Barnes v. State
| Decision Date | 21 November 1984 |
| Docket Number | No. 55137,55137 |
| Citation | 460 So.2d 126 |
| Parties | Harold David BARNES v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Travis Buckley, Dan C. Taylor, Ellisville, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
I.
Affording one accused of crime a fair (though not necessarily perfectly fair) trial is the raison d'etre of our criminal justice system. We have rules forged through experience designed to assure fairness. Where those rules have been offended, justice and fairness are likewise offended, and we often reverse though there be substantial likelihood of guilt.
This case makes the point. There is little in this record that makes Harold David Barnes a loveable person. Yet at his trial on major drug offenses, the trial judge in two important particulars deprived Barnes of the opportunity to test fully the credibility of his accusor, one Arthur Ray Moody, a thrice-convicted drug offender himself and equally unloveable. The trial judge refused (a) to allow Barnes to develop fully the extent of the State's leniency/immunity deal with Moody, and (b) to require production of prior exculpatory and bias-reflecting statements Moody had given law enforcement officials. In so doing the trial judge substantially violated rules designed to assure fairness in Barnes' trial and comparably denied Barnes rights secured by and expressed in those rules. We reverse.
II.
The operative events which have given rise to this appeal occurred on October 27, 1982, in Laurel, Mississippi. Harold David Barnes, Defendant below and Appellant here, operated Sumralls Drug Store out of the facilities known as Odom's Pharmacy. The State contends that at approximately 6:40 P.M. on the day in question Barnes transferred to one Arthur Ray Moody two illegal controlled substances, to-wit: pentazocine (talwin) and methadone (dolophine). Barnes denies the charges and says that he only gave Moody a bottle of cough syrup.
On March 23, 1983, Barnes was formally charged with transfer of pentazocine, Miss.Code Ann. 41-29-115(A)(d)(6) (Supp.1984), and methadone, Miss.Code Ann. 41-29-115(A)(b)(11) (Supp.1984), in two separate indictments returned by the Jones County Grand Jury, all in violation of our Uniform Controlled Substances Law of 1971, as amended. Barnes entered a plea of not guilty to both the charges which, upon his motion, were consolidated for all purposes including trial.
On June 1, 1983, these two consolidated cases were called for trial in the Circuit Court of Jones County. On the following afternoon, June 2, 1983, after hearing all of the evidence and receiving the instructions of the court and the argument of counsel, the jury found Barnes guilty as charged on both indictments.
On June 6, 1983, upon his conviction of the crime of transfer of pentazocine, Barnes was ordered committed to the custody of the Mississippi Department of Corrections for a period of twelve years and, in addition, was ordered to pay a fine of $25,000.00. Miss.Code Ann. 41-29-139(b)(1) (Supp.1984). On the same day, upon his conviction of the crime of transfer of methadone, Barnes received a twelve year sentence with the express provision that this sentence be served concurrently with his prison sentence on the first charge.
From these convictions and sentences, Barnes appeals.
III.
A.
The chief State witness against Barnes was Arthur Ray Moody, the party to whom the controlled substances were said to have been transferred. On this appeal, Barnes assigns as error that the trial court unduly limited his inquiry into what may have motivated Moody to give testimony favorable to the State. Translated, Barnes complains that the trial court refused to allow Moody's attorney to be questioned regarding an alleged agreement between Moody and the State wherein it is said that Moody agreed to testify against Barnes in exchange for favorable treatment on his own charge.
The State's case does indeed largely rest on Moody's testimony. The record reflects that Moody has thrice been convicted of drug-related offenses and that on the last such occasion he received a three year prison sentence. On cross-examination, Moody testified that, in exchange for his testimony against Barnes, he (Moody) had been promised that he would be "given help" on the charges pending against him.
In this context, defendant called as his witness J. Ronald Parrish, Attorney at Law of Laurel, Mississippi. Parrish had represented Moody on a prior felony charge which had been dismissed and was also representing Moody on drug charges arising out of the instant facts and circumstances. Not being satisfied with Moody's vague admission that he would be "given help" in exchange for his testimony, Barnes sought to show through Parrish that there was an agreement that Moody would not be prosecuted at all.
It should be emphasized that, prior to the time Parrish was called to the witness stand, Moody had stated in open court and quite unequivocally that he waived any right he might have under the attorney-client privilege to prevent his attorney, Parrish, from testifying in the premises.
In open court, the following colloquy between Barnes' attorney and Parrish took place:
By Mr. Buckley for Defendant Barnes
Q All right, sir. And as his attorney what was your understanding would be the result if he were to testify against the defendant, Harold Barnes?
Q I understand that. Of course, as I understand it the Court has heard and understood the client himself to have waived that as a witness.
MR. BUCKLEY:
So, now we ask that the Court overrule the objection of attorney/client privilege relationship and direct the witness to answer the question.
MR. CASEY for the State:
Your Honor, at that point in time the State of Mississippi would object to it on the basis that any information he may have would be hearsay information.
What was the question?
MR. BUCKLEY:
What was his understanding as to what would be the results or the ultimate outcome of the drug indictment against Arthur Ray Moody in the event that he testified in this case.
I sustain the objection.
There followed further efforts by Barnes' attorney to elicit the same information, each of which was similarly rebuffed. Thereafter, Barnes' attorney requested permission to make a showing of the evidence that would be elicited from Mr. Parrish were he allowed to testify for the obvious purpose of preserving the point for appeal. In due course, the following proffer was made:
MR. BUCKLEY:
If it please the Court, the defendant would now tender or proffer the testimony that we would have offered through the witness, Parrish, had he been permitted to testify over objection of the State of Mississippi, when the Court did sustain that objection, and that was to the effect that it had been conveyed to him by the State of Mississippi that in the event that his client, Arthur Ray Moody, testified for the State of Mississippi in this case, that the indictment presently pending against him for possession of Methadone would be--well the words he used were that nothing would be done on it--rather didn't say dismissed but nothing would be done on it. That the witness himself conveyed this to Mr. Parrish, that he had the same information, and Mr. Parrish conveyed it to the witness. [emphasis added] Having thus made his proffer, Barnes has properly preserved the issue for our review. Murray v. Payne, 437 So.2d 47, 55 (Miss. 1983). In Re Estate of Bowen, 234 So.2d 51, 52-53 (Miss.1970).
The record is less than crystal clear on this point, but it appears that the basis of the trial judge's ruling was that the testimony sought to be elicited from Parrish was objectionable hearsay. That had been the basis of the State's objection. Subsequently, in the record we find the trial judge "recalling" that he may have precluded the Parrish testimony on the basis of the attorney-client privilege. 1 In this state of the record, we consider both possible bases of the trial judge's ruling.
We will consider the hearsay objection first. The common sense of the matter is this: If one is charged with a crime and is represented by counsel and thereafter engages in negotiations with the State as a result of which that person will offer testimony in connection with the prosecution of another in exchange for leniency or immunity, that person's attorney would almost certainly have personal firsthand knowledge of "the deal". The fact that he learned of the terms of the deal as result of communications between himself and representatives of the State and thereafter between himself and his client would not render his knowledge hearsay. In the normal situation the attorney participating in such negotiations would know (a) whether an agreement was made and (b) the terms of the agreement. He is competent as a witness to testify regarding these matters.
On the other hand, if for whatever reason the attorney was not a party to the leniency/immunity agreement but only was told of it after the fact by his client, or by anyone else for that matter, that information would constitute hearsay and the attorney ordinarily would be precluded from giving testimony regarding the truth of these matters.
Even if the attorney had not been a part of the making of the agreement and had only been told of it after the fact by his client, he could nevertheless be called to give impeachment testimony. In the specific context of this case, Moody agreed that the State had promised to give him some help. He was vague and reticent about providing details. If, as Barnes sought to show, Moody had told his attorney that the charge would be dropped altogether, such testimony would be allowed...
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