                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2010-CT-02058-SCT

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

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        10/13/2010
TRIAL JUDGE:                             HON. LESTER F. WILLIAMSON, JR.
COURT FROM WHICH APPEALED:               LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  IMHOTEP ALKEBU-LAN
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                       BILBO MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 08/08/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   William Antonio “Ken” Avery was convicted of selling cocaine and felony fleeing.

The Court of Appeals affirmed his conviction and sentence. This Court granted certiorari

to address Avery’s claim that the trial court committed reversible error in refusing to

sequester the witnesses at the post-trial hearing. Finding no reversible error, we affirm

Avery’s conviction and sentence.
                         FACTS & PROCEDURAL HISTORY

¶2.    On March 30, 2010, law enforcement officials arranged for a confidential informant

to purchase drugs from Avery while wearing an audiovisual recording device. The informant

purchased crack cocaine from Avery and turned it over to the police. The police attempted

to arrest Avery immediately thereafter. Avery fled in his vehicle, and police pursued him,

ultimately resulting in his arrest. Avery was tried in Lauderdale County, and a jury convicted

him of selling cocaine and felony fleeing.

¶3.    After his conviction and sentencing, Avery discovered that the trial judge may have

communicated with Juror Kim Watts. While the exact nature of the communication is

disputed, the following is a general recounting of the relevant events. On the night before

jury deliberations, the trial judge had a conversation at a local restaurant with Jamie Cater,

a caterer and the employer of Juror Watts. Cater told the judge that she needed Watts back

at work. The judge replied that he thought the case would be over by noon the next day. The

following morning, Juror Watts was the last juror to arrive at the courthouse. She mentioned

to the judge that she needed to get back to work soon. The judge responded that the jury

would likely begin deliberations that morning, and that they should be finished by noon.

After the defense rested, the jury deliberated for approximately twenty minutes and then

returned a guilty verdict.

¶4.    Avery sought a post-trial hearing regarding the judge’s alleged communication.1 At

the beginning of the hearing, Avery requested invocation of Rule 615 of the Mississippi



       1
      The hearing also covered Avery’s motion for judgment notwithstanding the verdict
(JNOV), motion for new trial, and motion for reconsideration of sentencing.

                                              2
Rules of Evidence, mandating that the witnesses be sequestered. The judge denied Avery’s

request and allowed the witnesses to testify in each other’s presence. At the beginning of the

hearing, the trial judge explained his version of the events to the attorneys and witnesses. He

acknowledged that he had told Juror Watts that the jury probably would begin deliberations

on the morning in question. Juror Watts testified that she had told the judge she needed to

return to work, but she did not recall a response from the judge. Juror Elaine Moss testified

that Juror Watts had told her that they should be finished with the case by noon. Juror Moss

could not remember if any other jurors were present at the time. Avery’s wife and mother

testified that Watts had told the judge that she had gotten his message that “court will be over

by 12:00 and to bring a pan of dressing.” The judge denied Avery’s post-trial motions.

¶5.    Avery appealed, raising several assignments of error, including the judge’s failure to

sequester the witnesses upon his request at the post-trial hearing. The Court of Appeals

affirmed the trial court in all respects. Avery v. State, No. 2010-KA-02058-COA, 2012 WL

2304715 (Miss. Ct. App. June 19, 2012). Avery then filed a petition for certiorari with this

Court, raising substantially the same issues addressed by the Court of Appeals. We may limit

the issues we address upon a grant of certiorari. Jones v. State, 95 So. 3d 641, 645 (Miss.

2012) (citations omitted); Miss. R. App. P. 17(h). Thus, we limit our review to Avery’s

claim that the trial court committed reversible error by failing to sequester the jurors at the

post-trial hearing.

                                STANDARD OF REVIEW

¶6.    Avery argues that the trial court committed reversible error by refusing to sequester

the witnesses upon his request at his post-trial hearing. When a violation of Rule 615 is

                                               3
alleged on appeal, this Court is limited to an abuse-of-discretion standard of review.

Douglas v. State, 525 So. 2d 1312, 1318 (Miss. 1988). However, “[t]he discretion of the trial

court must be exercised within the boundaries of the Mississippi Rules of Evidence.

Johnston v. State, 567 So. 2d 237, 238 (Miss. 1990).

                                       DISCUSSION

       I. Whether a new trial should be granted based on a violation of Rule
       615 and alleged jury misconduct.

¶7.    Rule 615 provides, “At the request of a party the court shall order witnesses excluded

so that they cannot hear the testimony of other witnesses[.]” Miss. R. Evid. 615 (emphasis

added). The purpose of Rule 615 is to “exercis[e] a restraint on witnesses ‘tailoring’ their

testimony to that of earlier witnesses and . . . ai[d] in detecting testimony that is less than

candid.” Douglas, 525 So. 2d at 1316 (quoting Geders v. United States, 425 U.S. 80, 87, 96

S. Ct. 1330, 47 L. Ed. 2d 592 (1976)). Simply put, Rule 615 guards against “falsification,

inaccuracy, and collusion.” Miss. R. Evid. 615 cmt.

¶8.    The Court of Appeals correctly held that the trial court erred in refusing to sequester

the witnesses upon Avery’s request at the post-trial hearing. Avery, 2012 WL 2304715, at

*5. However, the Court of Appeals ultimately held that the trial court had not abused its

discretion in refusing to invoke Rule 615 because Avery had failed to show that he was

prejudiced by that refusal. Id. (citing Finley, 725 So. 2d at 233 (finding that the “resultant

degree of prejudice to the defendant must first demonstrate that the trial court abused its

discretion.”)).




                                              4
¶9.    The Court of Appeals was incorrect in applying the abuse-of-discretion standard to

the trial court’s refusal to invoke Rule 615. As indicated by the mandatory language of Rule

615, the trial court has no discretion in the rule’s application; the court must apply it when

a party invokes it. Finley v. State, 725 So. 2d 226, 234 (Miss. 1998) (citing Douglas, 525

So. 2d at 1316). The abuse-of-discretion standard, requiring a showing of prejudice to the

defendant, refers to the trial court’s discretion in granting, or not granting, a remedy upon a

violation of the rule.2 See Finley, 725 So. 2d at 233 (citing Douglas, 525 So. 2d at 1317)

(“Once a witness has violated the rule, the remedy lies within the court’s discretion.”). Here,

the trial court’s refusal to invoke Rule 615 upon Avery’s request was a distinct error; thus,

it was improper for the Court of Appeals to find that the error did not amount to an abuse of

discretion.

¶10.   This Court’s inquiry does not end there, though. The State argues that this error was

harmless and had no effect on the jury’s verdict or the outcome of the post-trial hearing.

“‘[A] defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.”

Brown v. U.S., 411 U.S. 223, 231-232, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973) (citing




       2
         Rule 615 does not provide an express remedy for its violation. However, this Court
has provided trial courts with the discretion to apply any of several remedies. The offending
witness may be excluded from testifying upon a showing of prejudice to the complaining
party. Douglas, 525 So. 2d at 1317 (citing U.S. v. Warren, 478 F. 2d 1058, 1076 (5th Cir.
1978)). Absent a showing of prejudice, the more appropriate remedy is a “full-bore cross-
examination” of the witness on the facts of the violation of the rule. Id. (citing U.S. v.
Jimenez, 780 F. 2d 975, 981 (11th Cir. 1986)). The trial court also may instruct the jury that
a violation of Rule 615 should be considered in evaluating the credibility of the witness. Id.
(citing Jimenez, 780 F. 2d at 981). If the witness testifies before the trial court is aware of
the violation, the trial court may also cite that witness for contempt. Id. at 1318 (citing U.S.
v. Blasco, 702 F. 2d 1315, 1327 (11th Cir. 1983)).

                                                 5
Bruton v. U.S., 391 U.S. 123, 134, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (quoting Lutwak

v. U.S., 344 U.S. 604, 619, 73 S. Ct. 481, 97 L. Ed. 593 (1953))). For an error to be

harmless, it must be “clear beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Conley v. State, 790 So. 2d 773, 789 (Miss. 2001) (citing

Stokes v. State, 548 So. 2d 118, 124 (Miss. 1989)). In conducting harmless-error analysis,

this Court has the power and duty to review the record de novo to determine the error’s

effect. Tran v. State, 962 So. 2d 1237, 1247 (Miss. 2007) (citing Arizona v. Fulminante,

499 U.S. 279, 295, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).

¶11.   This Court finds that the trial court’s error in failing to sequester the witnesses was

harmless beyond a reasonable doubt. We have held that a technical violation of Rule 615 is

harmless where the violation did not adversely affect the defendant. Conley, 790 So. 2d at

789 (citing Stokes, 548 So. 2d at 124). Here, Avery’s conviction was supported by

overwhelming evidence at trial. Avery’s drug sale was captured on audiovisual surveillance,

and he presented no witnesses in his defense. While the Court of Appeals incorrectly applied

the abuse-of-discretion standard to the trial court’s initial failure to comply with Rule 615,

we find that Avery’s failure to present any evidence of prejudice serves as persuasive

evidence that the trial court’s error was harmless. Telling a juror’s employer and a juror that

“Court will be over by noon” was an innocuous statement with no arguable influence on

Avery’s case. The trial court’s failure to sequester witnesses at Avery’s post-trial hearing

certainly could not have affected the jury’s verdict, nor could it have had any arguable effect

on Avery’s post-trial hearing based on the weight of the evidence against him. Based on the




                                              6
record, this Court cannot say that the trial court’s error rendered Avery’s trial or post-trial

hearing fundamentally unfair. This issue is without merit.

                                      CONCLUSION

¶12.   While the trial court erred in refusing to sequester the witnesses at Avery’s post-trial

hearing, the error was harmless. The Court of Appeals erred in its analysis, but correctly

affirmed the trial court’s conviction and sentence. Based on harmless-error analysis this

Court affirms Avery’s conviction and sentence.

¶13. COUNT I: CONVICTION OF SALE OF COCAINE AND SENTENCE OF
SIXTY (60) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II:
CONVICTION OF FELONY FLEEING AND SENTENCE OF FIVE (5) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SENTENCES SHALL BE SERVED WITHOUT THE POSSIBILITY OF
PROBATION, PAROLE, EARNED TIME OR GOOD TIME CREDIT NOR ANY
OTHER TYPE OF EARLY RELEASE. SENTENCES IN COUNTS I AND II ARE TO
RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO TIME IN
CAUSE # 645-02 AND # 691-06. APPELLANT SHALL ALSO PAY COURT COSTS
OF $434.50 AND A $5,000 FINE AND $300.00 LAB FEE.

      DICKINSON AND RANDOLPH, P.JJ., LAMAR, PIERCE AND COLEMAN,
JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS AND CHANDLER, JJ.

       KING, JUSTICE, DISSENTING:

¶14.   Because I believe that the post-trial hearing was irretrievably tainted due to the

egregious violation of Rule 615, I would reverse and remand this matter for a new post-trial

hearing. Therefore, I respectfully dissent.

¶15.   After Avery’s trial and conviction in this matter, he discovered that the trial judge may

have communicated improperly with Kim Watts, a juror, and thus sought a hearing on the

matter. At the beginning of the hearing, Avery invoked Rule 615 of the Mississippi Rules

                                               7
of Evidence (“The Rule”), mandating that the witnesses be sequestered. The judge refused

to sequester the witnesses. Then, in the presence of the anticipated witnesses, the judge

announced that he would testify as to the facts surrounding his alleged communication with

Kim Watts. Avery again asked that the witnesses be sequestered. The judge again denied

the request and stated that “I’m going to testify as to what I understand happened, or I’ll put

on the record what I understood happened. And if they feel like there’s anything different,

then they – you know, you could ask them about it.” 3 Avery’s counsel yet again protested

the failure to sequester the witnesses, noting that the judge’s testifying, particularly because

he was the judge, could influence the other witnesses’ testimony. The judge responded: “I’ve

got a pretty clear memory about what happened, and I’m quite certain that I – there’s nothing

I did placed any influence on any juror, and I just think this is much ado about nothing, and

I frankly resent it. But I will testify to the truthfulness of it.” The judge went on to testify

as to his version of the events, with all other witnesses present.4 After the judge testified,

Avery, for the fourth time, requested that the court sequester the witnesses, and the court

again denied the request. Five additional witnesses then testified regarding the events in

question.5


       3
           The judge did not offer to subject himself to examination by the attorneys.
       4
         I note the troubling ethical issues surrounding a judge presiding over a proceeding
at which he is a witness and in which he has personal knowledge of the disputed facts. Code
of Judicial Conduct Canon 3E(1)(a) & (d)(iv); see also Brashier v. State, 20 So. 2d 65
(Miss. 1944). The failure of the judge to sua sponte recuse himself from presiding over the
hearing on Avery’s post-trial motions appears problematic. However, neither party raises
this issue, thus, I decline to address it.
       5
       During some of these witnesses’ testimony, the judge interjected and offered his
testimony as to certain facts known to him.

                                                8
                                        ANALYSIS

¶16.   The majority correctly finds that the trial judge erred, abusing his discretion by

refusing to sequester the witnesses pursuant to Rule 615. The majority also correctly notes

the purpose of Rule 615 – to prevent witnesses from tailoring their testimony and to “guard[]

against ‘falsification, inaccuracy, and collusion.’” Maj. Op. ¶ 7. However, the majority

incorrectly finds that this error was harmless.

¶17.   The majority claims that the failure to enforce the Rule was harmless error. Harmless

error is only applicable when there exists no prejudice to the defendant, or, as the majority

puts it, “where the violation did not adversely affect the defendant.” Jackson v. State, 684

So. 2d 1213, 1225 (Miss. 1996); Maj. Op. ¶ 11. An analysis of prejudice, or how the error

“adversely affected” the defendant, is inappropriate under the specific facts of this case. The

majority relies on facts and testimony garnered at the irretrievably tainted hearing to

determine that what occurred “was an innocuous statement with no arguable influence on

Avery’s case.” Maj. Op. ¶ 11. The fact is that, under such a gross violation of Rule 615 and

where no remedy was employed to determine the effect that the Rule violation had on the

testimony, we simply cannot determine what the witnesses would have testified to had Rule

615 been enforced.      As the majority admits, the purpose of the Rule is to prevent

falsification, inaccuracy, and collusion. It is difficult to imagine a more egregious violation

of the Rule than the violation that occurred in this case, thus the risk of falsification,

inaccuracy, and collusion is heightened. The majority seems to divine that the witness

testimony would have been the same had the hearing not been irretrievably tainted. The

majority may be correct; however, the majority may be incorrect – the untainted testimony

                                              9
might have been very different from that given at the hearing. We simply do not, and cannot,

know. By requiring Avery to prove he was adversely affected by requiring a showing of

adverse effect using the tainted evidence, the majority is requiring an exercise in futility.6

Under the specific facts of this case, the very fact of the error in the first instance renders the

resulting evidence highly suspect. But the majority allows the trial court to commit such an

egregious error without reprise because it opines that the tainted result produced by the

violation of Rule 615 proves that the error was harmless. Such logic makes little sense.

¶18.   This is a different situation than those in which a witness or an attorney violates the

sequestration rule, or in which the judge sequesters the witnesses but makes some mistake

in exempting a particular witness from the Rule. In this case, the judge outright refused to

sequester any of the witnesses upon Avery’s request, thus clearly violating the most basic

mandate of Rule 615 and tainting the entire post-trial proceeding, rendering it fundamentally

unfair. In addition, the trial judge, while sitting as the trier of fact and prior to hearing the


       6
         Furthermore, under the facts of this case, proving prejudice or “adverse effect” is a
particularly onerous, if not impossible, burden to place on the defendant where the same
judge both made the decision not to invoke the rule and gave the offending testimony, after
which five other witnesses testified regarding the same events. “The functions of a judge
and a witness are incompatible.” Brashier v. State, 20 So. 2d 65, 66 (Miss. 1944). It is
problematic for a judge to “pass upon the credibility and weight of his own evidence.” Id.
Additionally, “the words and actions of trial judges have great weight.” Id. Indeed, the
judge’s testimony was accompanied by “the weight and dignity of the court.” Thompson
v. State, 468 So. 2d 852, 854 (Miss. 1985). Thus, common sense dictates that witnesses may
be reluctant to contradict the testimony of the judge, especially when that same judge is the
person determining the credibility of their testimony. See Thompson, 468 So. 2d at 854 (“It
is a matter of common knowledge that jurors, as well as officers in attendance upon court,
are very susceptible to the influence of the judge.”) (quoting Green v. State, 53 So. 415
(Miss. 1910)). Additionally, placing the burden on the defendant to prove the witness
testimony would have been different absent the taint caused by the utter refusal to apply the
Rule is likewise an impossible burden.

                                                10
testimony of a single witness, declared that he had predetermined the facts and would place

the true facts into the record. Thus, I would reverse the trial court’s decision to deny Avery’s

post-trial motion on the issue of the judge’s improper influence on the jury, reverse the Court

of Appeals decision to the extent it affirmed the trial court on this issue, and remand the case

to the trial court for a new hearing on Avery’s post-trial motion, with the new post-trial

hearing confined to the issue of improper influence on the jury. At the new post-trial

hearing, I would require that, upon either party’s request under Rule 615, the trial court

sequester the witnesses.

        KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.




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