        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-KA-01408-COA

KENDRICK D. SMITH A/K/A KENDRICK                                       APPELLANT
DEWAYNE SMITH A/K/A KENDRICK SMITH

v.

STATE OF MISSISSIPPI                                                     APPELLEE


DATE OF JUDGMENT:                       07/25/2013
TRIAL JUDGE:                            HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED:              ADAMS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                        BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                      RONNIE LEE HARPER
NATURE OF THE CASE:                     CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                CONVICTED OF ARMED ROBBERY, AND
                                        SENTENCED TO FORTY YEARS, AND
                                        AGGRAVATED ASSAULT UPON A LAW
                                        ENFORCEMENT OFFICER, AND
                                        SENTENCED TO THIRTY YEARS, WITH
                                        THE SENTENCES TO RUN
                                        CONSECUTIVELY, BOTH IN THE
                                        CUSTODY OF THE MISSISSIPPI
                                        DEPARTMENT OF CORRECTIONS
DISPOSITION:                            AFFIRMED: 01/27/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., ISHEE AND FAIR, JJ.

      FAIR, J., FOR THE COURT:

¶1.   An Adams County jury found Kendrick D. Smith guilty of armed robbery and

aggravated assault on a law enforcement officer. Smith was sentenced to forty years for
armed robbery and thirty years for aggravated assault, to be served consecutively while in

the custody of the Mississippi Department of Corrections. Smith moved for a mistrial twice

during the trial. His motions were denied. Smith’s motion for a new trial was also denied.

Finding no error, we affirm.

                                        FACTS

¶2.    On June 24, 2011, an employee of the Kentucky Fried Chicken (KFC) in Natchez,

Mississippi, noticed a man crouched in the bushes outside the restaurant. The man, masked

by a bandana, gestured to the employee to keep quiet. The employee returned inside the

KFC and told his manager that the man was likely to rob a customer through the drive-

through line. The manager sought help from three sheriff’s deputies – Major Billy Neely,

Charles Hargill, and Buddy Frank – who were eating lunch in the restaurant.

¶3.    Around that time, a robbery took place at United Mississippi Bank (the Bank), next

to the KFC. When the deputies went outside to confront the man in the bushes, they saw him

running away from the Bank. Major Neely identified the suspect as a black male wearing

a bandana, cap, and t-shirt. The suspect fired three shots in the direction of the officers,

wounding Deputy Frank in his right leg. Deputy Frank fired back, hitting the suspect in the

shoulder. After he was shot, the suspect threw money into the air and ran towards Natchez

Ford Dealership, leaving behind a trail of money. Major Neely lost sight of the suspect. The

police later arrested Smith, who was found near the crime scene behind Plantation Manor

Apartments. Smith was missing a t-shirt and hat, but otherwise matched the description of

the suspect. Smith also had a gunshot wound in the same area as the suspect.

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¶4.    Smith was charged in a five-count indictment with armed robbery of the Bank and

aggravated assault against each of the sheriff’s deputies and an employee of the Ford

dealership. At his first trial, Smith was found not guilty on three counts of aggravated

assault. But the jury deadlocked on the armed robbery and aggravated assault against Deputy

Frank. Smith was tried a second time on those remaining charges.

¶5.    Three tellers working at the Bank during the robbery testified at Smith’s second trial.

They all described the robber as a black male wearing a baseball cap and t-shirt, with a

bandana over his face. One teller testified that the robber wore yellow gloves and fired three

shots in the Bank. None of the tellers could identify the suspect.

¶6.    Smith testified is his own defense, claiming he was mistaken for the actual suspect.

He stated that he had been sitting in a friend’s car outside an apartment complex drinking gin

on the day of the robbery. According to Smith, someone lured him behind the apartments,

asking for help. Smith testified that he was then robbed at gunpoint, forced to change into

different clothing, and shot from behind.

¶7.    Detective Otis Mazique testified that Smith confessed to the robbery and assault

during an interview a few days after the incident. Smith’s signed confession was admitted

into evidence.

¶8.    During the trial, Smith moved for a mistrial based on juror misconduct and an

individual taking photographs in the courtroom. His motion was denied. Smith also objected

to testimony from DNA expert Leslia Davis, who stated that Smith’s DNA was found on the

money collected from the crime scene. The trial court sustained Smith’s objection and

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instructed the jury to disregard that portion of the expert’s testimony. Smith also moved for

a mistrial based on the testimony, arguing the evidence heard by the jury was highly

prejudicial and an incurable error. The court denied Smith’s motion. The jury found Smith

guilty on both counts. Additional facts pertaining to the trial will be discussed below, as

necessary.

                                STANDARD OF REVIEW

¶9.    “Whether to grant a motion for a mistrial is within the sound discretion of the trial

court. The standard of review for denial of a motion for [a] mistrial is abuse of discretion.”

Gunn v. State, 56 So. 3d 568, 571 (¶14) (Miss. 2011) (quoting Caston v. State, 823 So. 2d

473, 492 (¶54) (Miss. 2002)).

                                      DISCUSSION

       I. Juror Misconduct

¶10.   Smith argues that the court should have granted a mistrial based on juror misconduct.

During the morning of the trial, Smith’s attorney informed the court that one of the jurors

made a comment about the case, using the words “pleading guilty.” The court handled the

matter later, during the noon recess. The meaning behind the juror’s statement was unclear.

In an abundance of caution, the court removed the juror and replaced him with the first

alternate. The defense then requested a mistrial, in conjunction with another issue, which the

court denied.

¶11. Given that Smith failed to move for a mistrial contemporaneously with his motion to

excuse the juror, this issue is procedurally barred. See Robinson v. State, 747 So. 2d 847,

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850 (¶9) (Miss. Ct. App. 1998) (finding defendant’s issue procedurally barred, as his trial

counsel failed to move for a mistrial contemporaneously to the incident’s occurrence).

Procedural bar notwithstanding, nothing in the evidence demonstrates that Smith was

prejudiced by the juror’s comment or that the jury was tainted in any way. We find that the

judge properly exercised his discretion in excusing the juror and replacing him with an

alternate juror, without granting a mistrial. This issue has no merit.

       II. Photographs Taken in Courtroom

¶12.   Smith requested a mistrial after an employee from the sheriff’s department was seen

taking photographs in the courtroom during the trial. Smith claimed that the employee was

taking pictures of the jury, which caused intimidation and affected their decision. During an

in-chambers discussion, it was revealed that the employee handled public relations for the

sheriff’s office. The judge recognized her from another high-profile case, where she took

pictures of the defendant in his courtroom. The judge stated that he saw the employee in the

back of the courtroom that morning of Smith’s trial but did not see her take pictures of the

jury. He denied Smith’s motion for a mistrial but assured both parties that he would instruct

the employee never to take photographs of the jury in the future. The judge later spoke with

the employee, who stated she had not taken any photographs of the jury.

¶13. Rule 4 of the Mississippi Rules for Electronic and Photographic Coverage of Judicial

Proceedings “places limitations on the use of the technology to prevent disruption [and to]

protect jurors . . . . It is within these limits that the presiding judge’s discretion and courtroom

management must be exercised.” In re WLBT, 905 So. 2d 1196, 1199 (¶7) (Miss. 2005).

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Here, the judge stated that taking pictures of the jury was “clearly inappropriate” but that the

employee may not have been aware that such photography was prohibited. He further

determined that the conduct did not warrant a mistrial. There is no evidence that the jury was

intimidated by the photographer. Moreover, the judge was in the best position to determine

the prejudicial effects of the employee’s conduct in the courtroom. We find the judge was

well within his discretion to deny Smith’s motion for a mistrial. Accordingly, this issue is

without merit.

       III. Testimony Regarding DNA Evidence

¶14.   During her testimony, Davis stated that Smith’s DNA was consistent with the DNA

found on a two-dollar bill from the crime scene. Davis had already testified that Smith’s

DNA was consistent with the DNA found on the bandana, hat, and glove recovered in the

woods near the crime scene. Smith’s attorney objected, stating that she had received

discovery on the bandana, hat, and glove, but not the two-dollar bill. It is unclear from the

record whether the State actually provided the contested evidence to the defense in

discovery; however, the district attorney stated that he thought he had disclosed the

information. After conferring with both parties, the court sustained Smith’s objection.

Smith’s attorney also motioned for a mistrial, which was denied by the court. The court

reasoned that Smith suffered no undue prejudice, since other admitted evidence recovered

near the crime scene was consistent with Smith’s DNA.

¶15.   The judge instructed the jury to disregard Davis’s testimony about Smith’s DNA on

the two-dollar bill. “It is presumed that a jury follows the direction of a trial judge to

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disregard an improper comment or testimony.” Williams v. State, 971 So. 2d 581, 590 (¶31)

(Miss. 2007) (citation omitted). The record lacks any indication that Smith was prejudiced

or that the jury was tainted by the testimony. As the judge stated in his ruling, the jury had

already heard evidence that Smith’s DNA was consistent with other items connected to the

crime.    Further, we must assume that the jury followed the judge’s instruction and

disregarded the contested testimony. The court did not abuse its discretion in denying

Smith’s request for a mistrial. Consequently, this argument lacks merit.

         IV. Smith’s Pro Se Supplemental Brief

¶16.     Smith filed a pro se supplemental brief in addition to the brief filed by the Office of

the State Public Defender, Indigent Appeals Division. Smith raises several issues regarding

the denial of certain pretrial motions. The State failed to file a reply to Smith’s pro se brief.

When asked to reply to the errors in oral argument, the State discussed some, but not all,

errors submitted by Smith. After our thorough review of the record in this case, we find that

Smith raises no arguable issues in support of his appeal that merit discussion on review.

¶17. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF
CONVICTION OF ARMED ROBBERY, AND SENTENCE OF FORTY YEARS,
AND AGGRAVATED ASSAULT UPON A LAW ENFORCEMENT OFFICER, AND
SENTENCE OF THIRTY YEARS, WITH THE SENTENCES TO RUN
CONSECUTIVELY, BOTH IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO ADAMS COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON,
MAXWELL AND JAMES, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.




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