Dunn v. State
| Decision Date | 26 June 1972 |
| Docket Number | No. 46872,46872 |
| Citation | 264 So.2d 823 |
| Parties | Laverne DUNN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Clayton Lewis, Philadelphia, for appellant.
A. F. Summer, Atty. Gen. by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
Laverne Dunn was convicted for the murder of Roy Allen McLain and sentenced to life imprisonment by the Circuit Court of Neshoba County, Mississippi.
Appellant assigns two errors on appeal, as follows:
(1) The trial court committed error in not disqualifying special prosecuting attorney in said cause, after he had conferred with defendant, talked as to fees, set his fee, and discovering all the facts in the case from defendant's view; and
(2) The court committed error in not quashing the jury, not granting a mistrial, and not giving a new trial after the sheriff spent the night with the jury in their overnight quarters in the hotel during the trial of the case and after the jury had been sworn to try issue; and the sheriff being a key witness both before the grand jury and on the trial for the State, and after the sheriff had assisted the prosecuting attorneys in their selection of jurors.
While appellant was a patient at the Neshoba County Hospital, Laurel G. Weir, a member of the Neshoba County Bar, was summoned to the hospital by the administrator to talk to the appellant about representation in his case. The attorney went to the hospital at a time when appellant was not charged with any crime and discussed representation with him and quoted him a fee. The attorney testified that the appellant was unable to tell him anything about the facts of the homicide with which he was later charged.
The attorney went to the hospital on two occasions, and at the first time the sister of appellant was there and testified that the attorney asked her brother some questions pertaining to appellant's family, and appellant told him that he just remembered getting home and talking to the youngest stepdaughter about her work. The witness said the attorney asked several other questions but she did not remember them, and further stated that the attorney said that he had rather think over taking the case; and if he did, he would have to have $5,000 in two days.
On occasion of the second visit, the mother of appellant was present and there was no claim that any of the facts were discussed on this visit.
At the time of the visit to the hospital, the attorney had been nominated in the Democratic primary for the office of county attorney to take effect in January 1972, and said that after his first visit, the relatives of the deceased contacted him and reminded him of the fact that he was to take office as county attorney and requested that he participate in the trial of the case. He explained to them that he could only participate before 1972, if he were hired as special prosecutor. The family employed him and he went to the hospital on a second visit to tell appellant that he would not be able to represent him.
In Russell v. State, 185 Miss. 464, 189 So. 90 (1939), this Court, on a similar motion, stated:
If it were true, as testified by the attorney, that he had never discussed the facts of the case with the appellant and the employment was never consummated, then the trial court was not in error in holding that the relation of attorney and client had never existed; but it should be clearly understood that the question of whether a fee is raised is not the test as to the competency of an attorney to testify where he has been consulted in a professional capacity and has given advice of any nature or character whatever relating to the case. Otherwise, it could be said by analogy that if a patient consults a physician or surgeon in his professional capacity, and then finds himself unable to pay the medical or surgical fee required, the privilege of the communication would be removed. At any rate, no part of this controversy should have been heard in the presence of the jury. (185 Miss. at 474, 189 So. at 93).
Appellant also cites Kansas v. Leigh, 178 Kan. 549, 289 P.2d 774 (1955), where it was held that an attorney who voluntarily listened to a client's statement of the case preparatory to the client's defense was disqualified from accepting employment upon...
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Hyundai Motor Am. v. Applewhite
...2d 414, 415 (Miss. 1971), was reversed because a sheriff who had testified later was seen conversing with a juror. In Dunn v. State , 264 So. 2d 823, 826 (Miss. 1972), a sheriff who had been a witness then spent the night at the hotel where jurors were sequestered.¶102. The majority relies ......
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Esparaza v. State, 89-KA-0075
...it error not to quash the jury when a sheriff, later called as a witness, spent the night at the same hotel as the jury. Dunn v. State, 264 So.2d 823, 825-26 (Miss.1972). In that case, the Court relied for authority on cases in which material witnesses had, conflictingly, also served as bai......
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Jones v. State
...with the accused and the substance of any communications between the attorney and the accused. Id. at 1255 (citing Dunn v. State, 264 So.2d 823 (Miss.1972); Russell v. State, 185 Miss. 464, 189 So. 90 The question to be determined, then, is whether the trial court was clearly erroneous in i......
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Disqualification of Prosecutor Because of Former Representation
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