Myers v. State, 46404

• Decision Date: 29 November 1971
• Docket Number: No. 46404,46404
• Citation: 254 So.2d 891
• Parties: Marvin MYERS, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 891

254 So.2d 891

Marvin MYERS, Jr. v. STATE of Mississippi.

No. 46404.

Supreme Court of Mississippi.

Nov. 29, 1971.

Farese, Farese, Jones & Farese, Ashland, for appellant.

A. F. Summer, Atty. Gen., by John M. Kinard, Sp. Asst. Atty. Gen., Jackson, for appellee.

ROBERTSON, Justice:

Appellant, Marvin Myers, Jr., was indicted, tried and convicted in the Circuit Court of DeSoto County of the murder of Larry Cox. Inasmuch as the jury found appellant 'guilty as charged', the trial judge imposed the death penalty.

Because of appellant's indigence, the trial judge on November 11, 1970, appointed Hon. W. E. Wilroy, Jr. and Hon. William Hagan of the DeSoto County bar to represent appellant, Marvin Myers, Jr., and his younger brother, Arthur Myers, on this indictment. The crime was committed on July 26, 1970, and Wilroy and Hagan were appointed to represent all six defendants at the preliminary hearing on July 28, 1970. Motion for severance was granted and Marvin Myers, Jr., was the first to be tried for this offense. Farese, Farese, Jones and Farese, attorneys of Ashland, Mississippi, entered the case when it was appealed.

In their assignment of errors, appellate counsel listed 37 alleged errors. Only 11 of these alleged errors were briefed and argued on appeal. In disposing of this appeal, it is only necessary for us to discuss and decide three of these assigned errors.

About midway through the trial, during a recess, the court-appointed attorneys, Wilroy and Hagan, made an oral motion for permission to withdraw as counsel for the defendant. This motion was made in the judge's chambers to the trial judge in the presence of the district attorney. The accused, Marvin Myers, Jr., was not present when the motion was made or when it was argued. The six grounds for their motion were listed, as follows:

'1. That at the last recess of this court now taking place the Defendant, Marvin Myers, Jr., accused his counsel of not putting up a good defense, of siding with the law enforcement officers, and of acting to his detriment.

'2. That he has accused his counsel of knowingly letting false, untrue, and flagrant statements go into the record, said statements having been made by the witnesses by the State of Mississippi who have already testified, namely: DeSoto County Deputy Sheriff, Denver Sowell; and Lt. Tom Marshall and Detective E. S. Berkley of the Homicide Bureau of the Memphis Police Department.

'3. That the Defendant has made statements to his counsel in that he desires an opportunity to obtain civil rights attorneys in order to properly defend his case.

'4. That the Defendant, Marvin Myers, Jr., has not in any way cooperated with his counsel, has refused to cooperate, and yet refuses to cooperate; that he upon the occasion of the Justice of the Peace hearing on July 28, 1970, upon questioning by counsel appointed for the preliminary hearing, told one story; that counsel's appointment was confirmed at the regular November, 1970, Term of this Court after the indictment had been returned; and that the Defendant will not tell his counsel anything with which they can use to defend him on his behalf.

'5. That the Defendant vilified and accused his counsel of their failure to properly defend him in front of approximately a half dozen law officers much to the embarrassment of his counsel, proof of which can be put on if the Court deems necessary.

'6. That due to the attitude of non-cooperation and aid by the Defendant, counsel for the Defendant has had to do the best they could under the circumstances and feel that they are affording the Defendant the best possible defense necessary due mainly to his attitude, demeanor, and cooperation, which he has given them.'

These were serious accusations against appellant made and argued by his own court-appointed counsel out of his presence. He was not given an opportunity to explain his actions or present his views. Even though there might have been no sound basis for his distrust of, and lack of confidence in, his court-appointed attorneys, nevertheless, he was entitled to be heard by the trial judge. This was a very important and crucial stage of the case to the appellant and involved serious charges against him by his own counsel. The trial judge should not have heard this motion to withdraw out of the presence of the defendant-appellant. This was a fatal error and requires a general reversal of the judgment of the trial court.

We also have serious doubts whether the tests imposed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), were met in the district attorney's examination of prospective jurors as to their religious and conscientious scruples against the imposition of the death penalty. We feel that the trial judge and the district attorney were sincerely trying to comply with Witherspoon. However, the trial judge excused six prospective jurors for cause, with this rather perfunctory and pro forma general questioning of the prospective jurors by the district attorney:

'I say at the outset that the State of Mississippi is demanding in this case the highest penalty that is known to man under the laws of our state and most of the states in the union, and that is the death penalty, for the malice aforethought murder of Larry Cox. I know that we all at times have some reservations about the most severe penalty, but is there any one of you that has any conscientious scruples in a proper case, now, and I say in a proper case, against imposing the death penalty. You do have conscientious scruples against the imposing of the death penalty even in a proper case, and I say in a proper case, and that is a case that regardless of how coldblooded it might be, you will not render a decision for the death penalty regardless of how serious it was, or how coldblooded it might be?

'JUROR (Mrs. Herbert E. Dixon): No, sir.

'THE DISTRICT ATTORNEY (Mr. Finch): And you are the same way?

'JUROR (Edna Plunkett): Yes, sir.

'THE DISTRICT ATTORNEY (Mr. Finch): And you are the same way?

'JUROR (Olivia Powers): Yes, sir.

'THE DISTRICT ATTORNEY (Mr. Finch): Everyone that raised their hand, you do have, and I say again when I ask you, in a proper case, that is, regardless of how coldblooded it might be, you still would not render the death penalty regardless of how coldblooded it might be, and that's in regard to everybody else that raised their hand?

'THE COURT: All right, get the Jurors names so that I may have them?

'THE COURT: All right, Ethel Lloyd, Olivia Powers, Edna Plunkett, Tommy Lee Black, Ralph Cady, Jr., and Mrs. Herbert E. Dixon are excused for cause. All of you may be excused finally. Go by the Clerk's office and you may get your warrant for your services here today.'

The Supreme Court of the United States in Witherspoon said this:

'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' (Emphais added). 391 U.S. at 521-522, 88 S.Ct. at 1776-1777, 20 L.Ed.2d at 784-785.

In trying to be helpful to the trial courts in construing Witherspoon, this Court, by way of dicta, in Armstrong v. State, 214 So.2d 589 (Miss.1968), attempted to outline one method by which the trial judge could satisfy himself that the tests imposed in Witherspoon had been met. Although Armstrong was indicted for murder, the jury found him guilty of manslaughter and the Court sentenced him to twenty years in the penitentiary. We affirmed the conviction and sentence in Armstrong. In Armstrong, with our eyes focused on Witherspoon, we said:

'The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen is a capital case and that a verdict of guilty could result in the infliction of the death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper cases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released. The mere fact that a venireman is opposed to the death penalty does not disqualify him as a juryman, if he can do his duty as a citizen and juror and follow the instructions of the court, and where he is convinced of the defendant's guilt he can convict him although the verdict of the jury may result in the death penalty's being inflicted upon the defendant.' (Emphasis added). 214 So.2d at 593.

Of course, it is not mandatory for the trial judge to ask the questions about the death penalty, but it is preferable. When it becomes apparent that more detailed questioning is required to determine the true feelings of the prospective jurors about bringing in a verdict that would mean the death penalty, it would be better for a neutral person, namely, the trial judge, to ask the questions. After all, it is the trial judge's decision whether to sustain or reject challenges for cause, and he must satisfy himself as to the true feelings of the jurors on the death penalty.

Appellate counsel complain that the trial court did not poll the jury nor did it...