King v. Cook, 45209

• Decision Date: 10 June 1968
• Docket Number: No. 45209,45209
• Citation: 211 So.2d 517
• Parties: Lawrence KING v. Tom D. COOK, Superintendent of Mississippi State Penitentiary.
• Court: Mississippi Supreme Court

Page 517

211 So.2d 517

Lawrence KING v. Tom D. COOK, Superintendent of Mississippi State

Penitentiary.

No. 45209.

Supreme Court of Mississippi.

June 10, 1968.

W. D. Kendall, Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, and G. Garland Lyell, Jr., Asst. Attys. Gen., Jackson, for appellee.

ETHRIDGE, Chief Justice:

At the April 1960 term of the Circuit Court of Montgomery County, Mississippi, Lawrence King, appellant, was indicted for murder. Venue was changed to Lauderdale County, and in August 1960 the case was tried, but the jury being unable to agree upon a verdict, a mistrial was declared. In September 1960 the case was brought to trial again and a jury was selected, but before the taking of testimony began, King, upon advice of counsel, withdrew his plea of not guilty and entered a plea of guilty. He was sentenced to serve a life term in the penitentiary, where he has been incarcerated since that time.

In 1965 King filed in the Circuit Court of Lauderdale County a motion for a new trial, on the ground of newly discovered evidence. After an evidentiary hearing, the trial court denied that motion, and its decision was affirmed by this Court. King v. State, 254 Miss. 917, 183 So.2d 494 (1966). Our opinion noted that King, having served as Montgomery County Sheriff, was familiar with criminal procedures and practices and the effects of a guilty plea; and that he was advised by experienced and able counsel before entering his guilty plea, which was made only after long and deliberate consideration. We concluded that there could be 'no question as to the voluntary character of King's plea of guilty to the charge of murder.' Id. at 923, 183 So.2d at 497.

In April 1968 the United States Supreme Court decided the case of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). Defendants were indicted for having violated the Federal Kidnaping Act, 18 U.S.C. § 1201(a), which provides:

Whoever knowingly transports in interstate * * * commerce, any person who has been unlawfully * ** kidnaped * * * and held for ransom * * * or otherwise * * * shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.

The Supreme Court held in Jackson that the death penalty provision of the Federal Kidnaping Act was invalid, because it imposed an impermissible burden upon an accused's exercise of his fifth amendment right not to plead guilty and his sixth amendment right to demand a jury trial, but that the remainder of the statute was valid, since the death penalty provision was severable from it. The Court observed that the statute set forth no procedure 'for imposing the death penalty upon a defendant who waives the right to jury trial or upon one who pleads guilty.' 390 U.S. at 571, 88 S.Ct. at 1210, 20 L.Ed.2d at 141. The defendant's assertion of the right to jury trial might cost him his life, for the federal statute authorizes the jury-and only the jury-to return a verdict of death. Thus, the Court reasoned, the statute subjects a defendant who seeks a jury trial to an increased hazard of capital punishment. Accordingly, the effect of any such provision is to discourage assertion of the fifth amendment right not to plead guilty and to deter exercise of the sixth amendment right to demand a jury trial. The goal of limiting the death penalty to cases in which a jury recommends it is legitimate, the Court said, but it can be achieved without penalizing those defendants who plead not guilty and demand a jury trial. Thus the 'evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlesslv encourages them.' 390 U.S. at 583, 88 S.Ct. at 1217, 20 L.Ed.2d at 148.

After the decision in Jackson, King filed the present 'Petition for Writ of Habeas Corpus', in which he alleged that the death penalty provision in Mississippi Code 1942 Annotated section 2217 (1956) violates the fifth and sixth amendments of the United States Constitution and section 14 of the Mississippi Constitution. He asked that his conviction be set aside and he be allowed a trial by jury without the death penalty provision.

At the hearing on his petition, King testified that he was not guilty of the offense charged, but that he had pleaded guilty in order to avoid the probability of a jury returning the death penalty. The State on the second trial would have had not only the testimony of Alex Morris, King's alleged accomplice in the murder, but also an asserted confession by King which the court had excluded on the first trial, but had indicated it would admit into evidence on the forthcoming second trial.

The two attorneys who represented King at the time of his guilty plea testified in substance as follows. The case was sensational and widely publicized. The trial judge had indicated that on the second trial he would admit King's alleged confession in evidence. The district attorney offered to recommend to the trial court a life sentence if King would plead guilty, although there had been no such choice at the first trial. They thought that there was a strong probability that the jury would find him guilty and impose the death sentence, so they reluctantly recommended that he plead guilty. King understood what he was doing, but his guilty plea was entered under the pressure of the probability of a death penalty being inflicted if the case were tried to the jury.

The circuit court denied the instant petition on the ground that United States v. Jackson, decided in 1968, was not retroactive and was not applicable to a guilty plea entered in 1960. We affirm.

The Jackson opinion made no reference to its possible retroactive application. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the United States Supreme Court considered the questions of retroactivity and nonretroactivity in decisions affecting constitutional rights in criminal cases. Essentially the criteria that the Court looked to in determining whether a decision...