Opinion
No. 91-KA-00570.
December 15, 1994. Rehearing Denied February 2, 1995.
Appeal from Circuit Court, Lee County, Frank Allison Russell, J..
Joseph C. Langston, Langston Langston Michael Bowen, Booneville, Timothy R. Balducci, Oxford, for appellant.
Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, James Seth Pounds, Asst. Dist. Atty., Corinth, for appellee.
Before LEE, P.J., and SULLIVAN and PITTMAN, JJ.
The Lee County Grand Jury, in its February 1990 term, returned an indictment charging that William Floyd Hale, on the 29th day of November, A.D., 1988, committed perjury as a member of a venire in Lee County by failing to respond to questions put to the jury during the voir dire while under oath. The trial began on May 28, 1991, and the jury returned a verdict of guilty on the charge of perjury. This verdict was filed on June 1, 1991. The court sentenced Hale on June 7, 1991, to a term of ten (10) years in the custody of the Mississippi Department of Corrections, payment of a fine of $10,000.00 and restitution of $9,032.00 for cost of the trial in which he served as a juror.
On June 7, 1991, Hale filed a motion for a new trial which was denied the same day. Hale filed his notice of appeal on June 7, 1991.
On or about November 29, 1988, the Lee County Circuit Court conducted voir dire for the murder trial of James Wright ( Wright I). Roy Parker and Dan McIntosh represented the defendant, while District Attorney John R. Young and Assistant District Attorneys Rowland Geddie and Sam Reedy represented the State, with the Honorable Thomas J. Gardner, III presiding. William Floyd Hale was present during the voir dire as venireman number eleven.
The court administered the following oath to the venire: "Do you solemnly swear or affirm to give true answers to all questions propounded to you by the Court and the attorneys in the selection of juries for the trial of cases this week, so help you God?" Before conducting his examination of the venire Judge Gardner informed them, "It is important that you make whatever response you might have to these questions. If you happen to be friends with someone, or if you know of some circumstances that you feel like you need to tell us about, then certainly don't be embarrassed about it." Pertinent questions directed to the venire included:
1. Are either of you close personal friends or have any relationship whatsoever with either of the attorneys who will participate in this trial?
2. Has anyone been represented by either of these attorneys in the past?
3. Is there anything about either of the lawyers who will participate in this case that would cause you any problem whatsoever in serving as a juror in the trial of this case?
4. Do either of you, because of anything you might have heard, seen, read, or whatever, have any opinion whatsoever about the way this case should be decided?
5. . . . is there anything at all, not previously talked about, that you think would influence you unduly, or cause you to not be fair to either side?
6. Are there now any of you who, for any reason, feel that you cannot and should not sit as a juror in the trial of this case, and that you have not responded during the course of the examination? Do you have any other or a different response to any of the questions?
District Attorney John Young made the following inquiries of the venire:
1. I would like to ask you about Mr. Parker now. I believe you were asked the question, is he presently representing any of you and no one responded to that; is that my understanding? Is he presently representing anybody or any member of your family on any particular matter? And as to having represented you in the past, has he represented any of you in the past on any legal matter?
2. Do any of you consider yourselves personal friends with Mr. Parker?
3. John who is sitting over there in the blue coat. Are any of you close personal friends with Roy Parker's son, John Parker, who works with him in his lawfirm? (Parker's son was an investigator and legal assistant).
4. . . . if we prove to you as the law requires that we prove that the Defendant, James Wright, is guilty of the crime of murder in the death of his wife, Sharon, is there anyone on the panel at this time that could not return a verdict of guilty as charged?
William Floyd Hale did not respond to any questions asked during voir dire. Hale was ultimately seated as a member of the jury for the Wright I trial. Wright I was eventually declared a mistrial when the jury deadlocked 11-1 with Hale the lone vote for acquittal.
After the conclusion of the trial, Judge Gardner received information of possible improprieties concerning the jury and asked Rowland Geddie of the District Attorney's Office to have the matter looked into. On the same day the trial ended, Geddie was having lunch in a local restaurant when an angry juror from the Wright I trial approached him alleging misconduct on the part of Hale. The investigation was turned over to Kerry Slack of the Tupelo Police Department. Based in part on information gathered by Slack, an indictment charging perjury was returned against Hale. Geddie presented the evidence to the grand jury.
Hale's trial began on May 28, 1991, with Robert Coleman and James S. Pounds representing the State as Young, Geddie and Reedy were recused due to their involvement in Wright I. The State called Judge Gardner as its first witness. Judge Gardner went over the general voir dire procedure and specific questions he asked of the venire during Wright I. Judge Gardner stated he had no reason to believe Hale did not understand the questions asked during voir dire.
The State introduced documents which indicated the existence of a relationship between Hale and Roy Parker:
1. A Notice of Deposition in Lee County Circuit Court, cause number 17,058, William F. Hale, d/b/a Hale Construction Company v. Alf Harding and Eva Mae Harding. The certificate is signed by Roy O. Parker and dated December 16, 1981. An Order Dismissing Cause with Prejudice in Hale v. Harding signed by Roy O. Parker, attorney for plaintiff, and dated February 7, 1983.
2. A Notice of Deposition in Lee County Circuit Court, cause number 16,947, William F. Hale d/b/a Hale Construction v. H. Bruce Harrison and Patricia Harrison. The pleading and certificate are both signed by Roy O. Parker and dated October 30, 1981. A Motion to Produce in Hale v. Harrison, filed November 4, 1981 and signed by Roy O. Parker. An Answer to Amendment to Counterclaim in Hale v. Harrison. The pleading and certificate, dated April 5, 1982, are both signed by Roy O. Parker.
3. Answers to Interrogatories Propounded to Defendant, Paul Rainey v. William F. Hale, cause number 16,981 in the Chancery Court of Lee County. The pleading and certificate, dated November 3, 1981, is signed by Roy O. Parker. Several other documents from this same cause were introduced which reflected representation by Roy O. Parker.
The State introduced evidence indicating Parker represented Hale in court on at least one occasion although Hale said he had no memory of it. Parker had also notarized some documents for Hale.
The State introduced a plat for Green Acres Subdivision filed in Lee County Chancery Court on September 24, 1986, which listed William F. Hale and Dwayne Spencer among the owners. The appearance bond filed by James Wright in Wright I listed Dwayne Spencer as a surety. The State called Spencer as a witness and he acknowledged his co-ownership of Green Acres and the fact that he signed as surety on the appearance bond of James Wright. Wright had worked, from the early eighties to mid 1988, part-time for Spencer when he owned BusyLad Rent-All. Spencer "thought a lot of James" and considered him a good friend and "very honest person."
Spencer moved to Tupelo in 1969 as a National Guard advisor and met Hale, also a member of the guard, at that time. Over the years Hale and Spencer became good friends, often attending church and eating out together. The Spencers and Hales often travelled together, including short trips to Memphis and a trip to Brazil in the mid to late eighties. Spencer could not recall specifically but assumed he spoke with Hale about James Wright prior to Hale becoming a juror in the trial. The conversation probably included mention of Spencer's belief that Wright was a fine individual, a good honest man and not guilty of the crimes with which he was charged. Spencer knew Hale had been summoned for jury duty, although he could not be sure it was for the Wright trial. Spencer did not think Hale had ever met Wright. Although subpoenaed as a character witness, Spencer did not testify and only came to the courthouse for the last day of the Wright trial; he did not see Hale at the courthouse but assumed Hale knew he was a potential character witness. Spencer said he did not attempt to influence Hale in anyway as concerned James Wright.
John Parker, Roy's son who worked for Roy as a legal assistant and investigator, testified that William Floyd Hale's son Von, of Hale Construction Company, built his house in 1987. Von Hale also remodeled Roy Parker's law offices in 1987, but John Parker did not know if William Hale added the addition to his father's house in 1981. John Parker said he did not see William Floyd Hale send any signals to him during the Wright trial nor did he acknowledge any signals.
The State called several jurors from Wright I the first of whom was Celeste Turner. Turner sat next to Hale in the jury box during the trial; Turner stated she clearly heard all of the questions asked during voir dire but did not respond as she felt none of them applied to her. During the trial, Hale made comments to Turner about the proceedings even though the jurors were instructed not to discuss the case until all the evidence was in. Wright's daughter took the stand against him and during a pause in her testimony Hale said to Turner, "I think it's pitiful to hear a daughter talk that way about her father."
Jury deliberations began Friday night and an informal vote yielded the following result: ten guilty, one not guilty and one undecided. Hale was the not guilty vote. Later that night Judge Gardner called the jury back to check their progress; David Morgan, the unofficial foreman, stated they had not yet reached a verdict, but he did not reveal the vote count. After the jury returned to the jury room for deliberations, Turner heard another juror crying in the bathroom. Juror Grace Fairley informed Turner that Dot Corbett was crying because she saw Hale give a signal to the defense attorneys. Corbett later came out of the bathroom looked at Hale and said, "I can't believe you did that," but did not elaborate at that time. Hale said he did not know what Corbett was talking about.
Deliberations ended around 11 p.m. Friday night and resumed approximately 7 a.m. Saturday at which time the undecided vote changed to guilty. Hale said he needed a witness or some evidence to change his vote although the jurors reminded him they were told during voir dire this was a circumstantial evidence case and there would be no eyewitnesses or direct physical evidence. Hale came up with various hypotheses to show that Wright may not have committed the murder none of which the other jurors found reasonable. According to Turner Hale said, "Yes I do think he did it, but they didn't prove their case," and that he would not vote guilty. At some point during deliberations David Morgan stood up and said to Hale, "Well, I just want to know what this means?," and held up two fingers. Hale leaned back in his chair, crossed his arms and said, "I don't know what you are talking about." Hale became unwilling to communicate or deliberate saying, "I'm not going to vote guilty, that's the way it is and we can just sit her (sic) `til Christmas." Turner never actually saw Hale send a signal to John Parker.
Grace Fairley was called as a witness and confirmed that Dot Corbett had told her she saw Hale give a signal to John Parker. Fairley also corroborated the separate confrontations of Hale by Corbett and Morgan. After Morgan asked Hale about the signal, Fairley said, "Mr. Hale, this is the second time you have lied to us, and that if we are ever going to solve this problem, that we are going to have to be honest, at least with each other." Hale sat back in his chair, his face turned red and he looked angry. Fairley also stated that Hale gave unreasonable hypotheses and wanted physical evidence. During the course of the trial Hale pointed out his wife in the courtroom to Fairley. Next to his wife were a man and a woman he identified as their "very best friends" who were there to observe; Hale said he and his wife often vacationed with the couple. After the confrontation between Morgan and Hale over the signal, Fairley questioned Hale about his relationship with Roy and John Parker. Hale denied knowing them. Fairley confirmed Hale's statement that he believed Wright was guilty but would not vote guilty. Fairley never actually saw the signal given to Parker.
David Morgan was called to the stand and confirmed Hale stated he thought Wright committed the murder but would not vote guilty without physical evidence; Hale said when he was a railroad investigator he was told someone cannot be convicted for murder without the murder weapon. Morgan saw Hale make a gesturing motion with two fingers of his left hand to John Parker who nodded his head in return. Morgan knew that Dot Corbett was upset Friday night although he was not sure why; he did hear Corbett say "I can't believe you did that" to Hale. On Saturday the jury continued to deliberate and Morgan, becoming frustrated by Hale's refusal to explain any of his hypotheses, confronted him in regard to the signal. When Hale said he did not do anything and did not know what Morgan was talking about Morgan said, "You're lying . . . I saw you do it. You are lying to yourself and don't lye (sic) to me about it too." Shortly after this exchange it became apparent the jury could not reach a verdict and the court declared a mistrial. Morgan said Hale may have also given a signal on Saturday though Morgan admitted he may have imagined it because he was so angry with Hale at the time.
Tommy Collins, another juror in Wright I, was called as a witness for the defense. Collins was a neighbor of Hale and he lived in a house built by Hale. Collins was also a first cousin of Assistant District Attorney Sam Reedy, but Collins revealed this information during voir dire and Collins was allowed to become a juror when he explained that the relationship would have no influence on his ability to be impartial. Collins did not recall seeing Hale send a signal to the defense, but he did remember Dot Corbett being upset Friday night.
William Floyd Hale took the stand in his own defense and denied having ever done business directly with Roy Parker. Hale claimed he only dealt with associates in Parker's office. Hale said he had hearing loss but was not wearing hearing aids at the time of the Wright trial because he had lost them and did not have enough money to buy a new set. He claimed to have asked Judge Gardner and Young to speak up during voir dire, but when asked to locate these exchanges in the record, Hale explained that he motioned them to speak up without actually saying anything. Hale heard questions about relationships to attorneys but thought they did not apply to him. The first time the question regarding possible relationship to attorneys was asked, a juror responded to a previous question sending the voir dire in a different direction. The second time the question was asked, a juror explained his relationship with one of the attorneys but said it did not affect his impartiality. Hale then thought his acquaintance with Parker was not important enough to merit response.
Hale confirmed he knew Dwayne Spencer, however, he testified that he was not influenced in any way by this relationship and did not seek to become a juror in order to help Wright. Hale denied signalling John Parker. Hale did build an addition to Roy Parker's house in the early eighties but did not participate in remodeling his office. Hale claimed Spencer never expressed an opinion as to the innocence of Wright prior to the trial.
Hale makes numerous assignments of error, one of which requires reversal.
DID THE TRIAL COURT ERR IN REFUSING INSTRUCTION D-8?
Instruction D-8 reads as follows:
The court instructs the jury for the defendant that each and every material averment as to the falsity of defendant's testimony at former trial must be proven by the testimony of two witnesses, or by one witness and corroborating evidence; beyond all reasonable doubt to every man of this jury.
This is commonly known as the "two-witness" rule which is derived from the common law and accepted in Mississippi. Hogan v. State, 516 So.2d 474, 478 (Miss. 1987). See also Nash v. State, 244 Miss. 857, 147 So.2d 499, 502 (1962). It has long been the law of Mississippi that an instruction concerning the quantity of evidence required in a perjury trial should be given by the State. Nash, supra at 502; Gordon v. State, 158 Miss. 185, 128 So. 769 (1930); Saucier v. State, 95 Miss. 226, 48 So. 840, 841 (1909). See also Weiler v. United States, 323 U.S. 606, 611, 65 S.Ct. 548, 551, 89 L.Ed. 495 (1945). The instruction requested by Hale is substantially similar to one offered by the trial court in Clanton v. State, 210 Miss. 700, 50 So.2d 567, 571 (1951).
Saucier, Nash, Weiler and Clanton, supra, all hold that failure to give the instruction is reversible error. Relying on Gordon, the prosecution states the following in its argument that the requirements of the rule were met:
In the case at bar, on the evidence, the verdict of the jury was correct; and, although the jury should have been advised as to the quantum of evidence required in a perjury case, it is manifest that the want of it in this case did not harm this appellant, for the reason that the evidence measures up to the requirement of the rule as to the quantum thereof necessary to sustain a conviction. (Emphasis added).
Gordon, 128 So. at 769.
In Gordon, no witnesses were called for the defense and the witnesses for the State were not impeached or contradicted. Hale did testify in his own behalf that he only knew Roy Parker casually and did not send a signal to John Parker; it must be pointed out that the prosecution put on only one witness, David Morgan, who claimed to actually see the signal. The legal documents introduced as evidence demonstrated a connection between Roy Parker and Hale, but the jury could also accept Hale's explanation that he only had significant contact with associates. Hale claimed he was not influenced by his friendship with Dwayne Spencer and did not discuss Wright with him. Spencer said he did not attempt to influence Hale but did think they talked about the case; the resolution of this discrepancy was for the jury.
If the present case was challenged on appeal solely on the legal sufficiency of the evidence, Hale would undoubtedly lose. But the present issue goes to the weight of the evidence, and the two witness rule is a crucial guideline in perjury cases:
The jurors empaneled to try the perjury case were the sole judges of the credibility of the witnesses and the weight to be given to the testimony of each witness. It was important that the jurors be correctly informed as to the "quantity" of proof required to authorize a conviction for perjury; and the State, somewhere in its own charges, should have asked that the jury be informed that, before they could convict, it must be shown to their satisfaction by the testimony of two witnesses or the testimony of one witness and corroborating circumstances that the appellant's allegedly perjured testimony . . . was false.
Nash, 147 So.2d at 503.
As a general rule, the two witness rule still applies since the cases that hold that failure to instruct the jury in accordance with the two witness rule is not reversible error are generally limited to their facts and involve testimony or documentary evidence that cannot be refuted. State v. Boratto, 80 N.J. 506, 404 A.2d 604, 606 (1979) (testimony of two handwriting experts that signature on will was forgery); Goins v. United States, 99 F.2d 147, 149 (4th Cir. 1938) (genuine signature on hotel registration card placed defendant in Chicago at specific time although he claimed to have been elsewhere).
The documentary testimony in the present case only establishes a relationship between Hale and Roy Parker. It was for the jury to decide if the evidence indicated Hale was influenced by the association to the extent he would "wilfully and corruptly" refrain from answering pertinent voir dire questions. The testimony of the Wright jurors said Hale was unreasonable and would not vote guilty even after professing a belief in Wright's guilt; Hale denied this and the jury was free to choose either version. One specific witness or piece of documentary evidence cannot be singled out as having been sufficient to convict Hale of perjury; there is no "smoking gun." The fact that on appeal the verdict of the jury can be supported by the evidence does not automatically excuse failure to give the required two witness rule:
It is argued that this error did not prejudice the defendant. We cannot say that it did not. The jury convicted without being instructed that more than the testimony of a single witness was required to justify their verdict. This was no mere "technical" error relating to the "formalities and minutiae" of the trial. (citation omitted) We are not authorized to look at the printed record, resolve conflicting evidence, and reach the conclusion that the error was harmless because we think the defendant was guilty. That would be to substitute our judgment for that of the jury and, under our system of justice, juries alone have been entrusted with that responsibility.
Weiler, 323 U.S. at 611, 65 S.Ct. at 551.
It may be claimed that the outcome of the trial would have been no different had the two witness instruction been given, but this can be said of several of the cases in which the rule was technically met but reversible error was found because the court failed to give the instruction. In any event, the State should give the instruction even if the defense fails to request it. Here Hale requested it and was entitled to it.
The trial court committed reversible error by failing to instruct the jury in accordance with the "two witness" rule as required in perjury cases. We therefore reverse and remand for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and PITTMAN, BANKS and McRAE, JJ. concur.
BANKS, J., concurs with separate written opinion joined by SULLIVAN, J.
SMITH, J., dissents with separate written opinion.
JAMES L. ROBERTS, Jr., J., not participating.
I reluctantly concur with the majority, for I, too, would easily have found Hale guilty. It is a job for the jury in the first instance, however, not this Court. We have come up with two rules in perjury cases. One that the two-witness requirement is one that must be conveyed to the jury by instruction in all cases. Nash v. State, 244 Miss. 857, 147 So.2d 499 (1962). The other rule, less frequently stated, is that we can ignore this requirement if we believe that the jury reached the right verdict. Gordon v. State, 158 Miss. 185, 128 So. 769 (1930). The Gordon rule requires this Court to weigh evidence and credibility knowing the proper standard and affirm a jury charged with that responsibility and exercising it blind to that standard. It also avoids a bright line rule of procedure easily and simply met. For these reasons, we should abandon the Gordon rule.
Clearly, one should not be convicted of perjury when the evidence as to the truth of the testimony claimed to be false requires the jury to believe the word of a lone witness in preference to that of the accused. In fact, the rule, in recognition of the principles that the accused cannot be compelled to testify and that the state is required to prove its case beyond a reasonable doubt, says, in essence, that one witness cannot establish the falsity of the testimony in question, even when pitted against the accused standing mute. Thus the jury, in order to convict, must be told that it must find credible one witness to the falsity and that that witness must be corroborated by a second witness or other circumstances in evidence which the jury also finds credible. If it is not so instructed it has rendered a judgment in the blind as to the law and such a judgment cannot stand. Gordon should be considered overruled. Prosecutors beware — give the two-witness instruction or be prepared to try the matter twice.
SULLIVAN, J., joins this opinion.
This case had its genesis in William Floyd Hale's jury service during the November 29, 1988 Lee County trial of James Wright, Sr., charged with the murder of his wife. At the center of the controversy is the issue of Hale, who, after having taken an oath to truthfully answer all questions propounded to him by the trial court and attorneys during voir dire examination, according to the State, wilfully and intentionally failed, by his silence, to answer numerous significant and material questions, which ultimately gained Hale access to the petit jury trying Wright for murder. Wright's trial ended in a hung jury with an 11-1 vote, Hale being the lone vote for Wright's acquittal.
Although Hale raised seven issues on appeal, the majority correctly concludes that only one issue warrants discussion by this Court. The majority, primarily relying upon Hogan v. State, 516 So.2d 474, 478 (Miss. 1987) and Nash v. State, 244 Miss. 857, 147 So.2d 499, 502 (1962), opine that the trial court committed reversible error by failing to instruct the jury in accordance with the "two witness" rule as required in perjury cases.
After a careful review of the briefs and trial transcript of this case, primarily based upon Gordon v. State, 158 Miss. 185, 128 So. 769 (1930), I must part company with the majority. The facts, evidence and testimony clearly complied with the "two witness" rule. The "two witness" rule requires that perjury must be established by the testimony of two witnesses, or by one witness and corroborating circumstances. Nash, at 866, 147 So.2d 499. Sufficient witnesses and corroborating circumstances were presented against Hale by the State, thus satisfying Hogan and Nash requirements.
Hale primarily claimed that he was not properly convicted of perjury as defined by Miss. Code Ann. § 97-9-59 (1972) and that the District Attorney's Office was guilty of misconduct in selective prosecution of Hale.
Hale also suggests that he was hard of hearing, requiring the use of a hearing aid, although, according to Hale, he had lost his government issued hearing aid at the time of the Wright trial. Additionally, Hale suggests that maybe he did not hear the questions or thought that they did not apply to him. Next, Hale suggests that he was at worst guilty of mere negligent omission in his failure to respond to any of the material questions propounded to him by the court and trial attorneys. Hale even suggests the possible lesser included offense of criminal contempt instead of the perjury charge of which he stands convicted by the jury.
Under the oath taken by Hale as a juror, he swore that he would truthfully answer all questions propounded to him concerning his qualifications as a juror. After being impaneled, Hale took an additional oath to well and truly try all issues submitted to him as a juror and a true verdict render on every case wherein he participated.
The State maintained that after taking such oath, Hale wilfully and intentionally did not respond to material questions touching his qualifications as a juror: He deliberately chose not to answer questions concerning his association with attorney Roy Parker and Parker's son and chief investigator, John Parker and his prior representation on four cases by Roy Parker. Hale also denied to other Wright jurors that he even knew Roy or John Parker, had discussed Wright being a good, honest citizen who could not be guilty of murder, prior to trial with his very best friend Dwayne Spencer; that Spencer knew in advance of this discussion about Wright that Hale had been summoned for jury duty on the Wright trial and talked to him prior to Hale's serving on the Wright jury; that Hale had formed preconceived intentions of not voting guilty, even though he told other jurors that he knew Wright killed his wife; that Hale tried to sabotage the State's case by deliberately criticizing the State's evidence to a fellow juror, in violation of the trial court's instructions to the jury, not to discuss the case with each other until they retired to the jury room to commence deliberations of their verdict; and that he twice signaled to John Parker while the jury was still deliberating its verdict, which conduct was observed by other jurors who confronted Hale in the jury room, prompting Hale to further refuse to discuss the case and state to the other jurors "I'm not going to vote guilty, that's the way it is and we can just sit her (sic) `til christmas."
An examination of the record is helpful indeed regarding whether the State did in fact offer at least two witnesses or one witness and other corroborating circumstances, thereby fully complying with the "two witness" rule.
The majority has primarily covered most of the pertinent questions asked of the jurors during voir dire. However, there remain several other questions to which Hale also failed to respond. Twice, Judge Gardner asked if anyone had been represented by the attorneys, including Roy Parker. The judge while testifying as a subpoenaed witness in this case was asked to refer to the Wright trial transcript and state to the jury his last catch all question asked at the conclusion of several hours of extensive voir dire. Judge Gardner responded by reading the following question that he had posed to the Wright jury:
Of course, we have gone through several hours of voir dire and many questions have been directed to you to determine what your particular circumstance was, with reference to the lawyers, the kind of case, every imaginable circumstance has been explored by these questions. As I told you when we started, the object of all of this is to select a jury who can and will give both the Defendant and the State of Mississippi a fair trial. A jury who has no connection with this case or anybody involved in it, who has no fixed opinion about how it should be decided or what any of the facts are. A great number of you have responded to various of these questions. Are there now any of you who, for any reason, feel that you cannot and should not sit as a juror in the trial of this case, and that you have not responded during the course of the examination? Do you have any other or a different response to any of the questions?
Whereupon the prosecutor asked Judge Gardner the following question:
Q. Has the Defendant in this case today, Mr. Hale, responded at this point to any question, your Honor, during this voir dire?
A. No, sir, he did not.
Judge Gardner also posed the following questions to the Wright jurors:
Do either of you, because of anything you might have heard, seen, read, or whatever, have any opinion whatsoever about the way this case should be decided?
Is there any reason, and I have attempted to cover all the circumstances that I can imagine, is there anything at all, not previously talked about, that you think would influence you unduly, or cause you to not be fair to either side. Both the State and the Defendant are entitled to a fair trial.
Judge Gardner, referring to the transcript, stated that Hale did not respond to a single question and that he had no reason to believe that Hale did not understand the questions. Although Hale did not respond to any questions by the judge or attorneys during voir dire he had fellow jurors around him who did respond. Jurors responded to the questions of whether attorney Roy Parker had ever represented any of them. One responded that Roy Parker had represented he and his parents 15 to 16 years before. Other jurors responded about having fixed opinions. Did Hale, a 28 year retired military veteran, who attained the rank of major, legitimately not understand any of these numerous questions asked of the jurors? The jury was not persuaded and neither is this dissenter.
Hale suggested he was hard of hearing, might not have understood the questions, or felt they might not have applied to him. Hale claimed that he had to keep asking District Attorney John Young to speak up louder. Yet, when handed an official transcript of the voir dire and asked to show the court where the record revealed that he had asked such a question, Hale refused to review the record. Thereafter, Hale promptly changed his story and claimed that he motioned for the attorney to speak up when asking questions of the jury. The official transcript showed other occasions where identified jurors raised their hands, stood up, or made similar gestures in order to give affirmative responses. But, the record failed to note where Hale was identified as a juror requesting or responding by any such gesture or motion. Regardless, the record does not reveal that Hale ever advised the judge, attorneys, or anyone else that he was hard of hearing.
Although Hale claimed to not having heard some questions, he admitted hearing some of the questions that were specifically pointed out to him. Hale even admitted on cross-examination that, "I thought I understood all the questions, yes sir."
Concerning his failure to respond to knowing Roy Parker or John Parker and in not disclosing Parker's prior representation, Hale appeared very evasive. The State offered eight witnesses to refute Hale's claim to fellow Wright jurors that he did not know the Parkers as well as Hale's non-response to the same questions posed during voir dire. Mildred Pearce, Circuit Clerk of Lee County produced case files showing Hale as a party in four different cases filed in Lee County and Roy Parker as his attorney. Hale claimed he always dealt with associates in Parker's office, rather than Roy Parker. However, regarding one of the cases, Hale was confronted by the assistant district attorney with evidence of a notarized document Hale had signed indicating that he had signed the document in front of Roy Parker. Parker's signature was on the document too.
The State's evidence also showed that Roy Parker had actually represented Hale in one of the cases which resulted in a trial without a jury conducted with Hale present. The record reveals that when Hale was confronted on cross-examination with such evidence the following exchange took place:
Q. Now, you have seen one of the ones, one of the trial dockets, one of your three cases that's been introduced here. Do you recall that one of them actually went to trial without a jury? Do you remember that testimony being introduced here?
A. I remember the testimony, the thing that you presented, but I don't recall ever going to court with Mr. Parker, no, sir.
Q. It's in the Court record, Mr. Hale.
A. All right.
The State proved Hale had built an addition to Roy Parker's house and had carried materials to a remodeling job that his son Von had completed on Parker's law office.
Hale claims that he had no preconceived opinion of the Wright case due to things he might have heard was countered by the State's evidence offered by the testimony of Dewayne Spencer, Hale's very best friend. Spencer stated that Wright was an employee of Spencer during the summer of 1988 when Wright was indicted for the murder of his wife. Spencer signed as a surety on Wright's $50,000 bond. Spencer clearly had a vested interested in the Wright case. Spencer testified that Wright was a good friend and a good employee. He stated that he and Hale were in a business venture together at that time. He considered Hale as a "very close friend." Spencer initially told the jury that he assumed that he and Hale had talked about Wright and the murder charge, but when confronted by the assistant district attorney with a transcript of his previous grand jury testimony, Spencer confirmed that he and Hale talked prior to the Wright trial, while Wright was under indictment. Spencer admitted that he was interested in Wright's case, because he was Wright's friend and because "I did not believe Wright was guilty, it surmises that I probably would have or could have told Hale that. If I told him anything, I probably did." Spencer confirmed that he told Hale that Wright was honest, dependable, never lost his temper, and that Wright was the only employee he had ever given the key to his business. Finally, and most importantly, Spencer stated:
"Floyd told me he was coming to the jury selection . . . that his name was on the list on the trial of the Wright case. I'm sure Hale assumed I had been subpoenaed as a character witness for Wright."
Just as quickly, Spencer "back stroked" out of that statement claiming that: "At that time, that's an incorrect statement by me" . . . Regardless of what Spencer assumed, Spencer knew that he (Spencer) had been subpoenaed as a character witness for Wright. Spencer also admitted that his wife and Mrs. Hale attended the Wright trial.
Hale's conduct with other jurors during trial and deliberations eventually aroused his fellow petite jurors suspicions. Some of those jurors reported their concerns to Judge Gardner, who ultimately commenced an investigation of Hale's conduct.
The State introduced witnesses who testified to Hale's behavior during the jury's deliberations of the Wright case. Grace Fairley testified that Hale denied knowing either Roy or John Parker. She further confirmed that Hale had pointed out his wife seated in the courtroom during trial and also pointed to a couple seated next to his wife and referred to them as very best friends. The jury could have easily inferred this couple to be Dewayne Spencer and his wife. Fairley also confirmed that juror Dot Corbett was crying and upset over the two finger signals by Hale to John Parker. Fairley confirmed that Corbett confronted Hale stating: "I can't believe you did that." Fairley stated that Hale did not respond to Corbett's charge. Fairley also testified that she too confronted Hale stating:
Mr. Hale, this is the second time you have lied to us, and that if we are ever going to solve this problem, that we are going to have to be honest, at least with each other.
Fairley stated that Hale did not respond to the allegation, but that his face got red and he simply kept quiet.
Juror Celeste Turner testified that foreman David Morgan confronted Hale about the two finger signals to John Parker. She stated that Hale admitted Wright was guilty, but that he denied knowing what Morgan was talking about and that afterwards, Hale refused to discuss anymore theories about the case. Turner stated that Hale told all jurors:
I'm not going to vote guilty, that's the way it is and we can just sit her (sic) 'til christmas.
David Morgan, foreman of the Wright jury, testified that on one of the trips from the jury room to the courtroom, he observed Hale flashing the two finger signal to John Parker who nodded in response. Morgan confirmed that although he did not initially confront Hale on Friday when he observed the signal. Morgan did confront Hale on Saturday about his behavior. Morgan said that Hale denied knowing what he was talking about and that he then told Hale: "You're lying. I said, I saw you do it. You are lying to yourself and don't lye (sic) to me about it too." Morgan stated that the vote at that time was 11-1 with Hale being the lone vote for acquittal. A note was then sent to Judge Gardner stating that the jury felt that they had done everything they could to arrive at a verdict, but could not do so. A mistrial was then declared by the court.
Our voir dire procedure in a trial court setting requires collective voir dire of prospective jurors. The very setting proscribes that silence is taken as an answer. Jurors respond audibly, with upraised hands, by standing or any other means of letting the trial judge and attorneys know when they need to respond with affirmative answers. Those who have negative answers need not do anything. By refusing to respond to repeated questions bearing directly upon his qualifications as a juror, which the oath required, Hale's conduct amounted to an affirmation as required by the statute. See People v. Meza, 234 Cal.Rptr. 235, 188 Cal.App.3d 1631 (1987) wherein that court held:
[t]he principal question . . . whether a prospective juror, who has taken an oath that he will "well and truly" answer questions put to him concerning his qualifications as a juror, can commit perjury by concealing his kinship with the defendant.
Voir dire is a most important portion of a jury selection process. The trial court and parties deserve candor on the part of potential jurors. Simple negligence or omission by a juror is one thing, but wilful and deliberate conduct in not answering material and relevant questions is another question altogether. If voir dire wasn't so important and material the court would not waste its time on such a process. The procedure would be to simply call in twelve people and a couple of alternates and proceed with the trial.
The State proved its charges of perjury against Hale by the testimony of more than two witnesses, plus corroborating documentation and circumstances sufficient under our statute and case law. State v. Boratto, 80 N.J. 506, 404 A.2d 604, 609 (1979), wherein that court stated:
In this case, however, there were several witnesses, both expert and lay persons, who testified as to the falsity of the matter with respect to which Silverman allegedly swore. There was corroborating evidence as well. No special instruction with respect to the evidence of perjury was called for in these circumstances. The jury was instructed that it must conclude beyond a reasonable doubt that perjury occurred in order to return a guilty verdict on that charge.
Boratto is analogous to the case sub judice. The State complied with the two witness rule. The fact that no specific instruction on the two witness rule was given the jury by Judge Russell was harmless in view of the witnesses and corroborating evidence submitted to the jury. Such failure to specifically so instruct the jury is not necessarily reversible error. See, Gordon, 158 Miss. at 187, 128 So. 769. The Hale jury was adequately instructed that all material elements of the offense of perjury must be proven beyond a reasonable doubt in order for the jury to return a guilty verdict of perjury.
Hale wilfully and intentionally did not truthfully respond to the questions propounded to him by the court and attorneys in accordance with the oath that he had taken.
Hale's prior association with the Parkers and Roy Parker's prior representation of Hale should have been revealed by Hale to the trial court as requested during the voir dire.
Hale's very close friendship with Spencer and Spencer's pre-trial discussion with Hale, knowing Hale was to be a juror on the Wright case, wherein Spencer told Hale that Wright was an honest person who could not be guilty of murdering his wife was most definitely a circumstance of potential adverse influence on a juror which mandated Hale to report to the trial judge.
Finally, Hale's actions both during trial and during jury deliberations certainly allowed Hale's jury to conclude that Hale had preconceived ideas about Wright, sufficient to influence his vote to the point that although Hale did believe Wright murdered his wife, he was simply not ever going to vote guilty.
The jury received sufficient evidence and instructions on the law thus were justified in finding Hale guilty of perjury.
I respectfully dissent.