Moseley v. State

• Decision Date: 10 June 1974
• Docket Number: No. CR,CR
• Citation: 510 S.W.2d 298,256 Ark. 716
• Parties: John R. MOSELEY, Appellant, v. STATE of Arkansas, Appellee. 74--21.
• Court: Arkansas Supreme Court

Page 298

510 S.W.2d 298

256 Ark. 716

John R. MOSELEY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 74--21.

Supreme Court of Arkansas.

June 10, 1974.

James R. Howard, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen., by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The Pulaski County grand jury returned two indictments against the appellant, John R. Moseley. The first charged Moseley with an illegal sale of drugs; the second charged him with perjury in his testimony before the grand jury. Separate trials, one to a jury and other to the court, resulted in convictions and concurrent 10-year sentences. The principal issue here is whether the trial court should have quashed the indictments on the ground that Police Lieutenant W. E. Simpson was present when Moseley's testimony was taken by the grand jury.

According to the testimony of the foreman of the grand jury, Lieutenant Simpson had for some time worked jointly and closely with the grand jury's drug committee in investigating Moseley's alleged sale of drugs, one such sale being involved. The grand jury itself had devoted part of six or eight of its sessions to that particular investigation before Moseley himself appeared as a witness. A number of witnesses had already testified, including Lieutenant Simpson.

When Moseley testified before the grand jury Lieutenant Simpson was present and participated in the interrogation. The foreman stated that he conferred with Simpson while conducting the examination and that he motioned to Simpson once or twice to suggest that he propound questions to Moseley. A court clerk was also present, but the record indicates that neither the prosecuting attorney nor any of his deputies were present when Moseley testified. No one except the members of the grand jury remained in the room when the jurors entered upon their deliberations and voted upon the two charges.

Lieutenant Simpson's presence during the taking of Moseley's testimony was undeniably a violation of the statute, which provides: 'No person except the prosecuting attorney, and the witnesses under examination, are permitted to be present while the grand jury are examining a charge, and no person whatever shall be present while the grand jury are deliberating or voting on a charge.' Ark.Stat.Ann. § 43--919 (Repl.1964). The questions here are whether Officer Simpson's unauthorized presence was prejudicial and, if so, whether Moseley waived the error by consenting to it.

The State relies upon several of our cases holding that the presence of some third person in the grand jury room was not prejudicial. Our leading case is Bennett v. State, 62 Ark. 516, 36 S.W. 947 (1896), where an attorney went into the grand jury room with the prosecutor's consent and acted for him in examining witnesses. We found no prejudice, stressing the fact that the attorney acted in the prosecutor's stead and said nothing to influence the jury's finding. Even so, we emphasized the need for compliance with the statute, saying: 'The importance of this provision cannot be overestimated, when we consider that the 'secrecy of the grand jury room, and the privity and impartiality of that inquest,' may prevent the presentment of any one 'through envy, hatred, or malice. " Our later cases add nothing to the reasoning in Bennett: Richards v. State, 108 Ark. 87, 157 S.W. 141, Ann.Cas.1915B, 231 (1913); Tiner v. State, 109 Ark. 138, 158 S.W. 1087 (1913); Coon v. State, 109 Ark. 346, 160 S.W. 226 (1913); Bennett v. State, 161 Ark. 496, 257 S.W. 372 (1923).

Those cases, however, do not touch upon the possibility of prejudice that exists in the case at bar. The statute contemplates that the prosecuting attorney will assist the grand jury, his knowledge of law and of the elements of a prima facie case being essential to the jurors' understanding of their duties. The prosecuting attorney, however, does not appear before the grand jury as a partisan, bent upon obtaining an indictment. In the actual trial of criminal cases it is as much the prosecutor's duty to protect the innocent as to convict the guilty. Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958). It would be illogical and unwise for him to act in a less disinterested manner in his role as advisor to the grand jury. Consequently, no prejudice is shown when another attorney acts for the prosecutor and, as we stated in the first Bennett case, says nothing to influence the finding of the grand jury.

Here the situation is markedly different. Lieutenant Simpson, a law enforcement officer, had been actively in charge of the investigation that led to the indictment. He had testified as a witness before the grand jury. He participated in the interrogation of Moseley. Unlike the prosecuting attorney, Lieutenant Simpson had no reason to be impartial in the matter and could hardly have been impartial. In such a situation the cases are unanimous, as far as we can find, in holding that the indictment should be quashed. United States v. Carper, 116 F.Supp. 817 (D.C.D.C., 1953); United States v. Edgerton, 80...