Johnson & Shue v Johnson et al

Decision Date14 December 2000
Docket Number00-1320
Citation33 S.W.3d 492
PartiesJOHN JOHNSON AND JAY SHUE, PETITIONERS, VS. RANDY JOHNSON, PULASKI COUNTY SHERIFF, AND THE HONORABLE MARION HUMPHREY, CIRCUIT JUDGE, PULASKI COUNTY CIRCUIT COURT, RESPONDENTS,14 December 2000 SUPREME COURT OF ARKANSAS PETITION FOR WRIT OF CERTIORARI DENIED IN PART; GRANTED IN PART. ROBERT L. BROWN, Associate Justice This is an original action involving an Emergency Petition for a Writ of Habeas Corpus, or, Alternatively, a Writ of Certiorari or Stay of Contempt Order. The petitioners are John Johnson and Jay Shue, who are deputy prosecuting attorneys for the Sixth Judicial District. The respondents are Randy Johnson, who is Pulaski County Sheriff, and Judge Marion Humphrey, who is circuit judge for the Pulaski County Circuit Court. The petition arises out of the judge's incarceration of the deputy prosecutors for criminal contempt, after they refused to proceed with the jury trial in the case of State v. Christopher Lee McBride and Nicolus Nigel Smith. We grant the petition for writ of certiorari in part and deny it in part. We further dissolve our temporary stay order. On
CourtArkansas Supreme Court

PETITION FOR WRIT OF CERTIORARI

DENIED IN PART; GRANTED IN PART.

ROBERT L. BROWN, Associate Justice

This is an original action involving an Emergency Petition for a Writ of Habeas Corpus, or, Alternatively, a Writ of Certiorari or Stay of Contempt Order. The petitioners are John Johnson and Jay Shue, who are deputy prosecuting attorneys for the Sixth Judicial District. The respondents are Randy Johnson, who is Pulaski County Sheriff, and Judge Marion Humphrey, who is circuit judge for the Pulaski County Circuit Court. The petition arises out of the judge's incarceration of the deputy prosecutors for criminal contempt, after they refused to proceed with the jury trial in the case of State v. Christopher Lee McBride and Nicolus Nigel Smith. We grant the petition for writ of certiorari in part and deny it in part. We further dissolve our temporary stay order.

On July 21, 2000, Christopher McBride and Nicolus Smith were charged with first-degree murder. On August 24, 2000, Judge Humphrey signed two scheduling orders regarding the first-degree murder charges against McBride and Smith. Both orders specified that a two-day jury trial would take place on November 15 and 16, 2000. On the afternoon of Thursday, November 9, 2000, deputy prosecutor Shue filed a motion for continuance on behalf of the State and set out the grounds for the motion:

The State has ordered transcripts from the bond hearing held in this matter on September 15, 2000. We have not received these and need them for preparation purposes and for use at trial.

On Tuesday, November 14, 2000, Linda Lee, who is the case coordinator for Judge Humphrey, advised the deputy prosecutors that the continuance motion had been denied.

On Wednesday, November 15, 2000, the deputy prosecutors and defense counsel for McBride and Smith met in the courtroom prior to convening formally for the trial. Judge Humphrey inquired as to whether the State was ready for trial and deputy prosecutor Shue answered that the State was not because the State still needed the transcript of the four-hour bond hearing which actually took place on September 19, 2000 -- not September 15, 2000. According to Shue, the State needed the specific testimony of Shontae Jackson, who was a key witness for the State in the prosecution of McBride and Smith. According to Shue, Jackson had given "two prior sworn statements" to police detectives but had recanted his statements at the bond hearing and admitted that he had lied to the detectives.

The judge responded that the State knew what Jackson testified to at the bond hearing and that there was no need for a continuance based on transcription of those statements. Deputy prosecutor Shue replied that the State could not call Jackson as a witness, when it was more than likely that Jackson was gong to be arrested for perjury. It would be suborning perjury, according to Shue, to call Jackson as a witness. Shue went on to emphasize that Jackson was an essential witness for the State but that the perjury issue had to be first resolved. Upon the judge's inquiry, Shue asserted that the State needed the transcript of the bond hearing to make a decision on charging Jackson and that he did not know what effect a criminal charge would have on his testimony regarding McBride and Smith.

Shue admitted that Jackson had not been subpoenaed, but defense counsel for McBride volunteered that Jackson was currently waiting in his office. The judge again remarked that he did not believe that a transcript of the September bond hearing was necessary to try the case. Shue stated that he was absolutely surprised by Jackson's testimony at the bond hearing. He further advised the judge, in arguing that no prejudice would occur by a continuance, that the two defendants were out on bond and that there were approximately 187 days left to run under the speedy trial rule.

Both defense counsel then advised the judge that they were ready for trial. Shue stated that he told Ms. Lee, the case coordinator, that the State was not ready for trial. Ms. Lee stated to the court that she instructed Shue that a continuance would not be granted and that she did not know whether he had subpoenaed his witnesses for trial or not. Shue announced that he was not prepared to go to trial and asked for a hearing on the matter. The court responded: "Well, just because you file a motion [for continuance] doesn't mean the Court's going to grant it."

Deputy prosecutor Johnson reiterated that Shue had told Ms. Lee the State was not ready for trial. Johnson added that this is unavoidable, since the transcript for the bond hearing had not been prepared and since the State needed to know with certainty what Jackson said at that time. Defense counsel for Smith interjected that the audio tape of the bond hearing had always been available to the deputy prosecutors and that they were using the perjury charge as leverage and to "hold that over [Jackson's] head." Shue denied that.

The judge denied the motion for continuance. He explained that a jury trial the previous day had gone until eight o'clock at night so that the McBride/Smith trial could commence and that he was feeling the pressure of the speedy trial rule on other pending trials based on a list of cases sent over by the prosecutor's office. The judge concluded that the trial would proceed and that Jackson should be brought to the courtroom.

Prospective jurors were then sworn in, the charges were read, and the judge gave the potential jurors initial instructions. Voir dire of the jury pool took place and anticipated witnesses were brought in. At that point, the deputy prosecutors asked to approach the bench and in a sidebar conference out of the jury's hearing advised the judge that they had no witnesses. The judge asked if the State was going to nolle pros the case, and deputy prosecutor Johnson asked again for a continuance. The judge replied that he had already ruled against a continuance and it was up to the State either to nolle pros the case or go forward. The judge added that he was going to submit the matter to the Arkansas Committee on Professional Conduct.

This discussion followed:

Mr. Johnson: That's fine, your Honor. But the Court cannot compel us to announce ready when we're not ready.

The Court: You have an alternative.

Mr. Johnson: We're not prepared to nolle pros.

The Court: You know you have a year to refile.

Mr. Johnson: I do, but that subjects these defendants to being rearrested and --

The Court: I'm gong to order you to get your witnesses over here.

Mr. Johnson: We haven't subpoenaed the witnesses.

The Court: Why not?

Mr. Johnson: For the reasons we stated previously.

The Court: We're going to trial. Do you understand that?

Mr. Proctor: I move to dismiss, your Honor.

Mr. Clouette: I would join in that.

The Court: The Court's not going to do that. You get the witnesses over here or be held in contempt of court on your part.

Mr. Johnson: May I make a record?

The Court: No.

Mr. Johnson: We've not issued any subpoenas. The Court doesn't have the power to order them to appear when there's no subpoenas that exist.

The Court: I said for you to get them over here. You know who your witnesses are.

Have I told you that I was not going to go forward with this trial today?

Mr. Johnson: No, sir, you have not.

The Court: Is it your understanding that you decide when a case is tried in this court?

Mr. Johnson: No, sir, that's not my understanding. My understanding is --

The Court: Why didn't you have the witnesses here?

Mr. Johnson: It's my understanding -- first of all, your Honor, we tried to -- we did move --

The Court: I'm not saying that. I'm not saying that. Why don't you have your witnesses here and you know this case was set for trial?

Mr. Johnson: Because we're not ready to go forward today.

The Court: Then if you're not ready to go forward on the trial, why aren't you nolle prossing the case:

Mr. Johnson: Because we have a year in which to take a case to trial. It's only been six months.

The Court: That's not your decision to make, how we do the docket in here.

Mr. Johnson: I suppose the Court has other remedies; but I'm not going to move to nolle pros it.

The Court: I'm going to call Mr. Jegley [the prosecuting attorney] on this one.

(Thereupon, in the presence and hearing of the jury, the following proceedings occurred.)

The Court: Ladies and gentlemen of the jury, you all may stay here for a moment, we have a problem.

(Thereupon, court was in recess for approximately five minutes, then the following proceedings occurred.)

The Court: Mr. Shue, Mr. Johnson.

(Thereupon, counsel for the State and Defense approached the Bench, where the following proceedings occurred out of the hearing of the jury.)

The Court: Now, for purposes of the record, you're saying that you're not going to call any witnesses?

Mr. Johnson: Your Honor, for the record, what I'm saying is that we cannot announce ready for trial today.

The Court: You're not going to call any witnesses?

Mr. Shue: We can't.

The Court: Both of you are in contempt of court. Go with the bailiff.

Mr. Johnson: May I make a record on that your Honor?

The Court: No.

Mr. Johnson: You're denying me the opportunity to make a record?

The Court: Yes.

Mr. Johnson: You're arresting me and not giving me the opportunity to make a record?

The Court: Yes.

Mr. Johnson: May the record reflect that I asked to make a record on this particular point and I was denied by the Court.

After these events, the judge advised the jury about what had occurred with respect to the continuance motion, its denial, the lack of the deputy prosecutors' preparation for trial, and the refusal of the State to nolle pros. The court concluded...

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