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OWEN LEE HARDEN v. STATE OF MISSISSIPPI

OCTOBER 17, 1984

OWEN LEE HARDEN
v.
STATE OF MISSISSIPPI



EN BANC.

HAWKINS, JUSTICE, FOR THE COURT:

Owen Lee Harden appeals from an order of the Circuit Court of the First Judicial District of Yalobusha County denying his petition for a writ of habeas corpus.

Harden was under arrest under indictments for three crimes: conspiracy to murder James B. Williamson, arson of Williamson's house, and arson of Williamson's personal property. In his petition Harden claimed prosecution was barred for these crimes because of his previous acquittal of Williamson's murder, and his having been required to invoke the 5th Amendment privilege against self-incrimination in a co-defendant's subsequent trial for the murder of Williamson. The double jeopardy and self-incrimination rights guaranteed by the 5th Amendment to the U.S. Constitution, and of Article 3, Sections 22 and 26 of our Mississippi Constitution are at stake.

 FACTS

 In the early morning of March 22, 1982, the residence of James B. Williamson was observed by a passer-by to be on fire. Help was summoned; the entire house, with the exception of the carport, was consumed. The charred body of Williamson was found inside. At the time of his death, Williamson was 64-years-old, and lived on Highway 32 about three and one-half miles west of Highway 51 in Yalobusha County.

 On January 27, 1983, the grand jury of the First Judicial District of Yalobusha County indicted Owen Lee Harden and two others for capital murder, the pertinent portions of which read as follows:

 CECILIA ANN WILLIAMSON, a/k/a COOKIE WILLIAMSON, OWEN LEE HARDEN, and LARRY SHELTON HENTZ . . . on or about the 22nd day of March, 1982 . . . did unlawfully and willfully and feloniously and intentionally, and of their malice of forethought, kill and murder JAMES B. WILLIAMSON, a human being, said murder was perpetrated by OWEN LEE HARDEN, who had been offered or had received something of value for committing the murder and CECILIA ANN WILLIAMSON, a/k/a COOKIE WILLIAMSON, and LARRY SHELTON HENTZ, were parties to the murder and are charged as principals

 in direct violation of Section 97-3-19 (2) (d) Mississippi Code 1972 Annotated as amended . . . *fn1

 We surmise, as we must, that a change of venue was granted Harden, as well as a severance, and he went to trial for murder in DeSoto County on July 11, 1983.

 Following a several-day trial Harden was acquitted.

 On January 4, 1984, the grand jury of the First Judicial District of Yalobusha County returned three indictments involving Harden, Mrs. Williamson and Hentz.

 Indictment No. 3872 charges Harden, Mrs. Williamson, and Hentz, as an unindicted co-conspirator, conspired to murder Williamson, in violation of 97-1-1 of the 1972 Code.

 Indictment No. 3873 has two counts. Count One charges that Harden, Mrs. Williamson, and Hentz, as an unindicted co-conspirator, conspired to burn the dwelling house of Williamson in violation of 97-1-1 of the 1972 Code. Count Two charges Harden and Mrs. Williamson with feloniously burning the dwelling house of Williamson, in violation of 97-17-1 of the 1972 Code.

 Indictment No. 3874 charges Harden and Mrs. Williamson with feloniously burning the personal property of Williamson, in direct violation of 97-17-7.

 The arson charges in each of the indictments allege the dates of the offenses March 22, 1982. The conspiracy part of each of the indictments allege the conspiracy as beginning in December, 1981, as culminating in March, 1982.

 Following his indictment, Harden was placed in custody on these charges. It is entirely possible he was already in jail, but the return of the sheriff states the capias was served upon him on January 4, 1984.

 On January 9 Harden filed a petition for writ of habeas corpus. He alleged that he was being illegally detained against his will for crimes in which he had been acquitted, that his imprisonment violated 22, Article 3 of the Mississippi Constitution, and the 5th and 14th Amendments of the United States Constitution. He also alleged that he was indigent and requested the court file and copies of the trial transcript in the murder case in which the jury returned the verdict of not guilty in

 DeSoto County, including all witnesses except defense witnesses Sawaya and Dr. Thomas Lombardo.

 He made a separate affidavit that he was indigent and had no source of income.

 On January 13 by separate motion he requested that the court, pursuant to Rule 8.07 of the Mississippi Uniform Criminal Rules, provide him with specified portions of the transcript of the prior proceeding on his petition for writ of habeas corpus.

 The final paragraph of this motion states the following, however:

 WHEREFORE, PREMISES CONSIDERED the defendant requests that the court order that the portions of the trial transcript as requested by the defendant in his Petition of Writ of Habeas Corpus be provided him without charge or in the alternative that the tapes be made available to him. [Emphasis added]

 On February 2 the circuit judge entered an order as follows:

 ORDERED, AND ADJUDGED that the court reporter in possession of the tapes of the trial of State of Mississippi v. Owen Lee Harden, No. 4038 immediately make the tapes available to Ms. Janet Clemens, the court reporter ruled by the Court to be competent to transcribe said tapes for use by defendant.

 Ms. Clemens did not transcribe the entire record of Harden's murder trial. She did transcribe portions of the opening statement and closing argument of the prosecuting attorney Robert L. Williams. She also transcribed testimony of James Vickers, Sheriff L. A. Jones, Tommie Lee Burchfield, Barry Joe Tutor, Hope Langston, and Tommy Lee Johnson.

 The habeas corpus hearing was held on February 10, 1984, before the same circuit judge who presided at the murder trial of Harden.

 The transcribed portions of the witnesses' testimony offered by Harden at the hearing may be summarized as follows:

 James Vickers, an expert in the investigation

 of fires, testified the Williamson fire was incendiary, and had been intentionally set.

 Sheriff Jones testified he arrived at the burning house around 7:30 o'clock in the morning of March 22, 1982, saw the house, with the exception of the garage portion, was burned. He identified portions of the burned house and a badly burned body.

 Tommie Lee Burchfield, an oral surgeon, examined x-rays of the dental remains with known x-rays of Williamson during his lifetime, and ...


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