Jones v. Richards, 84-6392
| Decision Date | 12 November 1985 |
| Docket Number | No. 84-6392,84-6392 |
| Citation | 776 F.2d 1244 |
| Parties | Wesley Irven JONES, Jr., Appellant, v. Jerry E. RICHARDS, Sheriff of Burke County, N.C.; Rufus L. Edmisten, Attorney General, State of North Carolina, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thomas G. Smith (W. Harold Mitchell, Mitchell, Teele, Blackwell, Mitchell & Smith, Valdese, N.C., on brief), for appellant.
Barry S. McNeill (Lacy H. Thornburg, Atty. Gen., Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C., on brief), for appellees.
Before MURNAGHAN, CHAPMAN and SNEEDEN, Circuit Judges.
Appellant claims that his constitutional right to an impartial prosecutor in his state criminal trial was violated by the use of private attorneys retained by the victim's family to assist the state in his prosecution. Under the facts presented in this case, we find no constitutional right was impaired, and we affirm the denial of the petition for writ of habeas corpus.
On December 3, 1981, Wesley Irven Jones, Jr., was driving a bus which collided with a passenger vehicle in Burke County, North Carolina. An infant passenger in the automobile was killed, and several other passengers were injured. Jones was charged with involuntary manslaughter, driving under the influence of alcohol, running a stop sign, exceeding a safe speed limit and transporting intoxicating beverages with a broken seal. The injured passengers in the automobile and the family of the deceased child employed a firm of attorneys in Morganton, North Carolina, to represent them in civil actions against Jones and his employer and also to assist the state district attorney in the prosecution of the criminal charges against Jones. The attorneys were paid on a time basis for assisting the prosecution and worked for a contingent fee in the civil actions.
The criminal charges against Jones first came before the District Court of Burke County for a probable cause hearing on the felony charge and a trial of the misdemeanors. Jones' attorneys approached the assistant district attorney in an effort to plea bargain the criminal charges prior to the trial in the District Court. The assistant district attorney advised that he could ordinarily handle such a proposition, but he could not plea bargain in this case because private prosecutors were planning to present the case. At the call of the trial calendar in the District Court, the privately retained attorneys advised the judge that they were employed as private prosecutors and with the court's permission would present the case. The case was continued for about one month, and during this time the private attorneys advised Jones' counsel that they had also been retained to file civil actions on behalf of the family of the deceased child and the injured passengers.
When the criminal action was tried in the District Court of Burke County, the private attorneys appeared for the state and presented the case. During the trial the assistant district attorney was not in the courtroom and left the prosecution to the privately retained attorneys. Defense counsel tried to negotiate a plea bargain during this trial and were referred by the assistant district attorney to the privately retained counsel, who in turn referred defense counsel back to the assistant district attorney. No plea bargain was forthcoming. Probable cause was found on the involuntary manslaughter charge. Jones was found not guilty of speeding, but guilty of the remaining misdemeanor charges. The misdemeanor convictions were appealed to the Superior Court with the felony charge.
Prior to the trial in the Superior Court, defense attorneys wrote to the privately retained attorneys asking to discuss a plea bargain and were advised that they would have to discuss the matter with the district attorney. A plea did not result, and the case went to trial. Bruce McKinney of the district attorney's office appeared with the privately retained counsel in presenting the state's case. The state's witnesses were examined by private counsel, and the cross examination of defense witnesses was divided between private counsel and assistant district attorney McKinney. Two of the private attorneys argued to the jury, but only assistant district attorney McKinney argued the punishment issue. Jones was convicted of manslaughter, driving under the influence of intoxicating liquor, and running a stop sign upon a jury verdict returned on May 24, 1982, in the Superior Court for Burke County.
At the beginning of the trial, Jones' attorneys objected to the case being presented by private prosecutors, but cited no authority for this position. Following the jury verdict, defense attorneys moved to set aside the judgment of conviction because the case had been prosecuted by private attorneys and cited Ganger v. Peyton, 379 F.2d 709 (4th Cir.1967).
Prior to the trial in Superior Court the privately retained attorneys submitted interrogatories to Jones and conducted discovery in the civil actions. In December 1983 the civil actions were settled.
The criminal conviction was affirmed on appeal and the Supreme Court of North Carolina denied review. The appellant's petition for writ of habeas corpus was denied by the United States District Court, which found that there was no evidence that the civil discovery yielded any privileged information used in the prosecution of the criminal action; that the district attorney did not relinquish any control of this case to Mothers Against Drunk Driving (MADD); and that while the district attorney's office maintained control of the prosecution at the Superior Court level, it had improperly relinquished control of the proceedings at the District Court level. The error, however, was found to be harmless because of the de novo trial in the Superior Court during which the district attorney retained control of the case. The United States...
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