McGruder v. State, 55008

• Decision Date: 05 September 1984
• Docket Number: No. 55008,55008
• Citation: 454 So.2d 1310
• Parties: Robert McGRUDER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1310

454 So.2d 1310

Robert McGRUDER v. STATE of Mississippi.

No. 55008.

Supreme Court of Mississippi.

Sept. 5, 1984.

Brenda A. Freeman, Biloxi, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and BOWLING and HAWKINS, JJ.

BOWLING, Justice, for the Court:

Appellant was indicted on two counts of burglary. ¹ Appellant confessed to stealing some five cases of beer from a railroad car. In pre-trial plea negotiations, the district attorney's office made an offer to recommend a seven year sentence in exchange for pleas of guilty to both charges; this offer was rejected by appellant. Appellant gained release from jail on a bail bond and did not appear for trial. He was later apprehended and placed in the Biloxi Jail. While awaiting trial, in November 1983, appellant was injured in the Biloxi Jail fire, which was allegedly set by another prisoner. As a result of these injuries appellant filed a civil suit for damages against the county in Federal District Court.

On three occasions during pre-trial plea negotiations, the prosecutors warned appellant that if he did not drop his federal suit pending against the county, he would be prosecuted as a recividist. Because of appellant's prior violent convictions in Illinois, [which include burglary, larceny, escape, and three counts of armed robbery], conviction for burglary would result in a sentence of life imprisonment without parole. Appellant rejected this offer, was tried and convicted as a recidivist and sentenced to life imprisonment.

His sole assignment of error on this appeal is prosecutorial misconduct.

Appellant relies on the cases of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). However, these cases are readily distinguishable as they deal with enhanced charges and/or sentences in retaliation for a defendant's appeal.

The United States Supreme Court dealt with prosecutorial vindictiveness in a pre-trial setting for the first time in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). There, the defendant refused to plead guilty to a felony indictment for forgery, punishable by a two to ten year sentence; the state carried out a threat made during plea bargaining and had the defendant re-indicted under the habitual criminal statute, subjecting him to a mandatory life sentence upon conviction. A conscious exercise of selectivity of enforcement is not in itself a federal constitutional violation, so long as the selection is not based on an unjustifiable standard, such as race, religion or other arbitrary classification.

Likewise, a case dealing with prosecutorial vindictiveness in a pre-trial setting is United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). There the defendant rejected various misdemeanor plea bargaining offers, requesting a jury trial. The prosecutor then sought a felony indictment for the same offense, upon which the defendant was subsequently convicted and sentenced. The Court stated that the presumption of prosecutorial vindictiveness applies only where a reasonable likelihood of such exists. This rarely occurs in a pre-trial setting, especially where the duty imposed on the prosecutor is to punish criminals.

In the case at bar, the original indictment contained all the necessary elements to convict appellant as a violent habitual offender. It lists appellant's prior convictions, the terms he was sentenced to, and the time he actually served. It is not disputed that he is guilty of the crime charged, nor that he was properly charged and sentenced under our recidivist statute. While the prosecutor's offer was heavy-handed, it should be noted that appellant rejected it. His access to the courts for his civil suit has not been denied.

It should be noted that appellant filed a civil suit for damages in federal district court against the prosecutors in this case. McGruder v. Necaise, 733 F.2d 1146 (5th Cir.1984). That Court cited Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47...