IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-KA-00130-SCT

DAVID L. DAVIS a/k/a DAVID LATRELL DAVIS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 11/19/1997

TRIAL JUDGE: HON. JAMES W. BACKSTROM

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: HERMAN F. COX

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

DISTRICT ATTORNEY: DALE HARKEY

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 06/29/2000

MOTION FOR REHEARING FILED: 7/12/2000; denied 10/5/2000

MANDATE ISSUED:

EN BANC.

COBB, JUSTICE, FOR THE COURT:

¶1. David Latrell Davis was indicted for capital murder while in the commission of the crime of robbery and

tried in the Jackson County Circuit Court. The jury found Davis guilty of capital murder and sentenced him

to life in prison without parole. Aggrieved, Davis appealed to this Court.

STATEMENT OF THE FACTS

¶2. On the night of September 18, 1996, Elsie McCorvey was working the 10:30 p.m. until 6:00 a.m. shift

at the Circle K convenience store in Pascagoula, Mississippi. Sometime after midnight that night, after

drinking alcohol and smoking marijuana with Robert Evans, Andrea Smith and others earlier in the day,

Davis went to the home of Vincent Jenkins. Jenkins was keeping a shotgun for Andrea Smith, and Davis

said he wanted the gun. When Jenkins refused to give him the gun, Davis made threatening remarks, and

Smith called out to Jenkins to give the gun to Davis. Davis then took the gun, returned to the car where

Evans had waited, and they drove to the Circle K where McCorvey was working. Davis and Evans

entered the store, and Davis carried the shotgun to the counter and shot McCorvey in the chest. After trying

unsuccessfully to open the cash register, Davis walked around behind the counter and took the cash register

and its contents. McCorvey died only a few minutes after being shot by Davis. Davis, identified from the

store video camera, was indicted, tried and found guilty of capital murder committed while in the

commission of robbery. He was sentenced to life in prison without parole. He appealed to this Court raising
the following issues, which are here quoted verbatim:

I. THE TRIAL COURT ERRED IN IMPANELING THE JURY WHICH WAS DRAWN

BY A SPECIAL VENIRE AND IN EXCUSING TWENTY-EIGHT JURORS OUTSIDE

THE PRESENCE OF THE DEFENDANT AND COUNSEL FOR THE DEFENDANT.

II. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR CHANGE OF

VENUE MADE ON BEHALF OF THE DEFENDANT

III. IT WAS ERROR FOR THE TRIAL COURT TO RULE THAT JURORS 5, 10, 15,

AND 42 WHO WERE PEREMPTORILY STRUCK BY THE STATE WERE DONE FOR

RACIALLY NEUTRAL REASONS.

IV. THE TRIAL COURT ERRED IN NOT ALLOWING INTO EVIDENCE DURING

THE GUILT PHASE THE TWO VIDEO STATEMENTS OF THE DEFENDANT TAKEN

BY THE POLICE AUTHORITIES.

V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION IN

LIMINE PERTAINING TO CERTAIN EXPECTED TESTIMONY OF THE STATE'S

WITNESS, VINCENT JENKINS, AND IN ALLOWING THIS WITNESS FOR THE

STATE TO TESTIFY CONCERNING THREATS MADE BY THE DEFENDANT TO

HIM.

VI. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT OF

EFFECTIVE ASSISTANCE OF COUNSEL.

Finding no reversible error, we affirm.

DISCUSSION

I. THE TRIAL COURT ERRED IN IMPANELING THE JURY WHICH WAS DRAWN

BY A SPECIAL VENIRE AND IN EXCUSING TWENTY-EIGHT JURORS OUTSIDE

THE PRESENCE OF THE DEFENDANT AND COUNSEL FOR THE DEFENDANT.

¶3. Davis argued that the trial judge excused some twenty-eight(1) members of the special venire before he

or his counsel were present and thus the trial judge should have quashed the entire jury panel. Citing

Strickland v. State, 477 So. 2d 1347 (Miss. 1985), Davis argues that he had an absolute right to be

present during the impaneling of the jury. His reliance on Strickland is misplaced, however. The trial judge

in Strickland was notified "during pretrial proceedings" that a prospective juror had been contacted by a

friend of the defendant. The judge then conducted an in-chambers examination of apparently each

prospective juror, outside the presence of the defendant or the attorneys for either side, to determine the

extent of the contact. Three prospective jurors were extensively questioned by the judge when they

indicated they had been contacted by someone who attempted to influence them in favor of the defendant.

Two other prospective jurors indicated that the sheriff or his deputies had come to their homes the night

before, but the judge did not question them further. One of the jurors contacted by the state ultimately

served as jury foreman. Id. at 1348-49. Finding that this was a perfect example of the injustice which can

result when the defendant or his counsel is excluded from a critical stage in the trial proceedings, this Court

properly reversed and remanded.
¶4. The facts in Strickland, however, are in stark contrast to the situation before us in the present case.

Here Davis was absent only during the routine statutory qualification of the prospective jurors. He was

present when the State and defense counsel announced "ready" and the trial judge's voir dire of the

prospective jurors began and for the remainder of the trial.

¶5. In the present case, the record reflects that the customary procedure of the Jackson County Circuit

Court is to begin the qualifying process for a special venire at 7:45 a.m. , even though the docket reflects

that court starts at 9:00 a.m. When defense counsel arrived at approximately 8:05 a.m., the judge had

already begun the process of explaining the court procedures, introducing various court personnel, swearing

the prospective jurors, and going through the general qualifying procedures. After explaining the qualifying

process, the trial judge methodically asked the full venire the routine questions regarding age, residency,

prior convictions, illness, hardships, etc. pursuant to Miss. Code Ann. §§ 13-5-1, -23 & -25 (1972 &

Supp. 1999). The prospective jurors who were excused by the trial judge during this qualifying process

included one who was not a resident of Jackson County; fourteen who had various illnesses and medical

excuses; one who had an ill family member; three who were over 65 years of age; seven for serious

financial or business hardships; and eight for other reasons including a death in the family and students and

teachers required to be in class.

¶6. The record is not clear as to the exact point at which defense counsel arrived, but he made no objection

at the time, and apparently was present in the courtroom throughout most of the jury qualification process.

After a brief break at the conclusion of the qualifying process the judge, Davis's counsel, and the

prosecutors returned, and Davis was brought into the courtroom. Before the drawing of the names of

prospective jurors who would be considered further by counsel for the parties, defense counsel moved to

quash the jury panel, based on his initial absence and the absence of Davis during the jury qualification and

excusal process. The judge denied the motion, and the drawing of the jury began.

¶7. In Chase v. State, 699 So. 2d 521, 534 (Miss. 1997) (quoting Kentucky v. Stincer, 482 U.S. 730,

745, 107 S. Ct. 2658, 2667, 96 L.Ed.2d 631 (1987)) this Court stated that "a criminal defendant 'is

guaranteed the right to be present at any stage of the criminal proceedings that is critical to its outcome if his

presence would contribute to the fairness of the procedure.'" As early as 1876 this Court recognized that a

defendant had a right to be present during the impaneling of a jury, stating: "We think the deduction from our

own decisions, and the rule of safety, is to require the presence of the prisoner in all material and important

steps taken during the progress of the cause. Of these are attendance during the impaneling of the jury . . .

." Rolls v. State, 52 Miss. 391, 396 (1876). In Lewis v. United States, 146 U.S. 370, 374, 13 S. Ct.

136,137, 36 L.Ed.1011 (1892), the Supreme Court affirmed that voir dire is a critical stage of the criminal

proceeding, during which the defendant has a constitutional right to be present, writing "where the indictment

is for a felony, the trial commences at least from the time when the work of empaneling the jury begins." See

Gomez v. United States, 490 U.S. 858, 873, 109 S. Ct. 2237, 2246, 104 L.Ed.2d 923 (1989). See also

Simmons v. State, 746 So. 2d 302, 308 (Miss. 1999), in which we stated "Voir dire is considered by this

Court as "a most critical stage" of the criminal proceedings.(2)

¶8. Davis contends that the trial court "impaneled the jury and began general voir dire of the jury and

excused twenty-eight jurors" while Davis was not present. In actuality all that happened in his absence was

the statutory qualifying process, during which the trial judge ascertained which, if any, of the prospective

jurors should be excused or exempt based on the factors set forth in Miss. Code Ann. §§ 13-5-1, -23, & -

25 (1972 & Supp. 1999).
¶9. A review of the terminology used throughout the sections found in Miss. Code Ann., Title 13, Chapter

5, as well as many cases involving jury issues, reveals a definite lack of precision. Does "impaneling of the

jury" begin when the prospective jurors report for duty and continue until those actually chosen to serve are

sworn, seated and testimony begins? Or does it begin only after completion of the statutory qualifying

process, when those disqualified or exempt have been excused and the questioning begins of the remaining

prospective jurors by the court and the attorneys for each side? Does "voir dire" include the trial judge's

questions regarding qualifications and exemptions, or only the questions asked of the qualified prospective

jurors who remain after others are excused for statutory reasons?

¶10. Today we adopt a bright line rule that the trial judge's general questioning of prospective jurors, to

ascertain those who are qualified for, or exempt from, jury service is not a critical stage of the criminal

proceedings during which a criminal defendant is guaranteed a right to be present. Such statutory matters as

whether a prospective juror is a resident of the county, is ill or has an illness in the family, or is over 65

years of age are not matters which necessitate a defendant's presence. A defendant may choose to be

present during this part of the proceedings, but has no guaranteed right to be present.

¶11. Regardless of whether it is called "impaneling the jury" or "voir dire" or otherwise, the critical stage of

jury selection begins at the time when the trial judge and counsel for the parties begin questioning the

qualified prospective jurors about such matters as whether they know or are related to the defendant or the

attorneys, know or have read about the case, and any other matters specific to the particular case such as

opposition to the death penalty or hardship which sequestration might cause.

¶12. Davis's right to be present during the critical stages of his trial has not been violated due to his absence,

and the partial absence of his attorney, during the qualifying of the prospective jurors. This issue is without

merit.

II. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR CHANGE OF

VENUE MADE ON BEHALF OF THE DEFENDANT

¶13. Davis argued that pre-trial publicity had prejudiced several of the jurors and thus the trial court was in

error when it denied his motion for a change of venue. The State argued that Davis failed to follow the

statutory requirements for a change of venue and alternatively, any jurors that had been prejudiced were

excused and the two that were not excused were accepted by Davis.

¶14. The record reflects that after voir dire, Davis moved to quash the jury panel due to pre-trial publicity.

Numerous prospective jurors had read an article about the case in the local newspaper the day before the

trial was to commence. Many had read newspaper accounts or seen clips of the video on TV when the

shooting and robbery occurred the previous year. However, each prospective juror who responded

affirmatively about seeing or hearing about the case was individually voir dired, and the trial judge allowed

defense counsel and prosecution alike to question each one as extensively as desired. The judge also asked

the individual jurors if the publicity would influence their decision and admonished them to disregard

anything they might remember from the publicity. The trial judge denied defense counsel's motion to quash,

finding that the pre-trial publicity was not sufficiently prejudicial to require him to quash the entire panel and

pointing out that Davis could strike for cause those who may have formed an opinion. Davis then moved for

a change of venue under URCCC 6.06 which was also was denied.
¶15. A motion for a change of venue is not automatically granted in a capital case and is largely a matter

within the sound discretion of the trial court. Gray v. State, 728 So.2d 36, 65 (Miss. 1998). A judgment

of conviction will not be reversed on appeal on the ground that a change of venue was refused, unless it

clearly appears that the trial court abused its discretion. Id. A motion for a change of venue "must be in

writing and supported by affidavits of two or more credible persons showing that the defendant cannot

receive an impartial and fair trial in that particular county because of prejudgment of the case or grudge or ill

will to the defendant in the mind of the public." Hoops v. State, 681 So.2d 521, 526 (Miss. 1996) (citing

Miss.Code Ann. § 99-15-35 (1994). Had affidavits been submitted by Davis, there would be a rebuttable

presumption that an impartial jury could not be impaneled and the prosecution would be charged with

rebutting that presumption. Morgan v. State, 681 So.2d 82, 91 (Miss. 1996).

¶16. The State argued correctly that Davis did not follow the statutory guidelines in making a motion for a

change of venue. Assuming arguendo that the motion for change of venue was proper, the trial court's ruling

should still be affirmed. In White v. State, 495 So.2d 1346, 1348 (Miss. 1986), there had been a series of

stories in the local paper concerning a string of unsolved rapes. White, who was convicted of forcible rape,

was named as a suspect in the articles. Id. at 1348. White's motion for a change of venue was denied. This

Court affirmed. In White, only ten (10) potential jurors indicated that they had heard anything about this

particular case and only three, who indicated that they had been aware of any media coverage, were

returned on the final jury. Id. All prospective jurors said that they would not be affected by what they had

been exposed to and would be able to render a fair and impartial verdict. Id. "A fair trial is, after all, the

reason we have our system of justice; it is a paramount distinction between free and totalitarian societies."

Johnson v. State, 476 So.2d 1195, 1209 (Miss. 1985). "It is fundamental and essential to our form of

government that all persons charged with a crime have the right to a fair trial by an impartial jury." White,

495 So.2d at 1348. "Mississippi law on the subject of change of venue has been primarily summarized in

the cases of Cabello v. State, 490 So.2d 852 (Miss.1986); Wiley v. State, 484 So.2d 339 (Miss.1986);

Fisher v. State, 481 So.2d 203 (Miss.1985); Johnson v. State, 476 So.2d 1195 (Miss.1985); and the

cases incorporated therein." White, 495 So.2d at 1348. These cases focus on the presence of

extraordinary and intensely prejudicial pretrial publicity. The accused has a right to a change of venue when

it is doubtful that an impartial jury can be obtained. Id. "[U]pon proper application, there arises a

presumption that such sentiment exists; and, the State then bears the burden of rebutting that presumption."

Id. "While the presumption may be rebutted during voir dire, in some circumstances pretrial publicity can be

so damaging and the presumption so great, that no voir dire can rebut it." Id. (citing Johnson, 476 So.2d at

1211). "We have set forth certain elements which, when present would serve as an indicator to the trial

court as to when the presumption is irrefutable." Id. These elements are:

(1) Capital cases based on considerations of a heightened standard of review;

(2) Crowds threatening violence towards the accused;

(3) An inordinate amount of media coverage, particularly in cases of

a) serious crimes against influential families;

b) serious crimes against public officials;

c) serial crimes;
d) crimes committed by a black defendant upon a white victim;

e) where there is an inexperienced trial counsel.

Baldwin v. State, 732 So.2d 236, 241 (Miss. 1999).

¶17. Applying these elements to the instant case, it is clear that Davis cannot claim that the presumption of

prejudice here is irrefutable. The publicity in question cannot be described as "inordinate," especially when

compared to White. Here, there was an article in the paper in September of 1996, and an article in the

paper the day before trial as well as news reports on radio and television. In denying the motion to quash

the venire, the trial judge stated that "it's remarkable that most of the people had formed no such opinions

and knew very little about the case, really, from a factual standpoint." "And to the contrary, it seems that the

great majority of the people on this panel would be fair and impartial, or stated that they could."

¶18. In the case sub judice, the article in the paper was not as damaging as the articles published in White,

Johnson and Fisher. This Court has stated that when the news media have heavily reported a case, the

lower courts should be prepared to change venue. Johnson, 476 So.2d at 1215. However, as in Gray,

this case was not "saturated with publicity" as was the case in Fisher and Johnson. Gray v. State, 728

So.2d at 65. (Gray had 11 articles; Fisher and Johnson each had over 60 articles). The venire was

questioned as to their ability to make a decision based on the evidence, the law and if they had prejudged

the case as to guilt or innocence. Individual voir dire was conducted with those potential jurors who had

read the news articles. The record indicates that the impaneled jury members affirmatively stated that they

could fairly and impartially serve as jurors. We have faith that trial judges are ever mindful of the fact that

"when faced with a case which has been heavily reported in the news media, our trial courts must be

prepared to readily grant a change of venue." Johnson, 476 So.2d at 1214. "Judicial efficiency and

economy would be better served by a fair trial initially." Id. "The fair way is the safe way, and the safe way

is the best way in every criminal prosecution." Id. While there was some publicity in the case sub judice,

there was not enough to prejudice the defendant such that he could not receive a fair trial. The trial judge

took the necessary steps to insure that the defendant's right to a fair trial was preserved. There is nothing to

indicate that the jurors were not fair and impartial. "Where ... the evidence is conflicting on the question of

whether or not the defendant could receive a fair and impartial trial, this Court will generally defer to the

considered opinion of the trial judge." Burrell v. State, 613 So.2d 1186, 1190 (Miss.1993). The trial

judge did not abuse his discretion on this issue.

III. IT WAS ERROR FOR THE TRIAL COURT TO RULE THAT JURORS 5, 10, 15,

AND 42 WHO WERE PEREMPTORILY STRUCK BY THE STATE WERE DONE FOR

RACIALLY NEUTRAL REASONS.

¶19. After both sides had made their strikes for cause, the State proceeded with its peremptory strikes,

initially leaving two black jurors on the panel and striking three. Davis is a black male, and he objected to

the State's striking the three black jurors, and interposed a challenge based on Batson v. Kentucky, 476

U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986). The State cited its acceptance of the other two black

jurors, and argued that the defense had failed to prove a prima facie case or a systematic exclusion of

blacks. However, without waiting for a ruling by the trial court, the State proceeded to give race-neutral

reasons for its strikes of the three black jurors, as follows: juror no. 5 was familiar with Davis's family, and

also had a brother in prison; juror no. 10 was opposed to the death penalty on religious grounds and he

knew people who were relatives or friends of Davis; and juror no. 15 lived in close proximity to the Davis's
mother, although defense counsel contended they lived in different towns. There was much discussion

among counsel and the judge about the variances in the information and understanding each side had about

juror number 15,(3) but the court found the State's reasons for all three strikes to be race-neutral. The State

subsequently interposed a Batson challenge to Davis's strikes against three white jurors, and the judge,

after hearing reasons from defense counsel, found the strikes against the white jurors also to be race-neutral.

¶20. After selection of ten of the twelve jurors was completed, Davis interposed another Batson challenge

when the State struck juror no. 42. As the reason for the strike, the assistant district attorney explained:

"That lady never would look at [the district attorney]. No eye contact. Just absolutely would not pay any

attention to what he said. It was a horrendous situation." After further discussion among counsel, the

assistant DA stated: "I watched her, and she wasn't paying a bit of attention to [the district attorney] when

he was questioning the jury". The judge found this to be a race-neutral and sufficient reason to strike juror

no. 42.

¶21. "On review, the trial court's determinations under Batson are afforded great deference because they

are, in large part, based on credibility." McGilberry v. State, 741 So.2d 894, 923 (Miss. 1999) (citing

Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). "This Court will not reverse any factual findings

relating to a Batson challenge unless they are clearly erroneous." Id.

¶22. Davis alleges that the State made its strikes on the basis of race. The trial court examined the reasons

given by the proponent, made on-the-record factual inquiry and determinations, and found the reasons for

the strikes to be sufficient to meet the Batson challenges. In Davis v. State, 660 So.2d 1228, 1242 (Miss.

1995), this Court reiterated a list of reasons accepted as race neutral. "Included among those reasons: age,

demeanor, marital status, single with children, prosecutor distrusted juror, educational background,

employment history, criminal record, young and single, friend charged with crime, unemployed with no roots

in community, posture and demeanor indicated juror was hostile to being in court, juror was late, short term

employment." Id. We have also condoned a peremptory challenge against a juror who was acquainted with

the defendant's family. Manning v. State, 735 So.2d 323, 340 (Miss. 1999). We have accepted

demeanor as a legitimate, race-neutral basis for a peremptory challenge. Walker v. State, 671 So.2d 581,

628 (Miss. 1995). We will not reverse a trial judge's factual findings on this issue unless they appear clearly

erroneous or against the overwhelming weight of the evidence. Walters v. State, 720 So.2d 856, 865

(Miss. 1998). Based on this record, the trial court's findings on Davis's challenges are not clearly erroneous

nor against the weight of the evidence. This issue is without merit.

IV. THE TRIAL COURT ERRED IN NOT ALLOWING INTO EVIDENCE DURING

THE GUILT PHASE THE TWO VIDEO STATEMENTS OF THE DEFENDANT TAKEN

BY THE POLICE AUTHORITIES.

¶23. Davis gave two videotaped statements to the police after his arrest, and the tapes contained certain

admissions he made to police regarding the robbery and shooting. Davis argued that these tapes should

have been allowed in evidence during the guilt phase of the trial, citing Sanders v. State, 237 Miss. 772,

115 So.2d 145 (1959). The State argued that the evidence was inadmissible hearsay and thus the trial

judge did not abuse his discretion by excluding the statements in the videotapes, citing Harris v. State, 731

So.2d 1125 (Miss. 1999).

¶24. "Under this Court's standard of review, the admissibility of evidence rests within the trial court's

discretion." Hall v. State, 611 So.2d 915, 917 (Miss. 1992). "Unless his judicial discretion is abused, this
Court will not reverse his ruling." Id. "This Court has held that the same standards used in determining the

admissibility of photographs are applicable to the admission of videotapes." Walters, 720 So.2d at 861.

The trial judge must also consider Rule 403 of the Mississippi Rules of Evidence in determining the

admissibility of relevant evidence which "may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence." Id. at 861.

¶25. The record revealed that the State made a motion in limine to exclude the videotapes for two reasons:

1) if the defendant did not testify, then the admission of the tapes would allow the defendant to give his

version of the events without being cross-examined; and 2) if the defendant did testify the tapes would be

bolstering. The court sustained the State's motion, ruling that "as a general proposition, you cannot get the

defendant's statement into evidence, if he doesn't testify, by the tape or by cross examination of the officers

as to what he said." However, the court left open the possibility of Davis later renewing his request to have

the videotapes admitted into evidence, stating: "[W]ell, I don't know where you may be wanting to go with

this and I'm not sure that you do either at this point, so I'll let you, if it's a fuzzy area that we get into that is

not clear, then bring it up outside the presence of the jury."

¶26. "Evidence inadmissible for one purpose may be relevant and competent for another." Thorson v.

State, 653 So.2d 876, 889 (Miss. 1994). "And, a trial judge should not be faulted for refusing to rule in

advance how he will rule when he does not, indeed cannot, know the context in which evidence will be

offered." Id.

¶27. The trial judge left open the possibility of introducing the evidence at some point in the trial where an

exception might occur. At the time the motion in limine was before the judge the defense was not sure if

Davis would take the stand. In the case sub judice, the trial judge did not abuse his discretion by excluding

the videotapes at this particular point in the trial. Thibodeaux v. State, 652 So.2d 153, 170 (Miss. 1995).

This issue is without merit.

V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION IN

LIMINE PERTAINING TO CERTAIN EXPECTED TESTIMONY OF THE STATE'S

WITNESS, VINCENT JENKINS, AND IN ALLOWING THIS WITNESS FOR THE

STATE TO TESTIFY CONCERNING THREATS MADE BY THE DEFENDANT TO

HIM.

¶28. Davis claims the trial judge committed reversible error by admitting evidence that Davis threatened to

"shoot up" Jenkins's apartment if Jenkins did not give the shotgun to him. Davis argues that the evidence

was highly prejudicial and not probative on any relevant issue citing Cabello v. State, 490 So.2d 852

(Miss. 1986) (evidence of crimes other than the one for which the accused is on trial is not admissible in a

criminal prosecution). The State argued that the evidence proved Davis's motive, intent and possession of a

shotgun, a short time before the robbery and murder, citing Williams v. State, 590 So.2d 1374, 1379

(Miss. 1991) (State has burden of proving robbery); and M.R.E. 404(b), which allows admission of other

crimes, wrongs, or acts to prove motive, opportunity, intent, preparation, plan, and other purposes.

¶29. The record revealed that counsel for the defense made a motion in limine to prohibit Jenkins from

testifying that Davis had threatened to "shoot his place up on this particular occasion if a certain weapon

was not released" since that did not show plan, motive, absence of mistake, or a common scheme

concerning what the defendant was going to do fifteen minutes later. The trial judge denied the motion,
ruling that the evidence was relevant and the probative value would outweigh any prejudicial effect.

¶30. Evidence of other crimes is admissible when such evidence tends to establish or explain the motive for

the crime with which the defendant is charged, particularly in cases involving circumstantial evidence.

Ladner v. State, 197 So.2d 257, 264 (Miss. 1967). "If prior bad acts evidence falls within a 404(b)

exception, its prejudicial effect must still be weighed against its probative value to determine admissibility

under Miss. R. Evid. 403." Underwood v. State, 708 So.2d 18, 31 (Miss. 1998). The judge made the

appropriate findings. The gun was obtained prior to the murder. Davis was convicted of capital murder

while in the commission of the crime and felony of robbery. Evidence that he obtained a gun by threatening

the person who had the gun was relevant to show motive and intent to commit the crime. As the State

correctly argued, these actions also show state of mind of the defendant prior to the robbery and murder.

These are clearly exceptions that fall within M.R.E. 404(b). This issue is without merit.

VI. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT OF

EFFECTIVE ASSISTANCE OF COUNSEL.

¶31. A claim of ineffectiveness of counsel begins with the fundamental concepts that the defendant: (1) had

a right to counsel, (2) that his right to counsel encompassed the right to reasonably effective assistance of

counsel, and (3) that the right to effective assistance of counsel attached at both the guilt phase and

sentencing phase of his trial. King v. State, 503 So.2d 271, 273 (Miss. 1987). "The benchmark for

judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as having produced a just

result." Foster v. State, 687 So.2d 1124, 1129 (Miss. 1996). The defendant must establish two elements

in order to prevail in this claim. First, he must show that his counsel's performance was so deficient that he

was not performing as counsel guaranteed by the Sixth Amendment. Second, he must prove that counsel's

errors were so serious as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984); Foster, 687 So.2d at 1129. Both showings must be

made or there is no claim that a breakdown in the adversary process has occurred such that the result is

unreliable. Id. This Court will review all circumstances in order to determine whether counsel's assistance

was reasonable. Id. at 1129-30. There is a presumption that defense counsel is competent. Id. at 1130.

We will evaluate counsel's actions from his perspective at the time he took those actions. King, 503 So.2d

at 273. It must be determined that but for the counsel's unprofessional errors it can be shown to a

reasonable probability that the result of the proceeding would have been different. Foster, 687 So.2d at

1130. There is no constitutional right to errorless counsel, just to effective, competent counsel. Both prongs

of the test must be satisfied. Id.

1.Trial Counsel's Failure to Object to Certain Testimony

¶32. State's witness Beverly Smith testified that she and the defendant and other individuals had consumed

a lot of alcohol and some marijuana during the early afternoon of the day before the murder. (The murder

occurred after midnight). Defense counsel did not object. On cross-examination, counsel for the defense

questioned Smith as to how much liquor and marijuana was purchased and consumed. Davis argued that

this evidence was highly prejudicial and that defense counsel should have objected, citing Eubanks v .

State, 419 So.2d 1330 (Miss. 1982) (proof of a crime distinct from that alleged in the indictment should

not be admitted into evidence against the accused). The State responded by pointing out that Davis's theory

of the case was that he did not have the requisite intent to commit the crime because he had been under the
influence of drugs.

¶33. The record revealed that Davis admitted this statement "not as hearsay, but to show the effect that it

had on this 17-18 -year-old kid who was obviously intoxicated and possibly high on some sort of

controlled substance, and that's the reason that we offer this particular piece of evidence." It cannot be

shown that counsel for the defense was in error by allowing the testimony of Smith to be admitted. The

record revealed the trial strategy of Davis. The testimony supported this theory. Counsel's performance was

not deficient such that he was not performing as counsel guaranteed by the Sixth Amendment. Thus, we

need not address the second prong of Strickland. This issue is without merit.

2. Trial Counsel Failed to Object to Improper Remarks

Made by Counsel for the State

¶34. Davis argued that defense counsel should have objected to comments made by the State during

closing argument in the guilt phase where the State made the following remarks:

But I didn't hear an argument from Mr. Shaddock [Davis's trial attorney] that it wasn't him on the

videotape. I didn't hear any evidence or an argument from Mr. Shaddock that he was in another place

at the time of the commission of this homicide. I didn't hear that argument.

Davis argued that these statements were comments by the State on Davis's failure to testify at the guilt

phase of the trial, citing West v. State, 485 So.2d 681 (Miss. 1985). The State submitted that the

statement was merely argument to the jury concerning what the facts were in order for the jury to make a

decision. The State was explaining that Davis did not contest certain facts and the reason the defense did

not object was because the other evidence clearly proved Davis was at the scene of the crime during the

actual commitment of the crime as evidenced by the video.

¶35. "A direct comment on a defendant's failure to testify is not allowed under Mississippi law and

constitutes reversible error." McGilberry, 741 So.2d at 907. "Reference to a defendant's failure to testify

by innuendo and insinuation is also forbidden." Id. "Balanced against the rights of the defendant, however, is

the rule that lawyers are given broad latitude in their closing arguments." Id. "Thus, although a direct

comment on the defendant's right to testify is forbidden, all other comments must be examined on a caseby-case basis." Id. "There is a distinction between a comment on the failure to testify and a comment on the

failure to put on a successful defense." Id. "Not every comment regarding the lack of any defense or upon

the defense presented is equivalent to a comment on the defendant's failure to testify." Id. at 908. "[T]he

State is entitled to comment on the lack of any defense, and such a comment will not be construed as a

reference to a defendant's failure to testify by innuendo and insinuation." Id.

¶36. Counsel for the defense was not in error by allowing the statement by the State to be admitted. The

record revealed that Davis was caught on video carrying a shotgun, reaching around the cash register, and

walking around to the front of the cash register. It can easily be considered as trial strategy for Davis not to

contest these facts. We are confident that the comment by the prosecutor did not result in a violation of

Davis's fundamental rights or deprive him of a fair trial. Nor did it prejudice the jury against him. This issue is

without merit.

CONCLUSION
¶37. The issues presented by Davis on appeal have been reviewed and found to be without merit. The

judgment of the Jackson County Circuit Court is hereby affirmed.

¶38. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT

IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT

THE POSSIBILITY OF PAROLE, GOOD-TIME, EARNED-TIME OR OTHER

ADMINISTRATIVE REDUCTION OF SENTENCE AFFIRMED.

PRATHER, C.J., SMITH, MILLS, WALLER AND DIAZ, JJ., CONCUR. PITTMAN,

P.J., CONCURS IN RESULT ONLY. BANKS, P.J., CONCURS WITH SEPARATE

WRITTEN OPINION JOINED BY McRAE AND WALLER, JJ.

BANKS, PRESIDING JUSTICE, CONCURRING:

¶39. I agree with the result reached by the majority. I write separately to note my disagreement with the

conclusion reached in part V of the majority opinion.

¶40. In my view, the testimony that the defendant threatened a person to obtain the weapon allegedly used

in a robbery has no rational relationship to motive or intent to commit the robbery. The only relevant fact is

that the defendant obtained the weapon of a type used in the robbery, shortly before the robbery. The fact

that he uttered a threat to obtain the weapon says nothing about a motive or intent to rob.

¶41. Despite the error in admitting this testimony, however, I would affirm because, in my view, this

testimony pales in significance in light of the voluminous evidence, including a video tape of the event,

indicating Davis's guilt. Moreover, Davis's rather dubious defense that he was too intoxicated to form the

intent to rob could be helped rather than harmed by this testimony. Surely, intoxication helps explain why

one would get into a confrontation with another, thereby creating an adverse witness, in order to obtain a

weapon which one uses shortly thereafter to commit a crime.

McRAE AND WALLER, JJ., JOIN THIS OPINION.

McRAE, JUSTICE, DISSENTING FROM THE DENIAL OF THE MOTION FOR

REHEARING:

¶42. Because the majority loses sight of the critical nature of impaneling a special venire jury to try the

defendant and because the trial court began the voir dire process without the presence of the defendant or

his counsel, I dissent. The relevant issue is whether one considers the trial court's excusing from a special

venire approximately 28 jurors outside the presence of the defendant or his attorney while impaneling a jury

drawn specifically for his trial violates Article 3, Section 26, of the Mississippi Constitution. We are not

debating the voir dire process for a typical jury, i.e., one impaneled for a week to try various types of cases.

We are specifically considering a special venire summoned to try one particular defendant.

¶43. On the opening day of trial, the trial judge began the voir dire process around 7:45 a.m. Apparently, it

was the custom of the court to begin the voir dire process at that time. David L. Davis's counsel followed

the order of the docket and thought the trial would begin at 9:00 a.m., yet he arrived in the courtroom

around 8:05 a.m. The trial judge had already begun the voir dire process. Several members of the venire

were excused from jury service during the judge's initial voir dire, in the absence of Davis and his attorney.

Some of these jurors were excused from service based on statutory exemptions such as age, but jurors
were also dismissed for other reasons. Some of these jurors were excused for reasons such as being

students or teachers, having business difficulties, and having sick children and childcare problems, all of

which are not included in the bright-line excuse per the statutes. Miss. Code Ann. §§ 13-5-1 & -25 (1972

& Supp. 2000). Davis and his attorney should have been present when this initial voir dire was conducted

in order to witness the dismissal of jurors for other than statutory reasons. If Davis had been present, he

could have challenged each one of these dismissals, and the court would have to consider this challenge

before dismissal.

¶44. Before the oath was administered to the remaining potential jurors, Davis's counsel made a motion to

quash the jury based on his objection that the trial judge erred by beginning the voir dire process without the

presence of the defendant or his counsel. The defendant and his trial counsel did not have the opportunity to

object to the dismissal of any of the potential jurors during this initial voir dire.

¶45. Miss. Code Ann. § 13-5-1 states the requirements to judge the competency of potential jurors.

Competent jurors must be over the age of 21, able to read and write, and either a qualified elector or a

landowner for more than a year. They must not have been convicted of an infamous crime and must not be

a habitual drunkard or common gambler. Miss. Code Ann. § 13-5-1 (1972). Miss. Code Ann. § 13-5-25

provides for two exemptions from jury service. One exemption is for persons over the age of 65, and the

other is for persons who have served on a jury during the past two years. These exemptions are not

mandatory and must be asserted by the individual. Miss. Code Ann. § 13-5-25 (Supp. 2000). In fact,

those who have served on a jury during the past two years may still be called upon to serve if there is a

deficiency of jurors. Id.

¶46. Miss. Code Ann. § 13-5-23 does permit dismissal, at the discretion of the trial court, of prospective

jurors for serious illness or illness in the family, serious financial loss, and cases of emergency. However,

these dismissals are discretionary with the trial court, and tests must be met by the individual before

receiving this dismissal. Miss. Code Ann. § 13-5-23 (Supp. 2000). Therefore, the only prospective jurors

who are automatically dismissed from service are those who do not meet the competency requirements as

set forth in Miss. Code Ann. § 13-5-1. Dismissals under sections 13-5-23 or 13-5-25 are not automatic,

and there is room for discretion when making decisions on these dismissals. Davis and his counsel should

have been present when the trial judge was deciding these dismissals so that they could make any necessary

objections.

¶47. This was a case where a special venire was drawn in order to determine the potential jurors. When a

person has been charged with a capital crime or with the crime of manslaughter, the accused or the district

attorney, upon demand, has the right to a special venire. If a special venire has been granted, it is the duty

of the trial judge, in open court, to draw from the jury box as many names as he desires in his discretion, not

less than 40, for each special venire that is demanded. It is the duty of the clerk of the court to issue a

special venire facias, commanding the sheriff to summon the names of the persons so drawn to appear in

court on a particular day. Miss. Code Ann. § 13-5-77 (Supp. 2000). No juror summoned as a special

venireman shall be impaneled or serve on more than one jury. Id.

¶48. In this case, Davis filed a motion for a special venire, and the jury was then drawn from a special

venire to sit for this particular case. This was not a typical jury, drawn for the week and expected to hear a

variety of cases. The special venire drawn in this case was drawn specifically to try this defendant.

¶49. The majority has adopted the bright-line rule stating that general questioning of prospective jurors to
ascertain those who are qualified or exempt from jury service is not a critical stage of the trial. The majority

states, "such statutory matters as whether a prospective juror is a resident of the county, is ill or has an

illness in the family, or is over 65 years of age are not matters which necessitate a defendant's presence."

The majority fails to recognize that the trial judge questioned the potential jurors as to matters that went

beyond these statutory qualifications and requirements. For cases involving a special venire, the voir dire

process is a critical stage of the trial.

¶50. The majority also fails to recognize the significance and the distinction of the use of the special venire in

this case. The defendant's right to be present during all stages of a trial is even more important when there is

a special venire selected. It is especially important for the defendant to be present during the voir dire

process, as the members of the venire were selected specifically to judge this defendant. The trial judge

questioned potential jurors as to their employment and business conflicts, excusing potential jurors for

reasons such as the fact that they were students, teachers, single mothers, or construction workers. This

questioning of the prospective jurors is within the trial judge's discretion but not within the enumerated

statutory qualifications (13-5-1) or mandatory exemptions (13-5-25). Because the judge went outside the

scope of these statutory qualification and exemption questions in the absence of the defendant or his

attorney, the trial court committed error. The defendant should have been present during this part of the voir

dire process so that he and his attorney could make any objections to these dismissals.

¶51. A defendant has "the right to personal presence at all critical stages of the trial and the right to counsel

are fundamental rights of each criminal defendant." Simmons v. State, 746 So. 2d 302, 308 (Miss. 1999)

(quoting Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 78 L.Ed.2d 267 (1983)). Felony cases

cannot be tried in the absence of the defendant. Id. at 306 (citing Sandoval v. State, 631 So. 2d 159, 164

(Miss. 1994)). In Simmons, this Court interpreted Miss. Code Ann. § 99-17-9 (1972) as not permitting a

felony trial to be conducted in the absence of the defendant. Only in cases involving crimes less than felonies

and when the defendant is "on recognizance or bail" does the statute permit trial in the absence of the

defendant. Id. Rolls v. State, 52 Miss. 391, 394-95 (1876), affirms that a defendant should be present

during all important and material stages of a trials. One of these important stages of the trial is the impaneling

of the jury, and the defendant should be present for this. Id.

¶52. Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) sums up the

importance of the voir dire process as a critical stage of the trial:

It is true that voir dire "is conducted under the supervision of the court, and a great deal must, of

necessity, be left to its sound discretion." Ristaino v. Ross, 424 U.S. 589, 594, 96 S. Ct. 1017,

1020, 47 L.Ed.2d 258 (1976) (quoting Connors v. United States, 158 U.S. 408, 413, 15 S. Ct.

951, 953, 39 L.Ed. 1033 (1895)). The Constitution, after all, does not dictate a catechism for voir

dire, but only that the defendant be afforded an impartial jury. Even so, part of the guarantee of a

defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors. Dennis v.

United States, 339 U.S. 162, 171-172, 70 S. Ct. 519, 523-524, 94 L.Ed. 734 (1950); Morford

v. United States, 339 U.S. 258, 259, 70 S. Ct. 586, 587, 94 L.Ed. 815 (1950). "Voir dire plays a

critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will

be honored. Without an adequate voir dire, the trial judge's responsibility to remove prospective

jurors who will not be able impartially to follow the court's instructions and evaluate the evidence

cannot be fulfilled." Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 1634,

68 L.Ed.2d 22 (1981) (plurality opinion).
¶53. The majority's bright-line rule runs opposite of the basic definition of "impanel" for jury purposes. The

majority claims that upon review of sections found in Mississippi Code Annotated Title 13, Chapter 5, and

many cases involving jury issues that the definition of what constitutes "impaneling the jury" is unclear.

Black's Law Dictionary states "impanel" means "the act of the clerk of the court in making up a list of the

jurors who have been selected for the trial of a particular cause. All the steps of ascertaining who shall be

the proper jurors to sit in the trial of a particular case up to the final formation." Black's Law Dictionary

752 (6th ed. 1990); see also Black's Law Dictionary (Westlaw ed. 1999). Since case law includes the

impanelment of the jury as a "critical stage" in the trial, and case law also states that a defendant should be

present at all the critical stages of a trial, the impanelment of the jury must be considered a critical stage of

the trial where the defendant is required to be present. The majority of this Court in the case sub judice

creates its own definition of what constitutes impaneling the jury, and therefore, what is a critical stage of the

trial.

¶54. The majority's bright-line rule for establishing what constitutes a c ritical stage of a trial at which the

defendant must be present is wrong. A special venire requires the presence of the defendant as well as his

attorney during the voir dire process, as it is a critical stage of his trial. The defendant and his attorney

should be present during all stages of the trial, including the voir dire process. This Court should grant the

motion for rehearing, reverse the trial court's judgment, and remand this case for a new trial before a

properly impaneled jury. Because the majority fails to do this, I dissent.

1. The actual count of prospective jurors excused during the qualifying process on the day of trial was thirtyfour. The record is not clear regarding how many, if any, were excused before defense counsel arrived, but

based on counsel's admitted time of arrival as approximately 8:05 a.m. and the length of the trial judge's

greetings, introductions and other niceties prior to beginning the qualifying process, there could not have

been many.

2. Although Simmons erroneously cites Bell v. Watkins, 381 So. 2d 118, 134 (Miss. 1980) for this

proposition, 746 So.2d at 308, this Court clearly held in Simmons that voir dire is a critical stage during

which the defendant has a constitutional right to be present, although the term "voir dire" was not defined.

From the trial court's statements and the facts set out in Simmons, it is seems clear that the critical stage

would not include the judge's questioning during the statutory qualifying process.

3. Because much of the discussion involved whether juror no. 15 lived in close proximity to Davis's mother,

the State was allowed to call Jackson County deputy sheriff Ellis to testify about the location of the homes.

At the conclusion of the jury selection process, before the jurors returned to the courtroom, Ellis testified

that it was not Davis's mother but rather his grandmother, who had raised Davis, who lived within two

blocks of juror no. 15. He said he knew this because he had previously worked as a propane gas delivery

person and delivered to that area of Moss Point for almost 10 years. Defense counsel was allowed to

cross-examine Deputy Ellis and did not renew his Batson challenge to juror no. 15 after hearing this

testimony.