Hood v. State
Decision Date | 16 March 1988 |
Docket Number | No. 57463,57463 |
Citation | 523 So.2d 302 |
Parties | Ed HOOD, Edwin Earl Hood, Frank Hood, Ricky Smith and Arnold Carraway v. STATE of Mississippi. |
Court | Mississippi Supreme Court |
Edward E. Patten, Jr., John T. Armstrong, Armstrong, Hoffman & Patten, James W. Henley, H. Brand Henley, Jr., Henley, Lotterhos & Henley, Hazlehurst, for appellants.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
The appellant, Ed Hood, a long-time supervisor in Copiah County, and the other appellants, were convicted of conspiracy to commit voter fraud through the illegal use of absentee ballots. We have thoroughly examined the record and studied the appellants' nine assignments of error, and find only two worthy of consideration, the use of outside influences on the grand jury. This assignment is meritorious, and requires reversal; also considered is a member of the grand jury serving on the petit jury. This was wrong.
The appellants received a fair and impartial trial before a learned and fair circuit judge and the verdict of the jury is supported by the evidence; however, the motion to quash the indictment because the grand jury was subjected to three distinct outside influences constitutes error. This Court has noted on several occasions that any citizen having a complaint against him is entitled to have a grand jury investigate the complaint when no one else is present other than the grand jurors, the sworn witnesses who are being examined, and the duly authorized prosecuting officer. This is fundamental. Sanders v. State, 198 Miss. 587, 22 So.2d 500 (1945), where the Court went on to say:
The rule is stated in 38 C.J.S. Grand Juries, Sec. 40, at page 1039, as follows: "It is generally held that in the absence of any imperative necessity therefor, the presence in the grand jury room at any time during the session of the grand jury of any person other than the witness undergoing examination, and the duly authorized prosecuting officer, is improper," citing the case of State v. Owen, 156 Miss. 487, 126 So. 25, 28 and cases from other jurisdictions. In the Owen case our Court said, among other things, that
We have first focused on the proper rule and now relate the facts which clearly reveal that the rule was violated. In October, 1983, the United States District Court for the Southern District of Mississippi in Pendleton v. Hood, C.A. No. J84-0519(B), a redistricting suit, ordered a special election for the offices of supervisors in Copiah County, Mississippi. Pursuant to the order of the federal court, a democratic primary was conducted in District No. 4, where W.E. Hood was the incumbent. Hood and Manuel Welch were the candidates. Hood was the victor in a very close race--877 to 858 votes.
Welch employed two attorneys--Carroll Rhodes and Jim Shannon--to represent him in contesting the election. A protest was filed before the County Democratic Executive Committee. This failed, and Shannon and Rhodes elected to forego an election contest under state law and filed an action alleging discriminatory acts under Section 2 of the Federal Voting Rights Act. Welch, et al. v. McKenzie, et al., C.A. J84-0030(B), United States District Court for the Southern District of Mississippi. The federal court was requested to declare Welch the Democratic nominee or in the alternative to set aside the election and order a new one. The United States District Court, by Judge William H. Barbour, Jr., dismissed the action and the case was pending on appeal in the Fifth Circuit at the time of the indictment herein.
Shannon and Rhodes, according to them, spent about one hundred hours investigating fraud by W.E. Hood, et al. in preparing Welch v. McKenzie, and among other activities formed a group called "Citizens for Better Government," Shannon serving as attorney for the citizens group. This group used the news media to criticize the district attorney, at least the news media was invited to the meeting wherein the district attorney was criticized and accusations were made that the district attorney would prosecute some and not others and among those he would not prosecute were public officials in Copiah County, Mississippi.
As a diligent and honest prosecutor would, the district attorney responded by stating that he would subpoena the members of the citizens group to the grand jury and invite all others with any information or proof of wrongdoing on the part of public officials to contact him. The district attorney did not subpoena Shannon or Rhodes but invited them to appear before the grand jury. The invitation was accepted. As a matter of fact, Shannon was the first witness to testify on the Hood matter, offering his testimony without having been interviewed by the district attorney or a determination made as to his personal knowledge of any misconduct. Among other things related to the grand jury by Shannon was a copy of Judge Barbour's opinion in Welch v. McKenzie, supra. Judge Barbour's opinion becomes important, and so that it might be better understood, we copy herein the significant portions of said opinion:
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