Alexander v. State, 45473

• Decision Date: 06 October 1969
• Docket Number: No. 45473,45473
• Parties: Leroy ALEXANDER and Simmie Morris v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 905

226 So.2d 905

Leroy ALEXANDER and Simmie Morris v. STATE of Mississippi.

No. 45473.

Supreme Court of Mississippi.

Oct. 6, 1969.

Martha Wood, William E. Miller, Jr., Jackson, for appellants.

A. F. Summer, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

ETHRIDGE, Chief Justice.

In October 1967 the Grand Jury of Amite County returned an indictment charging Leroy Alexander and Simmie Morris, appellants, with theft of a cow under Mississippi Code 1942 Annotated section 2240 (1956). Both appellants entered pleas of not guilty. The trial of Morris, who obtained a severance, commenced on February 22, 1968. After Morris began testifying in his own defense, he and, a few moments later, Alexander purported to withdraw their not guilty pleas and enter pleas of guilty. Thereafter, appellants secured new counsel and took appeals to this Court, but later by motion obtained their dismissal, since an appeal may not be taken from a sentence based on a plea of guilty. Miss. Code 1942 Ann. § 1150 (1956).

Alexander and Morris subsequently filed the present motions in the Circuit Court of Amite County to vacate their convictions and sentences on the grounds that (1) they did not voluntarily and understandingly enter guilty pleas, and (2) Negroes were systematically excluded from the grand jury and from the petit jury which would have decided their cases if they had been tried on pleas of not guilty. The motions to vacate were consolidated for hearing and the circuit court overruled them. We hold that the record of the arraignment proceeding for Morris shows neither that he personally pleaded guilty to the felony, nor that he voluntarily and understandingly did so; and further, that the record does not affirmatively reflect that Alexander voluntarily and understandingly pleaded guilty. Hence, the order of the circuit court is reversed, both pleas of guilty are set aside, and the cause remanded for further proceedings on the indictment.

SELECTION OF JURIES

Since both cases may be retried on the present indictment, appellants' proposition that there was systematic exclusion of Negroes from the grand jury should be disposed of at this point. Evidence on this issue was presented and considered at the hearing on the motions to vacate. Appellants were indicted for grand larceny in April 1967. The State concedes that up to 1966 there had been systematic and discriminatory exclusion of Negroes from jury service in Amite County. However, the record reflects that beginning in 1966 and particularly in 1967 the method of jury selection was changed so as to eliminate any discriminatory jury-selection procedures and that in 1967 Amite County was administering a nondiscriminatory jury-selection system.

The master jury list of April 1967 was drawn from the voter registration and land assessment rolls. The population of Amite County is approximately fifty percdent white and fifty percent black. However, only about one-half as many Negroes as whites are registered to vote in Amite County. The percentage of Negroes on the 1966 jury list was 28.3%, and was 32% on the 1967 list from which the grand jury in this case was drawn. This indicates that a higher percentage of Negro qualified electors was selected for jury service both in 1966 and 1967 than white electors. The Board of Supervisors of Amite County, in selecting names to be placed on the jury list, took every fourth name. The disparity as to total population in wholly insufficient to make a prima facie case of systematice exclusion or inclusion. In short, beginning in 1966 the method of jury selection in Amite County was entirely changed from the prior system and a new method of nondiscriminatory selection was adopted. We

find no constitutional infirmity in it. See Rouse v. State, 222 So.2d 145 (Miss. 1969); Williams v. State, 220 So.2d 325 (Miss. 1969); Morris v. State, 206 So.2d 832 (Miss. 1968); McLelland v. State, 204 So.2d 158 (Miss. 1967).

MORRIS' GUILTY PLEA

Morris had gone to school only a few days in his life, and could neither read nor write. After a severance, the State put on its testimony, and Morris, represented by Attorney Stratton, began to testify, during which he admitted that he along with Alexander had taken the cow from a common pasture containing 200 cattle, ten of which belonged to Alexander. They thought it was Alexander's cow. Prior to the entry of the guilty plea, there transpired a colloquy between the court and the attorney, Stratton, representing Morris. Excerpts from this are quoted in an appendix to this opinion. However, in substance, the defendant Morris never personally pleaded guilty to the indictment.

At the hearing on the motion to vacate, Morris testified that he was not guilty of stealing the cow-he thought it belonged to Alexander. His attorney, an able member of the bar, told him that he should plead guilty, that he could probably get a lighter sentence. Stratton testified that the reason he recommended that Morris plead guilty was because Morris during the trial admitted privately to him that he had stolen the cow. At any rete, that which transpired at the time the plea of guilty was entered, in the context of this record, shows that the court's interrogation, although directed to Morris, was answered solely by his counsel, and that Morris never personally pleaded guilty to the indictment.

Although an accused may plead to a misdemeanor by his attorney, under an indictment for a felony he cannot plead by attorney. He must plead in person. Mississippi Code 1942 Annotated section 2504 (1956) states:

If the defendant, on arraignment, refuse or neglect to plead, or stand mute, the court must cause the plea of 'not guilty' to be entered, and the trial to proceed.

Mississippi Code 1942 Annotated section 2564 provides:

A person indicted for a criminal offense shall not be convicted thereof, unless by confession of his guilt in open court or by admitting the truth of the charge against him by his plea, or by the verdict of a jury accepted and recorded in court; and a person charged with an offense shall not be punished therefor unless legally convicted thereof in a court having jurisdiction of the cause and of the person.

These statutes have consistently been interpreted as requiring that one charged with a felony must plead to an indictment in person. If he refuses to plead, the court is required to enter for him a plea of not guilty. Wilson v. State, 42 Miss. 639 (1869); McQuillen v. State, 8 Smedes & Marshall 587, 16 Miss. 587 (1847); cf. Bogle v. State, 155 Miss. 612, 125 So. 99 (1929); see 21 Am.Jur.2d Criminal Law § 459 (1965). Since Morris did not plead to the felony indictment personally, his plea of guilty by his attorney was invalid. Furthermore, the evidence reflects that even if the plea by attorney were valid, it was not made intelligently and understandingly.

ALEXANDER'S GUILTY PLEA

Alexander, 33 years of age, had gone through the ninth grade in school and could read and write 'soem.' He had no prior convictions. Apparently he appeared before the court, withdrew his plea of not guilty and pleaded guilty shortly after Morris had withdrawn his not guilty plea and pleaded guilty. There is no transcript of what occurred or what was said at the time. The minutes reflect only the usual formal action:

This day came the State of Mississippi by her District Attorney and the accused Alexander owned ten cows located in a pasture which also contained a number of other cattle belonging to several different people. At the hearing on the motion to vacate, he testified that he removed the cow, but he thought it belonged to him. (His employer later testified that the cow was identical with some of Alexander's cattle.) Attorney Stratton said that he explained to Alexander the possible maximum sentence, but tole him his plea was a decision he alone would have to make. He stated that shortly before both defendants pleaded guilty, they admitted that they knew it was not Alexander's cow. Stratton said that, before permitting withdrawal of the not guilty plea and accepting the guilty plea, the court had conducted a 'short examination' of the defendants, and he 'believed' they pleaded individually. In short, it cannot be determined affirmatively from this record what occurred at the hearing when Alexander withdrew his plea of not guilty and entered a plea of guilty. There is no transcript of any questioning of Alexander by the judge.

Leroy Alexander, represented by his attorney, Hon. F. W. Stratton, and being placed at the bar of this Court in the custody of the Sheriff of this County, having been arraigned at a former term of this Court and having entered a plea of 'NOT GUILTY' of Grand Larceny, asks leave of this Court to withdraw his former plea of 'Not Guilty' of Grand Larceny and upon leave being granted by the Court the defendant, Leroy Alexander entered a plea of 'Guilty' to the said charge of 'Grand Larceny' and was remanded to the Custody of the Sheriff for sentence thereupon at a later day of the term.

In Several cases this Court has placed the affirmative duty upon the state to show an intelligent and competent waiver of counsel. Conn v. State, 251 Miss. 488, 170 So.2d 20 (1964), involved conviction of a felony after a jury trial. It was there stated that 'it was not shown that he (appellant) waived the appointment of counsel. The case requires that such a waiver, if any, be understandably made.' Citing several decisions of the United States Supreme Court, this Court concluded:

In accordance with these mandatory decisions we hold that there must be an intelligent and competent waiver of counsel by the defendant and that the trial court should so determine, and, further, that such determination, as well as the facts on which it is based, should appear in the record. (251 Miss. at 495, 170 So.2d at 23).

In Clarke v. State, 25s Miss. 627, 170 So.2d 575 (1965), defendant was convicted of a felony. He...