                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 96-KA-01173-SCT

JOHNNY EARL SIMMONS
v.
STATE OF MISSISSIPPI

                                 ON MOTION FOR CLARIFICATION

DATE OF JUDGMENT:                                    08/22/96
TRIAL JUDGE:                                         HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED:                           HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              THOMAS D. BERRY, JR.
ATTORNEY FOR APPELLEE:                               OFFICE OF THE ATTORNEY GENERAL
                                                     BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:                                   CONO A. CARANNA, II
NATURE OF THE CASE:                                  CRIMINAL - FELONY
DISPOSITION:                                         REVERSED AND REMANDED - 8/5/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.



      SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. The motion for clarification is granted. The original opinion in this case is withdrawn, and this opinion is
substituted therefor.

¶2. Johnny Earl Simmons ("Simmons") was indicted for, and convicted by a jury of, transfer of cocaine, a
Schedule II controlled substance. Simmons was sentenced by the trial court to serve a term of 13 years,
with six years suspended, in the custody of the Mississippi Department of Corrections. Simmons was also
sentenced to five years probation upon release, and to pay a $5000 fine. Simmons' motion for J.N.O.V. or
new trial was denied by the trial court. Simmons also filed a motion to reconsider his sentence, and the trial
court took that motion under advisement until a pre-sentence report was completed by MDOC. Simmons
timely filed his Notice of Appeal, and seeks a reversal of his conviction and a remand for a new trial.

                                      STATEMENT OF THE FACTS
¶3. On May 19, 1995, Officer James Cuccia, of the Gulfport Police Department, was working undercover.
Cuccia testified that on that day, he purchased cocaine from Simmons in an area called the "Quarter" in
Gulfport. Officer Cuccia's vehicle, a Nissan van, was equipped with audio and video equipment to record
any undercover buys.

¶4. Cuccia testified that he drove to the "Quarter" and stopped his vehicle in front of the Desire Lounge,
where a group of men, including Simmons, was gathered. Some of the group, including Eric Smith, were
about to approach Cuccia, when Simmons stopped them saying that Cuccia might be a policeman. Cuccia
asked Simmons for a "twenty" or $20 worth of crack cocaine. Simmons asked Cuccia to get out of his
vehicle. Cuccia exited his vehicle, and Eric Smith opened his hand to show Cuccia an alleged piece of crack
cocaine. Cuccia grabbed it, and Simmons told Cuccia, "That's bunk." According to Cuccia, "bunk" is a
term for counterfeit substance. Cuccia dropped the "bunk" back into Smith's hand, and then turned to
Simmons. Simmons handed Cuccia crack cocaine, and Cuccia paid Simmons $20 from official city funds.

¶5. Cuccia identified Simmons in court as the man that sold him the crack cocaine. A video tape of the
undercover buy was admitted into evidence at trial and shown to the jury. The substance, received by
Cuccia from Simmons in the buy, was determined to be cocaine by the Mississippi Crime Lab.

¶6. The defense argued at trial that when Simmons stopped Smith from approaching Cuccia, he was really
trying to prevent Smith from selling cocaine. Simmons and Smith, himself, testified that Smith sold the
cocaine to Cuccia.

¶7. Simmons appeals from the jury verdict finding him guilty of transfer of a controlled substance, and assigns
as error, the following issues for this Court's review.


     I. THE LOWER COURT ERRED IN COMMENCING THE TRIAL IN APPELLANT'S
     ABSENCE OVER OBJECTION OF COUNSEL.


     II. THE LOWER COURT ERRED IN GIVING INSTRUCTIONS 5A, 5B, AND 5C,
     WHICH ARE INSTRUCTIONS ON BEING AN ACCESSORY NOT CHARGED IN THE
     INDICTMENT.


     III. THE LOWER COURT ERRED IN ALLOWING COLLATERAL IMPEACHMENT OF
     DEFENSE WITNESS, ERIC SMITH, REGARDING HIS PRIOR YOUTH COURT
     RECORD.


     IV. THE LOWER COURT ERRED IN ALLOWING INTO EVIDENCE AN ORDER
     PROCURED BY THE PROSECUTION FROM THE HARRISON COUNTY FAMILY
     COURT JUDGE, NOT A PART OF THE JUVENILE'S RECORD, BUT A REFLECTION
     OF THE FAMILY COURT JUDGE'S OPINION ABOUT ERIC SMITH AND HIS
     RECORD.


     V. THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT
     OF THE EVIDENCE SO AS TO EVINCE BIAS AND PREJUDICE ON THE PART OF
     THE JURY.

                                        DISCUSSION OF LAW


     I. THE LOWER COURT ERRED IN COMMENCING THE TRIAL IN APPELLANT'S
     ABSENCE OVER OBJECTION OF COUNSEL.

¶8. The trial of this case was originally set for July 22, 1996, as is noted on Simmons's waiver of
arraignment and entry of plea form. On July 26, 1996, the trial court granted a defense motion for a
continuance and reset the trial for August 9, 1996. Simmons's trial actually took place on August 21 and
August 22 of 1996.

¶9. On August 21, 1996, at 9:00 a.m., the trial judge was preparing to voir dire the jury when he was
interrupted by defense counsel. The following exchange occurred:

     MR. BERRY: I hate to interrupt, but could you spare me a moment and let me go down the hall and
     see if my client is out there.

     THE COURT: Make it a quick moment, Mr. Berry.

     (PAUSE IN THE PROCEEDINGS)

     MR. BERRY: Your Honor, the accused's mother is outside. She tells me he thinks it's 1:30.

     THE COURT: That's fine. By the time we get ready to select a jury as long as he's here at that time,
     we're in good shape.

     MR. BERRY: I apologize for that.

     THE COURT: No apologies needed. Let's try it again...

Thereafter, the trial judge questioned the venire. When he was done, he started to allow the prosecutor to
proceed with his voir dire, and defense counsel objected.

     MR. BERRY: Just for the record, we would object to going any further at this time until my client
     would be present.

     THE COURT: Mr. Berry, according to the law, as long as your client is present here at the time the
     jury is actually selected, we can proceed with this case. Your client was advised as to the time this
     case was to begin. We are not going to wait. If your client does not show, I will then issue a warrant
     for your client's arrest, and we will try the case starting tomorrow with a new jury. Your objection is
     noted for the record, sir.

     MR. BERRY: We would ask for a mistrial due to the fact that you made these extraneous remarks in
     front of the jury. We feel like that would prejudice from the very start.

     THE COURT: Your objection is so noted, Mr. Berry. Please be seated, sir.
From there, the district attorney conducted his voir dire of the jury. The record is unclear as to when the
defendant, Simmons, actually arrived in court. However, it is clear that he was present at the time defense
counsel started his voir dire.

¶10. Simmons argues that the trial court erred in allowing his trial to proceed outside of his presence. His
argument is based on our decisions in Sandoval v. State, 631 So. 2d 159 (Miss. 1994) and Jackson v.
State, 689 So. 2d 760 (Miss. 1997). The State asserts that Simmons was in constructive custody at the
time of the trial, because he was out on bond, and that he simply chose not to appear at the appointed time
of his trial. It argues that Simmons has failed to demonstrate any harm or prejudice resulting from his not
being present for part of voir dire. Ultimately, the State urges this Court to return to the procedures for
reviewing trials conducted in absentia enunciated in Samuels v. State, 567 So. 2d 843 (Miss. 1990).

¶11. Miss. Code Ann. § 99-17-9 (1994), which is entitled "Trial in the absence of accused," provides:

      In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion
      of the court, in his absence if he be in custody, and consenting thereto. If the defendant, in cases less
      than felony, be on recognizance or bail or have been arrested and escaped, or have been notified by
      the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be
      taken, or be in any way in default for nonappearance, the trial may progress at the discretion of the
      court, and judgment final and sentence be awarded as though such defendant were personally present
      in court.

¶12. We examined this statute in Samuels v. State, 567 So. 2d 843 (Miss. 1990). In that case, Samuels,
who had executed a recognizance bond, appeared at the courthouse the morning of his trial, but left at some
point. Defense counsel announced ready for trial. When Samuels's attorney went to get Samuels, he could
not find him. It was soon reported that Samuels had left the courthouse. Defense counsel requested a
continuance, which was granted, and the trial was reset. The trial court issued a bench warrant for
Samuels's arrest. At the next trial date, Samuels had not been arrested and again failed to appear for trial.
The court denied defense counsel's motion for a continuance and proceeded with the trial. Samuels, 567
So. 2d at 844-45.

¶13. This Court, in a unanimous decision, held that when Samuels executed a recognizance bond, he was in
the custody of the law under the statute. Additionally, the Court stated that because Samuels's absence was
voluntary, he had waived his right to be present at trial. Therefore, the Court reasoned that the trial court did
not abuse its discretion in proceeding to trial without the presence of the defendant. Id. at 845-46.

¶14. The next time the Court examined this issue was in Sandoval v. State, 631 So. 2d 159 (Miss. 1994).
Sandoval appeared at a preliminary hearing and was in his attorney's office involved in trial preparation the
day before the trial. When Sandoval failed to appear the morning of the trial, his attorney moved for a
continuance, which the trial court denied. The trial court, basing his ruling on Samuels, found that Sandoval
had voluntarily absented himself and had, therefore, waived his presence at trial. Sandoval, 631 So. 2d at
160-61.

¶15. We recognized in Sandoval that, "an accused felon, present at the commencement of his trial, may
thereafter waive his presence by absenting himself from the trial." Id. at 161. However, in cases where the
accused is not present at the commencement of trial, the waiver issue is more complex. We found that the
facts in Sandoval were significantly different than the facts in Samuels. Sandoval did not appear at the
commencement or any other stage of the trial, and the defense did not announce ready for trial. Defense
counsel moved for a continuance, and it was immediately denied. Sandoval, 631 So. 2d at 161. In a 6-3
decision (Smith, J. dissenting, joined by Prather, P.J. and Roberts, J.), we held that "Mississippi Code
Annotated § 99-17-9 (1972) clearly states the waiver rule in felony cases 'if he be in custody and
consenting thereto' and then makes an exception for misdemeanors. Only in discussing 'cases less than
felony' does the statute permit trial in absentia of defendant 'on recognizance or bail.'" Id. at 164. The Court
found that the trial court had erred in denying Sandoval a continuance, and the case was reversed and
remanded. Id.

¶16. Since Sandoval, we have consistently reversed and remanded cases where the defendant is tried in
absentia. In Banos v. State, 632 So. 2d 1305 (Miss. 1994), neither of the two defendants were present at
the commencement of trial, and this Court found that the facts were no different from Sandoval. In a
unanimous decision, the Court held that Sandoval was controlling and reversed and remanded. Banos,
632 So. 2d at 1309.

¶17. In Villaverde v. State, 673 So. 2d 745 (Miss. 1996), the Court, in another unanimous decision
(Pittman, J. specially concurring, joined by Mills, J.), recognized that Samuels had been overruled, and that
defendants charged with felonies may not be tried in absentia. Villaverde, 673 So. 2d at 747. The case
was reversed and remanded because Villaverde, an accused felon, had been tried in absentia. Id.

¶18. Finally, in Jackson v. State, 689 So. 2d 760 (Miss. 1997), we again examined this issue. Due to an
early morning brawl between the two defendants on the day of trial, one arrived in court during selection of
the jury panel, and the other arrived during cross-examination of the State's second witness. Jackson, 689
So. 2d at 763. The defense requested a continuance, which the trial court denied. In a 5-4 decision
(Pittman, J. dissenting, joined by Roberts, Smith, and Mills, JJ.), we said:

      This Court's prior decision in Samuels v. State, 567 So. 2d 843 (Miss. 1990) was superseded by
      Sandoval to the extent that Samuels does not require a defendant to be present during the
      commencement of trial for his waiver to be effective.

      In the present case, Larry arrived at trial during cross-examination of the State's second witness.
      Because he did not arrive until well after the commencement of trial, it cannot be said that he waived
      his right to be present at trial. Alvin arrived during the selection of the jury panel after voir dire was
      completed. Nonetheless, like Larry, Alvin was not present when trial commenced and cannot be
      deemed to have waived his right to be present. Since neither can be said to have waived his right to
      be present at trial, this case must be reversed for a new trial.

Id. at 764.


¶19. The dissent argued that:

      Thus, under today's holding a defendant could absent himself at the commencement of trial and later
      appear (e.g., during voir dire) for the trial in its entirety. However, the trial will be for naught because
      the defendant was not there at the commencement and thus, we will reverse and remand for a new
      trial, holding it was held in his absence without the defendant properly waiving his right to be present.

      The majority has effectively put the defendants in charge of the courtroom. No longer will trials begin
      when docketed and the lawyers, judge, and jury are ready; now, we will wait until the defendant
      decides he is ready to appear in court and face his charges. It is likely that many defendants do not
      want to go to trial for fear of the outcome. We have now provided a convenient option for such
      defendants-do not appear in court. The defendants sub judice were free from incarceration because
      of a recognizance bond. They knew when to be in court and they willfully absented themselves from
      court. Thus, under Samuels and Miss. Code Ann. § 99-17-9 (1972), they may be deemed properly
      before the court or to have waived that right and it was not error to proceed without them.

Id. at 770.


¶20. The State, in the case sub judice, urges this Court to return to the procedures of Samuels, and hold
that Simmons was constructively in custody and chose not to appear at the appointed time of trial, thereby
waiving his right to be present.

¶21. Although we do not today overrule Sandoval and its progeny, we do take this important opportunity
to expand its holding. We hold today that in the limited circumstance where the defendant, who is out on
bond and represented by counsel, fails to appear at the commencement of his trial, but appears before any
evidence is taken, we will not reverse for a new trial, unless the defendant shows prejudice resulting from his
absence at the commencement of the trial. Therefore, we must discern whether Simmons suffered some
prejudice resulting from the trial court's decision to proceed in his absence in this case.

¶22. The extraneous comments made by the judge regarding Simmons's absence were unwarranted in the
presence of the jury. "Jurors are most susceptible to the influence of the judge; he cannot be too careful and
guarded in his language and conduct in the presence of the jury." Beyersdoffer v. State, 520 So. 2d 1364,
1366 (Miss. 1988); See also Yelverton v. State, 191 So. 2d 393, 397 (Miss. 1966) (explaining that a
judge, "because of the attributes of the offices they hold, unconsciously exert tremendous influence in the
trial of a case, and they should be astutely careful so that unintentionally the jurors are not improperly
influenced by their words and actions.") (quoting Roberson v. State, 185 So. 2d 667, 670 (Miss. 1966)).
Some of the jurors may have found that based on the judge's comments, Simmons deliberately failed to
show up for court in an effort to have the trial continued. This could cause the jury to harbor ill will toward
Simmons before the jury is even sworn. "The trial judge always must be circumspect and unbiased, at all
times displaying neutrality and fairness in the trial, and consideration for the constitutional rights of the
accused." Fermo v. State, 370 So. 2d 930, 933 (Miss. 1979). Prior to the judge's comment, the judge
was aware that Simmons did not willfully fail to show up at the commencement of the trial when Simmons's
attorney told the judge that his client thought the trial was to begin at 1:30. Furthermore, an Order dated on
August 20, 1996, stated that the trial was to commence at 1:00 on Wednesday, August 21, 1996.
Apparently, the time for the trial to begin was subsequently changed. Simmons argues on appeal that
particularly in a felony criminal trial, it is important to determine whether any of the jurors recognize the
defendant. We agree that it is necessary to determine if any of the jurors know the defendant or have a
significant relationship to the defendant in determining who shall serve on the petit jury.

¶23. The United States Supreme Court recognizes that "the right to personal presence at all critical stages
of the trial and the right to counsel are fundamental rights of each criminal defendant." Rushen v. Spain,
464 U.S. 114, 117 (1983). Voir dire is considered by this Court as "a most critical stage" of the criminal
proceedings. Bell v. Watkins, 381 So. 2d 118, 134 app. (Miss. 1980). A defendant has a constitutional
right to be present although a defendant can waive this important right. The United States Supreme Court
explained the significance of this Sixth Amendment right as follows:

     Even though it is true that a criminal trial does not commence for purposes of the Double Jeopardy
     Clause until the jury is empaneled and sworn, Serfass v. United States, 420 U.S. 377, 388 (1975),
     other constitutional rights attach before that point, see, e.g., Brewer v. Williams, 430 U.S. 387, 398
     (1977) (assistance of counsel). Thus in affirming voir dire as a critical stage of the criminal proceeding,
     during which the defendant has a constitutional right to be present, the Court wrote: "'[W]here the
     indictment is for a felony, the trial commences at least from the time when the work of empanelling the
     jury begins.'". . . . Jury selection is the primary means by which a court may enforce a defendant's right
     to be tried by a jury free from ethnic, racial, or political prejudice, . . ., or predisposition about the
     defendant's culpability. . . .

Gomez v. United States, 490 U.S. 858, 872 (1989).

¶24. Based on the facts that 1) Simmons was not present during at least a part of the State's questioning of
potential jurors, 2) Simmons did not wilfully refuse to show up for trial in an effort to abuse the judicial
system, and 3) the trial judge made extraneous comments in the presence of the jury that may have
predisposed the jury against Simmons from the very start, Simmons has shown that he was prejudiced,
thereby satisfying the extended holding we create today. Accordingly, we reverse and remand for a new
trial.

¶25. Because we have reversed and remanded this case on Issue I, it is unnecessary for this Court to
address the remaining issues.

                                              CONCLUSION

¶26. We part slightly today from our prior holdings concerning trial in absentia. Although we are not
overruling Sandoval and its progeny or reviving Samuels, we do expand Sandoval to require a defendant
who voluntarily absents himself from the commencement of his trial and who later appears for trial before
any evidence is taken, to demonstrate to this Court what prejudice he has suffered through his absence. If
such prejudice is not shown, this Court will not reverse for a new trial.

¶27. Simmons has proven prejudice as a result of the judge's extraneous remarks. Accordingly, we reverse
and remand for a new trial.

¶28. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, MILLS AND WALLER CONCUR.
SMITH, J. CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY COBB, J. WALLER, J., JOINS THIS OPINION IN PART.



SMITH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶29. I concur in the judgment to reverse and remand for a new trial. In our original opinion issued on May
13, 1999, the majority addressed the aiding and abetting instruction issue and concluded that the evidence
was sufficient to support the instruction. The State, on June 14, 1999, filed a Motion for Clarification or
Correction of Opinion before this Court. The State asks for clarification regarding the aiding and abetting
instructions that are given to a jury. The majority now elects not to address the aiding and abetting issue. In
my view, the aiding and abetting issue is properly before this Court, and because the majority's mandate is
to reverse and remand, guidance on this issue is a necessity because the issue is bound to reoccur and
prosecutors and circuit judges need guidance on what this Court will recognize as a proper aiding and
abetting instruction.

¶30. Apparently, there is some inconsistency between our previous opinion in this case and our previous
opinion in Hornburger v. State, 650 So.2d 510 (Miss. 1995). The same jury instruction that was given in
the case sub judice was also given in the Hornburger case. However, the instruction was found to be
defective but harmless in Hornburger, but was not found defective in the present case. This Court stated
that the problem with the instruction given in Hornburger, was that it "allowed the jury to find [the
defendant] guilty of burglary if it found that he had done any act which was merely an element of burglary,
without having to also find that he committed acts for all elements of the crime." Doss v. State, 709 So.2d
369, 379 (Miss. 1997).

¶31. In the case sub judice, the same problem is present. Again, jury instruction "5C" leads the jury to
believe that, if only one element of the crime is proven beyond a reasonable doubt, the defendant can be
convicted of that crime. The problem with instruction "5C" is that it says in pertinent part that:

      The Court instructs the Jury that each person present at the time, and consenting to and encouraging
      the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element
      of the crime or immediately connected with it, or leading to its commission, is as much a principal as if
      he had with his own hand committed the whole offense. . .[emphasis added]

This is improper because every element of the crime must be proven beyond a reasonable doubt before the
defendant can be convicted of that crime. See Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993).
According to the instruction given in the case sub judice, satisfaction of only one element would suffice for a
conviction. This is a contrary instruction to the 5th Circuit's Pattern Jury Instruction (Criminal Cases) 2.06
for Aiding and Abetting (Agency)(1997)(18 U.S.C. § 1) which states, as follows:

      The guilt of a defendant in a criminal case may be established without proof that the defendant
      personally did every act constituting the offense alleged. The law recognized that, ordinarily, anything
      a person can do for himself may also be accomplished by that person through the direction of another
      person as his or her agent, or by acting in concert with, or under the direction of, another person or
      persons in a joint effort or enterprise.

      If another person is acting under the direction of the defendant or if the defendant joins another
      person and performs acts with the intent to commit a crime, then the law holds the defendant
      responsible for the acts and conduct of such other persons just as though the defendant had
      committed the acts or engaged in such conduct.

      Before any defendant may be held criminally responsible for the acts of others it is necessary that the
      accused deliberately associate himself in some way with the crime and participate in it with the intent
      to bring about the crime.
      Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are
      not sufficient to establish that the defendant committed are not sufficient to establish that a defendant
      either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the
      defendant was a participant and not merely a knowing spectator.

      In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that
      every element of the offense as defined in these instructions was committed by some person or
      persons, and that the defendant voluntarily participated in its commission with the intent to violate the
      law.

(emphasis added).


¶32. It is clear from the model instruction that every element of an offense must be satisfied beyond a
reasonable doubt before the defendant can be found guilty. To the contrary, the instruction given in the case
sub judice establishes that ". . .doing any act which is an element of a crime . . ." can lead to the guilt of the
defendant. This instruction is inconsistent with the 5th Circuit's Pattern Jury Instructions as well as with the
established case law of Hornburger v. State, 650 So.2d 510 (Miss. 1995).

¶33. The State has reasonably asked for clarification of this Court's ruling with regard to whether the
Hornburger instruction constitutes error. The State needs this clarification to prevent future error, and this
Court should provide the State with the proper clarification in the interest of justice. The majority has
elected not to address this issue, but in doing so we are inviting the continued use of an erroneous jury
instruction. In my view the 5th Circuit's Pattern Jury Instruction should be adopted by this Court to prevent
further confusion on the issue.

COBB, J., JOINS THIS OPINION. WALLER, J., JOINS THIS OPINION IN PART.
