                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 96-CT-01058-SCT

DAYON JAMES a/k/a DAYON HASAN JAMES, SR.
a/k/a DAYON HASAN-NEVADA JAMES

v.

STATE OF MISSISSIPPI

                                 ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                             07/15/1996
TRIAL JUDGE:                                  HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:                    HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                      JOSEPH P. HUDSON
                                              JAMES DONALD EVANS
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL BY:
                                              BILLY L. GORE
DISTRICT ATTORNEY                             CONO CARANNA
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  REVERSED AND REMANDED - 09/08/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    In July 1996, Dayon James was convicted of capital murder and sentenced to life in

prison. James appealed, and the appeal was assigned to the Court of Appeals which      reversed

the judgment of the trial court and remanded the matter for further proceedings.   The State of

Mississippi filed a motion for rehearing.   The Court of Appeals denied the State’s motion for

rehearing, withdrew the opinion, and substituted its modified opinion.   The Court of Appeals

found that a hearing was required to determine whether jurors were exposed to extraneous
information and remanded the case to the trial court. James v. State, 777 So.2d 682 (Miss.

Ct. App. 2000) (
               James I).               The State and James each filed petitions for writ of certiorari,

which were denied by this Court.

¶2.      On remand the trial court conducted a hearing to determine if the jurors were exposed

to extraneous information.         Following testimony by the jurors who appeared, the trial court

ruled that the verdict should not be impeached. The Court of Appeals affirmed the trial court’s

judgment and denied James’ motion for rehearing on November 23, 2004. James v. State, - - -

So.2d ---, 2004 WL 1965662 (Miss. Ct. App. 2004) (James II). We granted James’ petition

for writ of certiorari.     James v. State, 896 So.2d 373 (Miss. 2005).         We find that the jury

considered extraneous prejudicial information and James did not receive a fair trial.          We also

find that the failure to fully reconvene the jury constituted reversible error.         We reverse the

judgments of the Court of Appeals and the Harrison County Circuit Court, and we remand this

case for a new trial consistent with this opinion.

                              FACTS AND PROCEDURAL HISTORY

¶3.      A discussion of the testimony and evidence from the trial in this matter may be found

in James I.1      We will only address those facts necessary for us to decide the issues raised in

the petition for writ of certiorari.

¶4.      In December 1995, James was charged in count I of a multiple count indictment for the

murder of Shanekque Keyes. Under count II of the indictment, James was also charged for the



         1
          The record is extensive and includes almost 1,800 pages of transcript. Numerous
witnesses testified in both the guilt phase and the penalty phase of the trial. Five doctors
testified at length as expert witnesses.

                                                      2
murder of one of Shanekque’s older brothers,          Alonso Smith.    During pre-trial motions, the

trial court granted the defense’s motion to sever the counts and the State elected to try

Shanekque’s case first. Because the counts were severed, there is very little information in the

record regarding Alonso.    Great efforts were taken to make sure that no one mentioned any

alleged injuries to Alonso in     the presence of the      jury.   From pre-trial motions, post-trial

motions, and testimony given outside the presence of the jury, it appears that the State alleges

that Alonso was injured by James on or about June 7, 1995.             At some point, Alonso was

admitted to a hospital and died on or about June 10, 1995. On September 30, 1996, the trial

court entered an order which suspended the trial of count II pending the disposition of James’

appeal regarding count I.

¶5.    Jury selection began on July 8, 1996. During voir dire by the trial court, the venire was

asked if anyone had personal knowledge of the case or if they had read or heard anything about

the case.2   Many of the potential jurors knew of the case and several had formed opinions

regarding James’ guilt. Nettie Pettis and Susan John, who were seated on the jury, admitted

to hearing about the case in the media. They both stated that they did not remember any details,

had not formed any opinions, could put aside what they had heard, and decide the case based

on the evidence. Carolyn Owens, who was chosen as an alternate juror, responded similarly.

More importantly, however, jurors Rickman, Huntoon, Hoff, Hertzog, Plitt, King, Fazzio,



       2
        This case was covered in the media at the time of the arrest and there was coverage
regarding each phase of the proceedings. Each time it was mentioned that James was
accused of murdering two children. “Separate crimes which should be tried individually can
become inextricably intertwined in print and over the airways.” Hickson v. State, 707
So.2d 536, 542 (Miss. 1997) (quoting Johnson v. State, 476 So.2d 1195, 1215 (Miss.
1985)).

                                                  3
Watson, Hudgeons, Jordan, and alternate juror Podlin did not respond to this group of

questions. It can be inferred, therefore, that as of voir dire, they had not heard of the case. The

trial judge concluded his voir dire and the court recessed for lunch before the attorneys began

their voir dire. The trial court instructed the potential jurors as follows,3

        [L]et me caution you about this now. At this point in time you have heard the
        name of the accused. Some of you have indicated that you have heard something
        about this case or read something about this case. It would be highly improper
        for you to discuss anything with your fellow jurors during the recess as to what
        you know. If you’ve noted that one of your fellow jurors has read something
        about the case, it would be improper for you to inquire of that juror what they’ve
        heard about it. So do not discuss this case. . . . Do not read the newspaper.
        Don’t listen to the radio or go watch TV during the noon hour because this is
        very critical that you keep an open mind, . . . that you be uncontaminated with any
        outside influences from this point on because it is very important that you do so.

Once the jurors were excused, the trial court asked the attorneys to avoid asking the questions

he had already covered. Voir dire resumed when the jurors returned from lunch. Pursuant to

the trial court’s instruction, neither the State, nor the Defense, asked additional questions

regarding whether anyone had heard about the case.

¶6.     Once voir dire of the entire venire was completed, the trial court sent the venire into

another courtroom to wait while the court and the attorneys conducted individual voir dire.

Individual voir dire took several hours.         Only one of the jurors actually selected for the trial

was questioned during individual voir dire, and he was only questioned regarding his views of

                                                                       th
the death penalty. Voir dire was finished late on the evening of July 9 and the trial began on

July 10th . The State’s case against James was based entirely on circumstantial evidence. The



        3
          As will be discussed below, several members of the venire did not obey this
instruction and discussed the case and the fact that James was accused of murdering more
than one child.

                                                       4
jury returned with a verdict finding James guilty of capital murder and          sentenced James to life

in prison.

¶7.     A day after the trial, defense counsel was contacted with information regarding the

jury’s exposure to extraneous prejudicial information.             They immediately filed a Notice of

Jury Exposure to Extraneous Information. A hearing was held on August 14, 1996, and Wanda

Conway, a member of the venire, was called to testify. Conway explained that on July 9, 1996,

she went to lunch with another prospective juror and Juror Shawn Watson.                  The trial court

recessed for lunch after the trial court had questioned the venire about knowledge of the case.

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. When lunch was over, the venire was not questioned again as a group

regarding their knowledge of the case.         Since Watson had not responded during voir dire, she

was not on the list for questioning during individual voir dire.

¶8.     Conway also testified that later that afternoon the entire group was sent to sit in another

courtroom.     They waited there 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.4


        4
          When the trial court, during voir dire, asked the panel if they had heard about the
case, none of the men actually seated on the jury responded. Therefore, it can be inferred
that this juror had not heard of the case before this incident.

                                                      5
¶9.     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 asked Conway if she had seen the docket sheet

posted outside the courtroom during jury selection. 5         Neither Watson nor Conway noticed it.

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.”

¶10.    At the conclusion of Conway’s testimony, the Defense moved that the trial court

conduct further investigation into the jury’s exposure to extraneous information, pursuant to

Gladney v. Clarksdale Beverage Co., 625 So.2d 407 (Miss. 1993).                     Defense counsel

requested that the trial court bring the jurors in to be examined.        After arguments from both

sides, the trial court ruled that there had not been a threshold showing that further inquiry was

necessary under Gladney, and he denied the motion. The trial court later denied James’ other

post-trial motions and James filed a notice of appeal.

¶11.    The appeal was assigned to the Court of Appeals. On appeal, James raised seventeen

issues. On April 11, 2000, the Court of Appeals issued an opinion which reversed the trial

court and remanded the matter for further proceedings. The Court of Appeals held that the trial



        5
        Prior to, and during, jury selection the court clerk placed an easel outside the
courtroom which stated the style of the case. The purpose was so the attorneys and parties
would know which courtroom. The docket sheet in this case stated, in capital letters,
“REMARKS: JUDGE TERRY TO HEAR/1ST VICTIM.”

                                                     6
court committed reversible error when it refused “to poll the jury regarding the allegation of

the jury’s consideration of extraneous information.” James v. State, April 11, 2000 Court of

Appeals opinion p. 3, ¶1. The Court of Appeals instructed the “trial court to hold a hearing for

the purpose of determining whether extraneous prejudicial information was introduced into

the jury’s deliberations concerning the death of the other child.” Id. at p. 28, ¶ 60. The Court

of Appeals found all other assignments of error to be without merit. The State filed a motion

for rehearing.    James did not file a motion for rehearing, however, he did file a response in

opposition to the State’s motion.

¶12.    The Court of Appeals denied the State’s motion for rehearing, withdrew the original

opinion, and substituted a modified opinion. James v. State, 777 So.2d 682 (Miss. Ct. App.

2000) (James I).      In the modified opinion, the conclusion was rewritten regarding the hearing

to be held by the trial court. Id. at 703 (¶ 71).       James filed a motion for rehearing and raised

arguments about most of the assignments of error.           The Court of Appeals entered an order

dismissing James’ motion for rehearing pursuant to M.R.A.P. 40(a).          Both the State and James

filed petitions for writ of certiorari.   The State’s petition focused on the Court of Appeals’

holding regarding the trial court’s refusal to poll the jury regarding allegations of exposure to

extraneous prejudicial information.       James’    petition responded to the State’s and raised

arguments regarding the sufficiency of the evidence, the sufficiency of the indictment, and the

trial court’s exclusion of certain evidence which supported James’ theory of defense.             On

February 15, 2001, we denied both petitions.

¶13.    The case was remanded to the trial court to reconvene and poll the jury regarding

exposure to extraneous information. At the end of April 2001, almost five years after the trial,

                                                    7
the trial court and the attorneys met to discuss the procedures that would be used to locate the

jurors and conduct the hearing. It was very important to the trial court that the purpose of the

hearing be kept secret in order to avoid further contamination of the jury.6

¶14.    Ultimately eleven of the twelve jurors and both alternates were located and served with

summonses. At the hearing on May 15, 2001, eleven jurors and one alternate appeared and

testified.7 The trial court and attorneys were unable to locate juror John King. The trial court

questioned each juror individually, while the other jurors were kept in a separate room.       The

following testimony was significant:

        BY THE COURT: At any time before you returned your verdict finding Dayon
        James guilty, were you informed or made aware from any source that Dayon
        James had been accused of killing another child other than the victim, Shanekque
        Keyes?

        BY JUROR HOFF: Someone in the jury room did mention something; I don’t
        recall what. But it was an incidental comment. It was if they had noticed
        something on a bulletin board here in the courthouse or something, but I don’t
        really recall.

Mr. Hoff could not recall when the comment was made or who made it. He also did not see

the docket sheet.

        BY THE COURT: At any time before you returned your verdict finding Dayon
        James guilty, were you informed or made aware from any source that Dayon
        James had been accused of killing another child other than the victim, Shanekque
        Keyes?

        BY JUROR FAZZIO: Yes, sir.



        6
         This effort was futile as there was an article in the local newspaper regarding the
Court of Appeals opinion and that the jury would be questioned by the trial court regarding
their knowledge of the second child. At least 3 jurors read the article.
        7
         One alternate failed to appear at the hearing.

                                                    8
       BY THE COURT: All right, sir. What information did you receive?

       BY JUROR FAZZIO: Just what was said in court.

       BY THE COURT: What was said in court?

       BY JUROR FAZZIO: Yes, sir, that they mentioned it.

       BY THE COURT: All right, sir. Now, do you remember whether that was
       mentioned by - - in open court during the court proceedings?

       BY JUROR FAZZIO: I don’t remember, sir. It was too long ago.

       BY THE COURT: I understand. Do you remember the individual or the source
       of the information?

       BY JUROR FAZZIO: No, sir.

       BY THE COURT: What was it that you heard, or do you have any particular
       recollection as to what you heard concerning that?

       BY JUROR FAZZIO: That there was a possibility of another incident.

       BY THE COURT: I see. And that was all that was said?

       BY JUROR FAZZIO: Yes, sir.

Mr. Fazzio thought he remembered seeing the docket sheet, but he could not be sure.

       BY THE COURT: At any time before you returned your verdict finding Dayon
       James guilty, were you informed or made aware from any source that Dayon
       James had been accused of killing another child other than the victim, Shanekque
       Keyes?

       BY JUROR WATSON: Yes.

       BY THE COURT: All right. What was the source – or please identify for me the
       source that you learned that from.

       BY JUROR WATSON: I think it was a paper outside the courtroom, and his
       name was listed two times.

       BY THE COURT: Two different times?


                                                 9
        BY JUROR WATSON: Yes.
        ....

        BY THE COURT: Okay. Now, you’re referring, I take it, to the easel --

        BY JUROR WATSON: Yes.

        BY THE COURT: – that was posted outside the courtroom here.

        BY JUROR WATSON: Right.
        ....

        BY THE COURT: All right. Is that the only source of any information that you
        had concerning Mr. Dayon James?

        BY JUROR WATSON: I want to say some of the other jurors talked about it, his
        name being on that easel twice.

        BY THE COURT: Now, when you say “some of the other jurors,” would that
        have been some of the other jurors who were actually selected to serve on the
        case and did serve on the case --

        BY JUROR WATSON: Yes.

        BY THE COURT: – such as yourself?

        BY JUROR WATSON: Yes.

        BY THE COURT: Can you identify which ones it may have been?

        BY JUROR WATSON: No, I can’t. I can’t.

        BY THE COURT: Can you give me any specifics as to what was said concerning
        it?

        BY JUROR WATSON: Just that it was another child involved.

Ms. Watson informed the court that she read an article in the paper that an inquiry would be

made of the jury.




                                               10
BY THE COURT: All right. Do you have any suspicions of what you’re here
about?

BY JUROR JORDAN: Yes.

BY THE COURT: What?

BY JUROR JORDAN: The case, the jury duty that everyone was on.
....

BY THE COURT: Okay. Now can you give me any reason why you would be
suspicious that it’s about that case?

BY JUROR JORDAN: I did read in the paper about six months ago that the jury
would be called back in for questioning.
....

BY THE COURT: Okay. I’m required to ask you these questions now, Ms.
Jordan: From the time you arrived at the courthouse in response to your jury
summons until the time you were finally discharged by the court at the
conclusion of the trial, did you receive or learn of any information about the
accused, Dayon James, from any source other than the evidence which was
presented to you in open court?

BY JUROR JORDAN: No.

BY THE COURT: You thought about that for a moment. Do you want another
moment to think about it? I’m not rushing you.

BY JUROR JORDAN: Just from any other source?

BY THE COURT: Yes ma’am. Did you learn anything from the time you were
selected to be on this jury and the time that you reached your verdict and was
discharged from the case, did you learn from any other source any information
about Mr. James other than what was here in this courtroom?

BY JUROR JORDAN: Well, there was some discussion one time about another
child being involved.

BY THE COURT: All right. And what was that – when was that discussion; do
you remember?




                                     11
BY JUROR JORDAN: Well, there are several witnesses testified that said
“children;” they mentioned children.

BY THE COURT: I see.

BY JUROR JORDAN: More than one child.

BY THE COURT: And so you’re saying that that was here in the courtroom;
there were witnesses testifying to that?

BY JUROR JORDAN: Yes.

BY THE COURT: Okay. Was there any discussion of that with anybody other
than witnesses at this witness stand --

BY JUROR JORDAN: No.

BY THE COURT: – that you remember?

BY JUROR JORDAN: Well, we did – in the jury room did mention this coming
up with children.

BY THE COURT: Okay.

BY JUROR JORDAN: But no one knew any details.
....
BY THE COURT: At any time before you returned your verdict finding Dayon
James guilty, were you informed or made aware from any source that Dayon
James had been accused of killing another child other than the victim, Shanekque
Keyes?

BY JUROR JORDAN: No, not other than, you know, just seeing that there was
children.

BY THE COURT: I see. The reference to “children?”

BY JUROR JORDAN: Uh-huh (affirmative)
....

BY THE COURT: Okay. Now, Ms. Jordan, the clerk of the court sometimes
posts on an easel in the hallway outside the courtroom a copy of the court’s
docket, the cases scheduled for hearing, so that witnesses and other interested



                                      12
        parties can know which courtroom to go to. Did you see the docket that was
        posted out in the hallway?

        BY JUROR JORDAN: Yes, I did.

        BY THE COURT: You did see it?

        BY JUROR JORDAN: Yes, I did. And there was children on there.

        BY THE COURT: Did you read it?

        BY JUROR JORDAN: I think so. We did.

        BY THE COURT: And so would that have been before the jury was selected,
        before you were actually selected?

        BY JUROR JORDAN: Yes, it was.

        BY THE COURT: Do you remember what you read on that docket?

        BY JUROR JORDAN: No. But I know there was children on there too. It wasn’t
        just one child, there was children.

        BY THE COURT: I see. And that’s all you can remember?

        BY JUROR JORDAN: That’s all I can remember.

¶15.    The trial court refused to allow the attorneys to question the jurors.   At the conclusion

of the testimony, the trial court allowed the attorneys to present arguments.     The trial court

took the matter under advisement and ultimately determined that extraneous information had

been communicated to the jury.     However, the trial court found that this communication was

incidental and that the jury verdict should not be impeached.     The trial court’s findings were

certified to the Court of Appeals and the Court of Appeals allowed the parties to file

supplemental briefs.




                                               13
¶16.   The Court of Appeals issued its opinion. James v. State, 2004 WL 1965662 (Miss. Ct.

App. 2004) (James II).     James raised the following issues: “(1) the polling procedure denied

him due process and equal protection, (2) the failure to fully reconstitute the jury denied him

due process, (3) the failure to grant his motion for a new trial was error, (4) the failure to

sustain his objections to the jury polling procedure and the polling questions was error, (5) the

failure to allow him to poll the jury was error, and (6) the court failed to sanction the State for

improper contact with the jury.” Id. at *4.      The Court of Appeals found these issues to be

without merit and affirmed the judgment of the trial court.       The Court of Appeals denied

James’ motion for rehearing and this Court granted James’ petition for writ of certiorari.

James v. State, 896 So.2d 373 (Miss. 2005).

               ISSUES RAISED IN PETITION FOR WRIT OF CERTIORARI

         (1) Whether medical opinion is sufficient evidence to warrant a conviction in a
circumstantial evidence capital murder case.
         (2) Whether failure to fully reconstitute or reconvene the jury denies Appellant due
process and equal protection of the laws as guaranteed by the U.S. and Mississippi
Constitutions.
         (3) Whether [almost five] years after the discharge of the jury and after the Court of
Appeals has issued its opinion is impractical and unreasonably long to attempt to reconvene
or reconstitute the jury and unfairly prejudiced Appellant.
         (4) Whether unanimity of responses is required, or to what extent is unanimity required,
when jurors are reconvened [almost five] years after being discharged and reconstitution of the
jury is incomplete.
         (5) Whether after the Court of Appeals withdraws an opinion and substitutes another
or modified opinion a party can file a motion for rehearing.
         (6) Whether the Court of Appeals applied the wrong standard.
         (7) Whether the correct standard was used to determine whether the introduction of
extraneous prejudicial information into jury deliberations required Appellant to receive a new
trial.
         (8) Whether the indictment sufficiently apprised Appellant of the charges against him
and whether the indictment was properly amended.




                                               14
        (9) Whether the trial court improperly restricted the Appellant from presenting
evidence essential to his theory of defense and on the issue of jury exposure to extraneous
prejudicial information.

                                     DISCUSSION

       JURY’S EXPOSURE TO EXTRANEOUS PREJUDICIAL INFORMATION

¶17.   In issues 2, 3, 4, 7 and 9 James raises arguments regarding the jury’s exposure to

extraneous prejudicial information and the procedures used by the trial court in examining the

jury regarding that exposure.   An accused’s right to a fair trial before an impartial jury is

guaranteed by the federal and state constitutions.   Gray v. State, 799 So.2d 53, 62 (Miss.

2001) (citing U.S. Const. amend. VI and Miss. Const. art., 3 §§ 14 & 26). “Because on appeal

we must as a matter of practical and institutional necessity defer to jury determinations of fact

questions, we must be vigilant that the jury making such findings is infected by not the slightest

taint or suggestion of bias or unfairness.” Fisher v. State, 481 So.2d 203, 126 (Miss. 1985).

We have stated:

       Where the resolution of a case comes down to factual disputes, the jury's role
       becomes paramount as it weighs the credibility of the witnesses and determines
       which factual accounts to accept or reject. Thus, it is absolutely imperative
       that the jury be unbiased, impartial, and not swayed by the consideration of
       improper, inadmissible information. We can not say, with any degree of
       certainty, that this was the case here because the fact of the matter is that the
       juror "threw the proverbial skunk into the jury [room]" during the deliberations
       by asking about other charges against Hickson. See Dunn v. U.S., 307 F.2d 883,
       886 (5th Cir. 1962) ("'[I]f you throw a skunk into the jury box, you can't instruct
       the jury not to smell it'").

Hickson v. State, 707 So.2d 536, 544 (Miss. 1997) (emphasis added).




                                               15
¶18.   In Gladney v. Clarksdale Beverage Co., 625 So.2d 407 (Miss. 1993), this Court

formulated a “systematic method” to be used to “inquire into juror verdicts” pursuant to M.R.E.

606(b). Id. at 416. M.R.E. 606(b) provides,

       (b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the
       validity of a verdict or indictment, a juror may not testify as to any matter or
       statement occurring during the course of the jury's deliberations or to the effect
       of anything upon his or any other juror's mind or emotions as influencing him
       to assent to or dissent from the verdict or indictment or concerning his mental
       processes in connection therewith, except that a juror may testify on the
       question 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. Nor may his affidavit or evidence
       of any statement by him concerning a matter about which he would be precluded
       from testifying be received for these purposes.

(emphasis added). Gladney first provides that “the trial court and opposing counsel must be

made aware of any potential juror misconduct when this evidence is manifested.” 625 So. 2d.

at 418. Next it must be determined if an investigation is warranted. “In order for the duty to

investigate to arise, the party contending there is misconduct” must make a threshold showing

that “there was in fact an improper outside influence or extraneous prejudicial information.”

Id. at 418-19. When the threshold showing is made, the trial court should conduct a post-trial

hearing. Id. at 419.

       The scope of the hearing is however, limited; the proper procedure is for the
       judge to limit the questions asked the jurors to determine whether the
       communication was made and what it contained. Once it is determined that the
       communication was made and what the contents were, the court is then to decide
       whether it is reasonably possible this communication altered the verdict.

Id. (emphasis added). M.R.E. 606(b) makes it abundantly clear that

       a juror may not testify as to any matter or statement occurring during the course
       of the jury's deliberations or to the effect of anything upon his or any other
       juror's mind or emotions as influencing him to assent to or dissent from the

                                                16
        verdict or indictment       or concerning his mental processes in connection
        therewith.

Gladney offers no interpretation nor explanation which is inconsistent with, or different from,

M.R.E. 606(b). That is to say that it would be inappropriate, and in violation of M.R.E. 606(b),

for any juror to be questioned with regard to whether or not the extraneous information

actually altered his verdict.    If it is reasonably possible that the communication altered the

verdict, then a new trial must be ordered. United States v. Davis, 15 F.3d 1393, 1412 (7th

Cir. 1994).

¶19.    In the case at bar, counsel for James was advised of the misconduct on July 16, 1996,

the day after the trial.      They followed the dictates of Gladney regarding notification and

requested that the jurors be examined. In James I, the Court of Appeals correctly found that

James made a threshold showing and that the trial court abused its discretion in refusing to

examine the jurors. James I, 777 So.2d at 699-700.              We agree with the Court of Appeals’

“conclusion 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 for the purpose of

determining whether extraneous         prejudicial information was introduced into the jury's

deliberations concerning the death of the other child.” Id. at 700.

¶20.    The hearing required by Gladney was finally conducted on May 15, 2001, four years

and ten months after the trial. One juror could not be located. All of the jurors, who could be

located, stated that they could not remember certain details.         James argues that the failure to

fully reconvene the jury was reversible error.      We agree.     “The constitutional right to trial by

jury includes as its essential elements that the jury shall consist of twelve impartial men,


                                                   17
neither more nor less, and that the verdict shall be unanimous.” Markham v. State, 209 Miss.

135,   46 So.2d 88, 89 (1950) (citations omitted). In the present matter, James contends that

all members of the jury were exposed to the prejudicial extraneous information when the

jurors discussed the allegations regarding the second child in the jury room.                      Pursuant to

Gladney, James had a right to examine the missing juror to determine “whether it is reasonably

possible [that the] communication altered [his] verdict.”          Gladney, 625 So.2d at 419.            Since

the trial court was unable to locate the missing juror, it should have granted James’ motion for

a new trial. We find that the trial court’s failure to fully reconvene the jury for the hearing was

reversible error and mandates a new trial. 8

¶21.    James also argues that the passage of time made reconvening the jury impracticable and

made a new trial necessary. James cites State v. Rideout, 725 A.2d 8, 11 (N.H. 1999) in

support of his argument. In Rideout the trial court conducted a post-trial hearing, in November

1996, regarding a juror’s contact with a witness for the prosecution. The trial court denied the

motion to set aside the verdict based on the contact. In its February 1999 opinion, the New

Hampshire Supreme Court found that further investigation should have been conducted, but

based on the passage of time, reconvening the jury was impracticable and a new trial was

granted.    As discussed by the Court of Appeals in James II, the facts in Rideout can be

distinguished. James II, 2004 WL 1965662 at *4-5. However, the New Hampshire Supreme

Court’s discussion regarding reconvening a jury several years after a trial is concluded is



        8
          Although not all hearings mandated by Gladney will require the examination of all
of the jurors, in the present matter, it was alleged that all jurors were exposed, so all jurors
should have been examined.

                                                     18
helpful. See also Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 919 (7th Cir. 1991)

(“nor is it irrelevant that the case is already a decade old.”) We find that the passage of time

was unfairly prejudicial to James and violated his due process rights.

¶22.    We find, based on the standard established in Gladney, that it is “reasonably possible

that [the] communication altered the verdict” and a new trial should be granted. Gladney, 625

So.2d at 419. Wanda Conway testified immediately after the trial and the State did not attempt

to rebut her testimony.        Her uncontroverted testimony and the record from jury selection

reveal that neither jurors Watson, Jordan, nor any of the male jurors responded to the trial

court’s inquiry about knowledge of the case.        Watson was later informed, during lunch recess,

that James was accused of killing another child.         Many members of the venire discussed the

allegations regarding a second child while they were waiting in a separate courtroom. At this

time one male juror was informed of the allegations regarding the second child.               At no point

following these exposures to extraneous information were the jurors asked again if they had

knowledge of the case, or if they could set aside that knowledge and be fair and impartial.

¶23.    Conway also testified that Watson spoke with her the day after the trial. Watson

complained that some members of the jury knew about the second child and kept bringing it

up in the jury room. Watson stated that several jurors argued that James was guilty because “it

was two children.” Watson also discussed that the docket sheet supported the allegation that

a second child was involved.

¶24.    The hearing was held on May 15, 2001, to determine whether extraneous information

was communicated to the jury and the content of that communication. During voir dire on July

9, 1996, jurors Pettis and John and alternate juror Owens were the only selected jurors who

                                                   19
had heard about the case in the media. They all stated that they did not remember any details,

had not formed any opinions, could put aside what they had heard, and decide the case based

on the evidence.      Jurors Hoff, Fazzio, Watson and Jordan admitted, during the May 2001

hearing, that they had heard that James had been accused of killing a second child. Since it can

be inferred that they did not know this information during voir dire, the trial court correctly

found that they had been exposed to extraneous information.

¶25.    During the May 2001 hearing, Juror Jordan stated that she knew about the allegations

regarding the second child because she heard testimony during the trial which referred to

“children.” The record has been scoured for the word “children” stated during the trial in the

presence of the jury. Although the word “children” was stated a few times during testimony,

there is nothing in the record to support Juror Jordan’s statement that witnesses mentioned that

James was     involved in the death of a second child.9             There is also nothing in the record to

indicate that the State, the Defendant, or the trial court stated or suggested that James was

accused of killing a second child.

¶26.    Jurors Watson and Jordan both stated that the docket sheet implied that two children

were involved.       The docket sheet states “REMARKS: JUDGE TERRY TO HEAR/1ST

VICTIM.” Jurors Hoff, Watson and Jordan admitted that the fact that James was accused of

killing another child was discussed in the jury room.          The fact that, after almost five years,

these jurors did not remember exactly what was said or who said it, does not lessen the fact

that they did discuss the allegations regarding the second child.


        9
         For example Toni James testified that she and James were the parents of two
children. Consuella testified that she took her children shopping with Toni and that she had
children riding with her at the time of the near collision.

                                                    20
¶27.    Pursuant to Gladney, extraneous prejudicial information was communicated to the jury.

The content of that communication was that James was accused of killing another child.

During pre-trial hearings the trial court ruled that this information was very prejudicial and that

the jury would not be allowed to hear it.        “[I]t is reasonably possible this communication

altered the verdict.” Gladney, 625 So.2d at 419 (emphasis added). Although the exact source

of the communication will never be known, the fact that the “skunk” was thrown into the jury

room mandates a new trial. Hickson v. State, 707 So.2d 536, 544 (Miss. 1997) (citing Dunn

v. United States., 307 F.2d 883, 886 (5th Cir. 1962)).

¶28.    We further find that the trial court erred when it refused to allow the attorneys to

examine the jurors during the May 2001 hearing. Nothing in Gladney or its progeny prohibit

attorneys from examining the jurors. Hickson 707 So.2d at 541; Gladney 625 So.2d at 418-

19.    “No provision prevents a lawyer from talking to a juror or securing affidavits from jurors

to the effect that an ‘outside influence’ was brought to bear.” Brake v. Speed, 605 So.2d 28,

37 (Miss. 1992) (citing M.R.E. 606(b)).      “The breath of questioning should be sufficient ‘to

permit the entire picture to be explored.’” United States v. Sun Myung Moon, 718 F.2d 1210,

1234 (2nd Cir. 1983) (quoting United States. v. Moten, 582 F.2d 654, 667 (2nd Cir. 1978)).

Within the dictates of Gladney and M.R.E. 606(b), the attorneys should have been allowed to

question the jurors or the trial court should have asked additional questions submitted by the

attorneys.

                MOTION FOR REHEARING AND REMAINING ISSUES




                                                21
¶29.    James argues that when the Court of Appeals substituted its modified opinion on

September 26, 2000, it in fact issued a new opinion and he should have been allowed to file a

motion for rehearing.       This argument is without merit.   The only change in the modified

opinion was the conclusion.       The holdings of the Court of Appeals regarding all of James’

assignments of error remained unchanged.        Accordingly, the deadline to seek rehearing of

those holdings was April 25, 2000.        Although James responded to the State’s motion for

rehearing, he failed to timely file his own motion regarding the James I opinion. M.R.A.P. 40

does not require clarification.     Because James failed to timely file a motion for rehearing

following the Court of Appeals’s April 11, 2000 opinion, all of the remaining issues are

procedurally barred.




                                       CONCLUSION

¶30.    For the foregoing reasons, we find that the jury considered extraneous prejudicial

information and that James did not receive a fair trial. We further find that the failure to fully

reconvene the jury constituted reversible error.     We reverse the judgments of the Court of

Appeals and the Harrison County Circuit Court,        and we remand this case for a new trial

consistent with this opinion.

¶31.    REVERSED AND REMANDED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.


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