Atterberry v. State

Citation667 So.2d 622
Decision Date21 December 1995
Docket NumberNo. 92-KA-00731-SCT,92-KA-00731-SCT
PartiesWillie Leon ATTERBERRY v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Robert B. Helfrich, Hattiesburg, for Appellant.

Michael C. Moore, Attorney General, Jackson, W. Glenn Watts, Sp. Ass't Attorney General, Jackson, for Appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

BANKS, Justice, for the Court:

In this matter we are confronted with whether the amendment of a return of capias, by an officer, and without leave of court renders the indictment invalid. We hold that it does not. We find that all other issues are without merit and we affirm.

I.

On January 28, 1991, Willie Leon Atterberry requested that Anthony McGill drive him to the apartment of Ursula Bruno. McGill drove Atterberry to Bruno's apartment, but first the two stopped at a gas station, where Atterberry put gasoline in a can. Atterberry wanted to talk to Bruno about dropping assault charges that each had filed against each other. McGill testified that Atterberry told him, that if Bruno was not cooperative, he was going to burn her house down. After talking with Bruno for a few minutes, she left and went to work. Atterberry admitted to throwing gasoline into Bruno's apartment. McGill an eyewitness testified that he saw Atterberry kick the door in, go inside with a gas can, come back out, light his cigarette lighter three times and throw it into the apartment.

Later on January 28, 1991, Atterberry was arrested for arson. On July 15, 1991, an indictment was filed against Atterberry, which was served on him the next day. On July 26, 1991, an arraignment was held where Atterberry pled not guilty. On October 25, 1991, trial was set to begin November 4, 1991. On October 28, 1991, Atterberry filed a motion to dismiss. On October 30, Atterberry retained personal counsel. On October 31, 1991, Atterberry's court appointed counsel filed a motion to withdraw. The trial was held on November 4, 1991.

Before any testimony was heard at trial the court held a hearing to determine whether Atterberry's court appointed attorney, Mr. Robert Helfrich, or Atterberry's privately hired counsel, Mr. Paul B. Johnson III, would proceed. The judge began the hearing by noting that "this defendant was advised that if he did in fact retain an attorney, that he needed to advise that attorney that this matter has been set for trial." Mr. Johnson stated that Atterberry had not informed him that the trial had been set and only became aware of that fact four days before trial. Mr. Johnson went on to say that the victim, Bruno, was a necessary party to the defense and could not see proceeding without her. Mr. Johnson informed the court that Atterberry believed that he could locate Bruno if he had a little time. Mr. Johnson further stated that he could not try the case that day. Atterberry then admitted that the court informed him that notice that trial was scheduled should be given to any counsel Atterberry retained. Mr. Johnson reiterated that he would not proceed without a continuance. The trial court replied that Mr. Helfrich would be proceeding because it was not granting a continuance.

Later, after jury selection, the court held another hearing regarding the motions to dismiss for violating Atterberry's right to a speedy trial and for wrongful service of process. The motion for denial of a speedy trial was based on the proposition that Atterberry was unable to recall the day in question. Atterberry has failed to raise this as a basis on appeal. After the trial judge asked Atterberry's court appointed counsel if the denial of a speedy trial motion was in conflict with the motion for a continuance filed by the hired counsel, Atterberry's court appointed counsel decided not to be heard on the motion and let it stand on its own. The prosecutor pointed out that plea negotiations were going on with Atterberry and that was the cause for any delay. The judge denied the motion to dismiss for denial of a speedy trial.

Officer Gretsch Howell testified that he personally handed indictments to Atterberry and to his cellmate. Officer Howell identified Atterberry as the man he handed the indictment to. Officer Howell further testified that he had accidentally wrote Atterberry's cellmate's name on the back when he filed the return with the court. On November 1, 1991, Officer Howell crossed out the cellmate's name and wrote Atterberry's on the capias. Officer Howell reiterated that he was sure that he had personally served Atterberry with the correct indictment. Atterberry testified that he was never served by Officer Howell and that he received the indictment from his cellmate. Atterberry also testified that, at his arraignment, he knew that he was charged with arson. Atterberry alleged that, at the arraignment, he was unaware that he was being charged as an habitual criminal. Atterberry was asked whether the judge at the arraignment asked if he had the indictment charging him as an habitual criminal. Atterberry replied "no, sir, they were telling me habitual, a big one and a little, I don't know." Officer Howell was brought back to the stand and stated that he was sure that he handed Atterberry a copy of the indictment charging him as an habitual criminal. The court denied the motion. Atterberry was convicted of first degree arson as an habitual criminal and sentenced to life imprisonment with no chance for parole. From this verdict he appeals.

II.
A.

The defendant asserts that the trial court erred in denying his motion to dismiss because of wrongful service of process of the indictment. The defendant claims that he was never personally served by Officer Howell and received the indictment from his cellmate. The defendant also relies on the fact that the return of capias originally did not have the defendant's name on it. The defendant further claims that personal service of the indictment is jurisdictional and the indictment should have been dismissed. However, the State claims that the defendant was personally served.

The trial court held an evidentiary hearing to determine whether the defendant was personally served. During the hearing Officer Howell testified that he had personally served a copy of the indictment on the defendant, but accidently wrote the defendant's cellmate's name on the return of capias. Officer Howell also testified that after he noticed the mistake he crossed out the incorrect name and placed the defendant's name on the return of capias. The defendant testified that he had not been personally served and that he received the indictment from his cellmate and not Officer Howell. The record shows that the defendant was aware that he was being charged as an habitual criminal at the grand jury indictment.

The trial court made a finding that the defendant had been personally served. The defendant claims that it was error for the court to make such a finding because the testimony of Officer Howell was in contrast with the defendant's. "When the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of the witnesses." Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994); Bryan v. Holzer, 589 So.2d 648 (Miss.1991).

The defendant cites Willenbrock v. Brown, 239 So.2d 922 (Miss.1970), for the proposition that the presumption that an officer's return of process is correct can be shown to be untrue by either party. In our case that is exactly what was attempted during the evidentiary hearing. Furthermore the court in Willenbrock, ruled that the trial court had found that the return of service was untrue, but that service had been made in the manner and form required by law. Id. at 925. The court in Willenbrock, ended the issue by saying that it would have been better procedure for the court to order the officer to perform the ministerial act of amending the return, but "such is not essential to the validity of the judgment." Id. at 925.

The defendant also cites Reichman-Crosby v. Horton, 143 Miss. 141, 108 So. 443 (1926) and Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780 (1970). Both of these cases deal with the affirmation of trial court determinations that a party was not served. However, these cases do not assist the defendant, because they stand for the proposition that the fact that service actually occurred can be challenged.

The defendant also cites Birindelli v. Egelston, 404 So.2d 322 (Miss.1981). In Birindelli, a nonresident father was allegedly served with process by mail and publication for an adoption hearing. When the father failed to appear the court granted the adoption on the premise that the father had abandoned the children. This Court reversed because the return of service had been mistakenly filed in the wrong district. The decision of this Court's reversal in Birindelli, was based on the well settled rule that when a nonresident is being served constructively by statute, strict compliance with the statute is jurisdictional. Here we deal with personal service. As to whether the defendant was actually served, the trial court's finding was not manifestly in error or contrary to the overwhelming weight of the evidence.

B.

Atterberry next argues in the alternative, that since Officer Howell amended the capias without leave of the court that the indictment should have been dismissed. The case law is silent as to the proper recourse when an officer amends a capias as Officer Howell has done. The defendant cites the Mississippi Rules of Civil Procedure as a guide to a determination. These rules are no assistance to him. While Rule 4(g) provides that amendment to proof of service should be done with court approval, Rule 4(f) provides that failure to make proof of service does not affect the validity of the service. We hold today, as this Court did in Willenbrock, that it may have been better procedure for the officer to have received leave from the court to amend the capias, but such is not essential to the validity of the...

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