Irving v. State

Citation361 So.2d 1360
Decision Date02 August 1978
Docket NumberNo. 50250,50250
PartiesJohn Buford IRVING, III v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Leonard McClellan, Lewis Myers, Jr., Oxford, for appellant.

A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

LEE, Justice, for the Court:

John Buford Irving, III was indicted for capital murder in the Circuit Court of Pontotoc County. He was given a bifurcated trial following the guidelines set forth in Jackson v. State, 337 So.2d 1242 (Miss.1976). After hearing evidence pertaining to the guilt phase, the jury returned a verdict of guilty as charged. The same jury heard evidence on the sentence phase and unanimously found that the mitigating circumstances did not outweigh the aggravating circumstances, and that appellant should suffer the death penalty. The trial court sentenced him to death.

Gambrell Ray and his wife, Mrs. Opaline Ray, operated a rural grocery store. Their living quarters were housed within the store building. About 8 p. m. on March 3, 1976, they had closed the store and were eating supper in the kitchen when they heard a knock at the store door. Mr. Ray went to the door, and Mrs. Ray heard appellant say, "Mr. Gambrell, I want a pack of cigarettes." As soon as the door opened, Mrs. Ray heard a gunshot. She picked up a loaded pistol, went to investigate, and saw appellant standing in the doorway with a shotgun. Her husband's body was lying on the floor close to appellant. Mrs. Ray had known appellant for many years and had seen him in the store earlier that day. She yelled at appellant to get out and fired the pistol at him. He crawled under a store counter, and she fired again, eventually discharging all cartridges. Mrs. Ray decided to leave the store with appellant still under the counter, and when she went into another room, she heard the front door slam and a car leave hurriedly. She tried to use the telephone, but it was inoperable; she then locked the front door after determining that her husband was dead, and went to the nearby home of her daughter where the sheriff and ambulance service were called.

Mississippi State Highway Patrolman William Eubank received a call directing him to the Ray's country store for the purpose of investigating the homicide. He arrived about 8:15, saw where the store door had been kicked in, found Mr. Ray lying dead on the floor in front of the wooden door, and observed bloody footprints on the inside of the building. A cash box and a double barrel 20-gauge shotgun, both owned by the deceased, were missing.

About 6:30 a. m. the day after the shooting, Essie Pruitt, a friend and neighbor of the Irving family, was approached by appellant, who asked permission to stay at her home. He went into the storage room where she kept her washing machine. Mrs. Pruitt called the sheriff, who immediately came to her home, arrested appellant and took him to jail. Mrs. Pruitt later found a sock full of change in the storage room when she was washing clothes. The double barrel 20-gauge and single barrel shotguns were discovered in a water barrel behind the Tom Franklin barn, approximately two hundred (200) yards from the Ray store.

Sheriff Hubbard testified that appellant told him he stepped inside the store, Mr Ray went behind the counter to get the cigarettes, and appellant said, "This is a stickup" and that Ray said, "You're not going to get a damn thing." Appellant said that Mr. Ray stepped toward him and he shot Ray, that after Mrs. Ray left, he (appellant) came back, kicked open the door and got the change box and 20-gauge shotgun.

I.

The scope of appellate review is broad in capital cases.

We recognize that thoroughness and intensity of review are heightened in cases where the death penalty has been imposed. Augustine v. State, 201 Miss. 731, 29 So.2d 454 (1947). What may be harmless error in a case with less at stake becomes reversible error when the penalty is death. Forrest v. State, 335 So.2d 900 (Miss.1976); Russell v. State, 185 Miss. 464, 189 So. 90 (1939). Therefore, we have given careful scrutiny to the proceedings in the trial below in order to determine whether accused received a fair trial and without necessary regard to whether technical basis for preserving error was made by counsel.

II.

Refusal of the trial court to permit defense counsel to withdraw because of conflicting interest.

Appellant was arrested on March 4, 1976, and attorney Lewis Myers, Jr. was retained by him March 8, 1976. On the same date, Myers was retained by Keith Givhan, an accomplice. Appellant and Givhan were indicted for capital murder in separate indictments on July 7, 1976. Appellant entered a plea of not guilty August 2, 1976, pretrial motions were filed August 31, and September 1, 1976 by Myers and his associate, attorney Leonard McClellan.

On November 8, 1976, the day before the case was set for trial, with a special venire of one hundred (100) persons having been summoned, Myers filed a motion to withdraw as counsel claiming a conflict of interest between Irving and Givhan. The trial judge held a hearing on the motion outside the presence of the jury on November 9, 1976, to determine the merits of same. The substance of the motion and a statement made by Attorney Myers was that each defendant gave inculpatory statements about the other, that Irving and Givhan had been talking with several ministers, which resulted in their conversions, that they had been born again, and "It became difficult for me as counsel in attempting to construct a defense, in attempting to give advice to my client because of certain notions, because of certain ideas that he had, allegedly based on this conversion."

Appellant relies upon Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) and Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426, decided by the United States Supreme Court April 3, 1978.

In Glasser, the Government tried five co-defendants jointly for conspiracy to defraud the United States. Two of the defendants, Glasser and Kretske, were represented initially by separate counsel. On the second day of trial, Kretske became dissatisfied with his attorney and dismissed him. The district judge asked Glasser's attorney, Stewart, if he would also represent Kretske. Stewart responded by noting a possible conflict of interest, his representation of both Glasser and Kretske might lead the jury to link the two men together. Glasser made known to the court that he objected to the proposal. Nevertheless, the court appointed Stewart to represent Kretske, although he continued as Glasser's retained counsel. The record disclosed that Stewart failed to cross-examine a government witness whose testimony linked Glasser with the conspiracy and failed to object to the admission of arguably inadmissible evidence. Such failure was viewed by the court as a result of Stewart's desire to protect Kretske's interest and was indicative of Stewart's struggle to "serve two masters." The court said:

"The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674; Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. And see McCandless v. United States, 298 U.S. 342, 347, 56 S.Ct. 764, 766, 80 L.Ed. 1205. Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court. In conspiracy cases, where the liberal rules of evidence and the wide latitude accorded the prosecution may, and sometimes do, operate unfairly against an individual defendant, it is especially important that he be given the benefit of the undivided assistance of his counsel without the court's becoming a party to encumbering that assistance. Here the court was advised of the possibility that conflicting interest might arise which would diminish Stewart's usefulness to Glasser. Nevertheless Stewart was appointed as Kretske's counsel. Our examination of the record leads to the conclusion that Stewart's representation of Glasser was not as effective as it might have been if the appointment had not been made. We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser." 315 U.S. at 76, 62 S.Ct. at 467, 86 L.Ed. at 702.

In Holloway, three individuals were indicted jointly on July 29, 1975, on counts of robbery and rape occurring June 1, 1975, in Little Rock, Arkansas. On August 5, the trial court appointed Harold Hall, a public defender to represent all three defendants. They were arraigned and entered pleas of not guilty. Two days later, their cases were set for a consolidated trial to commence September 4. On August 13, Hall moved the court to appoint separate counsel for each petitioner because the defendants had stated to him that there was a possibility of a conflict of interest in each of their cases. After conducting a hearing on this motion and on motions for severance, the Court declined to appoint separate counsel. On September 4, before the jury was impaneled, Hall renewed the motion for appointment of separate counsel on the ground that one or two of the defendants may testify and, if they did, then he would not be able to cross-examine them because he had received confidential information from them. The motion...

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