                  IN THE COURT OF APPEALS 12/03/96
                                 OF THE
                         STATE OF MISSISSIPPI
                            NO. 93-KA-00856 COA



DANYEL L. CLEMONS

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. HONORABLE MARCUS D. GORDON

COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT:

JOHNNIE E. WALLS, JR.

LYNDA CAROL ROBINSON

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY

DISTRICT ATTORNEY: HONORABLE J. KENNEDY TURNER

NATURE OF THE CASE: MURDER

TRIAL COURT DISPOSITION: CONVICTED OF MURDER AND SENTENCED TO LIFE IN
PRISON
BEFORE FRAISER, C.J., KING, AND PAYNE, JJ.

KING, J., FOR THE COURT:



Danyel L. Clemons was convicted of murder in the Neshoba County Circuit Court and sentenced to
life in prison. He appeals his conviction, contending that the trial court’s appointment of the jury
foreman and the denial of a Batson challenge foreclosed his right to a fair and impartial trial. We
agree in part, and therefore, reverse and remand for a new trial.

FACTS

On December 22, 1992, Clemons, a black male, fatally shot Kevin Tolbert, a white male, after a
verbal and physical confrontation occurred between the two men. The confrontation began after
Clemons attempted to return a carburetor that he had purchased at Tolbert’s auto salvage business.
Tolbert told Clemons that he could not refund the money for the carburetor without a receipt;
however, Clemons could exchange the part. One of Tolbert’s employees and Clemons searched the
salvage yard for a replacement, but did not find one. Clemons then demanded a refund without a
receipt, and Tolbert refused again, stating store policy. The two men began to argue, and Tolbert was
said to have called Clemons a "nigger" during the exchange of harsh words and profanities. During
the argument, Tolbert asked Clemons to leave the salvage yard immediately, or he would call the
police. However, Clemons did not leave, and the two men carried the argument outside where they
wrestled on the ground until a bystander broke up the fight. Thereafter, Clemons got into his car as if
to leave, and Tolbert threw a brick through the rear windshield of the car. Clemons got out of the car
and fatally shot Tolbert. Shortly thereafter, Clemons surrendered himself to the sheriff’s office. On
March 2, 1993, Clemons was indicted by the grand jury of Neshoba County for the murder of Kevin
Tolbert.

On June 3, 1993, the court held a hearing on a motion for a change of venue. Because Clemons was a
black man accused of killing a white man, who was well known in the community, the defense alleged
that Clemons could not receive a fair and impartial trial. Further, the defense contended that
newspaper and television coverage of the killing fueled racial animosity, which would make selecting
an unbiased jury impossible in Philadelphia, Mississippi. The court denied the motion for change of
venue, and the trial commenced on July 19, 1993. During the jury selection phase, defense counsel
made a Batson challenge on the basis that the prosecution had used its peremptory challenges to
strike all African-American jurors. In response, the prosecution gave race-neutral reasons for each
strike, and the court allowed the peremptory challenges to stand.

Subsequently, after presentation of the evidence and arguments by the defense and prosecution, the
court issued jury instructions which included murder, manslaughter, and self-defense. The court then
appointed the jury foreman to preside over the deliberations of the jury stating: "Mr. Hill, the court
has a need for someone to serve as a spokesman from the jury to the court, and I am going to appoint
you as the spokesman." Thereafter, the defense raised an objection, which the court overruled after
stating the reason for having made the appointment. Subsequently, Clemons was convicted of murder
and was sentenced to life imprisonment.
I.

           WHETHER THE TRIAL JUDGE DENIED CLEMONS A FAIR AND IMPARTIAL
           TRIAL BY SELECTING THE JURY FOREMAN.



At the close of the arguments and jury instructions, the court appointed Mr. Hill as jury foreman.
Clemons complains that the trial judge’s appointment of the jury foreman foreclosed his right to a fair
and impartial trial. Clemons specifically addresses the judge’s use of impermissible criteria in
appointing the jury foreman. In a dialogue between the judge and the defense counsel, the judge
refers to Mr. Hill’s race, gender, and education as determinative factors in making the appointment.
The following is an excerpt of the dialogue:

           MR. WALLS: Your Honor, when the court submitted the case to the jury, the court
           appointed a gentleman, I’ve forgotten his name, as a spokesperson or foreman of the jury,
           and we object to that, and, quite honestly, I will state to the court I don’t know what the
           law is. It has been my understanding that the jurors, once they enter into deliberations,
           select their own foreperson, and the way the court did it, it could be inferred by some of
           the jurors that this gentleman has a higher responsibility and should be believed and
           listened to a little more than other jurors, since the court singled him out, and that is the
           basis of our objection, and we would move the court to --



           THE COURT: Do you have any offer of prejudice to the defendant by reason of that, in
           the way of testimony?



           MR. WALLS: Your Honor, we don’t know, we can’t offer any prejudice to that. The only
           thing, I guess -- nothing that we know of.



           THE COURT: Do you move for a mistrial?



           MR. WALLS: Your Honor, I think for the record, I have to.



           THE COURT: All right. I am going to overrule your objection. This person, I named him
           as a spokesperson, told him I had a need for a person to serve as spokesman between the
           jury and the court. I recall a conversation this particular juror had with me on the first day
           he was summonsed to court. He asked to be relieved from jury service, because he was
           one of the managers of the office at U.S. Motors, the largest industry here in Neshoba
           County. His information sheet indicates he is an educated man, and on this jury, there are
           very few on there that were educated. I think there’s only one lady on there that had any
           college at all.

           I indicated this person to serve as a spokesperson, because I felt he was the most capable
           person to bring in a verdict from the jury to the courtroom. He is a White male. There are
           six native Americans, or Indians, on the jury. Of the six, I think there are only two that has
           a high school education, and I believe Mrs. Gail Bates, or whatever her last name is, is the
           only other juror who has any college.

           So, considering all of the jurors, I think he is the most qualified person to serve. Now, I
           am familiar with the rule you are talking about. It has been my practice, usually, to not
           appoint a person, but to let the jury select from among their number. In fact, I think I am
           the one that started this proceeding in Johnson v. State, requiring the jury to select
           someone as the spokesman, but in this particular case, it appeared to me the best thing to
           do was appoint this one person, because he seemed to be the only qualified person.



Certainly, this colloquy and its implications deserve this Court’s full attention. Our case law
addressing this subject is very sparse. In fact we have only two cases of record that raised the court’s
appointment of a trial jury foreman as an assignment of error. Neither of these cases are analogous to
the present case because the defendants failed to timely object to the court’s conduct. In Ballenger v.
State, no objection was raised by the defense until after the jury had completed its deliberations on
guilt, and was about to return to address the penalty phase of the case. Ballenger v. State, 667 So. 2d
1242, 1258 (Miss. 1995). In Hunter v. State, the defense made no objection and did not raise an
objection during post-trial motions. Hunter v. State, No. 93-DP-01025-SCT, 1996 WL 352829, at
*11(Miss. June 27, 1996). In both cases the defendants were procedurally barred from raising the
argument on appeal. Nevertheless, the supreme court held prospectively that the jurors, not the court,
should select the jury foreman. Id.; Ballenger, 667 So. 2d at 1258. "Who is to be the foreman is a
decision which should be made by fellow jurors." Hunter, 1996 WL 352829, at *11(quoting
Ballenger, 667 So. 2d at 1258). Both Hunter and Ballenger were decided subsequent to the present
case; therefore the trial judge did not have the benefit of these decisions. Nevertheless it was error for
the trial judge to have appointed Hill as jury foreman in this case.

Unlike the defendants in Ballenger and Hunter, Clemons did not remain silent. Although the
objection was not simultaneous, it was raised within a sufficiently contemporaneous period of time to
allow the court to correct its error. As such the underlying considerations for contemporaneous
objections were met. Those considerations include avoiding costly new trials; allowing the offering
party an opportunity to obviate the objection; and allowing the court the opportunity to rule on the
objection. Oates v. State, 421 So. 2d 1025, 1030 (Miss. 1982). The record suggests that the
following sequence of events occurred relative to the trial judge’s appointment of the jury foreman:

           1. The judge appointed a foreman and dismissed the jury to deliberate.
           2. The jury immediately left the courtroom.

           3. The judge and lawyers immediately left the courtroom.

           4. The defendant immediately lodged an objection to the appointment of a jury foreperson.



There is no record of the time lapse between these events. However, it would not be a stretch of the
mind to suggest that no more than five minutes passed from the appointment of the foreman to the
point of bringing it to the court’s attention. Within this time frame, no real jury deliberation had
begun, and the court could have easily recalled the jury to correct its error. The contemporaneous
objection requirement is not a static rule particularly where the objection is not to an evidentiary
matter but a basic right to a fair and impartial trial. The record indicates that the victim was a white
male, and that allegations of racial animosity led to the killing. When placed in the trial vacuum, the
trial judge’s actions and comments along with the events preceding the court’s appointment raise a
question about the overall fairness of the trial, and whether the net impact has impaired a fundamental
right. We believe that it has.

As such we find that the trial judge both exceeded the intention of section 13-5-1 of the Mississippi
Code and violated Clemons’ rights ensured by Sections 14 and 26 of the Mississippi Constitution.

First, section 13-5-1 of the Mississippi Code establishes the relevant criteria that the presiding judge
shall use to determine the competency of jurors. According to the statute:

           Every citizen not under the age of twenty-one years, who is either a qualified elector, or a
           resident freeholder of the county for more than one year, is able to read and write, and has
           not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors
           within a period of five years and who is not a common gambler or habitual drunkard, is a
           competent juror.



Miss. Code Ann. § 13-5-1 (1972). While the statute mentions several necessary qualifications, it does
not require jurors to be of a particular race or sex, nor does it require jurors to have a college
education. In fact, the statute specifically states that jurors are competent if they have the ability to
read and write. Id. Thus, the trial court’s rationale for selecting Mr. Hill as jury foreman is contrary
to the mandate of the statute. In fact, the court specifically seemed to call into question the
competency of the six Native American jurors. If the court considered the impaneled jurors
incompetent to return a verdict, then the court should have dismissed the panel.

The court, by it’s own admission, selected the sole white male, who was in the courts’ opinion the
most educated and professional individual, to serve as the liaison between the court and the jury.

The court’s designation of Mr. Hill as foreman placed the court’s stamp of approval upon his actions
or arguments during deliberations and impinged upon the customary independence of each individual
juror. Dorshkind v. Harry N. Koff Agency, Inc., 134 Cal. Rptr. 344, 347 (1976). Such judicial
interference necessarily conveys the impression that the court had singled out one juror and placed its
imprimatur on his words and actions. Id.

Finally, the trial court abridged Clemons’ constitutional right to a fair and impartial trial under the
Mississippi Constitution. The constitution unquestionably guarantees the criminal defendant a fair and
impartial trial without which the State cannot deprive the defendant of life or liberty. See Miss.
Const. art. III, §§ 14, 26. This right to a fair and impartial jury is the hallmark of the Mississippi
judicial system. Mhoon v. State, 464 So. 2d 77, 80 (Miss. 1985). While the constitution does not
guarantee a trial without flaws, it does provide for a fair trial. Fulgham v. State, 386 So. 2d 1099,
1100 (Miss. 1980) (citations omitted). The trial court may not have intended to prejudice Clemons,
but the nature of the appointment created an atmosphere ripe for prejudicial influence. From the
outset, the case had significant racial overtones because of the victims alleged use of racial slurs and
pre-trial publicity surrounding the killing of a white male by a black male. These facts alone signified
the need to guard against any hint of partiality. However, the court used impermissible criteria such
as race, employment, gender, and education to pronounce Mr. Hill as the "most qualified" person to
preside over the deliberations. Clearly, the court intended to use Mr. Hill to lead the other
"unqualified" jurors. This Court is concerned that those jurors attached some inflated importance or
gave undue deference to the opinions of Mr. Hill. Such acquiescence is unacceptable. A jury must
remain neutral and impartial in carrying out its responsibility of deciding the guilt or innocence of the
defendant. Mhoon, 464 So. 2d at 81 (Miss. 1985).

While the jury was not present during the court’s discussion with defense counsel, it is the court’s
appointment and the fact that the court anticipated a need for a juror with the "qualifications" held by
Mr. Hill that raise a question of impartiality. See Dorshkind, 134 Cal. Rptr. at 347 (trial judge’s
selection of a jury foreman constitutes an inherent danger to the inviolateness of the jury system). The
court must protect the criminal judicial system from even the appearance of impartiality. "If [the jury
was] exposed to improper influences, which might have produced the verdict, the presumption of law
is against its purity; and testimony will not be heard to rebut this presumption. It is a conclusive
presumption." Fulgham, 386 So. 2d at 1101 (quoting Green v. State, 97 Miss. 834, 838 (1910)).
Thus, this Court concludes that the lower court interfered with the jury’s independence and created
the appearance of impartiality that abridged Clemons’ right to a fair and impartial trial. We reverse
and remand for a new trial.



II.

           WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT A
           BATSON CHALLENGE TO THE PROSECUTION’S PEREMPTORY STRIKES.



Clemons argues that the trial court erred by denying his Batson challenge to the prosecution’s
peremptory strikes against African-American veniremen. We do not address the merits of this
assignment of error, having determined that the court’s appointment of the jury foreman necessitates
reversal and a new trial.
THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY IS REVERSED
AND REMANDED FOR A NEW TRIAL. COSTS ARE ASSESSED AGAINST NESHOBA
COUNTY.



FRAISER, C.J., BRIDGES, P.J., BARBER, COLEMAN AND PAYNE, JJ., JOIN CONCUR.

THOMAS, P.J., DISSENTS WITH SEPARATE OPINION JOINED BY DIAZ, MCMILLIN
AND SOUTHWICK, JJ.

                          IN THE COURT OF APPEALS 12/3/96
                                               OF THE
                                    STATE OF MISSISSIPPI
                                       NO. 93-KA-00856 COA



DANYEL L. CLEMONS

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



THOMAS, P.J., DISSENTING:



At the time the trial court appointed a jury foreperson, Clemons interposed no objection. It was not
until the jury had retired with instructions, and counsel and the trial court had moved into the trial
court’s chambers that Clemons’ counsel first raised the issue of the trial court appointing the
foreperson. Clemons’ failure to contemporaneously object at a time when the trial court could have
corrected its error, if any, constitutes a waiver of the alleged error. If that were not enough, Clemons
failed in his appeal to assign as error the trial court’s appointing the jury foreperson until it was added
in his rebuttal brief, which contained a frank admission that the issue was not raised in the original
brief. Clemons "double faulted" procedurally and should be barred from being heard at this point.

As to the merits, note that this case was decided on July 20, 1993. Prior to Ballenger v. State, 667
So. 2d 1242, 1258 (Miss. 1995), a death penalty case initially decided on September 21, 1995, and
after the trial of the case sub judice, the law regarding selection of the jury foreperson was, at best,
murky or, at worst, silent.

Former Rule 5.14 of the Uniform Criminal Rules of Circuit Court Practice, in effect at the time of this
case provided in pertinent part: "The court may direct the jury to select one of its members to preside
over the deliberations . . . ." Unif. Crim. R. Cir. Ct. Prac. 5.14. The identical language of this rule has
been brought forward in Rule 3.10 of the Uniform Circuit and County Court Rules, effective May 1,
1995. See URCCC 3.10.

In Ballenger, the trial court appointed the foreperson of the jury without objection. Our supreme
court held:

At the time the trial court appointed Ganann as jury foreman, Ballenger made no objection. The
failure to make a contemporaneous objection waives the right to raise this issue on appeal.

In the future, trial judges are advised not to appoint jury foremen. Who is to be the foreman is a
decision which should be made by fellow jurors.



Ballenger, 667 So. 2d at 1258-59.

Our rules use the term "may" instead of "shall," leaving, I suggest, a degree of discretion with the
trial court as to who selects the foreperson of the jury. The Ballenger court advised that in the future
trial judges should leave the selection of the foreperson to the jury. Id. In spite of a lack of objection,
I would have thought that the Ballenger court would have noticed plain error and reversed the case if
it thought the error was so grave, particularly in view of the fact that Ballenger was a death penalty
case.

The colloquy between the trial court and Clemons’ counsel in the case sub judice demonstrates three
points. The law as to who selected the foreperson was not certain. Second, the less than judicious
remarks by the trial court regarding some jurors were not made in the jurors’ presence. Third,
Clemons could not advance at trial or on appeal any meaningful argument as to prejudice, except to
assume or infer some taint on the jury’s deliberations.

Citation to section 13-5-1 of the Mississippi Code is misplaced. That section refers to the general
competency of jurors and does not address the trial court’s discretion in appointing a foreperson and
the resulting impact on jury deliberations. Likewise, although I agree with the general language
quoted by the majority in the cases of Mhoon v. State, 464 So. 2d 77 (Miss. 1985), Fulgham v. State,
386 So. 2d 1099 (Miss. 1980), and Green v. State, 97 Miss. 834 (1910), none of those cases dealt
with or addressed the issue before us. The citation to Dorshkind v. Harry N. Koff Agency, Inc., 134
Cal. Rptr. 344 (1976) is helpful but not authoritative. Finally, although stated in terms of a
constitutional right to a fair trial, the majority cites no Mississippi Supreme Court or United States
Supreme Court authority that elevates the selection of a jury foreperson to a constitutional right.
We should hold Clemons procedurally barred from raising this issue and affirm. Without waiving the
procedural bar, we should hold that the trial court acted within its discretion under the law which
existed at the time of this trial and affirm. Alternatively, setting aside the time bar and even if we were
to assume error on the trial court’s part, we should still affirm since there has been no showing of
prejudice.

DIAZ, MCMILLIN AND SOUTHWICK, JJ., JOIN THIS OPINION.
