Hearn v. State

• Decision Date: 11 December 2008
• Docket Number: No. 2007-KA-01439-SCT.,2007-KA-01439-SCT.
• Citation: 3 So.3d 722
• Parties: Michael Henry HEARN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

3 So.3d 722

Michael Henry HEARN v. STATE of Mississippi.

No. 2007-KA-01439-SCT.

Supreme Court of Mississippi.

December 11, 2008.

Rehearing Denied March 19, 2009.

Phillip Broadhead, Oxford, Leslie S. Lee, Jackson, Dan W. Duggan, Jr., Brandon, attorneys for appellant.

Office of Attorney General, by W. Glenn Watts, attorney for appellee.

Before WALLER, P.J., EASLEY and CARLSON, JJ.

WALLER, Presiding Justice, for the Court.

¶ 1. Michael Henry Hearn was convicted on two counts of intimidating a judge. After due consideration, we find no error and affirm his conviction and sentence.

FACTS

¶ 2. In 1993, Judge Larry E. Roberts, then serving as a judge for the Circuit Court of Lauderdale County,¹ was randomly assigned a case involving charges of aggravated assault against Michael Henry Hearn. Hearn was convicted and sentenced to the maximum twenty years, with one year suspended and five years probation. The Mississippi Court of Appeals affirmed his conviction and sentence. Hearn filed a petition for post-conviction relief in which he challenged, among other things, the legality of his sentence. The Mississippi Supreme Court reversed Hearn's sentence, finding that he was not eligible for a suspended sentence and should have been required to serve the full twenty years.

¶ 3. Around the same time that he filed for post-conviction relief, Hearn began frequently writing letters to Judge Roberts. Judge Roberts estimated that he received between fifty and one hundred letters from Hearn, often as many as two or three letters per week. These letters were mostly incoherent, and laden with obscene language and biblical references. Roberts initially read the letters, but began filing them away once they became redundant.

¶ 4. Hearn mailed a string of similar letters to Judge Robert Bailey, who served alongside Judge Roberts as a circuit judge for Lauderdale County.² Judge Bailey's only contact with Hearn occurred in November 1992, when he substituted for Judge Roberts at a plea hearing on drug-related charges against Hearn. At this plea hearing, Judge Bailey simply allowed Hearn to withdraw his guilty plea and signed an order resetting the case for trial. Aside from this one occasion, Judge Bailey had no further involvement in the matter. In January 1993, Judge Roberts signed a nolle prosequi on these charges.

¶ 5. Neither Judge Roberts nor Judge Bailey gave much consideration to Hearn's letters prior to August 2004. At that time, Judge Roberts received a disturbing letter from Dr. Tom Moore, a psychologist at East Mississippi Correctional Facility. Dr. Moore informed Judge Roberts as follows:

I was instructed to evaluate [Hearn's] mental status following repeated threats to harm (kill) [Judge Roberts and Judge Bailey] who sentenced him on 01/04/94 for 20 years for aggravated assault. . . . His release date is 12/26/05, after which he asserts that he plans to carry out his threats to harm.

I met with [Hearn] on 7/29/04 for approximately one hour. During that initial session he reported that he would carry out his threats to harm the two judges whom he feels unjustly incarcerated him for "the stabbing incident . . . where I was just trying to defend myself." The inmate perceives that he is ". . justified", "out of love . .," [sic] to correct the injustice. He is willing ("eager") to risk incarceration again to complete his goal. On 8/13/04 the inmate approached the undersigned in the hall to question whether this letter was sent to the two judges. He again verbalized vehemently his intentions to do harm . . . .

The medical and mental health personnel have mixed judgments regarding whether the inmate is serious about following through with his intentions to harm. There is a consensus, however, that he is more than capable of causing harm.

There is enough evidence based upon diagnosis and presenting behaviors that the inmate presents a threat to the judges in question. . . .

¶ 6. In addition to Dr. Moore's letter, Judge Roberts received a visit from Arthur Lee Nored, who was a member of the Mississippi State Parole Board at the time. Nored informed Judge Roberts about threatening comments made by Hearn at his recent parole hearing. When asked what he would like to do in society should he be paroled, Hearn said that he had been falsely imprisoned and would "take care of" or "take out" the judges who placed him in the penitentiary. Hearn specifically referenced Judge Roberts. Nored explained that "[b]ased on the on the tempo of the conversation . . . I think it was undeniable that it was a physical threat toward Judge Roberts as well as Judge Bailey and [District Attorney Bilbo Mitchell]." On September 8, 2004, Judge Roberts and Judge Bailey sent a letter to Christopher Epps, the Commissioner of the Mississippi Department of Corrections (MDOC).³ The judges sought an explanation as to why Hearn was scheduled for early release in December 2005, and requested that they receive thirty days' notice prior to Hearn's release. The judges further requested that MDOC institute involuntary commitment proceedings against Hearn upon his release. Commissioner Epps responded that Hearn's sentence computation was based upon the applicable law at the time. He further stated that instructions had been given that both judges were to receive written notice thirty days prior to Hearn's release. Commissioner Epps, however, did not believe it was proper for MDOC to initiate commitment proceedings.

¶ 7. On April 1, 2005, Hearn was indicted in the Lauderdale County Circuit Court on two counts of intimidating a judge pursuant to Mississippi Code Annotated Section 97-9-55 (Rev.2006). Because of Hearn's status as a habitual offender,⁴ the State sought an enhanced sentence of life without the possibility of parole. Judge Roberts and Judge Bailey recused themselves from the case, and Judge T. Kenneth Griffis of the Mississippi Court of Appeals was appointed special judge to preside over the trial. Judge Griffis later recused himself, and Judge David M. Ishee of the Mississippi Court of Appeals was appointed special judge in his stead. Attorney Gary B. Jones was appointed to serve as Hearn's counsel, but withdrew, citing a conflict of interest. Attorney Dan. W. Duggan, Jr., was substituted as Hearn's counsel.

¶ 8. On September 28, 2005, Hearn filed a motion for mental examination, and the trial court ordered that Hearn undergo a mental evaluation by Dr. Mark Webb. Hearn refused to cooperate with the examination, and his appointment with Dr. Webb was cancelled. Nevertheless, on November 17, 2005, Hearn filed a notice of intent to assert an insanity defense using the findings from Dr. Moore's evaluation at the East Mississippi Correctional Facility. In response, the State filed a motion requesting that Hearn be evaluated by the Mississippi State Hospital at Whitfield to determine his ability to distinguish right from wrong at the time of the crimes and his competency to stand trial. Hearn was eventually evaluated by Drs. John Montgomery, Reb McMichael, and Gilbert McVaugh at the State Hospital on July 11, 2007, just weeks before trial. He was found both competent to stand trial and not legally insane.⁵

¶ 9. On November 17, 2005, Hearn filed a motion in limine, a motion to dismiss for failure to provide a speedy trial, and a motion to dismiss based on patient/psychiatric privilege violation. The motion in limine sought to prohibit the State from introducing evidence of Hearn's prior convictions, numerous rules violation reports (RVRs) from previous incarcerations, or other prior bad acts. The motion to dismiss for failure to provide a speedy trial was based upon the fact that it had been six months and thirty days since Hearn's arrest and that he had been prejudiced by such delay. In the motion to dismiss based on patient/psychologist privilege violation, Hearn argued that Dr. Moore's statements must be suppressed because his conversation with Hearn was privileged and confidential pursuant to Rule 503(b) of the Mississippi Rules of Evidence.

¶ 10. The circuit court considered the above-referenced motions at a pre-trial hearing on November 21, 2005. The trial judge partially granted the motion in limine by excluding the RVRs and limiting the detail with which the State could go into Hearn's aggravated-assault conviction. The trial court denied Hearn's motion to dismiss for failure to provide a speedy trial and reserved ruling on the motion to dismiss based on patient/psychiatric privilege violation. The trial court never definitively ruled on the admissibility of Dr. Moore's statements, but his testimony was admitted at trial. Hearn also filed several pre-trial motions pro se before this Court, which were denied.⁶

¶ 11. The case proceeded to trial on July 23-25, 2007. The morning of trial, Hearn made an ore tenus motion for change of venue, which the trial court denied. He also requested that Duggan be released and that he be appointed new counsel. Hearn was allowed to proceed pro se with Duggan's assistance. At trial, Judge Roberts, Judge Bailey, Dr. Moore, Nored, and Dr. Montgomery testified on behalf of the State. Danny Knight, a special agent with the Mississippi Bureau of Investigation, also testified for the State. Knight said that he had interviewed Dr. Moore, Nored, and both judges, and had reviewed Hearn's letters. He concluded there was "no doubt in my mind that [Hearn] was going to do bodily harm to [Judge Roberts and Judge Bailey]." Hearn testified in his own defense that he had not intended to kill or harm Judge Roberts, but only to end his career. He explained that he was focused only on trying to get out of prison.

¶ 12. The jury found Hearn guilty on two counts of intimidating a judge. As a habitual offender, he was sentenced to life imprisonment without the possibility of parole. Hearn filed a motion for new trial, or in the alternative, judgment notwithstanding the verdict, which the trial court denied.

¶ 13. Hearn now...