Sharplin v. State

• Decision Date: 20 April 1976
• Docket Number: No. 48934,48934
• Citation: 330 So.2d 591
• Parties: Horace SHARPLIN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 591

330 So.2d 591

Horace SHARPLIN v. STATE of Mississippi.

No. 48934.

Supreme Court of Mississippi.

April 20, 1976.

Morris C. Phillips, Jr., Robert N. Brooks, Carthage, for appellant.

A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before INZER, SUGG and WALKER, JJ.

SUGG, Justice:

Horace Sharplin, defendant, was indicted for muder and convicted of manslaughter for the death of Thelma Sharlin, his estranged wife. We reverse and remand for a new trial. The questions are: (1) Was the county attorney disqualified from participating in defendant's prosecution because of the attorney's prior representation of defendant in a divorce suit? (2) Was it error to admit evidence of a conditional threat? (3) Did the trial judge err by requesting the numerical division of the jury prior to return of a verdict? (4) What is the proper instruction to give a hung jury?

Defendant and Thelma Sharplin instituted divorce proceedings against one another during mid-1974. Defendant hired the County Attorney of Leake County to represent him in the matter. Defendant was granted temporary cutody of the couple's four-year-old daughter and Mrs. Sharplin was given weekend visitation rights. Pending the divorce, Mrs. Sharplin and Paul Turner, her boyfriend, moved into a house trailer located in a trailer park in Carthage. Shortly before 7:00 a.m. on August 27, 1974, residents of the trailer park awakened to the sound of an argument emanating from Mrs. Sharplin's trailer. The argument was followed in quick succession by a girl's voice calling 'Daddy,' a man's voice commanding 'lay down on the floor,' and the echo of two gunshots. Several minutes later a man, whom defendant subsequently identified as himself, emerged from the rear door of the trailer carrying a small girl. Defendant knocked at the doors of several residences in the neighborhood seeking police assistance but finally drove himself and the child to the Carthage Police Department. There he informed an officer that he had found Mrs. Sharplin and Paul Turner dead in the trailer. Investigating officers found Mrs. Sharplin slumped on a couch and Paul Turner lying on the living room floor, both scantily clad. Both victims had been shot in the head. Shortly thereafter, defendant was errested and indicted for the murder of Mrs. Sharplin.

Prior to trial defense counsel moved to exclude the county attorney from participating in the case on the ground that he represented defendant in a divorce suit at the time of the killing and he 'possesses or could possess personal knowledge of a privileged nature concerning this case.' In a hearing on the motion, the county attorney testified that he represented defendant in the divorce suit and admitted that he and defendant discussed threats defendant allegedly made against his wife. However, the attorney asserted that nothing he had learned while representing defendant concerned the present criminal charge because his representation ended with the death of defendant's wife. Defense counsel's motion was overruled. During trial and in response to a question asked by the county attorney, a state's witness testified that defendant made an uncommunicated threat against Mrs. Sharplin two months prior to her death. Defendant now complains that this line of questioning was possible only because of confidences he shared with the county attorney during their former relationship.

It was reversible error to permit the county attorney to participate in defendant's prosecution. Although a prosecuting attorney's prior representation of a defendant in a civil suit does not ipso facto bar that attorney from participating in a subsequent prosecution of the defendant, the attorney should be disqualified if (1) the criminal prosecution is substantially related to the prior civil suit or involves essentially the same facts, or (2) the attorney will be called upon to use against the defendant confidential information gained through their former relationship. Gajewski v. U.S., 321 F.2d 261, 267 (8th Cir. 1963), cert. denied 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); 27 C.J.S. District and Prosecuting Attorneys § 12(6)c at 664-65 (1959).

The facts of this case satisfy both of these criteria. A single event, the death of defendant's wife, terminated the county attorney's civil representation of defendant and plunged him into the criminal prosecution of his former client. Undoubtedly, themarital strife that precipitated the divorce suit played an integral, if not all-too-familiar, role in the death of defendant's wife and his criminal prosecution. Viewed in its entirety, the relationship between the civil representation and the criminal prosecution was so substantial and facts of each so intertwined that no attorney could be expected to lay aside the confidences imparted to him during the civil suit and proceed with a criminal prosecution of his former client without violating the legal and ethical obligations owed to the former client. Notwithstanding the county attorney's earnest efforts to avoid a conflict of interest, his participation in defendant's trial was reversible error.

Our holding is not grounded solely on a real or imagined violation of the attorney-client privilege but draws upon the broader, more exacting ethical obligations and professional responsibilities each attorney owes to a client and the bar to avoid impropriety as well as the appearance thereof.

Defendant complains that the trial court erred by overruling his objection to evidence of a conditional threat he made against his wife. A state's witness testified that two months prior to the death of defendant's wife, defendant told him 'if they got custody, and we had been talking about Thelma and Paul Turner, if they got custody of the child, that if he had to, he would quit his job, follow them to Canada, and kill them both.' The condition of this threat (permanent custody) was never fulfilled. The trial court admitted this evidence on the grounds that it was not too remote but was probative of the defendant's state of mind. Defendant now contends that evidence of a conditional threat is inadmissible unless it is first shown that the condition was met, citing Clark v. State, 123 Miss. 147, 85 So. 188 (1920) and Cordell v. State, 136 Miss. 293, 101 So. 380 (1924).

Clark v. State, supra, held it error to exclude evidence of a communicated conditional threat decedent made against defendant, holding that the conditional nature of the threat did not render it inadmissible. The Court specifically declined to say whether admission of the threat was dependent upon fulfillment of the condition, holding that if admissibility were dependent upon satisfaction of the condition, that condition was met in this case. Cordell v. State, supra, held that evidence of a conditional threat was admissible because the condition was fulfilled, citing Clark. Subsequently, Smith v. State, 152 Miss. 114, 118 So. 710 (1928), held admissible the defendant's threat that his victim 'had better not start anything around here; I will shoot him,' on the ground that the threat tended to show malice. Clark and Cordell were cited for support but the matter of a conditional threat was not discussed. To summarize the quandary, Clark declined to state whether fulfillment of the condition was a requisite for admission of the threat; Cordell held evidence of a threat admissible because the condition was fulfilled; Smith held admissible an apparent conditional threat without ever discussing the condition.

We hold that the conditional nature of a threat affects only its weight and not its admissibility. Admissibility does not depend upon fulfillment of the threat; as with other threats, evidence of conditional threats is admissible against an accused to prove state of mind, intent and malice. 1 F. Wharton, Criminal Evidence § 202 at 47 (13th ed. C. Torcia 1972). Accord 1 J. Wigmore, Evidence in Trials at Common Law § 107 at 543 (3rd ed. 1940); 40 Am.Jur.2d Homicide § 316 at 587 (1968); 40 C.J.S. Homicide § 236b at 1168-69 (1944). The lower court correctly held that the conditional nature of the threat was no bar to its admissibility. The remoteness of the threat was a matter for the trial judge to consider and we cannot say that he abused his discretion by admitting this evidence.

We next consider the trial judge's request for the numerical division of the jury. After deliberating for about an hour and forty minutes, the jury returned to the courtroom and informed the trial judge that no verdict had been reached. The judge then requested the numerical division of the jury without reference to guilt or innocence and was informed that the division was 'Nine and three.'

Thereupon the following colloquy took place:

BY THE COURT:

How long has the jury been nine to three?

BY THE FOREMAN:

Not too long.

BY THE COURT:

Well, the jury has been considering this case now for about an hour and thirty, thirty-five minutes. The Court feels this jury should be able to get together on this case, and I am going to let you go...