
    Clifton FAIRLEY v. STATE of Mississippi.
    No. 55320.
    Supreme Court of Mississippi.
    Feb. 12, 1986.
    Fielding L. Wright, Richard W. Hamilton, Wright & Hamilton, Pascagoula, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.
   ANDERSON, Justice,

for the Court:

This is an appeal from a criminal conviction in the Circuit Court of Jackson County. The appellant, Clifton “Kip” Fairley, was convicted of the murder of Leepolia Freeman and sentenced to life imprisonment.

On December 29, 1982, Jackson County deputies found the body of Leepolia Freeman slumped in his car with his foot on the brake pedal, the car in drive, the motor running and the front passenger door standing open. It was stipulated that Freeman died of three gunshot wounds to the head. $670 cash was also found on the body of the victim.

Miss Doris Stalworth, the appellant’s live-in girlfriend testified that she and the appellant had an argument on the night of December 29. She phoned Mr. Freeman, with whom she was also sexually involved, and asked him to pick her up on Shamrock Street to aid her in getting away from the appellant. She met Freeman on Shamrock Street shortly afterwards and got into the car with him. As she leaned over the back of the seat to fix herself a drink, she saw the appellant approaching the car (6 to 8 feet away) on foot. She jumped from the automobile in an attempt to flee, but the appellant caught her. She and the appellant scuffled briefly and she managed to break free. As she fled the scene, she left the appellant standing just outside the passenger door of Freeman’s car and she heard three gunshots. Stalworth informed the police of this episode approximately three weeks later. The appellant was subsequently arrested and charged with murder.

The state offered other evidence and testimony to corroborate Stalworth’s version of the incident. Another state witness testified that the appellant had admitted the crime to him. It was also shown that the appellant had borrowed the gun used in the commission of the crime several days before the shooting and had returned it several days after.

The appellant alleged however that Mrs. Stalworth, against his advice, had masterminded a plan to rob Freeman. Accordingly, she had lured him to Shamrock Street and the shooting stemmed from her attempt to rob him. The appellant contends that he did not participate in the robbery or the shooting.

After trial on the issue, the appellant was convicted of murder. Appellant assigns several points of error, but we find it necessary to consider only the assertion that the court erred in requesting the jury to deliberate after more than twelve hours of trial.

According to the record, the trial began July 25,1983, at 11:00 a.m. and at 5:00 p.m. the state rested its case. Appellant’s counsel moved for recess until the following morning, stating that he had planned to call ten witnesses and that he felt the jury might be tired. The prosecuting attorney urged the court to continue in light of the heavy docket scheduled for the next day. The court gave the following reasons for overruling the motion to recess:

BY THE COURT: I think your motion is a little premature. I certainly couldn’t sequester a jury at 5:00 in a motel room with no magazines, no newspapers, no TV and let them sit there from 5:00 in the evening until 9:00 the next morning. I feel that that would prejudice the rights of the defendant. Any time a jury is sequestered overnight, it is my policy to go much later than this particular hour. So, I will overrule your motion at this time. The defense can begin putting on its case and I will reconsider it if we should get into the very late hours. But, it has been my observation of jurors that they would rather be here in the courtroom working than sitting in a motel room staring at four blank walls with no entertainment of any kind, which the Court does not permit when they are sequestered.
Let me say that I too am concerned with the rights of the defendant, and you cannot be concerned about the defendant without being concerned about the jury. You can have jurors in pure boredom and discomfort for a long period of time and then to ask them to go out and deliberate the fate of the defendant, I think is certainly prejudicial to the defendant. Your motion will be overruled at this time. Bring the jury in.

Defense counsel renewed the motion for recess at 7:00 p.m. The judge overruled this motion stating:

BY THE COURT: Mr. Hurt, let’s go on with the testimony. I don’t think we’ve had any undue length of testimony today. It has not been my practice in the past to recess a ease this early, and the jury is being fed at this time and they will be refreshed and I can assure you that I will keep an eye out for fatigue on the part of the jury and if they be in any type of distress, I will certainly take note of that. In fact, it has been my policy in the past to confer with the jury about their comfort and any distress that they may be under. At this time, I intend to go forward with the testimony in this ease.

The appellant renewed the motion at 8:02 p.m. and was again overruled and the instructions were taken up. The jury retired to deliberate at 9:08 p.m. and returned with a guilty verdict at 11:03 p.m.

The appellant argues that deliberations until this hour rendered assistance of counsel ineffective. In an earlier case, this Court held that the trial court committed error where the state rested its case in chief at about 6 p.m. and the court overruled defense counsel’s motion for recess at that time and his renewed motion at 10 p.m. Counsel was about seventy years of age and ill. This Court held that failure to grant recess rendered counsel for the defense ineffective to provide adequate assistance to his client and therefore deprived the defendant of his constitutionally required effective assistance of counsel. Thornton v. State, 369 So.2d 505 (Miss.1979).

In Bullock v. State, 391 So.2d 601 (Miss.1981), a capital murder case, the jury returned a verdict of guilty in the first phase of the trial at approximately 8 p.m. The appellant moved the court to recess at that time. The court after questioning the jury ascertained that the jury was not too tired to proceed and said if they became tired, he would stop the proceeding. The trial continued in the sentencing phase and the jury returned a verdict for the death penalty at approximately 11 p.m. This Court distinguished Thornton based on the lack of any assertion of any matters that would have rendered the attorneys ineffective. The Court held that the appellant was not prejudiced in proceeding in the sentencing phase and had had a fair trial. This holding would then seem to be applicable to the case at bar.

Subsequently, in Edge v. State, 393 So.2d 1337 (Miss.1981), on which the appellant in this case heavily relies, the issues and holding were much the same as in Thornton v. State, 369 So.2d 505 (Miss.1979). Defense counsel moved for a recess at 6:30 p.m. because he was extremely fatigued and on medication. The trial judge overruled the motion in an effort to conclude the trial. This Court reversed the decision on the grounds of ineffective assistance of counsel.

In Parker v. State, 454 So.2d 910 (Miss.1984), on which the appellant also relies, much the same situation was presented. The trial began at 12:15 p.m. and continued until approximately 5 p.m. when the state rested its case in chief. The defendant’s counsel moved for recess stating they were exhausted after having been engaged in various other proceedings since 9 a.m. It was also urged that the defendant was exhausted. The motion was overruled and the defendant renewed the motion at 5:30 p.m. and 10:30 p.m. after ruling on jury instructions, the court recessed until the following day. This Court reversed the decision again citing as its reasons the fact that counsel was rendered ineffective through exhaustion.

Each of the cited cases reversed for ineffective assistance of counsel is distinguishable from the case at bar. In this case the attorney declared himself fit and able and only expressed concern for the jury. By his own declaration he could not assert ineffectiveness of counsel and rely on these cases for a reversal.

The appellant also offered the ruling in a civil suit to establish paternity. The case was submitted to the jury at 11 p.m. and the jury deliberated until 4:30 a.m. We noted this as plain error under Mississippi Supreme Court Rule 6 and reversed. Grimsley v. Tyner, 454 So.2d 482 (Miss.1984). The apparent lack of reasonableness there speaks for itself; however that case is in no way comparable to the case at bar.

Most recently, this Court in Isom v. State, 481 So.2d 820 (1985), also addressed this issue. In that case, the jury retired at 3:21 p.m. At 10:38 p.m. when the jury had failed to reach a decision, three of the twelve jurors voted to recess for the night. The majority ruled however, and deliberations resumed. At 11:07 the jury was still undecided. The judge then gave a special interrogatory (held by this Court to be reversible error) and the jury returned to the jury room at 11:35 p.m. They then returned to the courtroom about a minute later with a guilty verdict. Our decision in Isom does not aid appellant here because it turned more on the erroneous instruction by the court than on deliberation time.

On the issue of deliberation, the Isom court stated:

The physical and mental stamina of the jury in particular, and court in addition, was taxed. Although judicial time and economy are of importance, the endurance of a jury requires consideration.

The Isom court continued despite express objections by members of the jury.

In contrast, here the judge noted that he was cognizant of and sensitive to the well-being of the jury. There were no expressions or indications of discomfort or distress on the part of counsel, the jury or any others involved in this proceeding.

This Court recognizes and appreciates the necessity and responsibility of managing heavy work loads and crowded dockets, yet we are also mindful that the rights of the accused should not be sacrificed for expedience or judicial economy. We have little trouble finding that here the trial judge was responsive to the situation and acted in a manner best calculated to preserve the rights of the defendant. We therefore affirm.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON, and SULLIVAN, JJ., concur.  