Hentz v. State, 58228

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ANDERSON; ROY NOBLE LEE; PITTMAN
• Citation: 542 So.2d 914
• Parties: Larry S. HENTZ v. STATE of Mississippi.
• Docket Number: No. 58228,58228
• Decision Date: 19 April 1989

Page 914

542 So.2d 914 Larry S. HENTZ
v.
STATE of Mississippi. No. 58228. Supreme Court of Mississippi. April 19, 1989.

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Paul R. Scott, Wilroy & Scott, Hernando, for appellant.

Mike Moore, Atty. Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

Larry Shelton Hentz is a regular customer of this Court, having visited here at least six times. On this occasion he contests his conviction on June 28, 1985, in the DeSoto County Circuit Court of conspiracy to commit a jail escape. On July 3, 1985, Hentz was sentenced as an habitual offender under Section 99-19-83, Mississippi Code Annotated (Supp.1988), to life imprisonment without possibility of parole. In reversing, we address three of the seven errors asserted by Hentz on appeal.

I. DID THE TRIAL COURT ERR IN SUSTAINING THE STATE'S MOTION TO QUASH APPELLANT'S SUBPOENAS?

Prior to trial the defendant issued subpoenas to numerous in-state and out-of-state witnesses. The state filed a motion to quash and a hearing was held on June 20, 1985. All of the subpoenas were quashed. On appeal, the defendant challenges the ruling as to eleven in-state witnesses: Andrew C. Baker, George C. Carlson, Jr., Robert L. Williams, Thomas McLeod, David Bryan, L.A. Jones, Leonard Thompson, Jerry Eastridge, John Holt, Ray Richardson and Bobby Sanders. Since Judge Carlson was the trial judge, Judge Baker heard the motion as it related to Judge Carlson, after which Judge Carlson heard argument on the remaining subpoenas.

During the hearing on the motion to quash, the defendant was given the opportunity, outside the presence of the prosecutors, to make a showing that the subpoenaed witnesses would supply material and favorable testimony. Regarding Judge Carlson, the defendant argued that he had "information regarding the conduct of the district attorney in handling" Hentz' numerous cases. Defense counsel stated he desired to call Judge Baker to testify about previous prosecutions and to help show entrapment. McCloud, Bryan, Jones, Thompson, Eastridge and Holt would be called for the same reasons as Judge Baker. District Attorney Robert Williams and DeSoto County Deputy Sheriffs Richardson and Sanders would be called because they had "first-hand knowledge of incidents that had happened at the DeSoto County Jail" which would be helpful in the defenses of entrapment and duress. The trial court ruled that the defendant had not established that the witnesses' testimony would be material and beneficial.

On appeal, Hentz argues that the trial court's action in quashing these subpoenas violated his right, under Section 23 of the Mississippi Constitution and the Sixth Amendment to the United States Constitution, to compulsory process for obtaining witnesses in his favor.

In Gray v. State, 472 So.2d 409 (Miss.1985), in declining to find error based on a similar argument, we stated:

It has been observed that the accused's right to compulsory process is not absolute and the state may require a showing of some colorable need for persons to be

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summoned lest the right be abused. Passman v. Blackburn, 652 F.2d 559, 566 (5th Cir.1981).

Gray, 472 So.2d at 413.

We also held that whether or not a defendant had shown a colorable need was addressed to the trial court's sound discretion and declined to find reversible error because we could not "conclude that [the defendant] has demonstrated that the court's ruling was so fundamentally unfair as to deprive him of due process of law." Id.

In Roussell v. Jeane, 842 F.2d 1512 (5th Cir.1988), the Fifth Circuit Court of Appeals reiterated the parameters of a criminal defendant's right to compulsory process under the Sixth and Fourteenth Amendments to the United States Constitution:

In pertinent part, the Sixth Amendment provides that in all criminal prosecutions the defendant shall "have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI.... In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the Supreme Court held that this clause prohibits a state from arbitrarily denying a defendant "the right to put on the stand a witness ... whose testimony would have been relevant and material to the defense." 87 S.Ct. at 1925.

Like many other constitutional rights, the right to call witnesses is not absolute. See Id. at 1925 n. 21; United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). "[T]he right to present relevant testimony ... may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973)).

* * * * * *

Most obviously, the right to call witnesses is limited to relevant and material testimony. Washington, 87 S.Ct. at 1925; See Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (due process required admission of certain critical hearsay testimony): See also, Ashley v....