Nickson v. State

293 So.3d 231

Johnathan NICKSON a/k/a Jonathan Nickson

v.STATE of Mississippi

NO. 2018-IA-01030-SCT

Supreme Court of Mississippi.

March 26, 2020

ATTORNEY FOR APPELLANT: WILLIAM S. KELLUM, JACKSON

ATTORNEYS FOR APPELLEE: SUE MILLER PERRY, PATRICK JOSEPH McNAMARA, JR.

BEFORE KITCHENS, P.J., COLEMAN AND GRIFFIS, JJ.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Johnathan Nickson was charged with two counts of first-degree murder and one count of possession of a firearm as a convicted felon. The jury acquitted him on the two counts of first-degree murder but deadlocked as to second-degree murder and the felon-in-possession charge. The trial court declared a mistrial.

¶2. Because the jury's verdict acquitted Nickson of first-degree murder, the trial court erred by declaring a mistrial on those charges. As a result, the trial court's order declaring a mistrial as to the two counts of first-degree murder is reversed, and a judgment of acquittal is rendered on those charges. The trial court's order is affirmed as to the remaining offense of second-degree murder and the charge of possession of a firearm as a convicted felon because no final resolution was reached by the jury.

FACTS AND PROCEDURAL HISTORY

¶3. Nickson was indicted for first-degree murder of Nedra Johnson, Count 1, first-degree murder of Bradley Adams, Count 2, and possession of a firearm as a convicted felon, Count 3. At trial, the jury was instructed on first-degree murder and second-degree murder for Counts 1 and 2 and possession of a firearm as a convicted felon for Count 3. Additionally, the form of the verdict instructed the jury as follows:

If you find the Defendant, Johnathan Nickson, guilty of First Degree Murder in the death of Nedra Johnson in Count One, the form of your verdict shall be:

"We, the Jury, find the Defendant guilty of First Degree Murder in Count One."

If you find the Defendant not guilty of First Degree Murder in Count One, the form of your verdict shall be:

"We, the Jury, find the Defendant not guilty of First Degree Murder in Count One."

And, ONLY in the event you, the Jury, find the Defendant not guilty of First Degree Murder, you shall continue your deliberations to determine if Johnathan Nickson is guilty of Second Degree Murder.

If you find the Defendant, Johnathan Nickson, guilty of Second Degree Murder in the death of Nedra Johnson in Count One, the form of your verdict shall be:

"We, the Jury, find the Defendant guilty of Second Degree Murder in Count One."

If you find the Defendant not guilty of Second Degree Murder in Count One, the form of your verdict shall be:

"We, the Jury, find the Defendant not guilty of Second Degree Murder in Count One."

If you find the Defendant, Johnathan Nickson, guilty of First Degree Murder in the death of Bradley Adams, in Count Two, the form of your verdict shall be:

"We, the Jury, find the Defendant guilty of First Degree Murder in Count Two."

If you find the Defendant not guilty of First Degree Murder in Count Two, the form of your verdict shall be:

"We, the Jury, find the Defendant not guilty of First Degree Murder in Count Two."

And, ONLY in the event you, the Jury, find the Defendant not guilty of First Degree Murder, you shall continue your deliberations to determine if Johnathan Nickson is guilty of Second Degree Murder in Count Two.

If you find the Defendant, Johnathan Nickson, guilty of Second Degree Murder in the death of Bradley Adams in Count Two, the form of your verdict shall be:

"We, the Jury, find the Defendant guilty of Second Degree Murder in Count Two."

If you find the Defendant not guilty of Second Degree Murder in Count Two, the form of your verdict shall be:

"We, the Jury, find the Defendant not guilty of Second Degree Murder in Count Two."

If you find the Defendant, Johnathan Nickson, guilty of being a convicted felon in possession of a firearm in Count Three, the form of your verdict shall be:

"We, the Jury, find the Defendant guilty of being a convicted felon in possession of a firearm in Count Three."

If you find the defendant not guilty of being a convicted felon in possession of a firearm in Count Three, the form of your verdict shall be:

"We, the Jury, find the Defendant not guilty of being a convicted felon in possession of a firearm in Count Three."

You shall write your verdict(s) on a separate piece of paper to be supplied to you. It need not be signed by any member of the Jury. Please do not write on the Court's Instructions.

¶4. During its deliberations, the jury sent a note that stated, "We are deadlocked." The trial court brought the jury into the courtroom and asked the foreperson if the jury had reached a verdict on any of the three counts. The foreperson responded in the affirmative. The trial court then instructed the jury to "go out and return the verdict on whatever counts you've decided on and then come back."

¶5. Once the jury returned to the courtroom, it announced that it had reached a verdict on two counts. The trial court read the verdict as follows:

Here's the partial verdict of the jury on Count 1 and 2:

We, the jury, find the defendant not guilty of first degree murder in Count 1. We, the jury, find the defendant not guilty of first degree murder in Count 2.

The trial court then polled the jury and confirmed that the jury's verdict was unanimous.¹ The jury was instructed to return to the jury room.

¶6. Once the jury had exited the courtroom, Nickson's counsel asked the trial court "to declare the rest of the trial a mistrial given [that] they [are] hopelessly deadlocked." The trial court denied defense counsel's motion stating that it was "still early." The trial court brought the jury back into the courtroom and issued a Sharplin² instruction, instructing the jury to "continue [its] deliberations." One hour later, the jury sent a note advising that it was "hopelessly deadlocked." The State moved for a mistrial and defense counsel concurred with the State's motion. The following conversation then occurred:

Court: All right. What I'm going to do is I'm going to bring them in. You know, they worked hard and I will prepare an order reflecting that since the jury returned an incomplete verdict on Counts 1 and 2 and no verdict on Count 3. I'm declaring a mistrial on all three counts and I will tell them that.

I'll also set [the retrial] for April the 30th.

Defense Counsel: I'm sorry, Judge. I misunderstood you. They returned a unanimous verdict on Counts 1, 2 and 3 – were not guilty first degree.

Court: Yeah.

Defense Counsel: Okay.

Court: And that was an incomplete verdict and my order will so reflect. I'll entertain any written motion if you disagree with my ruling.

After the jury returned to the courtroom, the trial court declared a mistrial and discharged the jury. An order declaring mistrial was later entered.

¶7. Nickson filed a "motion to set aside order of mistrial as to first-degree murder and enter judgment of acquittal." The trial court denied the motion. Nickson timely petitioned for an interlocutory appeal. This Court granted the petition.

¶8. On appeal, Nickson argues (1) the jury's verdict was complete as to all counts of the indictment, (2) he cannot be retried for first-degree murder because he was acquitted of that offense, and (3) he cannot be retried for the lesser offense of second-degree murder.

STANDARD OF REVIEW

¶9. "Our standard of review regarding the decision to grant or deny a motion for a mistrial is abuse of discretion." United Servs. Auto. Ass'n v. Lisanby , 47 So. 3d 1172, 1184 (Miss. 2010) (citing Coho Res., Inc. v. McCarthy , 829 So. 2d 1, 18 (Miss. 2002) ).

ANALYSIS

I. Whether the jury verdict was complete.

¶10. In its order declaring a mistrial, the trial court found that the jury "did not reach a complete and unanimous verdict on any count, having returned an incomplete verdict on counts 1 and 2 and no verdict on count 3." Nickson argues that "[b]ecause the jury verdict was unanimous as to ... first-degree murder, it was error for the [trial court] to find that the verdict was incomplete." This Court agrees.

¶11. Mississippi Rule of Criminal Procedure 24.4(b) states, "[i]f the jury cannot agree on all counts as to any defendant, the jury shall return a verdict on those counts on which it has agreed." Thus, Rule 24.4(b) allows a jury to return partial verdicts as to multiple counts. See MRCrP 24.4 cmt.

¶12. Counts 1 and 2 of the indictment charged Nickson with the first-degree murder of Nedra and Adams. The trial court instructed the jury on the charged offense of first-degree murder and further instructed the jury on second-degree murder. Thus, the jury instructions regarding Counts 1 and 2 included two murder offenses, first-degree murder and second-degree murder. Additionally, the form of the verdict for both Counts 1 and 2 allowed the jury to find Nickson guilty or not guilty of first-degree murder and, in the event the jury found him not guilty, then guilty or not guilty of second-degree murder. As a result, the instructions allowed the jury to agree on one offense but not the other.

¶13. The record shows that the jury unanimously agreed against guilt on the charged offense of first-degree murder but that the jury was unable to agree on second-degree murder or possession of a weapon as a convicted felon. The jury's verdict was in writing and in proper form in accordance with the jury instructions. See MRCrP 24.1, MRCrP 24.3. As a result, under Rule 24.4(b), the jury returned a partial verdict against guilt on first-degree murder in Counts 1 and 2. Accordingly, the jury's verdict was complete as to the charged offense of first-degree murder in Counts 1 and 2.

II. Whether Nickson can be retried for first-degree murder.

¶14. Nickson next argues he cannot be retried for first-degree murder because the jury acquitted him of that offense. He claims that because the jury returned a unanimous verdict as to first-degree murder, "a retrial on first-degree murder would violate the double jeopardy clause." This Court agrees.

¶15. The Double Jeopardy Clause of the ...