Pruett v. State, 89-CA-0814

• Decision Date: 27 December 1990
• Docket Number: No. 89-CA-0814,89-CA-0814
• Parties: Marion Albert PRUETT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1342

574 So.2d 1342

Marion Albert PRUETT v. STATE of Mississippi.

No. 89-CA-0814.

Supreme Court of Mississippi.

Dec. 27, 1990.

Clive A. Stafford Smith, Stephen B. Bright, Palmer Singleton, Atlanta, Ga., for appellant.

Mike C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SULLIVAN, Justice, for the Court:

This appeal was argued on the same day as Wilson v. State, 574 So.2d 1324 (Miss.1990), and 574 So.2d 1338 (Miss.1990), and is controlled by our holding therein.

Mississippi Code Annotated Sec. 99-15-17 (Supp.1990), is not unconstitutional and this case is reversed and remanded for a proper hearing on expenses under the statute.

REVERSED AND REMANDED FOR A HEARING ON THE APPROPRIATE AMOUNT OF EXPENSES.

ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON and BLASS, JJ., concur.

ROBERTSON, J., concurs by separate written opinion.

ANDERSON, J., dissents.

PITTMAN, J., not participating.

ROBERTSON, Justice, concurring:

Our statutory cap on fees and expenses for court appointed counsel has been on the The Takings argument seems more problematical. For one thing, it is at odds with the dominant theme of federal takings jurisprudence. Lawyers like others must endure the petty larceny of the police power. Federal law suggests to my mind that there is no taking unless the lawyer is effectively put out of business, see First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), although concede the phrase "or damaged" in this state's Takings Clause makes the point more viable. I am also dubious of the Equal Protection argument.

books for years, and I think it apparent to all who will see that the statute is unconstitutional and unenforceable as applied. I say this in the sense that, not only in capital cases, the statute in a major way inhibits the state's discharge of its Gideon ¹-based duty to provide each criminally accused effective assistance of counsel. I have no doubt of our authority and responsibility under the principles articulated in Hosford v. State, 525 So.2d 789 (Miss.1988), to strike the statute and order reasonable compensation for court appointed counsel. If an adequate courthouse is essential to the administration of justice, so are competent counsel. I concur in the rationale articulated by Justice Anderson in his separate opinion insofar as it follows Hosford.

If I appreciate correctly the practical effect of the majority's reading of the statutory phrase "actual expenses", it will effectively empower our circuit courts to order the public treasurer to deliver to court appointed counsel a sum somewhat in excess of $25.00 per hour. Whether this delivery be called a payment or a reimbursement is a matter of semantics without economic or constitutional significance. The majority effectively skins the cat, and, although I would prefer Justice Anderson's Hosford based approach, I concur in the majority's holding and rationale.

ANDERSON, Justice, dissenting:

Today the majority has determined that Sec. 99-15-17 is neither unconstitutional nor unreasonable. The majority comes to this conclusion while erroneously relying on Young v. State, 255 So.2d 318 (Miss.1971) and Board of Supervisors of George County v. Bailey, 236 So.2d 420 (Miss.1970). Moreover, the majority refuses to respect this Court's obligation and authority as explained most recently in Hosford v. State, 525 So.2d 789 (Miss.1988). What concerns me more, however, is that the majority comes to this bizarre conclusion when the parties, the appellants and the State, have virtually stipulated that the statute is unreasonable. Furthermore, trial judges in this state also have recognized that this statute has infringed upon their duty to appoint and adequately compensate counsel involved in capital litigation.

When counsel, such as those involved in these cases, have dedicated this extraordinary amount of time, effort, energy and expertise to the representation of those, who people believe deserve the least help because of the crimes they have allegedly committed, this Court must not hesitate to assure that counsel be compensated at a level that would not be confiscatory. Of course the Court must be concerned with the economics involved, but we can not fall short of our obligation to provide an indigent defense system that works.

With these thoughts, I present the following opinion which was prepared initially as the majority opinion. Because this opinion failed to maintain a majority, I submit it in its entirety as a dissent.

In this consolidated appeal with Wilson v. State, 574 So.2d 1338 (Miss.1990), this Court has been called upon to address the constitutionality of Mississippi Code Annotated, Section 99-15-17 (Supp.1990), which states:

The compensation for counsel for indigents as provided in Section 99-15-15, shall be approved and allowed by the appropriate judge and in any one (1) case In these two cases, the appellants have presented several arguments attacking the constitutionality of this statute. The State, on the other hand, has failed to rebut sufficiently any of these arguments presented in both cases. As a matter of fact, the State only presented a cursory response in its brief to this major subject. Moreover, in its brief and at oral argument, the State has conceded, confessed, and basically stipulated that the limitation provided in Sec. 99-15-17 is unreasonable. In light of the appellants' arguments and the State's confession, we conclude that trial courts as provided in Hosford v. State, 525 So.2d 789 (Miss.1988), have the right and the obligation to compensate counsel representing indigent defendants at the rate that we establish today.

may not exceed one thousand dollars ($1,000.00) for representation.... Provided, however, in a capital case two (2) attorneys may be appointed, and the compensation may not exceed two thousand dollars ($2,000.00) per case.... In addition, the judge shall allow reimbursement of actual expenses. The attorney or attorneys so appointed shall itemize the time spent in defending said indigents together with an itemized statement of expenses of such defense, and shall present same to the appropriate judge. The fees and expenses as allowed by the appropriate judge shall be paid by the county treasurer out of the general fund of the county in which the prosecution was commenced. ¹

On this day, we issue an in depth opinion because there are many concerns which impact adversely on our indigent defense system, and we are compelled to address these issues. Our system is crying for help, and this Court must step forward to provide the antidote for the cure or at least provide the necessary assistance to get temporary relief. In prescribing this relief, we note that the State, by stipulation, confession, and by failing to address adequately the issue in both of its opportunities, has consented to the reasonableness of our solution. ²

I. DEATH IS DIFFERENT

Before discussing the assignments, however, it is proper to emphasize the nature of capital cases in general.

The punishment given to defendants convicted of capital crimes is death, the only punishment that may involve the conscious infliction of physical pain. Furman v. Georgia, 408 U.S. 238, 288, 92 S.Ct. 2726, 2751, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). Throughout the capital jurisprudence since Furman every Supreme Court justice has insisted or at least endorsed the notion that death is different. See, e.g. Spaziano v. Florida, 468 U.S. 447, 468, 104 S.Ct. 3154, 3166, 82 L.Ed.2d 340 (1984) (Stevens, J., concurring in part and dissenting in part) ("In the 12 years since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), every member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique standards....") (footnote omitted); California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983) (majority opinion authored by O'Connor, J., and joined by Burger, C.J., and White, Powell, Rehnquist, JJ.,) ("Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.") Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (Stevens and Powell, JJ., concurring) ("Death as a punishment is unique in its severity and irrevocability.")

                Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980) (majority opinion authored by Stevens, J., and joined by Burger, C.J., and Brennan, Stewart, Blackmun and Powell, JJ.)  ("As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments....")  Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980) (majority opinion authored by Rehnquist, J., and joined by Burger, C.J., and Stewart, White and Blackmun, JJ.)  ("This theme, the unique nature of the death penalty for purposes of eighth amendment analysis, has been repeated time and time again in our opinions." (citations omitted));  Ake v. Oklahoma, 470 U.S. 68, 87, 105 S.Ct. 1087, 1098, 84 L.Ed.2d 53 (Burger, C.J., concurring) (In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases.);  Saffle v. Parks, --- U.S. ----, ----, 110 S.Ct. 1257, 1262, 108 L.Ed.2d 415, 427 (1990) (majority opinion authored by Kennedy, J., and joined by Rehnquist, C.J., White, O'Connor, and Scalia, JJ.)  ("[l]ongstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary.")

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