IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CT-01058-SCT

DAYON JAMES a/k/a DAYON HASAN JAMES, SR.

a/k/a DAYON HASAN-NEVADA JAMES

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 07/15/1996

TRIAL JUDGE: HON. JERRY O. TERRY, SR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: JOSEPH P. HUDSON

JAMES DONALD EVANS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:

BILLY L. GORE

DISTRICT ATTORNEY CONO CARANNA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 09/08/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

GRAVES, JUSTICE, FOR THE COURT:

¶1. In July 1996, Dayon James was c onvicted of capital murder and sentenced to life in

prison. James appealed, and the appeal was assigned to the Court of Appeals which reversed

the judgment of the trial court and remanded the matter for further proceedings. The State of

Mississippi filed a motion for rehearing. The Court of Appeals denied the State’s motion for

rehearing, withdrew the opinion, and substituted its modified opinion. The Court of Appeals

found that a hearing was required to determine whether jurors were exposed to extra neous1 The record is extensive and includes almost 1,800 pages of transcript. Numerous

witnesses testified in both the guilt phase and the penalty phase of the trial. Five doctors

testified at length as expert witnesses.

2 information and remanded t he case to the trial court. J ames v. State

, 777 So.2d 682 (Miss.

Ct. App. 2000) (

J ames I ). The State and James each filed petitions for writ of certiorari,

which were denied by this Court.

¶2. O n remand the trial court conducted a hearing to determine if the jurors were exposed

to extra neous information. Following testimony by the jurors who appeared, the trial court

ruled that the verdict shoul d not be impeached. The Court of Appeals affirmed the trial court’s

judgment and denied James’ motion for rehearing on November 23, 2004. J ames v. State

, ---

So.2d

---, 2004 WL 1965662 (Miss. Ct. App. 2004) ( James II ). We granted James’ petition

for writ of certiorari. J

ames v. State

, 896 So.2d 373 (Miss. 2005). We find that the jury

considered extraneous prejudicial information and James did not receive a fair trial. We also

find that the failure to fully reconvene the jur y constituted reversible error. We reverse the

judgments of t

he Court of Appeals and the Harrison County Circuit Court, and we remand this

case for a new trial consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶3. A discussion

of the testimony and evidence from the trial in this matter may be found

in James I

. 1 We will only address those facts necessary for us to decide the issues raised in

the petition for writ of certiorari.

¶4. In December 1995, James was charged in count I of a multiple count indictment for the

murder of Shanekque Keyes. Under count II of the indictment, James was also charged for the2 This case was covered in the media at the time of the arrest and there was coverage

regarding each phase of the proceedings. Each time it was mentioned that James was

accused of murdering two children. “Separate crimes which should be tried individually can

become inextricably intertwined in print and over the airways.” Hickson v. State , 707

So.2d 536, 542 (Miss. 1997) (quoting Johnson v. State , 476 So.2d 1195, 1215 (Miss.

1985)).

3 murder of one of Shanekque’s older brothers, Alonso Smith. During pre-trial motions, the

trial court granted the defense’s motion to sever the counts and the S tate elected to try

Shanekque’s case first. Because the counts were severed, there is very little information in the

record regarding Alonso. Great efforts were taken to make sure that no one mentioned any

alleged injuries to Alonso in the presence of the jury. From pre-trial motions, post-trial

motions, and testimony g iven outside the presence of the jury, it appears that the State alleges

that Alonso was injured

by James on or about June 7, 1995. At some point, Alonso was

admitted to a hospital and d ied on or about June 10, 1995. On September 30, 1996, the trial

court entered an order which suspended the trial of count II pending the disposition of James’

appeal regarding count I.

¶5. Jury selection began on July 8, 1996. During voir dire by the trial court, the venire was

asked if anyone had personal knowledge of the case or if they had read or heard anything about

the case. 2 M any of the potential jurors knew of the case and sev eral had formed opinions

regarding James’ guilt. Nettie Pettis and Susan John, who were seated on the jury, admitted

to hearing about the case in the media. They both stated that they did not remember any details,

had not formed any opinions, could put aside what they had heard, and decide the case based

on the evidence. Carolyn Owens, who was chosen as an alternate juror, responded similarly.

More importantly, however, jurors Rickman, Huntoon, Hoff, Hertzog, Plitt, King, Fazzio,3 As will be discussed below, several members of the venire did not obey this

instruction and discussed the case and the fact that James was accused of murdering more

than one child.

4 Watson, Hudgeons, Jordan, and alternat e juror Podlin did not respond to this group of

questions. It can be inferred, therefore, that as of voir dire, they had not heard of the case. The

tri al judge concluded his voir dire and the court recessed for lunch before the attorneys began

their voir dire. The trial court instructed the potential jurors as follows, 3

[L]et me caution you about this now. At this point in time you have heard the

name of the accused. Some of you have indicated that you have heard something

about this case or read something about this case. It would be highly improper

for you to discuss anything with your fellow jurors during the recess as to what

you know. If you’ve noted that one of your fellow jurors has read something

about the case, it would be improper for you to inquire of that juror what they’ve

heard about it. So do not discuss this case. . . . Do not read the newspaper.

Don’t listen to t

he radio or go watch TV during the noon hour because this is

v ery critical that you keep an open mind,

. . . that you be uncontaminated wit h any

outside influences fro m this point on because it is very important that you do so.

Once the jurors we re excused, the trial court asked the attorneys to avoid asking the questions

he had already covered. Voir dire resumed when the jurors returned from lunch. Pursuant to

the trial court’s instruction, neither the State, nor the Defense, asked additional questions

regarding whether anyone had heard about the case.

¶6. Once voir dire of the entire venire was completed, t he trial court sent the venire into

another courtroom to wait while the court and the attorneys conducted individual voir dire.

Individual voir dire took several hours. Only one of the jurors actually selected for the trial

was questioned during

individual voir dire, and he was only questioned regarding his views of

the death penalty. Voir dire was finished late on the evening of July 9 t h and the trial began on

July 10 t h . The State’s case against James was based entirely on circumstantial evidence. The4 When the trial court, during voir dire, asked the panel if they had heard about the

case, none of the men actually seated on the jury responded. Therefore, it can be inferred

that this juror had not heard of the case before this incident.

5 jury returned wi

t h a verdict finding James guilty of capital murder and sentenced James to life

in prison.

¶7. A day after the trial, defense counsel was contacted with information regarding the

jury’s exposure to extraneous prejudicial information. They immediately filed a Notice of

Jury Exposure to Extraneous Information. A hearing was held on August 14, 1996, and Wanda

Conway, a member of the venire, was called to testify. Conway explained that on July 9, 1996,

she went to lunch with another prospective juror and Juror Shawn Watson. The trial court

recessed for

lunch after the trial court had questioned the venire about knowledge of the case.

Contrary to the trial court’s instructions, the women disc ussed the case for approximately ten

minutes during their lunch. Watson stated that she did not remember the case at all. The other

women discuss ed what they had heard in the media, including that James was accused of

murdering another child. When lunch was over, the venire was not questioned again as a group

regarding their knowledge of the case. Since Watson had not responded during voir dire, she

was not on the list for questioning during individual voir dire.

¶8. Conway also testified that later that af ternoon the entire group was sent to sit in another

courtroom. They waited there while the trial court and attorneys were conducting individual

voir dire, which took several hours. Conway testified that she heard many members of the

venire discussing the case and that there were two children involved. She overheard a woman

tell a man, who was ultimately selected as a juror, that James was accuse d of killing two young

children. 45 Prior to, and during, jury selection the court clerk placed an easel outside the

courtroom which stated the style of the case. The purpose was so the attorneys and parties

would know which courtroom. The docket sheet in this case stated, in capital letters,

“REMARKS: JUDGE TERRY TO HEAR/1ST VICTIM.”

6 ¶9. Conway testified that she spoke to Wat son the day after the trial ended. Watson told

her that she had doubts about James’ guilt and thought the mother should be investigated.

Watson complained that some members of the jury knew about the second child and kept

bringing it up in the jury room. Watson told Conway that several jurors argued that James was

guil ty because “it was two children.” Watson asked Conway if she had seen the docket sheet

posted outside the courtroom during jury sel ection. 5 Neither Watson nor Conway noticed it.

Watson told Conway that several of the jurors who saw the docket she et discussed it in the jury

room and stated th

at it indicated that James was charged with something else. Watson said the

docket sheet said “one of two, or first case, or something like that.”

¶10. At the conclusi

on of Conway’s testimony, the Defense moved that the trial court

conduct further investigation into the jury’s expo sure to extraneous information, pursuant to

Gladney v. Clarksdale Beverage Co. , 625 So.2d 407 (Miss. 1993). Defense counsel

requested that the trial court bring the jurors in to be examined. After arguments from both

sides, the trial court ruled that there had not bee n a threshold showing that further inquiry was

necessary under Gl

adney, and he denied the motion. The trial court later denied James’ other

post-trial motions and James filed a notice of appeal.

¶11. The appeal was assigne d to the Court of Appeals. On appeal, James raised seventeen

issues. On April 11, 2000, the Court of Appeals issued an opinion which reversed the trial

court and remanded the matter for further proceedings. The Court of Appeals held that the trial7

court committed reve rsible error when it refused “to poll the jury regarding the allegation of

the jury’s consideration of extraneous information.” J ames v. State, April 11, 2000 Court of

Appeals opinion p. 3, ¶1. The Court of Appeals instructed the “trial court to hold a hearing for

the purpose of determining whether extraneous prejudicial infor mation was introduced into

the jury’s deliberations concerning the death of the other child.” I d. at p . 28, ¶ 60. The Court

of Appeals found all other assignmen ts of error to be without merit. The State filed a motion

for rehearing. James did not file a motion for rehearing, however, he did file a response in

opposition to the State’s motion.

¶12. The Court of Appeals denied the St ate’s motion for rehearing, withdrew the original

opinion, and substituted a modified opinion. J ames v. State

, 777 So.2d 682 (Miss. Ct. App.

2000) ( James I ). In the modified opinion, the conclusion was rewritten regarding the hearing

to be held by the trial court. I d. at 703 (¶ 71). James filed a motion for rehearing and raised

a rguments about most of the assignments of error. The Court of Appeals entered an order

dismissing James’ motion for rehearing pursuant to M.R.A.P. 40(a). Both the State and James

filed petitions for writ o f certiorari. The State’s petition focused on the Court of Appeals’

holding regarding the trial court’s refusa l to poll the jury regarding allegations of exposure to

extraneous prejudicial information. James’ petition responded to the State’s and raised

arguments regarding the sufficiency of the evidence, the sufficiency of the indictment, and the

trial court’s exclusion of certain evidence which supported James’ theory of defense. On

February 15, 2001, we denied both petitions.

¶13. The case was remanded to the trial court to re convene and poll the jury regarding

exposure to extraneous information. At the end of April 2001, almost five years after the trial,6 This effort was futile as there was an article in the local newspaper regarding the

Court of Appeals opinion and that the jury would be questioned by the trial court regarding

their knowledge of the second child. At least 3 jurors read the article.

7 One alternate failed to appear at the hearing.

8 the trial court

and the attorneys met to discuss the procedures that would be used to locate the

jurors and conduct the hearing. It was very important to the trial court that the purpose of the

hearing be kept secret in order to avoid further contamination of the jury. 6

¶14. Ultimately eleven of the twelve jurors and both alternates were loc ated and served with

summonses. At the hearing on May 15, 2001, eleven jurors and one alternate appeared and

testified. 7 The trial court and attorneys were unable to locate juror John King. The trial court

questioned each juror individually, while the other jurors were kept in a se parate room. The

following testimony was significant:

BY THE COURT: At any tim e before you returned your verdict finding Dayon

James guilty, were y

ou informed or made aware from any source that Dayon

James had been accused of killing another child other th an the victim, Shanekque

Keyes?

BY JUROR HOFF: Someone in the jury room did mention something; I don’t

recall what. But it was an incidental comment. It was if they had noticed

something on a

bulletin board here in the courthouse or something, but I don’t

really recall.

Mr. Hoff could not recal

l when the comment was made or who made it. He also did not see

the docket sheet.

BY THE COURT: At

any time before you returned your verdict finding Dayon

James guilty

, were you informed or made aware from any source that Dayon

James had been a ccused of killing another child other than the victim, Shanekque

Keyes?

BY JUROR FAZZIO: Yes, sir.9

BY THE COURT: All right, sir. What information did you receive?

BY JUROR FAZZIO: Just what was said in court.

BY THE COURT: What was said in court?

BY JUROR FAZZIO: Yes, sir, that they mentioned it.

BY THE COURT: All right, sir. Now , do you remember whether that was

mentioned by - - in open court during the court proceedings?

BY JUROR FAZZIO: I don’t remember, sir. It was too long ago.

BY THE COURT: I understand. Do you remember the individual or the source

of the information?

BY JUROR FAZZIO: No, sir.

BY THE COURT: What was it that you heard, or do you have any particular

recollection as to what you heard concerning that?

BY JUROR FAZZIO: That there was a possibility of another incident.

BY THE COURT: I see. And that was all that was said?

BY JUROR FAZZIO: Yes, sir.

Mr. Fazzio thought he remembered seeing the docket sheet, but he could not be sure.

BY THE COURT: At any time before you returned your verdict finding Dayon

James guilty, were you informed or made aware from any source that Dayon

James had been accused of killing another child other than the victim, Shanekque

Keyes?

BY JUROR WATSON: Yes.

BY T HE COURT: All right. What was the source – or please identify for me the

source that you learned that from.

BY JUROR

WATSON: I think it was a paper outside the courtroom, and his

name was listed two times.

BY THE COURT: Two different times?10

BY JUROR WATSON: Yes.

. . . .

BY THE COURT: Okay. Now, you’re referring, I take it, to the easel --

BY JUROR WATSON: Yes.

BY THE COURT: – that was posted outside the courtroom here.

BY JUROR WATSON: Right.

. . . .

BY THE COURT: All right. Is that the only source of any information that you

had concerning Mr. Dayon James?

BY JUROR WATSON: I want to say some of the other jurors talked about it, his

name being on that easel twice.

BY THE COURT: Now, when you say “some of the other jurors,” would that

have been some of the other jurors who w ere actually selected to serve on the

case and did serve on the case --

BY JUROR WATSON: Yes.

BY THE COURT: – such as yourself?

BY JUROR WATSON: Yes.

BY THE COURT: Can you identify which ones it may have been?

BY JUROR WATSON: No, I can’t. I can’t.

BY THE COURT: Can you give me any specifics as to what was said concerning

it?

BY JUROR WATSON: Just that it was another child involved.

Ms. Watson informed the court that she read an a rticle in the paper that an inquiry would be

made of the jury.11

BY THE COURT: All right. Do you have any suspicions of what you’re here

about?

BY JUROR JORDAN: Yes.

BY THE COURT: What?

BY JUROR JORDAN: The case, the jury duty that everyone was on.

. . . .

BY THE COURT: Okay. Now can you give me any reason why you would be

suspicious that it’s about that case?

BY JUROR JORDAN: I

did read in the paper about six months ago that the jury

would be called back in for questioning.

. . . .

BY THE COURT: Okay. I’m required to ask you these questions now, Ms.

Jordan: From the time you arrived at the courthouse in response to your jury

summon s until the time you were finally discharged by the court at the

conclusion of the trial, did you receive or learn of any information about the

accused, Dayon James, from any source other than the evidence which was

presented to you in open court?

BY JUROR JORDAN: No.

BY THE COURT: You

thought about that for a moment. Do you want another

moment to think about it? I’m not rushing you.

BY JUROR JORDAN: Just from any other source?

BY THE COURT: Yes ma’am. Did you learn anything from the time you were

selected to be on this jury and the ti me that you reached your verdict and was

discharged from the case, did you learn from any other source any information

about Mr. James other than what was here in this courtroom?

BY JUROR JORDAN: Well, there was some discussion one time about another

child being involved.

BY THE COURT: All right. And what was that – when was that discussion; do

you remember?12

BY JUROR JORDAN: Well, there are several witnesses testified that sa i d

“children;” they mentioned children.

BY THE COURT: I see.

BY JUROR JORDAN: More than one child.

BY THE COURT: And so you’re saying that that was here in the courtroom;

there were witnesses testifying to that?

BY JUROR JORDAN: Yes.

BY THE COURT: Ok ay. Was there any discussion of that with anybody other

than witnesses at this witness stand --

BY JUROR JORDAN: No.

BY THE COURT: – that you remember?

BY JUROR JOR

DAN: Well, we did – in the jury room did mention this coming

up with children.

BY THE COURT: Okay.

BY JUROR JORDAN: But no one knew any details.

. . . . BY THE COURT: At any time before you returned your verdict finding Dayon

Jame s guilty, were you informed or made aware from any source that Dayon

James had been a ccused of killing another child other than the victim, Shanekque

Keyes?

BY JUROR JORDAN: No, not other than, you know, just seeing that there was

children.

BY THE COURT: I see. The reference to “children?”

BY JUROR JORDAN: Uh-huh (affirmative)

. . . .

BY THE C OURT: Okay. Now, Ms. Jordan, the clerk of the court sometimes

posts on an easel in the hallway outside the courtroom a copy of the court’s

docket, the cases scheduled for hearing, so that witnesses and other interested13

parties can know which courtroo m to go to. Did you see the docket that was

posted out in the hallway?

BY JUROR JORDAN: Yes, I did.

BY THE COURT: You did see it?

BY JUROR JORDAN: Yes, I did. And there was children on there.

BY THE COURT: Did you read it?

BY JUROR JORDAN: I think so. We did.

BY THE COURT: And so would that have been before the jury was selected,

before you were actually selected?

BY JUROR JORDAN: Yes, it was.

BY THE COURT: Do you remember what you read on that docket?

BY JUROR JORDAN: No. But I know there was children on there too. It wasn’t

just one child, there was children.

BY THE COURT: I see. And that’s all you can remember?

BY JUROR JORDAN: That’s all I can remember.

¶15. The trial court refused to allow the attorneys to question the jurors. At the conclusion

of the testimony, the trial court al lowed the attorneys to present arguments. The trial court

took the matter un

der advisement and ultimately determined that extraneous information had

been communicated to the jury. However, the trial court found that this communication was

incidental and that the jury verdict should not be impeached. The trial court’s findings were

ce rtified to the Court of Appeals and the Court of Appeals allowed the parties to file

supplemental briefs.14

¶16. The Court of Appeals issued its opinion. James v. State , 2004 WL 1965662 (Miss. Ct.

App. 2004) (

James II ). James raised the following issues: “(1) the polling procedure denied

him due process and equal protection, (2) the failure to fully reconstitute the jury denied him

due process, (3) the failure to grant his motion f or a new trial was error, (4) the failure to

sustain his objections to the jury polling procedure and the polling questions wa s error, (5) the

failure to allow

him to poll the jury was error, and (6) the court failed to sanction the State for

improper contact with the jury.” I d. at *4. The Court of Appeals found these issues to be

without merit and affirmed the judgment of the trial c ourt. The Court of Appeals denied

James’ motion for rehearing and this Court granted James’ petition for writ of certiorari.

James v. State , 896 So.2d 373 (Miss. 2005).

ISSUES RAISED IN PETITION FOR WRIT OF CERTIORARI

(1) Whether medical opin ion is sufficient evidence to warrant a conviction in a

circumstantial evidence capital murder case.

(2) Whether failure to f ully reconstitute or reconvene the jury denies Appellant due

process and equal protection of the laws as guaranteed by th e U.S. and Mississippi

Constitutions.

(3) Whether [almost five] years after the discharge of the jury and after the Court of

Appeals has issued its opinion is impractical an d unreasonably long to attempt to reconvene

or reconstitute the jury and unfairly prejudiced Appellant.

(4) Whether unanimity of responses is required, or to what extent is unanimity required,

when jurors are reconvened [almost five] years after being discharged and re constitution of the

jury is incomplete.

(5) Whether after the Court of Appeals withdra ws an opinion and substitutes another

or modified opinion a party can file a motion for rehearing.

(6) Whether the Court of Appeals applied the wrong standard.

(7) Whether the correct standard w a s used to determine whether the introduction of

extraneous preju

dicial information into jury deliberations required Appellant to receive a new

trial.

(8) Whether the indictment sufficiently apprised Appellant of the charges against him

and whether the indictment was properly amended.15

(9) Whether the trial court improperly restricted the Appellant from presenting

evidence essential to his theory of defense an d on the issue of jury exposure to extraneous

prejudicial information.

DISCUSSION

JURY’S EXPOSURE TO EXTRANEOUS PREJUDICIAL INFORMATION

¶17. In issues 2, 3, 4, 7 and 9 James raises arguments regarding the jury’s exposure to

extraneous prejudicial informati on and the procedures used by the trial court in examining the

jury regarding that exposure. An accused’s right to a fair trial before an impartial jury is

guaranteed by the federal and state co nstitutions. G ray v. State

, 799 So.2d 53, 62 (Miss.

2001) (citing U.S. Const. amend. VI and Miss. Const. art., 3 §§ 1 4 & 26). “Because on appeal

we must as a matter of practical and institutional necessity defer to jury determinat ions of fact

questions, we must be vigilant that the jury making such findings is infected by not the slightest

taint or suggestion of bias or unfairness.” F isher v. State

, 481 So.2d 203, 126 (Miss . 1985).

We have stated:

Where the resolution of a case comes down to factual disputes, the jury's role

becomes paramount as it weighs the credibility of the witnesses and determines

which factual accounts to accept or reject. Thus, it is absolutely imperative

that the jury be unbiased, impartial, and not swayed by the consideration of

improper, inadmissib l e information

. We can not say, with any degree of

certainty, that this was the case here because the fact of the matter is that the

juror "threw the pro verbial skunk into the jury [room]" during the deliberations

by asking about other charges against Hickson. See Dunn v. U.S

. , 307 F.2d 883,

886 (5th Cir. 1962) ("'[I]f you throw a skunk into the jury box, you can't instruct

the jury not to smell it'").

Hickson v. State , 707 So.2d 536, 544 (Miss. 1997) (emphasis added).16

¶18. In Gladney v. Clarksdale Beverage Co.

, 625 So.2d 407 ( Miss. 1993), this Court

formulated a “systematic method” to be used to “inquire into juror verdicts” pursuant to M.R.E.

606(b). Id . at 416. M.R.E. 606(b) provides,

(b) Inquiry Into Validity of Verdict or Indictment . Upon an inquiry into the

v alidity of a verdict or indictment, a juror may not testify as to any matter or

statement occurring during the course of the jury's deliberations or to the effect

of anything upon his or any other juror's mind or emoti ons as influencing him

to assent to or dissent from the verdict or indictment or concern ing his mental

processes in connection therewith, except that a juror may testify on the

question whether extraneous prejudicia l information was improperly

brought to the jury's attention or whether a ny outside influence was

improper ly brought to bear upon any juror . Nor may his affidavit or evidence

of any statement by h

im concerning a matter about which he would be precluded

from testifying be received for these purposes.

(emphasis added). Gladney first provides that “the trial court and opposing counsel must be

made aware of any potential juror misconduct when this evidence is manifested.” 625 So. 2d.

at 418. Next it must be determined if an investigation is warranted. “In order for the duty to

investigate to arise, the party contending there is misconduct” must make a threshold showing

that “there was in fact an improper outside influence or extraneous prejudicial inf ormation.”

Id. at 418-19. When the threshold showing is made, the trial court should conduct a post-trial

hearing. Id. at 419.

The scope o f the hearing is however, limited; the proper procedure is for the

judge to limit t

he questions asked the jurors to determine whether the

communication was made and what it contained. Once it is determined that the

communication was made and wha t the contents were, the court is then to decide

whether it is reasonably possible this communication altered the verdict

.

Id . (emphasis added). M.R.E. 606(b) makes it abundantly clear that

a juror may not testify as to any matter or state ment occurring during the course

of the jury's deliberations or to the effect of anything upon his or any ot her

juror's mind or emotions as influencing him to assent to or dissent from the17

verdict or indictment or concerning his mental processes in connection

therewith.

Gladney offers no interpretation nor explanation which is inconsistent with, o r different from,

M.R.E. 606(b). That is to say that it would be inappropriate, and in violation of M.R.E. 606(b),

fo r any juror to be questioned with regard to whether or not the extraneous information

actually alter

ed his verdict. If it is reasonably possible that the communication altered the

verdict, then a new trial must be ordered. U nited States v. Davis , 15 F.3d 1393, 1412 (7th

Cir. 1994).

¶19. In the case at bar, counsel for James was advised of the misconduct on July 16, 1996,

the day afte

r the trial. They followed the dictates of G ladney regarding notification and

requested that the jurors be examine d. In James I , the Court of Appeals correctly found that

James made a threshold showing and that the trial court abused its discretion in refusing to

examine the jurors. J

ames I

, 777 So.2d at 699-700. We agree with the Court of Appeals’

“conclusion that Conway's testimony more than satisfie d the minimum requirements of

Gladney and provided a sufficient basis for the trial court to hold a hearing for the purpose of

determining whether extraneous prej udicial information was introduced into the jury's

deliberations concerning the death of the other child.” Id. at 700.

¶20. The hearing required by G ladney was finally conducted on May 15, 2001, f our years

and ten months after the trial. One juror could not be located. A ll of the jurors, who could be

located, state d that they could not remember certain details. James argues that the failure to

fully reconvene the jury was reversible erro r. We agree. “The constitutional right to trial by

jury includes as its essential e lements that the jury shall consist of twelve impartial men,8 Although not all hearings mandated by Gladney will require the examination of all

of the jurors, in the present matter, it was alleged that all jurors were exposed, so all jurors

should have been examined.

18 neither more nor less, and that the verdict shall be unanimous.” M arkham v. State

, 209 Miss.

135, 46 So.2d 88, 89 (1950) (citations omitted). In the present matter, James contends that

all members of the jury were exposed to the prejudicial extraneous information when the

jurors discussed the allegations regarding the second child in the jury room. Pursuant to

Gladney , James had a right to examine the missing juror to determine “whether it is reasonably

possible [that the] communication altered [h is] verdict.” G ladney

, 625 So.2d at 419. Since

the trial court was unable to locate the missing juror, it should have granted James’ motion for

a new trial. We find that the trial court’s failure to fully reconvene the jury for the hearing was

reversible error and mandates a new trial. 8

¶21. James also argues that the passage of time made reconvenin g the jury impracticable and

made a new trial necessary. James cites S tate v. Rideout

, 725 A.2d 8, 11 (N.H. 1999) in

support of his argument. In R ideout the trial court conducted a post-trial hear ing, in November

1996, regarding a j uror’s contact with a witness for the prosecution. The trial court denied the

mo tion to set aside the verdict based on the contact. In its February 1999 opinion, the New

Hampshire Supreme Court found that further investigation should have been conducted, but

based on the passage of ti me, reconvening the jury was impracticable and a new trial was

granted. As discussed by the Court of Appeals in J ames II

, the facts in Ri deout can be

distinguished. J

ames II

, 2004 WL 196566 2 at *4-5. However, the New Hampshire Supreme

Court’s discussion regarding rec onvening a jury several years after a trial is concluded is19

helpful. S ee also Haugh v . Jones & Laughlin Steel Corp. , 949 F.2d 914, 919 (7 t h Cir. 1991)

(“nor is it irrelevant that the case is already a decade old.”) We find that the passage of time

was unfairly prejudicial to James and violated his due process rights.

¶22. We find, based on the standard established in Gladney

, that it is “reaso nably possible

that [the] communication altered the verdict” and a new trial should be granted. G ladney

, 625

So.2d at 419. Wanda Conway testified immediately after the trial and the State did not attempt

to rebut her t

estimony. Her uncontroverted testimony and the record from jury selection

reveal that neither jurors Watson, Jordan, nor any of the male jurors responded to the trial

court’s inquiry about knowledge of the case. Watson was later informed, during lunch recess,

that James was accused of killing another child. Many members of the venire discussed the

allegations regarding a second child while they we re waiting in a separate courtroom. At this

time one m

ale juror was informed of the allegations regarding the second child. At no point

following these exposures to extraneous information were the jurors asked again if they had

knowledge of the case, or if they could set aside that knowledge and be fair and impartial.

¶23. Conway also testified that Watson spoke with her the day after the trial. Watson

complained th

at some members of the jury knew about the second child and kept bringing it

up in the jury room. Watson stated that several jurors argued that James was guilty because “it

was two children.”

Watson also discussed that the docket sheet supported the allegation that

a second child was involved.

¶24. The hearing was held on May 15, 2001, to determine whether extraneous information

was communicated to the jury and the content of that communication. During voir dire on July

9, 1996, jurors Pettis and John and alternate juror O wens were the only selected jurors who9 For example Toni James testified that she and James were the parents of two

children. Consuella testified that she took her children shopping with Toni and that she had

children riding with her at the time of the near collision.

20 had heard about th

e case in the media. They all stated that they did not remember any details,

had not formed any opinions, could put aside what they had heard, and decide the case based

on the evidence. Jurors Hoff, Fazzio, Watson and Jordan admitted, during the May 2001

hearing, that they had heard that James had been accused of killing a second child. Since it can

be inferred that they did not know this information during voir dire, the trial cou rt correctly

found that they had been exposed to extraneous information.

¶25. During the May 2001 hearing, Juror Jordan stated that s he knew about the allegations

regarding the second child because she hear d testimony during the trial which referred to

“children.” The record has been scoured for the word “children” stated during the trial in the

presence of the jury. Although the word “children” was stated a few times during testimony,

there is nothing in the record to support Juror Jordan’s statement that witnesses mentioned that

Jame s was involved in the death of a second child. 9 There is also nothing in the record to

indicate that the State, the Defendan t, or the trial court stated or suggested that James was

accused of killing a second child.

¶26. Jurors Watso n and Jordan both stated that the docket sheet implied that two children

were involved. The docket sheet states “REMARKS: JUDGE TERRY TO HEAR/1ST

VICTIM.”

Jurors Hoff, Watson and Jordan admitted that the fact that James was accused of

killing another child was discussed in the jury room. The fact that, after almost five years,

these ju rors did not remember exactly what was said or who said it, does not lessen the fact

that they did discuss the allegations regarding the second child.21

¶27. Pursuant to Gladney

, extraneous prejud icial information was communicated to the jury.

The content of that communication was that James was accused of killing another child.

During pre-trial hearings the trial court ruled that this information was very prejudicial and that

the jury would not be allowed to hear it. “[I]t is reasonably possible this communication

a ltered the verdict.” G ladney

, 625 So.2d at 41 9 (emphasis added). Although the exact source

of the communication will never be known, th e fact that the “skunk” was thrown into the jury

ro om mandates a new trial. H ickson v. State

, 707 So.2d 536, 544 (Miss. 1997) (citing Dunn

v. United States. , 307 F.2d 883, 886 (5 th Cir. 1962)).

¶28. We further find that the trial c ourt erred when it refused to allow the attorneys to

examine the jurors during the May 2001 hearing. Nothing in G ladney or its progeny prohibit

attorneys from examining the jurors. H ickson 707 So.2d at 541; G ladney 625 So.2d at 418-

19. “No provision prevents a lawyer from talking to a juror or securing affidavits from jurors

to the effect that an ‘outside influence’ was brought to bear.” B rake v. Speed

, 605 So.2d 28,

37 (Mi ss. 1992) (citing M.R.E. 606(b)). “The breath of questioning should be sufficient ‘to

permit the entire picture to be explored.’” Un ited States v. Sun Myung Moon , 718 F.2d 1210,

1234 (2 nd Cir. 1983) (quoting U nited States. v. Moten

, 582 F.2d 654, 667 (2 nd Cir. 1978)).

Within the dictates of Gladney and M.R.E. 606(b), the attorneys should have been allowed to

question the jurors or the trial court should have asked addit ional questions submitted by the

attorneys.

MOTION FOR REHEARING AND REMAINING ISSUES22

¶29. James argues that when the Court of Appeals substi tuted its modified opinion on

September 26, 2000, it in fact issued a new opinion and he sho uld have been allowed to file a

motion for rehearing. This argument is without merit. The only change in the modified

opinion was the conclusion. The holdings of the Court of Appeals regarding all of James’

assignments of e rror remained unchanged. Accordingly, the deadline to seek rehearing of

those holdings was April 25, 2000. Although James responded to the State’s motion for

rehearing, he failed to timely file his own motion regarding the James I opinion. M.R.A.P. 40

does not require clarification. Because James failed to timely file a motion for rehearing

fo llowing the Court of Appeals’s April 11, 2000 opinion, all of the remaining issues are

procedurally barred.

CONCLUSION

¶30. For the foregoing reasons, we fi nd that the jury considered extraneous prejudicial

information and th

at James did not receive a fair trial. We further find that the failure to fully

reconvene the jury constituted reversibl e error. We reverse the judgments of the Court of

Appeals and the Harr

ison County Circuit Court, and we remand this case for a new trial

consistent with this opinion.

¶31. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND

RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING.23