Harden v. State, 55617

• Decision Date: 17 October 1984
• Docket Number: No. 55617,55617
• Parties: Owen Lee HARDEN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1194

460 So.2d 1194

Owen Lee HARDEN v. STATE of Mississippi.

No. 55617.

Supreme Court of Mississippi.

Oct. 17, 1984.

Rehearing Denied Jan. 16, 1985.

Grady F. Tollison, S. Allan Alexander, Rebecca B. Cowan, Patterson, Tollison, Alexander, Powers & Mills, Oxford, for appellant.

Robert L. Williams, Robert J. Kelly, Hernando, Edwin Lloyd Pittman, Atty. Gen., Marvin L. White, Jr., William S. Boyd, III, Sp. Asst. Attys. Gen., Jackson, for appellee.

EN BANC.

HAWKINS, Justice, for the Court:

Owen Lee Harden appeals from an order of the Circuit Court of the First Judicial District of Yalobusha County denying his petition for a writ of habeas corpus.

Harden was under arrest under indictments for three crimes: conspiracy to murder James B. Williamson, arson of Williamson's house, and arson of Williamson's personal property. In his petition Harden claimed prosecution was barred for these crimes because of his previous acquittal of Williamson's murder, and his having been required to invoke the 5th Amendment privilege against self-incrimination in a co-defendant's subsequent trial for the murder of Williamson. The double jeopardy and self-incrimination rights guaranteed by the 5th Amendment to the U.S. Constitution, and of Article 3, Sections 22 and 26 of our Mississippi Constitution are at stake.

FACTS

In the early morning of March 22, 1982, the residence of James B. Williamson was observed by a passer-by to be on fire. Help was summoned; the entire house, with the exception of the carport, was consumed. The charred body of Williamson On January 27, 1983, the grand jury of the First Judicial District of Yalobusha County indicted Owen Lee Harden and two others for capital murder, the pertinent portions of which read as follows:

was found inside. At the time of his death, Williamson was 64-years-old, and lived on Highway 32 about three and one-half miles east of Highway 51 in Yalobusha County.

CECILIA ANN WILLIAMSON, a/k/a COOKIE WILLIAMSON, OWEN LEE HARDEN, and LARRY SHELTON HENTZ ... on or about the 22nd day of March, 1982 ... did unlawfully and willfully and feloniously and intentionally, and of their malice of forethought, kill and murder JAMES B. WILLIAMSON, a human being, said murder was perpetrated by OWEN LEE HARDEN, who had been offered or had received something of value for committing the murder and CECILIA ANN WILLIAMSON, a/k/a COOKIE WILLIAMSON, and LARRY SHELTON HENTZ, were parties to the murder and are charged as principals in direct violation of Section 97-3-19(2)(d) Mississippi Code 1972 Annotated as amended ... ¹

We surmise, as we must, that a change of venue was granted Harden, as well as a severance, and he went to trial for murder in DeSoto County on July 11, 1983.

Following a several-day trial Harden was acquitted.

On January 4, 1984, the grand jury of the First Judicial District of Yalobusha County returned three indictments involving Harden, Mrs. Williamson and Hentz.

Indictment No. 3872 charges Harden, Mrs. Williamson, and Hentz, as an unindicted co-conspirator, conspired to murder Williamson, in violation of Sec. 97-17-1 of the 1972 Code.

Indictment No. 3873 has two counts. Count One charges that Harden, Mrs. Williamson, and Hentz, as an unindicted co-conspirator, conspired to burn the dwelling house of Williamson in violation of Sec. 97-1-1 of the 1972 Code. Count Two charges Harden and Mrs. Williamson with feloniously burning the dwelling house of Williamson, in violation of Sec. 97-1-1 of the 1972 Code.

Indictment No. 3874 charges Harden and Mrs. Williamson with feloniously burning the personal property of Williamson, in direct violation of Sec. 97-17-7.

The arson charges in each of the indictments allege the dates of the offenses March 22, 1982. The conspiracy part of each of the indictments allege the conspiracy as beginning in December, 1981, as culminating in March, 1982.

Following his indictment, Harden was placed in custody on these charges. It is entirely possible he was already in jail, but the return of the sheriff states the capias was served upon him on January 4, 1984.

On January 9 Harden filed a petition for writ of habeas corpus. He alleged that he was being illegally detained against his will for crimes in which he had been acquitted, that his imprisonment violated Sec. 22, Article 3 of the Mississippi Constitution, and the 5th and 14th Amendments of the United States Constitution. He also alleged that he was indigent and requested the court file and copies of the trial transcript in the murder case in which the jury returned the verdict of not guilty in DeSoto County, including all witnesses except defense witnesses Sawaya and Dr. Thomas Lombardo.

He made a separate affidavit that he was indigent and had no source of income.

On January 13 by separate motion he requested that the court, pursuant to Rule 8.07 of the Mississippi Uniform Criminal Rules, provide him with specified portions of the transcript of the prior proceeding on his petition for writ of habeas corpus.

The final paragraph of this motion states the following, however:

WHEREFORE, PREMISES CONSIDERED the defendant requests that the court order that the portions of the trial transcript as requested by the defendant in his Petition of Writ of Habeas Corpus be provided him without charge or in the alternative that the tapes be made available to him. [Emphasis added]

On February 2 the circuit judge entered an order as follows:

ORDERED, AND ADJUDGED that the court reporter in possession of the tapes of the trial of State of Mississippi v. Owen Lee Harden, No. 4038 immediately make the tapes available to Ms. Janet Clemens, the court reporter ruled by the Court to be competent to transcribe said tapes for use by defendant.

Ms. Clemens did not transcribe the entire record of Harden's murder trial. She did transcribe portions of the opening statement and closing argument of the prosecuting attorney Robert L. Williams. She also transcribed testimony of James Vickers, Sheriff L.A. Jones, Tommie Lee Burchfield, Barry Joe Tutor, Hope Langston, and Tommy Lee Johnson.

The habeas corpus hearing was held on February 10, 1984, before the same circuit judge who presided at the murder trial of Harden.

The transcribed portions of the witnesses' testimony offered by Harden at the hearing may be summarized as follows:

James Vickers, an expert in the investigation of fires, testified the Williamson fire was incendiary, and had been intentionally set.

Sheriff Jones testified he arrived at the burning house around 7:30 o'clock in the morning of March 22, 1982, saw the house, with the exception of the garage portion, was burned. He identified portions of the burned house and a badly burned body.

Tommie Lee Burchfield, an oral surgeon, examined x-rays of the dental remains with known x-rays of Williamson during his lifetime, and concluded that the deceased was Williamson.

Barry Joe Tutor testified Harden at one time confided in him that he had shot a man and got paid for it.

Hope Langston, a neighbor living about 300 yards from the Williamson house, testified on the night previously she heard cars going in and out, car doors slamming.

Tommy Lee Johnson was apparently the first disinterested witness to observe the fire, when he was on the way to work around 6:15 a.m. He stopped, walked to the door and knocked and then went to the Langston home for help.

The opening statement of prosecuting attorney Williams promised the jury that the state would prove Harden had been hired by Hentz to kill Williamson, that Harden went in the back door and shot Williamson with a shotgun plug as he lay asleep. In his closing argument Williams argued to the jury that he had proved these essential facts.

Counsel for Harden saw no need to have any other part of the record transcribed, and neither did the state. Both sides offered tapes of the entire trial as exhibits, no doubt confident members of this Court would gladly complete their task.

With no objections from the respondent, the Honorable Rebecca Barge Cowen, a member of the defense team at Harden's murder trial, testified from her notes what had been said at the murder trial. We will not repeat the witnesses whose testimony was transcribed.

As to the testimony regarding Hentz, Miss Cowen stated:

Yes. And looking at my notes, basically Mr. Hentz testified about a gallon jug of gasoline being taken by Owen Lee Harden to the Williamson house. He testified about Mr. Harden carrying the gasoline and he also testified about certain statements that Lee Harden made concerning feeling ill after he supposedly had burned the Williamson home.

When asked if Mr. Hentz had testified anything else, again from her notes Miss Cowen testified:

Yes. He also gave a statement that, the supposedly statement made by Lee Harden that he killed him and burned the house up.

Then Mrs. Cowen was asked about a witness named Morrow. What did he testify?

He also made reference to the gasoline. He testified that Lee Harden had supposedly told him that he talked about the smell and the burning house and that -- I have in my notes that he almost did not get out, scared when the fire started, that he supposedly started. That it scared him and he could not get out of the room.

Mrs. Cowen also said that the above was what Morrow testified Harden had told him.

Mrs. Cowen also testified about Harden being called to the witness stand in the trial of Mrs. Williamson which had been transferred to Pontotoc County. We will return to this testimony later. [R.74]

When Harden rested, Honorable Robert L. Williams testified about what had occurred in the murder trial of Harden, and about Harden being called as a witness in the murder trial of Mrs. Williamson in Pontotoc County, to which we will return later.

As to the Harden murder trial, Williams testified the defense counsel for Harden in closing argument posited to the jury that the autopsy of the remains showed Williamson died not over an hour to one and...