        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-01037-COA




MOLLY M. BROWN A/K/A MOLLY BROWN                                           APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE



DATE OF JUDGMENT:                         03/14/2013
TRIAL JUDGE:                              HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JULIE ANN EPPS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                        MARK SHELDON DUNCAN
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF THE SALE OF
                                          HYDROCODONE AND ACETAMINOPHEN
                                          AND SENTENCED TO TEN YEARS IN THE
                                          CUSTODY OF THE MISSISSIPPI
                                          DEPARTMENT OF CORRECTIONS
DISPOSITION:                              REVERSED AND REMANDED - 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    A Neshoba County jury convicted Molly M. Brown of the sale of Hydrocodone and

Acetaminophen.     The circuit court sentenced her to ten years in the custody of the

Mississippi Department of Corrections. Brown filed a motion for a new trial, which the court

denied. Feeling aggrieved, Brown appeals and argues that (1) she was deprived of her
constitutional rights to a fair trial and an impartial jury, as a biased juror was allowed to serve

on the jury; (2) her attorney’s failure to challenge the biased juror constitutes ineffective

assistance of counsel; and (3) the verdict is against the overwhelming weight of the evidence.

¶2.    We find that Brown’s trial counsel was ineffective for allowing a biased juror to serve

on the jury, thereby denying Brown a fair and impartial trial. Consequently, we reverse the

judgment of conviction and sentence and remand this case for further proceedings.

                                             FACTS

¶3.    Since we are reversing Brown’s conviction based on her counsel’s ineffectiveness for

not seeking to exclude a biased juror, we include only the facts emanating during the voir

dire phase. During voir dire, prospective juror Dena Bishop stated that she had a nephew

who was a DEA agent. After Bishop made that assertion, the following colloquy took place

between Brown’s trial counsel and Bishop:

       Q.      Okay. Do you have the opportunity to talk with [your nephew]--

       A.      No.

       Q.      --from time to time?

       A.      Not often. He’s in another country.

       Q.      Okay. I take it [that] you’re proud of him going into that type of
               situation?

       A.      Very proud.

       Q.      Okay. I take it [that] you would have a hard stance on any type of
               drug[-]related situation[?]

       A.      Yes.

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       Q.     Would you agree with me that having a hard stance is not being
              actually part of, [sic] but that you have a strong opinion?

       A.     It would be hard to be impartial.

       Q.     Would it be better for you if you didn’t sit?

       A.     Probably so.

       Q.     Okay. And that’s perfectly fine. Thank you.

(Emphasis added). No further inquiry was conducted either by the defense, the State, or the

circuit court. Bishop sat as a juror for Brown’s trial. After the trial concluded, Brown filed

a motion for a new trial. The motion was denied, and Brown filed this appeal.

                                        DISCUSSION

¶4.    In this direct appeal, Brown, alleging ineffective assistance of counsel, claims that she

was deprived of her constitutional rights to a fair trial and an impartial jury because her trial

counsel failed to seek the removal of a biased juror, and the circuit court allowed the biased

juror to serve on the jury that convicted her. She further argues that the court’s failure to

remove Bishop from the jury was a fundamental error, even though her counsel did not move

to strike Bishop for cause or present this matter to the circuit court for consideration in her

post-trial motion.

¶5.    In Read v. State, 430 So. 2d 832, 841-42 (Miss. 1983), the Mississippi Supreme Court

set forth the procedure for addressing ineffective-assistance-of-counsel claims on direct

appeal:

       (1) Any defendant convicted of a crime may raise the issue of ineffective
       assistance of counsel on direct appeal, even though the matter has not first

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       been presented to the trial court. The [c]ourt should review the entire record
       on appeal. If, for example, from a review of the record, . . . this [c]ourt can say
       that the defendant has been denied the effective assistance of counsel, the
       [c]ourt should also adjudge and reverse and remand for a new trial.

       (2) Assuming that the [c]ourt is unable to conclude from the record on appeal
       that ]the] defendant’s trial counsel was constitutionally ineffective, the [c]ourt
       should then proceed to decide the other issues in the case. Should the case be
       reversed on other grounds, the ineffectiveness issue, of course, would become
       moot. On the other hand, if the [c]ourt should otherwise affirm, it should do
       so without prejudice to the defendant's right to raise the ineffective[-]
       assistance[-]of[-]counsel issue via appropriate post-conviction proceedings.
       If the [c]ourt otherwise affirms, it may nevertheless reach the merits of the
       ineffectiveness issue where . . . the record affirmatively shows ineffectiveness
       of constitutional dimensions[.]

                                            ****

       This procedure has been designed to conform to constitutional imperatives
       while at the same time building as much judicial efficiency into the process as
       is feasible. For example, the reason why the [c]ourt should not automatically
       reserve the ineffective[-]assistance[-]of[-]counsel issue for post-conviction
       proceedings in every case is based upon notions of judicial efficiency. If . . .
       the [c]ourt can look at the record on direct appeal and conclude that trial
       counsel was constitutionally ineffective, what is the point in requiring a
       separate proceeding and a separate evidentiary hearing?

(Emphasis added and internal citations omitted). We conclude from the record in this appeal

that Brown’s trial counsel was constitutionally ineffective; therefore, we address the issue

now.

¶6.    In support of her argument in her brief, Brown cites several cases, but, in oral

argument, she suggested that the holding in two cases in particular, Miller v. Webb, 385 F.3d

666 (6th Cir. 2004), and Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), may best

support her argument. We discuss them in reverse order, as Miller relies in part on Hughes.


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¶7.    In Hughes, the United States Court of Appeals for the Sixth Circuit, relying on United

States v. Nell, 526 F.2d 1223 (5th Cir. 1976), found “juror’s [sic] Orman’s declaration that

‘I don’t think I could be fair,’ based on her personal relationships with a police officer and

police detectives, in a case involving the theft of a federal marshal’s firearm and personal

property at gunpoint, constituted an express admission of bias.” Hughes, 258 F.3d at 460.

The Hughes court opined further:

       Given Orman’s express admission of bias, with no subsequent assurance of
       impartiality and no rehabilitation by counsel or the court by way of
       clarification through follow-up questions directed to the potential juror, we
       find Orman to have been actually biased in this case. In fact, without more,
       juror bias can always be presumed from such unequivocal statements as were
       made in this case.

Id. The Hughes court also relied upon Thompson v. Altheimer & Gray, 248 F.3d 621 (7th

Cir. 2001), to support its finding that Orman’s statement—“I don’t think I could be

fair”—constituted an express admission of bias:

       In Thompson, the Seventh Circuit found that a juror “manifested a degree of
       bias such that the trial judge abused his discretion in failing to strike her for
       cause” . . . based on the following statements by the juror on voir dire: “I think
       I bring a lot of background to this case, and I can’t say that it’s not going to
       cloud my judgment. I can try to be as fair as I can, as I do every day.”

Hughes, 258 F.3d at 460 (quoting Thompson, 248 F.3d at 624-25). Finally, in holding that

a defendant’s counsel, under the umbrella of trial strategy, cannot waive the defendant’s right

to an impartial jury, the Hughes court stated:

       If counsel’s decision not to challenge a biased venireperson could constitute
       sound trial strategy, then sound trial strategy would include counsel’s decision
       to waive, in effect, a criminal defendant's right to an impartial jury. However,
       if counsel cannot waive a criminal defendant's basic Sixth Amendment right

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       to trial by jury “without the fully informed and publicly acknowledged consent
       of the client,” Taylor v. Illinois, 484 U.S. 400, 417 n. 24, 108 S.Ct. 646, 98
       L.Ed.2d 798 (1988), then counsel cannot so waive a criminal defendant's basic
       Sixth Amendment right to trial by an impartial jury. Indeed, given that the
       presence of a biased juror, like the presence of a biased judge, is a “structural
       defect in the constitution of the trial mechanism” that defies harmless error
       analysis, Johnson [v. Armontrout, 961 F.2d 748,] 756 [(8th Cir. 1992)]
       (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113
       L.Ed.2d 302 (1991)), to argue sound trial strategy in support of creating such
       a structural defect seems brazen at best. We find that no sound trial strategy
       could support counsel’s effective waiver of Petitioner's basic Sixth Amendment
       right to trial by impartial jury.

Id. at 463 (emphasis added).

¶8.    In Miller, a juror stated during voir dire: “I feel like I would kind of be partial” to one

of the main prosecution witnesses. Nevertheless, the juror thought that she could be fair,

even though she felt some sympathy toward the witness. Miller, 385 F.3d at 674-75.

“Neither counsel nor the judge followed-up on her statement of partiality. They did not ask

whether she could ‘lay aside her feelings and render a verdict based on the evidence

presented in court.’” Id. at 675 (quoting Irvin v. Dowd, 366 U.S. 717, 722-23 (1961)). As

a result, the Miller court declared: “In this context, when a juror makes a statement that she

thinks she can be fair, but immediately qualifies it with a statement of partiality, actual bias

is presumed when proper juror rehabilitation and juror assurances of impartiality are absent,

as in Hughes.” Id. The Miller court, citing Frazier v. United States, 335 U.S. 497 (1948),

continued: “When a trial court is confronted with a biased juror, as in this case, the judge

must, either sua sponte or upon a motion, dismiss the prospective juror for cause.” Miller,

385 F.3d at 675.


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¶9.    In another case cited by Brown, Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006), the

court considered whether trial counsel’s decision not to challenge two jurors for cause

deprived the defendant of his Sixth Amendment right to effective assistance of counsel. Id.

at 600-01. There, jurors were asked if they would believe or disbelieve a defendant simply

because he had a prior conviction. Id. at 602. Five jurors stated that they would not believe

the defendant with a prior conviction. Id. at 602-03. One of the five jurors, in response to

a question to the venire persons as to whether their being related to a peace officer would

cause them to be prejudiced against a criminal defendant, answered in the affirmative. Id.

at 603. Another juror stated:

       I don’t know that it’s going to be partial or impartial, but my mother was
       mugged and they never found the mugger. The thought keeps crossing my
       mind while we’re talking about this, as far as assault on an elderly person. So
       it’s weighing me [sic] because of the fact that they never did find the person.
       I’m thinking about that.

Id. at 603-04. Upon further questioning, the juror stated that because of the mugging

incident, he believed he could not be fair and impartial. Id. at 604.

¶10.   In this case, the State conceded during oral argument that if a biased juror serves, then

the court has committed reversible error. The State also conceded that the circuit court has

an obligation to ensure a fair trial.

¶11.   Although Bishop did not state with specificity that she would be biased and incapable

of fulfilling her duties, her statement that “[i]t would be hard to be impartial” and her

affirmative response when she was asked, “Would it be better for you if you didn’t sit?”

clearly are indicative of partiality and bias and, at the very least, warranted further inquiry.

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Neither the circuit court nor Brown’s trial counsel did any follow-up, and counsel did not

move to strike Bishop. As noted, Miller holds that “when a juror makes a statement that she

thinks she can be fair, but immediately qualifies it with a statement of partiality, actual bias

is presumed when proper juror rehabilitation and juror assurances of impartiality are

absent[.]” Miller, 385 F.3d at 675. Therefore, in our case, bias is presumed since there was

no rehabilitation of Bishop demonstrating that, notwithstanding her partiality, she could

decide the case based solely on the evidence.

¶12.   In conclusion, based upon the cases previously discussed, we find that Brown was

deprived of her Sixth Amendment right to effective assistance of counsel because her counsel

allowed Bishop, a biased juror, to sit on the jury that convicted Brown. Therefore, we

reverse and remand this case to the circuit court for further proceedings. Because we are

reversing and remanding this case for further proceedings, we pretermit a discussion of

Brown’s claim that the verdict is contrary to the overwhelming weight of the evidence.

¶13. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO NESHOBA COUNTY.

     LEE, C.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ.,
CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY GRIFFIS, P.J.

       CARLTON, J., DISSENTING:

¶14.   I respectfully dissent from the decision of the majority. Instead, I would affirm the

judgment and conviction imposed by the trial court, without prejudice to Brown’s pursuit of


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a post-conviction-relief claim regarding her assertion of ineffective assistance of counsel.

See Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003). The resolution of Brown’s

claim of ineffective assistance of counsel requires consideration of evidence and matters

beyond the scope of the record before us. Id. Furthermore, a review of jury selection

necessarily entails an evaluation of trial strategy.

¶15.   I submit that Brown is procedurally barred from raising issues regarding the juror at

issue because she raised no challenge to the juror during voir dire or at any time during trial.

Edwards v. State, 737 So. 2d 275, 308 (¶103) (Miss. 1999); Carr v. State, 655 So. 2d 824,

853 (Miss. 1995). Moreover, I respectfully submit that on its face, the record fails to support

a showing of constitutionally deficient representation requiring the trial court to act sua

sponte.1 I further submit that a review of the record shows that the verdict is not against the

overwhelming weight of the evidence. Pearson v. State, 937 So. 2d 996, 999 (¶8) (Miss. Ct.

App. 2006).

¶16.   The record shows that Brown was arrested after purchasing drugs from a confidential

informant at a drug buy arranged by the Neshoba County Police Department.                  The

confidential informant testified at trial court about the sale of Schedule III controlled

substances, and a drug analyst from the Mississippi Crime Laborarory confirmed that the

drugs constituted fifteen dosage units of Hydrocodone and Acetaminophen, Schedule III



       1
        Brown failed to raise a challenge of the juror at issue for cause, and also failed to
use one of her peremptory challenges to strike the juror. To allow Brown to raise this
issue now as reversible error would allow a manipulation of the jury-selection process.

                                               9
controlled substances. Also, a DVD of the footage of the confidential informant’s activity

was shown to the jury that corroborated much of the testimony of the informant. Even

though the DVD did not show the actual exchanging or the sale of the controlled substances,

the DVD showed Brown’s face, as well as her hands holding the purchase money during the

alleged transaction.

¶17.   The record shows the trial court’s questions during voir dire established that the juror

at issue was not related to any witnesses in the instant trial, nor anyone on the police force

conducting the undercover operation with the informant. The record showed the juror’s

relative, a nephew, was a federal officer with the DEA, and not a state or county law

enforcement officer. The Neshoba County Police Department conducted the investigation

and informant activity in this case, and not any federal agency. The record, including a

review of voir dire as a whole, fails to clearly show that the juror at issue could not perform

her duties. See Martin v. State, 592 So. 2d 987, 988 (Miss. 1991); Lattimer v. State, 952 So.

2d 206, 214 (¶22) (Miss. Ct. App. 2006). The response by this juror must be reviewed in

context. The trial court also asked during voir dire if any juror knew anything about the case,

and the juror indicated no prior knowledge. The trial court asked if any experiences the

jurors, their family members, or friends have had with the type of crime involved in the trial

would affect their decision, and the juror at issue gave no indication of any reason for

excusal. As stated, the trial court also established that no juror was related to any of the law

enforcement involved in this case. The majority reverses the judgment and conviction based

upon isolated responses elicited by counsel after the trial court concluded its questioning.

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In determining whether reversible error occurred, the juror’s responses to the voir dire as a

whole should be considered, as well as the record as a whole.

¶18.   “The jury is presumed to have followed the instruction given by the trial judge.” Hall

v. State, 785 So. 2d 302, 306 (¶12) (Miss. Ct. App. 2001); see also Harmon v. State, 453 So.

2d 710, 712 (Miss. 1984). Nothing in the record reflects that this juror indicated any

objection to following the instructions of the trial court. Furthermore, Brown failed to raise

a challenge to strike this juror at trial. Accordingly, I find that this issue is procedurally

barred from review on direct appeal. Edwards, 737 So. 2d at 308 (¶103).

       GRIFFIS, P.J., JOINS THIS OPINION.




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