204 (¶ 9) (Miss. 2003)
(internal citations omitted). The instant matter does not present a true case of “newly
discovered evidence,” because the “evidence” at issue – that a juror heard an officer say
Roach could get five to eight years if convicted – would not have been introduced as
evidence at trial and does not go to the weight or sufficiency of the evidence against Roach.
Based largely on Judge Carlton’s dissent, Roach’s claim has morphed into a claim that the
trial court incorrectly handled the alleged extraneous communication with a juror, which is
how we will address the issue.
¶14. “Post-conviction proceedings are for the purpose of bringing to the trial court’s
attention facts not known at the time of judgment.” Williams v. State, 669 So. 2d 44, 52
(Miss. 1996) (citing Smith v. State, 477 So. 2d 191 (Miss. 1985)). The Post-Conviction
Collateral Relief Act provides for limited review of “those matters which in practical reality,
could not or should not have been raised at trial or on direct appeal.” Williams, 669 So. 2d
at 52 (citing Turner v. State, 590 So. 2d 871 (Miss. 1991)). See also Miss. Code Ann. § 99-
39-3(2) (Rev. 2007).
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¶15. The burden of proof “is on the petitioner to show ‘by a preponderance of the
evidence’ that he is entitled to relief.” Doss v. State, 19 So. 3d 690, 694 (¶ 5) (Miss. 2009)
(quoting Miss. Code Ann. § 99-39-23(7) (Rev. 2007)). In reviewing a trial court’s decision
to deny a petition for post-conviction relief, we give “deference to the circuit judge as the
‘sole authority for determining credibility of the witnesses.’” Doss, 19 So. 3d at 694 (¶ 5)
(quoting Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)). “A trial court’s dismissal
of a motion for post-conviction relief will not be reversed absent a finding that the trial
court’s decision was clearly erroneous.” Jackson v. State, 67 So. 3d 725, 730 (¶ 16) (Miss.
2011) (citing Brown v. State, 731 So. 2d 595, 598 (¶ 6) (Miss. 1999)). In the case sub judice,
the trial judge found that the witness lacked credibility and discounted his testimony.
Without that testimony, the trial judge found no good cause existed to believe that the jury
was exposed to extraneous prejudicial information or to warrant opening an investigation.
Whether Roach made a prima facie case of extraneous influence on the
jury such that the trial court was required to reconvene the jury to
determine whether it was reasonably possible that the information altered
the verdict.
¶16. In his petition for certiorari, Roach asserts that the Court of Appeals erred in affirming
the trial court “for the reasons stated in the dissent by [Judge] Carlton,” and he asserts that
the case should be remanded “for an evidentiary hearing to determine whether it was
reasonably possible that the extraneous communication testified to by Derrick Tate altered
the verdict.” We recognize a “general reluctance” to reconvene and question jurors “for
potential instances of bias, misconduct[,] or extraneous influences” after a verdict has been
reached, and such inquiries should not be entertained where it is a “mere fishing expedition.”
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Gladney v. Clarksdale Beverage Co., Inc., 625 So. 2d 407, 418 (Miss. 1993) (internal
citations omitted). We also recognize that “[p]ublic policy requires a finality to litigation.”
Payton v. State, 897 So. 2d 921, 955 (¶ 135) (Miss. 2003) (citing Martin v. State, 732 So.
2d 847, 852 (Miss. 1998)).
¶17. The need for finality notwithstanding, the Court has established a procedure for trial
judges to employ when allegations of juror misconduct or extraneous information arise.
Gladney, 625 So. 2d at 418. When the trial court is made aware of potential juror misconduct
or improper influence on the jury, the first step is to determine whether an investigation is
warranted. Id. An investigation is warranted if the trial judge finds that “good cause exists
to believe that there was in fact an improper outside influence or extraneous prejudicial
information.” Id. at 419. If the trial court determines there is no “threshold showing of
external influences,” the inquiry stops there. Id. See also Payton, 897 So. 2d at 954 (¶ 135).
If the trial judge has “good cause to believe” there was improper influence on the jury, the
court should conduct a post-trial hearing. Gladney, 625 So. 2d at 419. The second step is
to determine whether the communication was made and the nature of the communication.
Id. Finally, if the investigation reveals that the communication was made, the court must
determine whether it was reasonably possible that the communication altered the verdict. Id.
A. Trial court and opposing counsel should be made aware of potential
juror misconduct as expeditiously as possible.
¶18. As a preliminary matter, we note that “the trial court and opposing counsel must be
made aware of any potential juror misconduct when this evidence is manifested.” Gladney,
625 So. 2d at 418. “[I]f a juror approaches an attorney for one of the parties or the court
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itself, or if either subsequently learns such through alternative means, all parties involved
should be made aware of the allegation as expeditiously as possible.” Id. The alleged
incident occurred during Roach’s trial on September 30, 2004. Preston Roach testified that
the first mention of the incident occurred immediately after the trial and sentencing, when
Tate approached Roach’s family outside the courthouse. Preston testified that he told
counsel about Tate’s statement between 2004 and 2006, while the direct appeal was ongoing.
Tate’s affidavit was not obtained until March 31, 2010. Roach’s motion for post-conviction
relief was filed on September 16, 2010, nearly six years after his trial.
¶19. In a recent case before the Court, the jury verdict was returned on June 3, 2009, a
juror’s affidavit disclosing potential juror misconduct was taken on June 5, 2009, and a
motion notifying the court of the misconduct was filed on June 12, 2009. Merchant v.
Forest Family Practice Clinic, P.A., 67 So. 3d 747, 753 n.9 (Miss. 2011). Although the
timeliness of the motion was not an issue on appeal, we took the opportunity to advise
counsel that the court and opposing counsel should be made aware of potential juror
misconduct when the evidence is manifested, implying that notifying the court of juror
misconduct seven days after the juror’s affidavit was taken was not “as expeditiously as
possible.” Id. (quoting Gladney, 625 So. 2d at 418).
¶20. Given Preston’s testimony that he knew of the alleged incident immediately after the
trial and that he informed Roach’s counsel about the alleged incident while the direct appeal
was ongoing, the State and the circuit court were not “made aware of the allegation as
expeditiously as possible.” Gladney, 625 So. 2d at 418. It would not have been error for the
trial court to dismiss the issue for failure to notify the court when evidence of the alleged
9
misconduct manifested. However, to ensure Roach his constitutional right to an impartial
jury, the trial judge considered the issue. See Miss. Const. art. 3, § 26. Likewise, we will
review the merits of the issue here.
B. Roach did not prove that there was good cause to believe the jury
received extraneous information or was improperly influenced.
¶21. “In any trial there is initially a presumption of jury impartiality.” Carr v. State, 873
So. 2d 991, 1005 (¶ 38) (Miss. 2004) (quoting United States v. O’Keefe, 722 F.2d 1175,
1179 (5th Cir. 1983)). To warrant an investigation, the party contending misconduct
occurred “must make an adequate showing to overcome the presumption in this state of jury
impartiality.” Gladney, 625 So. 2d at 418. The Court has held:
At the very minimum, it must be shown that there is sufficient evidence to
conclude that good cause exists to believe that there was in fact an improper
outside influence or extraneous prejudicial information. . . . Although a
minimal standard of a good cause showing of specific instances of misconduct
is acceptable, the preferable showing should clearly substantiate that a specific,
non-speculative impropriety has occurred.
Id.
¶22. The evidence in the instant case regarding the alleged conversation between Tate and
the officers is not overwhelming. Tate testified that he did not recognize the names of the
officers identified in his affidavit, and he admitted that he did not supply the officers’ names
to the investigator. The investigator testified that he determined from the trial court record
which officers were called as witnesses at the trial and inserted those names in the affidavit.
Further, Tate admitted that he did not read the affidavit before he signed it. Lieutenant
Spooner could not recall discussing Roach’s possible sentence with another officer in the
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hallway during the trial, and he testified that he would not have speculated that Roach’s
sentence would be between five and eight years based on what he knew about the case.
¶23. Tate was questioned repeatedly – by his attorney, the State’s attorney, and the judge
– about whether the officers’ alleged comments influenced his decision to vote guilty. Rule
of Evidence 606 does not permit “any inquiry into the internal deliberations of the jurors.”
Gladney, 625 So. 2d at 419. “[A] juror may testify on the question [of] whether extraneous
prejudicial information was improperly brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror.” Miss. R. Evid. 606(b). But
questioning of a juror must be limited to whether the communication was made and what it
contained. Gladney, 625 So. 2d at 419. It is inappropriate and a violation of Rule 606(b)
“for any juror to be questioned with regard to whether or not the extraneous information
actually altered his verdict.” James v. State, 912 So. 2d 940, 950-51 (¶ 18) (Miss. 2005).
The trial court erred in allowing Tate to be questioned about how the alleged extraneous
information affected his deliberations.
¶24. Although the judge erred by asking improper questions about Tate’s deliberations, the
judge believed that the multiple contradictions in Tate’s account undermined his claim of
extraneous prejudicial information. The only evidence supporting Roach’s claim that Tate
received extraneous information was from Tate. Lieutenant Spooner’s testimony did not
corroborate Tate’s story; and Tate testified that he did not tell the other jurors about the
alleged conversation or the possible five-to-eight-year sentence, so they could not
corroborate his testimony. The circuit court held that Roach “failed to prove sufficient facts
upon which” it could grant relief on the newly discovered evidence claim. Under the facts
11
presented, and giving deference to the trial judge’s determination of the credibility of
witnesses, we cannot say that the trial judge erred in concluding that Roach failed to prove
that there was good cause to believe the jury had been exposed to extraneous prejudicial
information.
C. The evidence was not sufficient to warrant opening an investigation or
reconvening the jury.
¶25. Because Roach failed to make an adequate showing of improper influence on the jury,
there is no need to address whether the verdict was altered or the jury must be reconvened.
See Gladney, 625 So. 2d at 419. However, Roach relies on Judge Carlton’s dissent to argue
that the case should be remanded for an evidentiary hearing and that the full jury should be
reconvened, so we briefly address that point. Judge Carlton relied heavily on James v. State,
912 So. 2d 940 (Miss. 2005), which is distinguishable from the instant case.
¶26. In December 1995, James was charged with the murder of two children. Id. at 943
(¶ 4). The trial court allowed James to sever the counts and try the cases separately. Id.
During the first trial, “[g]reat efforts were taken to make sure that no one mentioned any
alleged injuries to [the second child] in the presence of the jury.” Id. Jury selection began
on July 8, 1996, and the potential jurors were questioned about their knowledge of the case.
Id. at 943 (¶ 5). At the conclusion of the trial, in which the State’s case had been “based
entirely on circumstantial evidence,” the jury found James guilty of capital murder, and he
was sentenced to life in prison. Id. at 944 (¶ 6).
¶27. The day after the trial, defense counsel learned that the jury may have been exposed
to extraneous prejudicial information. Id. at 944 (¶ 7). The court was informed, and a
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hearing was held on August 14, 1996, at which venire member Wanda Conway was called
to testify. Id.
Conway explained that on July 9, 1996, she went to lunch with another
prospective juror and Juror Shawn Watson. . . . Contrary to the trial court’s
instructions, the women discussed the case for approximately ten minutes
during their lunch. Watson stated that she did not remember the case at all. The
other women discussed what they had heard in the media, including that James
was accused of murdering another child. . . .
Conway also testified that later that afternoon the entire group was sent to sit
in another courtroom . . . while the trial court and attorneys were conducting
individual voir dire, which took several hours. Conway testified that she heard
many members of the venire discussing the case and that there were two
children involved. She overheard a woman tell a man, who was ultimately
selected as a juror, that James was accused of killing two young children.
Conway testified that she spoke to Watson the day after the trial ended.
Watson told her that she had doubts about James’ guilt and thought the mother
should be investigated. Watson complained that some members of the jury
knew about the second child and kept bringing it up in the jury room. Watson
told Conway that several jurors argued that James was guilty because “it was
two children.” . . . Watson told Conway that several of the jurors who saw the
docket sheet discussed it in the jury room and stated that it indicated that
James was charged with something else. Watson said the docket sheet said
“one of two, or first case, or something like that.”
Id. at 944-45 (¶¶ 7-9). At the end of the hearing, the trial court found “that there had not
been a threshold showing that further inquiry was necessary.” Id. at 945 (¶ 10). James
appealed, and the Court of Appeals reversed and remanded with instructions for the trial
court to “reconvene and poll the jury regarding exposure to extraneous information.” Id. at
946 (¶ 13). We agreed that “Conway’s testimony more than satisfied the minimum
requirements of Gladney and provided a sufficient basis for the trial court to hold a hearing”
to determine whether extraneous information had been introduced to the jury. Id. at 951 (¶
19) (quoting James v. State, 777 So. 2d 682, 700 (Miss. Ct. App. 2000)).
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¶28. In the instant matter, Tate testified about a two-or-three-sentence conversation that
allegedly had occurred six years earlier. Tate testified that he did not tell other jurors about
the five-to-eight-years comment, and he only speculated that “other people” may have
overheard his alleged interaction with the officers. There was no evidence that other jurors
actually overheard the conversation. Tate’s testimony was not corroborated by the officers
or by any other evidence. Conversely, Conway testified only one month after trial, and her
testimony pertained to multiple statements and occurrences, including: that she and other
potential jurors had discussed the second child during voir dire; that members of the jury had
discussed the second child while waiting in a separate courtroom during individual voir dire;
that members of the jury kept mentioning the second child in the jury room; that some jurors
saw James listed twice on the docket sheet; and that Watson heard other jurors say James was
guilty because two children had been killed. Further, Conway’s testimony was confirmed
by other jurors.
¶29. The evidence in the case at hand does not rise to the level of the evidence in James.
Tate’s testimony did not satisfy the minimum requirements of Gladney and did not provide
“a sufficient basis for the trial court to hold a hearing for the purpose of determining whether
extraneous prejudicial information was introduced into the jury’s deliberations[.]” James,
912 So. 2d at 951 (¶ 19) (quoting James I, 777 So. 2d at 700). Again, under the facts
presented, and giving deference to the trial judge’s determination of the credibility of
witnesses, we cannot say that the trial judge erred in concluding that Roach failed to present
sufficient evidence to warrant opening an investigation or to warrant reconvening the jury.
Conclusion
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¶30. The circuit court’s denial of Roach’s motion for post-conviction relief based on newly
discovered evidence that a juror was exposed to extraneous information was not clearly
erroneous. The circuit court’s denial of Roach’s motion for post-conviction relief and the
Court of Appeals’ judgment affirming it are affirmed.
¶31. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., LAMAR AND PIERCE, JJ., CONCUR.
KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J., CHANDLER AND KING, JJ.
KITCHENS, JUSTICE, DISSENTING:
¶32. The majority finds that the trial court did not err when it determined that Jimmie
Roach had failed to make a threshold showing that the jury in his trial was exposed to
extraneous, prejudicial information. With respect, I disagree. Juror Derrick Tate consistently
testified that he was exposed to outside (and radically incorrect) information regarding the
sentence that Roach would receive if the jury found him guilty. The severity or leniency of
a defendant’s possible sentence is purposely withheld from juries exactly because of its
considerable potential to influence their verdicts. Because I believe that Roach made a
threshold showing that at least one juror was exposed to extraneous and presumptively
prejudicial information, and the trial court erred in finding otherwise, I respectfully dissent.
¶33. Tate was asked multiple times by the defense, the prosecution, and the court, how and
to what extent his knowledge of Roach’s purported sentence affected his deliberation. As the
majority correctly finds, this was a direct violation of Mississippi Rule of Evidence 606(b),
which prohibits inquiry into the effect of extraneous information upon a juror’s decision. The
only thing to which Tate properly could have testified is whether he was exposed to outside
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information, what the information was, how he was exposed to it, and whether he told the
rest of the jury. The trial court erred when it permitted Tate to testify about the effect the
extraneous information might have had on his deliberation and ultimate decision. The court
compounded the error when it relied upon Tate’s “effect testimony” regarding the effect the
information had on his decision in deciding to deny relief to Roach:
I asked him a direct question of how much – if this contact occurred, how did
it affect his – his deliberations. He said none at all. [Defense Counsel] asked
him the same question. He said it affected it a little bit. [The Prosecutor] asked
him the same question. He said it didn’t affect it at all.
So if Mr. Tate had just been consistent with what is written in his affidavit, I
think this would have been a clear-cut case — that it would have been — the
relief would have been granted. But unfortunately Mr. Tate equivocated, as
[Defense Counsel] said, on more than one occasion. And on that basis I can’t
consider his testimony because he continued to tell whoever asked him the
question what they wanted to hear at that time.
¶34. Thus, the trial judge acknowledged that he did not consider Tate’s testimony because
Tate had testified inconsistently about the effect his knowledge of Roach’s probable sentence
had on his decision. Had the judge properly restricted Tate’s testimony, the testimony would
have shown only that Tate heard a police officer say that Roach would receive five to eight
years if convicted, that he was unsure about how he had heard that information, that the
officer in question claimed not to remember making that statement, and that Tate did not
relay that information to other jurors. It is true, as the majority notes, that the details of Tate’s
story regarding how he heard about Roach’s potential sentence changed multiple times
throughout the hearing. 1 However, he never wavered concerning the only relevant and
material fact of the entire proceeding: he heard a police officer saying that Roach would be
1
It is worth noting that this hearing was held more than six years after Roach’s trial.
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sentenced to between five and eight years if found guilty. Under what circumstances this
information came to Tate is of less importance than that he was exposed to it at all. See
Brake v. Speed, 605 So. 2d 28, 38 (Miss. 1992) (“[I]t is the nature of the information
acquired and its relation to material issues in the case which controls, no matter whether the
information was accidentally, casually or deliberately acquired.”). Even if the trial court
based its decision on the inconsistencies in how Tate actually heard the information, that
decision still would be erroneous, because the manner in which Tate received the information
was irrelevant to his possession of it. It is important to note that, in every version of his story,
Tate claimed he heard the outside information from a police officer – an authority figure who
most laypersons would deem to be in the know about such matters. Further, in making its
decision, the trial court relied heavily on information that is forbidden from judicial inquiry.
Because the trial court stated that, without Tate’s equivocation regarding the influence the
extraneous information had on his decision, it would be a “clear-cut case” in which relief
would be granted, I find that the trial court’s reliance on that prohibited information
amounted to error.
¶35. The type of information to which Tate was exposed was inherently prejudicial. The
severity or leniency of a defendant’s potential sentence is kept from jurors because they are
charged with finding a defendant guilty or not guilty based only on the evidence and the
judge’s written instructions. Typically, sentencing is the province of the judge, and “[t]he
sole duty of the jury [i]s to pass on the guilt or innocence of the accused.” Smith v. State, 288
So. 2d 720, 722 (Miss. 1974). “[T]he jury should have no concern with the quantum of
punishment to be imposed.” Marks v. State, 532 So. 2d 976, 983 (Miss. 1988). In
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determining the impropriety of a prosecutor’s closing argument that a manslaughter
conviction would not sufficiently punish a defendant the way that a murder conviction
would, this Court has said that “[t]he question of punishment is categorically unrelated to
whether the verdict should be murder or manslaughter.” Id. at 984.2 “The jury have nothing
to do with, and should be told nothing of, the character or degrees of punishment in any case
whatever . . . .” Ellerbee v. State, 79 Miss. 10, 30 So. 57, 58 (Miss. 1901).
¶36. It is clear from our jurisprudence that juries must remain insulated from information
regarding sentencing, precisely because such information can affect their verdicts. In this
case, a juror heard from a police officer that Roach would get five to eight years if convicted.
Given that Roach was eligible for, and actually received, one hundred more years than Tate
heard that he would, I find that this extraneous information, which minimized the seriousness
of the jury’s verdict, was extremely prejudicial to Roach.3 Additionally, this kind of outside
information can cut both ways. Had Tate learned that Roach could be sentenced to 108 years
upon conviction, and subsequently determined that he could not vote guilty due to the
potential severity of the punishment, it is almost certain that the State would correctly
contend that he was exposed to prejudicial, extraneous information.
¶37. The fact that Tate testified that he did not tell other jurors about this information is
irrelevant. It takes but one dissenting vote to cause a mistrial in a criminal case. URCCC
2
The Court affirmed, however, because defense counsel made no contemporary
objection to the closing argument and the issue was procedurally barred on appeal.
3
This is not the only prejudicial information to which this juror was exposed. The
entire jury witnessed Roach’s main witness being arrested in court after testifying. Roach
v. State, 7 So. 3d 911, 929 (Miss. 2009) (Kitchens, J. dissenting).
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3.10. Moreover, we do not, nor should we, know the extent of Tate’s influence on his fellow
jurors during their deliberations. He may or may not have been a leader on this particular
jury. Rule 606 prohibits any inquiry into the effect that extraneous information had on a
jury’s decision; so, we are left only with the information that, in this case, was improperly
received by one member of the jury. Tate consistently testified that he heard a police officer
say that Jimmie Roach would receive five to eight years if convicted. This is all that the trial
court should have considered. It cannot reasonably be argued that, if true, this information
was not prejudicial to Roach, as he actually was eligible for roughly fourteen to twenty times
this sentencing range. Roach has shown “that there is sufficient evidence to conclude that
good cause exists to believe that there was in fact an improper outside influence or
extraneous prejudicial information.” Gladney v. State, 625 So. 2d 407, 418 (Miss. 1993).
¶38. Because Roach’s trial occurred nearly nine years ago, a new hearing with the jury to
determine if they were exposed to the information would be inefficient and of little value.
Further, since we are prohibited from inquiring into the effect of any prejudicial information
on their deliberations, I fail to see the value of such a hearing. See Rutland v. State, 60 So.
3d 137, 146 (Miss. 2011) (Kitchens, J. dissenting). Accordingly, well-established and sound
Mississippi precedent requires us to assume that the extraneous information affected the
juror’s decision. Thus, the only remedy appropriate is for this Court to reverse Roach’s
conviction and remand for a new trial. Therefore, I respectfully dissent.
DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.
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