Dylon Tackett v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 96-KA-00570 COA
DYLON TACKETT A/K/A DYLON TACKET A/K/A
JIMMY DYLON TACKETT
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
04/22/96
HON. WILLIAM R. LAMB
CHICKASAW COUNTY CIRCUIT COURT
GARY LEE CARNATHAN
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
LAWRENCE L. LITTLE
CRIMINAL - FELONY
AGGRAVATED ASSAULT: SENTENCED TO
SERVE A TERM OF 20 YRS IN THE MDOC,
4 YRS OF THIS SENTENCE ARE HEREBY
SUSPENDED UPON THE GOOD BEHAVIOR
OF THE DEFENDANT, LEAVING 16 YRS TO
SERVE
REVERSED AND REMANDED - 12/16/97
2/4/98
BEFORE THOMAS, P.J., COLEMAN AND HINKEBEIN, JJ.
THOMAS, P.J., FOR THE COURT:
Dylon Tackett appeals his conviction of aggravated assault raising the following issues as error:
I. WHETHER DYLON TACKETT RECEIVED A FAIR TRIAL BY A FAIR AND
IMPARTIAL JURY.
II. WHETHER THE CIRCUIT COURT ERRED IN DENYING DYLON TACKETT'S
MOTION FOR A NEW TRIAL.
Finding merit in Tackett's assertion, we reverse and remand.
FACTS
Dylon Tackett was at a gas station in Okolona, Mississippi when he walked up to a car and asked to
buy some crack. Tackett took the crack from the driver of the car and put it in his mouth to taste it
and see if the crack was real. Tackett's statement to police was that the driver of the car pulled a gun
on Tackett and told him to get the crack out of his mouth. Tackett then gave the man twenty dollars
for the crack. As the driver of the car was leaving, Tackett pulled out a gun and shot through the
window. Tackett was indicted and found guilty of aggravated assault.
One week after the jury verdict, Tackett filed a motion for a new trial alleging that he was denied the
benefit of a fair and impartial jury. Attached to the motion for a new trial was the ex parteaffidavit of
Melissa Rea, Tackett's girlfriend. The affidavit stated the following:
1) Melissa Rea has a child born out of wedlock with Dylon Tackett.
2) Alma J. Staten is Melissa's natural aunt, and she was a member of Tackett's jury.
3) Staten knows that Tackett is the father of Melissa's child.
4) On at least one occasion, Staten has indicated to Melissa that "Dylon Tackett would not be
good for her and would hurt her and she should not have anything to do with him."
5) Tackett, to Melissa's knowledge, does not know Staten.
During the hearing adjudicating the merits of Tackett's motion for a new trial, Melissa testified that
she has a child with Tackett. Melissa also stated that Juror Staten is her aunt and that Juror Staten is
aware that Tackett is the father of Melissa's child. Melissa testified that Juror Staten told her two
weeks prior to trial that Tackett wasn't a good person and that Melissa should leave him alone.
Further, Melissa testified that Tackett did not know Juror Staten, although Melissa and Tackett have
talked about Juror Staten's remarks about Tackett. Melissa did not attend Tackett's trial, and it was
after the trial when she looked over the jury list that she noticed Juror Staten's name.
Juror Staten was not called to testify at the post-trial hearing. At the close of the hearing, the trial
court summarily denied Tackett's motion for a new trial, stating simply that Tackett had not met the
burden of proof required to order a new trial. Tackett appeals the trial court's ruling denying his
motion for a new trial.
I.
WHETHER DYLON TACKETT RECEIVED A FAIR TRIAL BY A FAIR AND
IMPARTIAL JURY.
II.
WHETHER THE CIRCUIT COURT ERRED IN DENYING DYLON TACKETT'S
MOTION FOR A NEW TRIAL.
During voir dire, the trial court asked, "Are any of you such close friends or do you have such a close
social or business relationship with . . . Mr. Tackett . . . whereby you feel that might affect your
ability to be fair and impartial in the trial of this case?" One juror raised her hand, and she was further
questioned by the judge. During voir dire conducted by defense counsel, the following was stated and
asked:
I take it then from the standpoint none of y'all have a problem with me in any type of bias or
prejudice or anything like that that would affect me in representing Dylon Tackett; is that
correct? Y'all can nod your head. It will be okay. How about Dylon Tackett? Dylon, stand up.
Be seated. Dylon is my client, and the defendant in this case. Do any of y'all know Dylon? . . .
Does anybody know Dylon or his family?
To this inquiry, three jury members raised their hands and were further questioned by defense
counsel. Defense counsel then questioned them further regarding their relationship with Tackett and
his family. Counsel asked each if they could be fair and impartial, and try the case on the evidence
presented, and each responded that they could. There was no further response from any other juror.
Juror Staten, according to the undisputed post-trial evidence, knew Tackett, had a personal bias
against Tackett, and knew that he was the father of her niece's child.
Voir dire examination is often the most crucial crucible in forgoing our primary instrument of justice:
the fair and impartial jury. Like a fine suit of clothes, a jury must be tailored to fit, and court and
counsel examine prospective jurors under settled rules tending toward that fit. When offering
challenges for cause and challenges peremptory, parties and their lawyers must rely on the objective
candor and responsiveness of prospective jurors, and nothing turns on who asks the question, so long
as it was clearly worded.
Myers v. State, 565 So. 2d 554, 558 (Miss. 1990) (citing Brown v. State, 529 So. 2d 537, 539 (Miss.
1988); Caldwell v. State, 381 So. 2d 591, 592 (Miss. 1980)).
The seminal case on this issue is Odom v. State, 355 So. 2d 1381 (Miss. 1978). In Odom, this
court held that failure to respond to a question in voir dire does not warrant a new trial unless
the trial court determines that the question propounded to the juror was 1) relevant to the voir
dire examination, 2) unambiguous, and 3) such that the juror had substantial knowledge of the
information sought to be elicited. Id. at 1383. If the trial court answers these three inquiries in
the affirmative, then the court determines whether prejudice to the defendant could be inferred.
If so, then a new trial is ordered. A trial judge's decision on whether the jury was fair and
impartial should not be disturbed "unless it appears clearly that [the decision] is wrong." Id.
Fleming v. State, 687 So. 2d 146, 148 (Miss. 1997) (citations omitted).
In applying the Odom analysis to the case sub judice, the question was certainly relevant to the voir
dire examination and Juror Staten, based on the undisputed testimony, had substantial knowledge of
the information sought to be elicited. The State contends that the second prong of Odom was not
met. The State argues that the questions asked by Tackett's counsel during voir dire were limited to
Juror Staten actually knowing Tackett and not just knowing about Tackett. The State argues "[e]
veryone knows 'of' certain people or 'about' certain people who they have never actually met and do
not know on a personal basis." Therefore, the State asserts that Juror Staten was neither deceitful nor
untruthful when she failed to respond. However, we find this argument ludicrous based on Melissa
Rea's sworn affidavit and testimony that Juror Staten had told Melissa that "Dylon Tackett would not
be good for her and would hurt her and she should not have anything to do with him." Clearly, Juror
Staten had a bias toward Tackett. Had Tackett known Juror Staten was on the jury panel, she surely
would have been struck for cause by either the trial court or by counsel for Tackett. Prejudice is
presumed where a party shows that a juror withheld substantial information or misrepresented
material facts, and where a full and complete response would have provided a valid basis for
challenge for cause. Myers, 565 So. 2d at 558.This is grounds for reversal on appeal. Id.
Where, as a matter of common experience, a full and correct response would have provided the
basis for a peremptory challenge, not rising to the dignity of a challenge for cause, our courts
have greater discretion, although a discretion that should always be exercised against the
backdrop of our duty to secure to each party trial before a fair and impartial jury.
Id.
As stated previously, voir dire examination is often the most crucial crucible in foregoing our primary
instrument of justice: the fair and impartial jury. Myers, 565 So. 2d at 558. Juror Staten did not
respond to questions asked during voir dire, where her truthful response would have revealed her
kinship to Melissa and her bias toward Tackett. At least that is the only conclusion that can be
gleamed from the record. Had the State called Juror Staten to rebut the affidavit and testimony of
Rea and the testimony of Tackett, the trial court might have reasonably found otherwise.
The facts in this case indicate that Tackett was denied a fair and impartial jury based on Juror Staten's
presence on the jury, and thus, Tackett was denied a fair trial. This case is reversed and remanded for
a new trial.
THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS REVERSED AND
REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. ALL
COSTS ARE ASSESSED TO CHICKASAW COUNTY.
BRIDGES, C.J., McMILLIN, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
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