Ellzey v. State, 44517

• Decision Date: 13 March 1967
• Docket Number: No. 44517,44517
• Citation: 196 So.2d 889
• Parties: Charles ELLZEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 889

196 So.2d 889

Charles ELLZEY v. STATE of Mississippi.

No. 44517.

Supreme Court of Mississippi.

March 13, 1967.

Suggestion of Error Overruled April 10, 1967.

R. Jess Brown, Alvin J. Bronstein, Malcolm Farmer, III, Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

On May 13, 1966, Charles Ellzey, filed a petition for a writ of error coram nobis in the Circuit Court of Pike County, Mississippi. His petition was filed in an effort to set aside a sentence of life imprisonment which had been adjudged against the petitioner on March 28, 1958, following a plea of guilty to a charge of murder.

The petition alleged that the prisoner was wrongfully convicted in that the indictment to which he pleaded guilty and his plea were void because Negroes had been systematically excluded from jury service in Pike County. He alleged that he had not waived his rights to raise that question by his plea of guilty. He admitted that he had attorneys in the trial court, but alleged that he had not been given effective assistance of counsel, because he was not advised that he could raise the proposition that Negroes had been previously systematically excluded from the grant and petit juries.

The trial court granted a hearing on the petition. The petitioner testified, and introduced other witnesses to show, that he had killed Howard Hawkins in an altercation one night at a place where he was 'rabbit hunting'; that the deceased had shot and wounded the petitioner and that he shot the deceased in self-defense. Later, he surrendered to the officers, and after being interrogated by them, he gave a written statement with reference to the homicide. Thereafter he was indicted, and before he was arraigned the trial judge determined that the prisoner was indigent. He, therefore, appointed two lawyers to represent the defendant.

During the trial on the petition, the defendant waived the right to object to the testimony of his attorneys and one of them testified that he had made an investigation of the case prior to the 1958 trial. The defendant first entered a plea of guilty and his attorneys made a motion for a special venire in accordance with the procedure of the trial court. This attorney testified that he found that the defendant had very little defense. He said, however, that he did not talk to one Mrs. Mattie Young, a witness who was procured on the coram nobis hearing, and who testified that the petitioner came to her house the night of the homicide and showed her his wounded hand and told her how he was wounded.

The officer, who was sheriff at the time the petitioner was apprehended and tried, testified that defendant's written statement was voluntarily made; that he looked at defendant's hand and it looked to him as if it were 'brush marks.' The petitioner offered certain records of the State Penitentiary with reference to treatment of his wounded hand. The petitioner was taken before a justice of the peace on a preliminary hearing and remanded to the custody of the sheriff to await the grand jury's investigation. Sometime after the preliminary hearing and before he was indicted, an attorney visited the defendant in jail. After defendant had pleaded 'not guilty' and before his trial, he changed his plea to 'guilty.' The attorney for the defendant consulted with the prisoner during the original trial and was of the opinion that his guilty plea was made voluntarily.

After the hearing on the application for a coram nobis had been concluded, the circuit judge rendered his opinion. He reviewed the cases of United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (5th Cir. 1959), certiorari denied, 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78 (1959); Thompson v. State, 188 So.2d 239 (Miss.1966); and Black v. State, 187 So.2d 815 (Miss.1966); and the judge held in his written opinion that the defendant had been effectively represented by counsel in March 1958, but that the attorneys had 'committed an honest and common oversight in failing to affirmatively advise the defendant of his right to challenge the panel.' The trial court reached the conclusion that the opinions in the above-mentioned cases required him to quash the indictment and remand the defendant into custody of the Sheriff of Pike County to await further proceedings of another grand jury.

Our study of the record and authorities in this case has led us to a different conclusion in the solution of this problem from that announced by the learned trial judge.

An analysis of the cases above set out indicates that they are not analogous to the facts here involved; nor are they applicable to the solution of the legal issues here presented, for the reasons hereafter set out.

In the case of United States ex rel. Goldsby v. Harpole, supra, the United States appellate court pointed out that: 'In ordinary procedural matters, the defendant in a criminal case is bound by the acts or nonaction of his counsel. That might extend to the waiver of the objection that Negroes were systematically excluded from the grand jury.' 263 F.2d at 83. The Court then said: 'It might extend to such a waiver even in capital cases, where the record affirmatively shows that the particular jury was desired by defendant's counsel after conscientious consideration of that course of action which would be best for the client's cause.' 263 F.2d at 83. In that case, the Court held that Negroes had been systematically excluded from the grand and petit juries of Carroll County, Mississippi, but said: '(T)he objection as to the grand jury was waived, and the appellant is now legally detained upon his indictment for murder, but that he is entitled to be tried within a reasonable time * * *.' 263 F.2d at 84.

It is apparent from the Goldsby case that by proceeding to trial on the charge presented even in a county where no Negroes were eligible for jury service, that the defendant's attorney in that case effectively waived the objection as to the qualification of the grand jury and the validity of the indictment in that capital case, although it is said that the members of the grand jury were not constitutionally qualified. This opinion is in accord with the rule of procedure in this State that an objection to the defects in an indictment dehors the face thereof, 'shall be taken by motion to quash the indictment, and not otherwise,' before the issuance of a venire facias in capital cases. Miss.Code Ann. § 2450 (1956).

The opinions in Thompson and Black, supra, are not applicable here because in those cases the attorneys proceeded to trial with a jury which was not drawn according to the requirements of the Constitution of the United States and the Constitution of the State of Mississippi, without the consent of the defendant or by an effective waiver to require a qualified jury on the part of the defendant. Harper v. State, 251 Miss. 699, 171 So.2d 129 (1965).

In the instant case, the court never reached a point in the trial when the State was required to present a constitutionally qualified jury to the defendant. The question of the qualification of the jury was never presented to the trial court, because the defendant pleaded guilty. The question as to whether or not there was available a qualified petit jury, or any jury at all, at the time the defendant pleaded guilty, is of no consequence at this time; because the prosecution never had an opportunity to present the defendant with a qualified jury at the time he pleaded guilty. If the contention of the appellee were correct and the defendant had moved the court to quash the jury panel, the court could have sustained the motion and promptly summoned a common-law jury. However, the defendant, acting in his own behalf, withdrew his plea of 'not guilty' and entered a verbal plea of 'guilty.'

We are now called upon to hold that the attorney for the defendant made a mistake in permitting him to enter a plea of guilty rather than face a trial on the charge of murder in which he could have been executed.

Assuming the defendant's present version of the homicide had been available to the defense attorney eight years ago, and assuming the killing had occurred as the result of a sudden altercation so that the defense attorney had some reasonable prospect of obtaining a verdict of manslaughter, the defendant could have been sentenced to serve a maximum of twenty years in the State Penitentiary, (Miss.Code Ann. § 2233 (1956)), whereas on a sentence of life imprisonment, a convict is subject...