Terrence Shannon v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-KA-01063-COA

TERRENCE SHANNON A/K/A TODD SHANNON APPELLANT
A/K/A TERENCE SHANNON A/K/A TERRANCE
SHANNON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/30/2017
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SILAS E. MURRAY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/29/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. Terrence Shannon challenges his conviction of first-degree murder with a firearm

enhancement and of possession of a firearm by a felon. The Tunica County Circuit Court

sentenced him to life imprisonment for first-degree murder and to ten years in the custody

of the Mississippi Department of Corrections (MDOC) for possession of a firearm by a felon.

His sentences are to run concurrently. The court did not sentence him for a firearm

enhancement.

¶2. Shannon moved for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial. The Tunica County Circuit Court denied his motion. Shannon now

appeals.

¶3. He argues that: (1) the circuit court did not properly conduct voir dire; and (2) the

circuit court erred when it allowed Roman to testify. We affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶4. Terrence Shannon drank beer outside his house with Ricardo Roman and James

McKinley. He was rolling cigarettes when Sam Isabell rode by on a bicycle. Shannon

confronted Isabell, and accused him of taking his rolling papers. Isabell denied the

accusation. Shannon went inside of his house and returned with a gun. Shannon then shot

Isabell in the head.

¶5. The jury found Shannon guilty of first-degree murder with a firearm enhancement and

of possession of a firearm by a felon. The Tunica County Circuit Court sentenced Shannon

to life imprisonment for first-degree murder and to ten years in the custody of the MDOC for

possession of a firearm by a felon. His sentences are to run concurrently. The court did not

sentence him for a firearm enhancement.

¶6. Shannon moved for a judgment notwithstanding the verdict (JNOV) or, in the

alternative, a new trial. The court denied his motion, and he appeals to this Court. He argues

that: (1) the circuit court did not properly conduct voir dire; and (2) the circuit court erred

when it allowed Roman to testify. We affirm the Tunica County Circuit Court’s judgment.

DISCUSSION

I. Did the circuit court properly conduct voir dire?

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¶7. “The standard of review in examining the conduct of voir dire is abuse of discretion.”

Jackson v. State, 791 So. 2d 830, 835 (¶21) (Miss. 2001) (citing Berry v. State, 575 So. 2d

1, 9 (Miss. 1990)). “Abuse of discretion will only be found where a defendant shows clear

prejudice resulting from undue lack of constraint on the prosecution or undue constraint of

the defense.” Id. (citing Davis v. State, 684 So. 2d 643, 652 (Miss. 1996)).

¶8. Shannon alleges that the circuit court did not properly conduct voir dire. He reasons

that because of that failure, he was disadvantaged and the jury was biased in favor of the

State.

¶9. However, we note that “[t]he failure to interpose an objection at trial waives the issue

for appellate review.” Morales v. State, 990 So. 2d 273, 277 (¶14) (Miss. Ct. App. 2008)

(citing Goodin v. State, 787 So. 2d 639, 646 (¶20) (Miss. 2001)). “Our supreme court has

continuously held that a party who fails to object to the jury’s composition before it is

empaneled waives any right to complain thereafter.” Carr v. State, 190 So. 3d 1, 7 (¶26)

(Miss. Ct. App. 2015) (internal quotation marks omitted) (quoting Thorson v. State, 895 So.

2d 85, 118 (¶81) (Miss. 2004)).

¶10. Shannon failed to object to the jury’s composition during voir dire. He therefore is

procedurally barred from asserting that the circuit court erred. Instead, any review must be

conducted under the plain-error doctrine: “The plain error doctrine has a two-part test which

requires: (i) an error at the trial level and (ii) such an error resulted in a manifest miscarriage

of justice.” Stephens v. State, 911 So. 2d 424, 432 (¶19) (Miss. 2005).

¶11. First, this Court must look to whether there was error. We have acknowledged the

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following:

In general, voir dire is presumed sufficient to ensure a fair and impartial jury.
To overcome the presumption, a party must present evidence indicating that
the jury was not fair and was partial and must show that that prejudice resulted
from the circuit court’s handling of voir dire. Voir dire is conducted under the
supervision of the court, and a great deal must, of necessity, be left to the
court’s sound discretion.

Mack v. State, 237 So. 3d 778, 785 (¶19) (Miss. Ct. App. 2017) (quoting Keller v. State, 138

So. 3d 817, 843 (¶47) (Miss. 2014)). Furthermore, “[t]he linchpin is whether the venire

members stated that they could be fair and impartial jurors if chosen.” Hughes v. State, 983

So. 2d 270, 284 (¶63) (Miss. 2008).

¶12. Shannon claims error regarding Jurors 7, 9, 20, and 46. Juror 7 remained in the jury

pool because even though he knew an assistant district attorney (ADA), that ADA was never

present at the trial. Juror 9 was struck on the State’s request when it was discovered that she

knew Shannon and his family and her brother had been a victim of violent crime. Juror 20

was struck because he indicated that he knew Shannon and it would be difficult for him to

be “fair and impartial.”

¶13. As to Juror 46, the circuit court did not ask Juror 46 specifically if she could be “fair

and impartial.” But the following exchange did occur:

Q. [Juror 46], are you friends with the defendant, members of his family
or both?

A. Both.

Q. Both.
Same question. If you’re selected—if you were to be selected on this
jury, the fact—and he’s on trial here today—the fact that you’re friends
with the defendant and members of his family, would that enter into

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your thinking if you were trying to deliberate in this case?

A. Yes, it would.

Q. All right. Thank you, ma’am. You need not answer any further
questions from me or the lawyers.

¶14. Shannon must show that any error “resulted in a manifest miscarriage of justice.”

Given the facts of his case and all the evidence presented at trial—including testimony from

several police officers that Shannon, McKinley, and Roman were all at the scene when they

arrived and testimony from McKinley that he saw Shannon shoot Isabell—we do not find

that there was a manifest miscarriage of justice. Therefore, this Court affirms the circuit

court’s judgment.

II. Did the circuit court err when it allowed Roman to testify?

¶15. “The standard of review regarding admission or exclusion of evidence is abuse of

discretion. We will not reverse the trial court’s evidentiary ruling unless the error adversely

affects a substantial right of a party.” Jenkins v. State, 253 So. 3d 349 (¶19) (Miss. Ct. App.

2018) (quoting Mingo v. State, 944 So. 2d 18, 28 (¶27) (Miss. 2006)).

¶16. Shannon argues that because Roman was unable to identify Shannon as present in the

courtroom, the circuit court erred in allowing Roman to testify. Furthermore, Shannon asserts

that because the State asked Roman to identify Shannon by a “street name”—Todd, rather

than Terrence—the identification was unreliable.

¶17. “In order to preserve an issue for appeal, counsel must object. The failure to object

acts as a waiver.” Carr v. State, 873 So. 2d 991, 1004 (¶35) (Miss. 2004). Therefore,

Shannon must rely on the plain-error doctrine’s two-part test that “(i) an error at the trial level

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and (ii) such an error resulted in a manifest miscarriage of justice.” Stephens, 911 So. 2d at

432 (¶19).

¶18. When Roman began his testimony, he was asked if Terrence Shannon was present in

the courtroom:

A. I don’t see him, no, because my vision is real bad.

Q. Okay.

A. I’m blind in one eye, and I’m blurry in the other eye.

Q. If you’re standing up close to an individual, can you see him?

A. Yes. About as far as from here to where you are, yes, sir.

¶19. Later during direct examination, Roman said the following after describing the

shooting:

Q. Let me ask you this now. You told us earlier that your eyes are
not—that you’re blind in one eye now—

A. Yes.

Q. —right?

A. Yes.

Q. Back about two years ago or so, were your eyes good then?

A. They was better. They was in better—better—way better than what they
is now.

Q. So were you able to see clearly what took place—

A. Yes.

Q. —at that time?

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A. Yes, because I’m blind on my right eye and then blurry in my left eye.

¶20. The circuit court did not commit any error in allowing Roman to testify. Shannon’s

assertion that his case is analogous to Ervin v. State, 136 So. 3d 1053 (Miss. 2014), is

incorrect. In Ervin, the defendant’s identification was at issue, and our supreme court

reversed and remanded the case because of flawed identification. Here, there is no dispute

as to whether Shannon was the individual who shot Isabell. Several police officers testified

that Shannon, McKinley, and Roman were all at the scene when they arrived and McKinley

testified that he saw Shannon shoot Isabell. As the visually-impaired Roman testified to what

he observed when the incident occurred when his eyesight was better, such being subject to

cross-examination, the court’s allowance of that testimony did not constitute error. Therefore,

this Court affirms the circuit court’s judgment.

CONCLUSION

¶21. We find that the circuit court properly conducted voir dire and that the circuit court

did not err when it allowed Roman to testify. Thus, we affirm the circuit court’s judgment.

¶22. AFFIRMED.

GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., WILSON, WESTBROOKS
AND TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ.,
NOT PARTICIPATING.

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