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Williams v. State

Supreme Court of Mississippi, En Banc

December 11, 2014

HARVEY WILLIAMS, JR. a/k/a SMOKIE a/k/a HARVEY WILLIAMS
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT: 02/14/2013

CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY HON. JEFF WEILL, SR. JUDGE

TRIAL COURT ATTORNEYS: CHARLES RICHARD MULLINS MERRIDA COXWELL MARVIN LAWAYNE SANDERS

ATTORNEYS FOR APPELLANT: CHARLES RICHARD MULLINS MERRIDA COXWELL

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: HAROLD EDWARD PIZZETTA, III MARY JO WOODS

KITCHENS, JUSTICE

¶1. Following this Court's reversal and remand of the murder conviction of Harvey Williams, Robert Shuler Smith, the Hinds County District Attorney, sought an order of nolle prosequi, which was granted by the circuit court. Two days later, and without notice to the accused, the judge sought to vacate his previously entered nolle prosequi order, "recuse" the district attorney, and transfer the case to the Mississippi Attorney General's Office. A second circuit court judge found that the order of nolle prosequi was not subject to recision, but appointed the Attorney General's Office as a special prosecutor in the place of the local district attorney, merely because the duly elected and serving local prosecutor had exercised his discretion not to prosecute Williams. The involuntary disqualification of the local district attorney and the substitution of the Office of the Attorney General, over the objection of the local district attorney, are wholly unsupported by any constitutional, common law, or statutory authority of the State of Mississippi.

FACTS AND PROCEDURAL HISTORY

¶2. Following the shooting death of Calvin Younger outside a Jackson, Mississippi, nightclub in 2003, Harvey Williams was indicted for murder. The case proceeded to trial in 2007, prosecuted by the then-Hinds County District Attorney Faye Peterson. A jury found Williams guilty of murder, and the Honorable Breland Hilburn, Circuit Judge, sentenced Williams to life in the custody of the Mississippi Department of Corrections. The Court of Appeals affirmed Williams's conviction and sentence. Williams v. State, 54 So.3d 253 (Miss. Ct. App. 2010). This Court granted Williams's petition for writ of certiorari and, upon review, reversed his conviction and remanded the case for a new trial. Williams v. State, 54 So.3d 212, 216 (Miss. 2011). We found that Williams's defense was prejudiced by the exclusion of testimony from a witness who would have testified that he had seen the decedent with a gun earlier on the evening of the shooting. Id.

¶3. Following remand, Hinds County District Attorney Robert Shuler Smith sought an order of nolle prosequi based on "new evidence" indicating "that the defendant, Harvey Williams, may have acted in self-defense." Judge Hilburn, who had presided over Williams's trial, signed an order on June 13, 2011, granting the State's nolle prosequi motion. Two days later, however, on June 15, 2011, Judge Hilburn wrote "Withdrawal of Order" directly upon his previously entered nolle prosequi order, and "the Court find[s] that the above order of Nolle Prosequi was erroneously entered by the Court. The Order of Nolle Prosequi is hereby withdrawn."[1]

¶4. Nine months later, on March 13, 2012, Judge Hilburn signed the following "Order of Recusal":

IT APPEARING that the District Attorney in and for the Seventh Circuit Court District, State of Mississippi, and the staff of the District Attorney's Office, should recuse itself from prosecuting the above-styled and numbered cause, and in support thereof, would show unto the court the following facts, to-wit:
(1) The District Attorney's Office is recusing itself from this matter so this case can be handled by the Attorneys that originally prosecuted this matter.
(2) The Attorneys that originally prosecuted this matter now work in the Mississippi Attorney General's Office.
IT IS THEREFORE[] ORDERED AND ADJUDGED that the District Attorney in and for the Seventh Circuit Court District, State of Mississippi, and the staff of the District Attorney's Office, should recuse itself from prosecuting the above-styled and numbered cause for the reasons stated above and this matter will be transferred to the Mississippi Attorney General's Office.

On March 14, 2012, Judge Hilburn entered a second order appointing the Division of Public Integrity of the Mississippi Office of the Attorney General as special prosecutor.

¶5. On September 10, 2012, Williams filed a motion to dismiss the case, claiming that Judge Hilburn's original nolle prosequi order effectively brought the case to an end and that the charges could not be revived by the judge. Williams contended that any orders entered after the order of nolle prosequi had been entered were null and void, including the order of recusal of the Hinds County District Attorney and the order appointing the Office of the Attorney General as special prosecutor. Initially, the case was reassigned to Circuit Judge William Gowan, but Judge Gowan recused. The case then was assigned to Circuit Judge Jeff Weill, who conducted a hearing on October 29, 2012.

¶6. At the hearing before Judge Weill, Special Assistant Attorney General Marvin Sanders conceded that Judge Hilburn had no authority to rescind the order of nolle prosequi. Sanders did maintain, however, that the Office of the Attorney General is vested with constitutional, common law, and statutory authority which entitle it to prosecute the case. District Attorney Smith testified that he had decided, in his discretion as the elected Hinds County District Attorney, to seek a nolle prosequi of the case against Williams. He expressed his continuing objection to the intervention of the attorney general "in cases where I have jurisdiction as the elected district attorney."

¶7. On February 14, 2013, Judge Weill entered an order finding that, once the order of nolle prosequi had been signed by Judge Hilburn, the case was at an end. He therefore held "that the subject cause number shall be dismissed, as the same was nolle prossed on June 13, 2011." However, Judge Weill found that, because the Hinds County District Attorney did not intend to prosecute Williams, the Office of the Attorney General should be appointed as special prosecutor. Judge Weill continued that the Office of the Attorney General "is permitted to pursue future prosecution of this Defendant, in its discretion."

¶8. Williams filed a Petition for Interlocutory Appeal in this Court on March 7, 2013. On April 1, 2013, a panel of this Court ordered that Judge Weill, the attorney general, and the Hinds County District Attorney's Office file responses addressing the following issues:

(1) W hat authority, if any, permits a trial judge to appoint the Attorney General of the State of Mississippi as special prosecutor under the circumstances presented in this case?
(2) What authority, if any, permits the Attorney General of the State of Mississippi to serve as special prosecutor under the circumstances presented in this case?
(3) Do the Office of the Attorney General of the State of Mississippi and the Hinds County District Attorney's Office belong to the executive or the judicial branch of government?

Having received a response from each of the entities listed above, the panel, on May 28, 2014, granted Williams's petition for interlocutory appeal and stayed prosecution of Williams related to the charges for which he previously had been indicted.

¶9. On interlocutory appeal, Williams raises the following issues:

DID THE HINDS COUNTY CIRCUIT COURT JUDGE HAVE THE AUTHORITY AND/OR JURISDIC[TION] TO APPOINT THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR? IN THE ALTERNATIVE DID THE CIRCUIT COURT JUDGE VIOLATE THE SEPARATION OF POWERS DOCTRINE BY APPOINTING THE MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR AFTER THE CASE WAS DISMISSED BY NOLLE PROSEQUI?

We limit interlocutory review to the first question presented, finding it dispositive of the matter before us. We divide the question presented into the following issues:

I. Whether the Constitution and/or common law of the State of Mississippi authorize the intervention of the Office of the Attorney General in a criminal prosecution in which the local district attorney opposes such interference.
II. Whether the statutes of the State of Mississippi authorize the intervention of the Office of the Attorney General in a criminal prosecution in which the local district attorney opposes such interference.

DISCUSSION

¶10. Justice Pierce analyzes whether the circuit court is vested with authority to rescind orders of nolle prosequi after entry. But this issue is not before the Court. Judge Weill acknowledged in his order of February 14, 2013, that the case had been nolle prossed by Judge Hilburn's order of June 15, 2011, and was therefore finally dismissed. Marvin Sanders of the Office of the Attorney General conceded this at the October 29, 2012, hearing before Judge Weill. The issue was not raised on appeal, and we decline to address it. We proceed to address only the issue before this Court.

I. Whether the Constitution and/or common law of the State of Mississippi authorize the intervention of the Office of the Attorney General in a criminal prosecution in which the local district attorney opposes such interference.

ΒΆ11. Neither the Constitution nor any case law authorized Judge Hilburn's or Judge Weill's orders appointing the Office of the Attorney General as special prosecutor to prosecute the case against Williams, where the local district ...


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