Harvey Williams, Jr. v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2013-IA-00402-SCT

HARVEY WILLIAMS, JR. a/k/a SMOKIE a/k/a
HARVEY WILLIAMS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 02/14/2013
TRIAL JUDGE: HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS: CHARLES RICHARD MULLINS
MERRIDA COXWELL
MARVIN LAWAYNE SANDERS
COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL
DISTRICT OF HINDS COUNTY
ATTORNEYS FOR APPELLANT: CHARLES RICHARD MULLINS
MERRIDA COXWELL
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: HAROLD EDWARD PIZZETTA, III
MARY JO WOODS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

KITCHENS, JUSTICE, FOR THE COURT:

¶1. Following this Court’s reversal and remand of the murder conviction of Harvey

Williams, Robert Shuler Smith, the Hinds County District Attorney, sought an order of nolle

prosequi, which was granted by the circuit court. Two days later, and without notice to the

accused, the judge sought to vacate his previously entered nolle prosequi order, “recuse” the

district attorney, and transfer the case to the Mississippi Attorney General’s Office. A second
circuit court judge found that the order of nolle prosequi was not subject to recision, but

appointed the Attorney General’s Office as a special prosecutor in the place of the local

district attorney, merely because the duly elected and serving local prosecutor had exercised

his discretion not to prosecute Williams. The involuntary disqualification of the local district

attorney and the substitution of the Office of the Attorney General, over the objection of the

local district attorney, are wholly unsupported by any constitutional, common law, or

statutory authority of the State of Mississippi.

FACTS AND PROCEDURAL HISTORY

¶2. Following the shooting death of Calvin Younger outside a Jackson, Mississippi,

nightclub in 2003, Harvey Williams was indicted for murder. The case proceeded to trial in

2007, prosecuted by the then-Hinds County District Attorney Faye Peterson. A jury found

Williams guilty of murder, and the Honorable Breland Hilburn, Circuit Judge, sentenced

Williams to life in the custody of the Mississippi Department of Corrections. The Court of

Appeals affirmed Williams’s conviction and sentence. Williams v. State, 54 So. 3d 253

(Miss. Ct. App. 2010). This Court granted Williams’s petition for writ of certiorari and,

upon review, reversed his conviction and remanded the case for a new trial. Williams v.

State, 54 So. 3d 212, 216 (Miss. 2011). We found that Williams’s defense was prejudiced

by the exclusion of testimony from a witness who would have testified that he had seen the

decedent with a gun earlier on the evening of the shooting. Id.

¶3. Following remand, Hinds County District Attorney Robert Shuler Smith sought an

order of nolle prosequi based on “new evidence” indicating “that the defendant, Harvey

Williams, may have acted in self-defense.” Judge Hilburn, who had presided over Williams’s

2
trial, signed an order on June 13, 2011, granting the State’s nolle prosequi motion. Two days

later, however, on June 15, 2011, Judge Hilburn wrote “Withdrawal of Order” directly upon

his previously entered nolle prosequi order, and “the Court find[s] that the above order of

Nolle Prosequi was erroneously entered by the Court. The Order of Nolle Prosequi is hereby

withdrawn.” 1

¶4. Nine months later, on March 13, 2012, Judge Hilburn signed the following “Order of

Recusal”:

IT APPEARING that the District Attorney in and for the Seventh
Circuit Court District, State of Mississippi, and the staff of the District
Attorney’s Office, should recuse itself from prosecuting the above-styled and
numbered cause, and in support thereof, would show unto the court the
following facts, to-wit:

(1) The District Attorney’s Office is recusing itself from this matter so
this case can be handled by the Attorneys that originally prosecuted this
matter.

(2) The Attorneys that originally prosecuted this matter now work in
the Mississippi Attorney General’s Office.

IT IS THEREFORE[] ORDERED AND ADJUDGED that the District
Attorney in and for the Seventh Circuit Court District, State of Mississippi,
and the staff of the District Attorney’s Office, should recuse itself from
prosecuting the above-styled and numbered cause for the reasons stated above
and this matter will be transferred to the Mississippi Attorney General’s
Office.

On March 14, 2012, Judge Hilburn entered a second order appointing the Division of Public

Integrity of the Mississippi Office of the Attorney General as special prosecutor.

1
No notice was provided Williams or his counsel that Judge Hilburn’s June 13, 2011,
order of nolle prosequi had been withdrawn two days after its entry. At a hearing before
Judge Hilburn ten months later, on April 5, 2012, Williams’s counsel related that he had
received no notice of the withdrawal.

3
¶5. On September 10, 2012, Williams filed a motion to dismiss the case, claiming that

Judge Hilburn’s original nolle prosequi order effectively brought the case to an end and that

the charges could not be revived by the judge. Williams contended that any orders entered

after the order of nolle prosequi had been entered were null and void, including the order of

recusal of the Hinds County District Attorney and the order appointing the Office of the

Attorney General as special prosecutor. Initially, the case was reassigned to Circuit Judge

William Gowan, but Judge Gowan recused. The case then was assigned to Circuit Judge Jeff

Weill, who conducted a hearing on October 29, 2012.

¶6. At the hearing before Judge Weill, Special Assistant Attorney General Marvin

Sanders conceded that Judge Hilburn had no authority to rescind the order of nolle prosequi.

Sanders did maintain, however, that the Office of the Attorney General is vested with

constitutional, common law, and statutory authority which entitle it to prosecute the case.

District Attorney Smith testified that he had decided, in his discretion as the elected Hinds

County District Attorney, to seek a nolle prosequi of the case against Williams. He expressed

his continuing objection to the intervention of the attorney general “in cases where I have

jurisdiction as the elected district attorney.”

¶7. On February 14, 2013, Judge Weill entered an order finding that, once the order of

nolle prosequi had been signed by Judge Hilburn, the case was at an end. He therefore held

“that the subject cause number shall be dismissed, as the same was nolle prossed on June 13,

2011.” However, Judge Weill found that, because the Hinds County District Attorney did not

intend to prosecute Williams, the Office of the Attorney General should be appointed as

4
special prosecutor. Judge Weill continued that the Office of the Attorney General “is

permitted to pursue future prosecution of this Defendant, in its discretion.”

¶8. Williams filed a Petition for Interlocutory Appeal in this Court on March 7, 2013. On

April 1, 2013, a panel of this Court ordered that Judge Weill, the attorney general, and the

Hinds County District Attorney’s Office file responses addressing the following issues:

(1) What authority, if any, permits a trial judge to appoint the Attorney General
of the State of Mississippi as special prosecutor under the circumstances
presented in this case?

(2) What authority, if any, permits the Attorney General of the State of
Mississippi to serve as special prosecutor under the circumstances presented
in this case?

(3) Do the Office of the Attorney General of the State of Mississippi and the
Hinds County District Attorney’s Office belong to the executive or the judicial
branch of government?

Having received a response from each of the entities listed above, the panel, on May 28,

2014, granted Williams’s petition for interlocutory appeal and stayed prosecution of

Williams related to the charges for which he previously had been indicted.

¶9. On interlocutory appeal, Williams raises the following issues:

DID THE HINDS COUNTY CIRCUIT COURT JUDGE HAVE THE
AUTHORITY AND/OR JURISDIC[TION] TO APPOINT THE MISSISSIPPI
ATTORNEY GENERAL AS SPECIAL PROSECUTOR? IN THE
ALTERNATIVE DID THE CIRCUIT COURT JUDGE VIOLATE THE
SEPARATION OF POWERS DOCTRINE BY APPOINTING THE
MISSISSIPPI ATTORNEY GENERAL AS SPECIAL PROSECUTOR
AFTER THE CASE WAS DISMISSED BY NOLLE PROSEQUI?

We limit interlocutory review to the first question presented, finding it dispositive of the

matter before us. We divide the question presented into the following issues:

5
 I. Whether the Constitution and/or common law of the State of
Mississippi authorize the intervention of the Office of the Attorney
General in a criminal prosecution in which the local district attorney
opposes such interference.

II. Whether the statutes of the State of Mississippi authorize the
intervention of the Office of the Attorney General in a criminal
prosecution in which the local district attorney opposes such
interference.

DISCUSSION

¶10. Justice Pierce analyzes whether the circuit court is vested with authority to rescind

orders of nolle prosequi after entry. But this issue is not before the Court. Judge Weill

acknowledged in his order of February 14, 2013, that the case had been nolle prossed by

Judge Hilburn’s order of June 15, 2011, and was therefore finally dismissed. Marvin Sanders

of the Office of the Attorney General conceded this at the October 29, 2012, hearing before

Judge Weill. The issue was not raised on appeal, and we decline to address it. We proceed

to address only the issue before this Court.

I. Whether the Constitution and/or common law of the State of
Mississippi authorize the intervention of the Office of the Attorney
General in a criminal prosecution in which the local district
attorney opposes such interference.

¶11. Neither the Constitution nor any case law authorized Judge Hilburn’s or Judge Weill’s

orders appointing the Office of the Attorney General as special prosecutor to prosecute the

case against Williams, where the local district attorney, in his discretion, had made the

decision not to prosecute.

¶12. The Constitution of the State of Mississippi provides for an Attorney General:

There shall be an Attorney General elected at the same time and in the same
manner as the Governor is elected, whose term of office shall be four years and

6
 whose compensation shall be fixed by law. The qualifications for the Attorney
General shall be the same as herein prescribed for judges of the circuit and
chancery courts.

Miss. Const. art. 6, § 173. According to this Court, “[t]he creation of the office of Attorney

General by the Constitution vested him with these common law duties, which he had

previously exercised as chief law officer of the realm.” Kennington-Saenger Theatres v.

State ex rel. Dist. Attorney, 196 Miss. 841, 18 So. 2d 483, 486 (1944). With regard to the

powers of the attorney general at common law, this Court has held that:

At common law the duties of the attorney general, as chief officer of a realm,
were numerous and varied. He was chief legal adviser of the crown, was
entrusted with the management of all legal affairs, and prosecution of all suits,
criminal and civil, in which the crown was interested. He had authority to
institute proceedings to abate public nuisances, affecting public safety and
convenience, to control and manage all litigation on behalf of the state, and to
intervene in all actions which were of concern to the general public.

State ex rel. Allain v. Miss. Pub. Serv. Comm’n, 418 So. 2d 779, 781 (Miss. 1982) (quoting

State ex rel. Patterson v. Warren, 254 Miss. 293, 307, 180 So. 2d 293, 299 (1965)).

¶13. Justice Coleman takes the position that the Constitution and broad common law

language authorize the attorney general “to initiate or intervene should he so choose.” But

neither Mississippi’s Constitution—silent with regard to the powers or duties of the attorney

general—nor the common law authorizes the attorney general to usurp or encroach upon the

constitutional or the statutory power of the local district attorney in a criminal case where the

attorney general’s assistance is not requested by the district attorney, and is in fact opposed

by the district attorney. Indeed, with regard to district attorneys, the Constitution provides:

“[a] district attorney for each circuit court district shall be selected in the manner provided

by law, whose term of office shall be four years, whose duties shall be prescribed by law, and

7
whose compensation shall be a fixed salary.” Miss. Const. art 6, § 174 (emphasis added).

“[T]he powers of district attorneys are statutory, not common law, and they cannot encroach

upon the powers of the attorney general.” Warren, 180 So. 2d at 299. This Court has

clarified: “A district attorney has no authority to represent the state in litigation outside

counties of their district, or to represent the state in litigation in their district where the

subject matter is of statewide interest, as distinguished from local interest.” Id. (citations

omitted). We find no reason, or evidence in the record, why Williams’s murder prosecution

could be considered by the attorney general to be any more a matter of statewide interest, as

distinguished from local interest, than any other murder case.

¶14. The Office of the Attorney General cites the case of Bell v. State, in which the

defendant challenged the authority of the attorney general to call the grand jury and to

present charges to it in the absence of a request from the local district attorney to do so, in

support of its argument that the common law authorizes the attorney general to prosecute any

case it chooses. Bell v. State, 678 So. 2d 994, 996 (Miss. 1996). But in that case, unlike in

the present one, no evidence was adduced that the local district attorney opposed the

involvement of the attorney general. Here, District Attorney Smith positively testified that

he was opposed to the involvement of the attorney general in a case in which he had

jurisdiction as the elected district attorney.

¶15. This Court has recognized that “[t]here was no such office as district attorney known

to the common law.” Capitol Stages v. State, 157 Miss. 576, 128 So. 759, 763 (1930). The

Court continued:

8
 The office of district attorney, unlike that of Attorney General, is of modern
origin, its duties are prescribed by statute; the civil and criminal business of the
state, which once pertained to the office of Attorney General, has been by the
Legislature divided between the two offices for convenience. The office of
district attorney has been carved out of the office of Attorney General, and
made an independent office. The Attorney General may advise the district
attorneys, as he does other offices, in his capacity as chief law officer of the
state. Nevertheless the two offices are separate and distinct. The powers of the
district attorneys can neither be increased nor diminished by the Attorney
General.

Id. (emphasis added). According to the common law of this State, the attorney general may

advise the district attorney, but he neither can increase nor diminish the statutory power of

the district attorney. Intervention of the attorney general into the independent discretion of

a local district attorney regarding whether or not to prosecute a criminal case constitutes an

impermissible diminution of the statutory power of the district attorney. See Miss. Code Ann.

§ 25-31-11(1) (Rev. 2010) (“It shall be the duty of the district attorney to represent the state

in all matters coming before the grand juries of the counties within his district and to appear

in the circuit courts and prosecute for the state in his district all criminal prosecutions and

all civil cases in which the state or any county within his district may be interested . . . .”))

(Emphasis added.)

¶16. Both the attorney general and the district attorney are constitutional officers of the

State of Mississippi. But the Mississippi Attorney General is not the local district attorney’s

boss, as in the federal system, where the United States Attorney General is the superior of

the U.S. Attorneys in the federal court districts. See 28 U.S.C. § 519 (2012) (“[T]he Attorney

General shall supervise all litigation to which the United States, an agency, or officer thereof

is a party, and shall direct all United States attorneys, assistant United States attorneys . . .

9
in the discharge of their respective duties.”) Both the United States Attorney General and the

United States Attorneys are appointed by the President and serve at his will and pleasure. See

28 U.S.C. § 503 (2012), 28 U.S.C. § 541 (2012). The United States Attorney General can

override, or trump, the prosecutorial decisions of a local United States Attorney. See 28

U.S.C. § 519 (2012). The Mississippi attorney general is without authority to direct, control,

or override the official actions of a local district attorney and has no authority over him or

her.

¶17. Neither Mississippi’s Constitution nor its common law permits the involuntarily

disqualification of a duly elected district attorney from the lawful performance of his duty

and the substitution of the attorney general in the district attorney’s place and stead in a case

in which no legal grounds for the district attorney’s disqualification exists.

II. Whether the statutes of the State of Mississippi authorize the
intervention of the Office of the Attorney General in a criminal
prosecution in which the local district attorney opposes such
interference.

¶18. No statute authorized the Office of the Attorney General to prosecute the instant case

in the place and stead of the district attorney, and neither Judge Hilburn nor Judge Weill was

authorized to appoint the attorney general, his office, or any division of his office, for that

purpose.

¶19. Judge Weill found:

At a hearing on the matter, the Hinds County District Attorney made clear his
intentions not to prosecute this Defendant. The Court finds that the Attorney
General’s office is hereby appointed as a Special Prosecutor, and is permitted
to pursue future prosecution of this Defendant, in its discretion.

10
Judge Weill cited Mississippi Code Section 7-5-1, which codifies the common law language

that the attorney general is “the chief legal officer and advisor for the state, both civil and

criminal, and is charged with managing all litigation on behalf of the state, except as

otherwise specifically provided by law. . . . He shall have the powers of the Attorney General

at common law . . . .” Miss. Code Ann. § 7-5-1 (Rev. 2014) (emphasis added). But that

statute does not support the usurpation by the attorney general of the independent discretion

over criminal prosecution which statutorily has been vested in local district attorneys. See

Miss. Code Ann. § 25-31-11(1) (Rev. 2010) (“It shall be the duty of the district attorney to

represent the state in all matters coming before the grand juries of the counties within his

district and to appear in the circuit courts and prosecute for the state in his district all

criminal prosecutions and all civil cases in which the state or any county within his district

may be interested . . . .”)) (emphasis added).

¶20. Only one statute authorizes intervention by the attorney general. Mississippi Code

Section 7-5-53 provides:

The Attorney General2 shall, when required by public service or when directed
by the Governor, in writing, repair in person, or by any regular or specially
designated assistant, to any county or district in the state and assist the district
attorney there in the discharge of his duties and in any prosecution against a
state officer, and shall have the same right as the district attorney to enter the
grand jury room while the grand jury is in session and to perform such services
with reference to the work of the grand jury as the district attorney is
authorized by law to perform.

2
This statute refers to the attorney general himself or “any regular or specially
designated assistant,” and not more broadly to the Office of the Attorney General. Miss.
Code Ann. § 7-5-53 (Rev. 2014). “Offices” cannot be appointed to assist district attorneys.
Only the attorney general and his or her assistants are eligible. See Miss. Code Ann. § 25-31-
21 (Rev. 2010).

11
Miss. Code Ann. § 7-5-53 (Rev. 2014) (emphasis added). The operative word in Section 7-5-

53 is but one: assist. According to the statute’s plain language, the attorney general may

assist a local district attorney in the discharge of his or her duties. Here, however, Robert

Shuler Smith, the Hinds County District Attorney,3 never sought the assistance of the

attorney general; and, indeed, at the hearing before Judge Weill, he testified that he had

opposed the attorney general’s involvement. The following colloquy occurred between

District Attorney Smith and Marvin Sanders of the Office of the Attorney General:

Q: [Mr. Sanders] . . . is it your opinion that your office wants to prosecute
the case?

A: [Mr. Smith] We were already over that case.

Q: You’re over it? So you don’t want to – you don’t want it – to prosecute
it?

A: (No response.)

Q: No?

A: I mean, the case has already been disposed of.

Q: Well, that’s why we’re here today. That’s – Judge Weill is going to
make the decision on what happens to this case.

A: Right.

Q: Which I’m trying to determine if the attorney general’s office wants to
proceed with prosecuting the case. Do you object to our office
prosecuting the case?

A: I object to the attorney general’s office not contacting the district
attorney –

Q: Regarding what?

3
The Seventh Circuit Court District is now comprised of Hinds County only.

12
 A: – and – getting involved in cases where I have jurisdiction as the
elected district attorney.

¶21. The statute permitting the attorney general to become involved in local prosecutions

in no way contemplates the present situation. Under the applicable statute, only two scenarios

permit the involvement of the attorney general: (1) when required by public service, or (2)

when directed by the governor, in writing. If one of those applies, the attorney general is to

assist the local district attorney in the discharge of his or her duties. Here, District Attorney

Smith did not request or require assistance; he decided, in his discretion, not to prosecute this

case. That decision duly was ratified by order of a circuit judge, namely, Judge Hilburn.

¶22. The record does not support any finding, and Judge Hilburn never found, that the

attorney general’s assistance was “required by the public service.” The Governor did not, in

writing, direct the attorney general to prosecute the Williams case. Instead, Judge Hilburn,

for no valid reason, signed an order sua sponte recusing or disqualifying District Attorney

Smith from a case over which he lawfully had exercised prosecutorial discretion on behalf

of the State. Consistent with the duties and authority of his office, District Attorney Smith

had sought a nolle prosequi, which Judge Hilburn, in due course, granted on June 13, 2011.

Mississippi Code Section 7-5-53 does not authorize the intervention of the attorney general

into a matter statutorily relegated to the discretion of a local district attorney where that

official has decided not to prosecute and, in fact, objects to the involvement of the attorney

general.

¶23. Mississippi Code Section 25-31-21 provides for the appointment of a district attorney

pro tempore, but in specific, limited circumstances:

13
 If, at the time of impaneling the grand jury in any circuit court, the district
attorney be absent or unable to perform his duties or, if after impaneling of the
grand jury, the district attorney be absent or unable to perform his duties or be
disqualified, the court shall forthwith appoint some attorney at law to act for
the state in the place of the district attorney during his absence or inability or
disqualification, and the person appointed shall have the power to discharge
all the duties of the office during the absence or inability or disqualification of
the district attorney . . . .

Miss. Code Ann. § 25-31-21 (Rev. 2010). The statute by its plain text provides three

situations in which a district attorney pro tempore shall be appointed: the district attorney is

absent, the district attorney is unable to perform his duties, or the district attorney is

disqualified.

¶24. Judge Hilburn stated that the district attorney “should recuse,” but articulated no

lawful reason that he should, saying only that the case ought to “be handled by the Attorneys

that originally prosecuted this matter.” With utmost respect to Judge Hilburn, his order fails

to articulate or analyze any legal reason for the “recusal” of the Hinds County District

Attorney. If the district attorney or his duly qualified assistants were neither absent, unable

to perform, nor disqualified, then Judge Hilburn was without authority to order the “recusal”

of the district attorney or his office. The record is wholly void of any of the specified

statutory bases for the appointment of a district attorney pro tempore.

¶25. It is true that the March 13, 2012, order of recusal was entered with the acquiescence

of an assistant district attorney who signified his approval of it; but District Attorney Smith,

testifying under oath, disputed at the hearing before Judge Weill that he had authorized the

recusal of himself or his office from the Williams case. The following colloquy took place

at the hearing before Circuit Judge Weill:

14
 Q: [Mr. Sanders] Okay. Your office recused yourself. Scott Rogillio,
assistant district attorney, is he – does he have the authority to recuse
the district attorney’s office from cases?

A: [Mr. Smith] Well if there is a reason to recuse.

Q: Well, I’m asking does he have the authority to recuse your office from
the case. Were you saying – did – then you’re saying he exceeded his
authority by recusing your office in this case?

A: If there is an articulable reason to recuse, then I would have – I would
hope that someone would bring that to my attention.

Q: Okay. But you’re aware that – you said that the AG’s office is
overstepping its bounds and involving yourself in the case, but your
office recused itself and the judge appointed us. So the AG’s office is
not stepping on your authority, is it? We’re not involving ourselves.
Your office recused itself and the judge appointed us; isn’t that correct?

A: I’m not sure if it was a proper recusal and I’m not sure if it was a proper
appointment.

But when asked “[d]id you, as the publicly elected district attorney, approve or consent to

an order recusing your office?,” District Attorney Smith responded: “I did not and I cannot

think of any recusal at this time, but this appears to be signed by an assistant district attorney.

I don’t know if he set forth – sets for the reasons for the recusal . . . .” No motion ever was

filed by the Hinds County District Attorney’s Office setting forth any grounds for its

disqualification or recusal from the Williams case. The record is clear that the district

attorney regarded the Williams case as no longer extant, once Judge Hilburn had signed the

order of nolle prosequi.

¶26. In the orders appointing the Office of the Attorney as special prosecutor of Williams’s

case, neither Judge Hilburn nor Judge Weill articulated any statutory authority permitting

such appointment. Indeed, there was none to be found.

15
 CONCLUSION

¶27. Mississippi law does not permit a trial court to disqualify a duly elected and serving

district attorney and replace him with the attorney general where the district attorney has

decided, in the lawful exercise of his discretion, not to prosecute a criminal case. The

attempted appointments of the Attorney General of Mississippi, or members of his staff, in

the place and stead of the District Attorney of the Seventh Circuit Court District is reversed

and rendered. This Court’s stay of the criminal prosecution against Williams is lifted.

¶28. REVERSED AND RENDERED.

DICKINSON, P.J., LAMAR, CHANDLER AND KING, JJ., CONCUR.
PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., AND RANDOLPH, P.J.; COLEMAN, J., JOINS IN PART.
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., RANDOLPH, P.J., AND PIERCE, J.

PIERCE, JUSTICE, DISSENTING:

¶29. I find that Cause Number 03-0-969 remains viable, and Judge Hilburn’s order

transferring the case to the Attorney General’s Office is valid. Judge Hilburn clearly had the

authority and discretion in this instance to rescind his nolle prosequi order for Cause Number

03-0-969 two days after issuing the order during the same term of court. Judge Hilburn

likewise had the authority to transfer the case to the Attorney’s General Office once the

Hinds County District Attorney thereafter let it be known that his office would not act on the

matter (as illustrated by the record), based upon what can only be discerned as the district

attorney’s misapprehension of this Court’s decision in Williams v. State, 54 So. 3d 212

(Miss. 2011). For these reasons, as will be explained, I dissent.

16
¶30. At the outset, the majority finds the question as to whether Judge Hilburn had the

authority to rescind his previous nolle prosequi order, not before us. Respectfully, that is the

elephant in the room. And the majority practically embraces it, while pretending it is not

there. Indeed, the majority’s decision, and entire analysis in support thereof, is premised on

the notion that Judge Hilburn did not have the authority to appoint the Attorney’s General

Office because Judge Hilburn had entered a nolle prosequi order. But, as the record plainly

illustrates, Judge Hilburn appointed the Attorney General’s Office, after he rescinded the

previous nolle prosequi order and after District Attorney Smith then declined to prosecute

the case.4 Judge Hilburn, as he testified below before Judge Weill, proceeded accordingly

because Judge Hilburn believed he had the authority and the duty to do so. Judge Weill

placed error in Judge Hilburn’s decision to rescind the nolle prosequi because Judge Weill

believed that Judge Hilburn did not have such authority. Judge Weill, however, found that

Judge Hilburn had authority under the state constitution to appoint the Attorney’s General’s

Office as a special prosecutor in this case. As a matter of common judicial sense and

standards, we must first address who was correct on the recision question before reaching any

constitutional question put before us. This is a fundamental rule of this Court. See Ferguson

v. Watkins, 448 So. 2d 271, 285 (Miss. 1984) (“Our practice is to avoid reaching

4
To be clear, Judge Hilburn testified before Judge Weill that he rescinded the nolle
prosequi order, drafted by the District Attorney’s Office, after Judge Hilburn realized there
were statements made in the order that were “absolutely untrue.” Judge Hilburn then went
to the District Attorney’s office and told him he had withdrawn the order. According to
Judge Hilburn, District Attorney Smith said he was not going to prosecute the case. Judge
Hilburn then told District Attorney Smith that the Attorney General’s Office had expressed
a desire to prosecute the case. To which District Attorney Smith replied, “I don’t care.”

17
constitutional questions if a dispositive non-constitutional ground is available.”) (citation

omitted).

¶31. The district attorney is an important official, but the people, through their

representatives in the Legislature, have not placed the fate of efforts to maintain law and

order entirely in that official’s hands. Where public interest is involved, it is the duty of the

court to consider those interests in determining whether or not to nolle prosequi (or dismiss)

an action. Mississippi Code Section 99-15-53 envisages this duty, and the majority fails to

take both into consideration.

¶32. Section 99-15-53, which the majority fails to mention, states in part: “A district

attorney, or other prosecuting attorney, shall not compromise any cause or enter a nolle

prosequi either before or after indictment found, without consent of the court.” This is the

practice in the majority of jurisdictions and is a departure from the common law, where the

power to dismiss a criminal charge, or enter a nolle prosequi, lies in the sole discretion of the

prosecutor. U.S. v. Cowan, 524 F.2d 504, 509-10 (5th Cir. 1975). The purpose is two fold.

One, the requirement protects the rights of a criminal defendant. See, e.g., Rinaldi v. United

States, 434 U.S. 22, 29 n.15, 98 S. Ct. 81, 54 L. Ed. 2d 207 (1977) (per curiam) (speaking

to the “leave of court” requirement prescribed by Federal Rule of Criminal Procedure 48(a)

(counterpart to Section 99-15-53) which protects a defendant against prosecutorial

harassment). Two, it protects the public interest. Cowan, 524 F.2d at 510-13 (Federal Rule

of Civil Procedure 48(a)’s “leave of court” requirement also serves to protect the public

interest in the fair administration of criminal justice).

18
¶33. In speaking to the latter, Cowan, one of the leading authorities on Federal Rule 48(a)’s

“leave of court” requirement, noted numerous state cases. Cowan said, “state case law

interpreting [modification of the common law] is sparse, but what there is of it consistently

affirms the power and duty of the court to exercise discretion to grant or withhold leave to

dismiss pending criminal prosecutions in the ‘the public interest.’” One of the state cases

cited by Cowan was Shipp v. State, 215 Miss. 541, 61 So. 2d 329 (1952), abrogated on other

grounds by Addkison v. State, 608 So. 2d 304 (Miss. 1992). In Shipp, the district attorney

moved the trial court for a nolle prosequi on a criminal defendant’s indictment for larceny

after the defendant was diagnosed before trial with schizophrenia by psychiatrists at the state

hospital. Id. at 546-47. The trial court denied the nolle prosequi motion and ordered that

the defendant be brought to trial. The Shipp Court, citing Section 2566, Code of 1942

(predecessor to Section 99-15-53), did not question the trial court’s decision to refuse the

district attorney’s nolle prosequi request. Id. at 552. Rather, the Shipp Court found

reversible error in the trial court’s refusal to try the issue of insanity preliminarily. Id. at 551.

¶34. Since Shipp, this Court has addressed Section 99-15-53’s consent requirement in a

limited number of cases, most of which involved plea agreements between the State and the

defendant. See State v. Adams Cnty. Circuit Court, 735 So. 2d 201, 204 (Miss. 1999)

(holding that the trial court abused its discretion in denying the State leave to dismiss

indictments after the defendants had relied detrimentally on plea agreement); Moody v. State,

716 So. 2d 592, 594 (Miss. 1998) (trial court abused its discretion in rejecting a plea

agreement in murder case based on the trial court’s desire that the defendant receive not less

than the death penalty); Edwards v. State, 465 So. 2d 1085, 1086 (Miss. 1985) (trial court

19
abused its discretion in not quashing the defendant’s indictment in light of the defendant’s

detrimental reliance on an agreement with the district attorney). The Edwards Court

qualified its holding by reiterating that the trial court is not bound by every plea agreement

because the plea agreement remains a function of the trial court’s discretion. Id. at 1086.

¶35. Indeed, both Shipp and Edwards implicitly acknowledged there exists a public-

interest concern, which the trial court has a duty to take into consideration in its decision to

grant or deny a nolle prosequi.

¶36. This Court spoke to this charge in State v. U.G., 726 So. 2d 151 (Miss. 1998). In that

case, a fourteen-year old defendant had been indicted for armed robbery. Id. at 152. Upon

motion from the defendant, the circuit court transferred the case to youth court. Id. at 153.

The State appealed, and we reversed the circuit-court judgment for failure to consider the

“public interest” before transferring the case. Id. at 156. We first cited Mississippi Code

Section 43-21-159(3)(now Section 43-21-159(4)), which reads in part as follows:

In any case wherein the defendant is a child as defined in this chapter and of
which the circuit court has original jurisdiction, the circuit judge, upon a
finding that it would be in the best interest of such child and in the interest of
justice, may at any stage of the proceedings prior to the attachment of jeopardy
transfer such proceedings to the youth court for further proceedings . . . .

Miss. Code Ann. § 43-21-159(4) (Rev. 2009). Next, we explained that, “[n]either the best

interest of the child nor the ‘interest of justice’ overrides the other, but they can be separate

interests and must be given full review by the circuit court.” U.G., 726 So. 2d at 155. We

found that while the circuit court properly took into consideration the minor’s best interest(s),

the court “failed to properly address the issue of the ‘interest of justice’–the public’s

interest.” Id. at 155-56. We added that the trial court “is mandated by statute to consider

20
matters beyond the interest of the child[;] [t]he lower court must also review issues before

it from an ‘interest of justice’ or public interest view point.” Id. “The State has a duty to

represent the public’s interest in prosecuting violent criminals, no matter what their age.”

Id. at 156.

¶37. I see no distinction between the mandates of Section 43-21-159(4) and Section 99-15-

53.

¶38. Here, according to the record, after we reversed and remanded William’s conviction,

the new district attorney, Robert Smith (who had succeeded the former Hinds County District

Attorney Faye Peterson, who had prosecuted this case) discussed the case with his assistants.

According to former Assistant District Attorney Keith Gates, who testified at the hearing

before Judge Weill, Smith had debated whether, since the case had been “remanded with new

evidence that [had] come in, whether the [S]upreme [C]ourt was saying it should be allowed

in court.” Gates said the only new evidence that he, Gates, knew about was that the bouncer

at the club where the shooting had occurred had seen the decedent with a gun earlier that

evening. Smith ultimately decided that the case should be nolle prossed. Gates said when

he later presented the nolle prosequi motion to Judge Hilburn, Judge Hilburn was not happy

about it and wanted to talk to Smith. Gates said he told Judge Hilburn that this is something

that Judge Hilburn and Smith needed to talk about because he, Gates, was just relaying the

message. Gates testified that Judge Hilburn signed the nolle prosequi order at that point.

¶39. Judge Hilburn testified at the hearing in front of Judge Weill, that a nolle prosequi

order had been presented to him after Williams’s conviction was reversed and remanded by

this Court. Judge Hilburn could not recall how the order was presented, but he stated that

21
there was no procedure concerning the order. Judge Hilburn signed the order. As

mentioned, after looking at the order later, Judge Hilburn realized that statements were made

in the order that “were absolutely untrue” with regard to exhibits containing affidavits from

witnesses whom Judge Hilburn had never seen. So Judge Hilburn found that the nolle

prosequi order was not correct, and he withdrew it. Judge Hilburn testified that, because the

term of court had not yet ended, he believed that he had the authority to reverse his previous

order. After reversing the order, Judge Hilburn went to Smith’s office and told Smith that

he had withdrawn the order. Judge Hilburn said Smith told him that his office was not going

to prosecute the case. Judge Hilburn told Smith that the Attorney General’s Office had

expressed a desire to prosecute the case, and that Smith had said, “I don’t care.” Judge

Hilburn subsequently signed and entered an order, entitled “Order to Recuse” which was

signed by a Hinds County assistant district attorney.

¶40. Judge Hilburn did exactly what he was required and expected to do by law. Judge

Hilburn had a duty to review and consider the “alleged” new evidence that formed the basis

for the district attorney’s nolle prosequi request. Review of this new evidence shows that it

merely comprises character evidence as to the decedent’s violent nature. By no means can

this new evidence be characterized as exoneration evidence. Contrary to the majority’s

finding(s) otherwise, Judge Hilburn did provide a valid reason for rescinding the order.

Implicit in his decision to rescind the order was a public-interest determination, which, again,

Judge Hilburn had a legal duty to consider.

¶41. As Judge Hilburn correctly explained at the hearing in this matter, the circuit court,

as a court of record, has inherent control of “all judgments, decrees, or orders of the court

22
during the term at which they are rendered”; accordingly, the circuit court has full power to

set aside or modify any judgment, decree, or order so rendered during that term of court.

Mutual Health & Benefit Ass’n v. Cranford, 173 Miss. 152, 156 So. 876, 877 (1924).

While there is no Mississippi case on point, several other jurisdictions have dealt with the

issue of a trial court’s authority to rescind a previously approved nolle prosequi order. In

People v. Watson, 394 Ill. 177, 68 N.E.2d 265 (1946), the Illinois Supreme Court reasoned

that:

Courts of general jurisdiction have inherent authority, during the term, to
vacate any judgment or order that may have been made at that term. This was
the rule at common law and prevails in most jurisdictions. Considering then
that a court has the inherent power to set aside judgments and orders made
during the term, can any sound argument be advanced why a court has not the
power to set aside a dismissal of an indictment or information and reinstate the
case during the term at which the dismissal was entered? The general rule is
that a nolle prosequi or a dismissal of a criminal charge, if made prior to the
time a jury is impaneled and sworn, is not a bar to a subsequent prosecution for
the same offense. There is no difference, so far as the defendant’s rights are
concerned, whether, after the dismissal of a charge, a new information or
indictment is filed or the order of dismissal set aside and defendant tried on the
old information or indictment. An order of dismissal or a nolle prosequi in a
criminal case may be set aside during the term at which the order is made.

Id. at 181, 68 N.E.2d 265. Similar reasoning has been employed in other jurisdictions,

including the Ninth Circuit Court of Appeals, Georgia, Missouri, Pennsylvania, and Arizona.

United States v. Emens, 565 F.2d 1142, 1144-45 (9th Cir.1977) (dismissal of indictment);

Buice v. State, 239 Ga. App. 52, 520 S.E.2d 258 262 (1999); State v. Montgomery, 276

S.W.2d 166, 167-68 (Mo. 1955); Commonwealth v. Ashe, 138 Pa. Super. 222, 227-28, 11

A.2d 173 (1940); Condos v. Superior Court for Maricopa County, 29 Ariz. 186, 190-91,

239 P. 1032 (1925) (dismissal of action).

23
¶42. Given Mississippi precedent adhering to the common-law rule that “all judgments,

decrees or [court orders], however conclusive in their character, are under the control of the

court which pronounces them during the term at which they are rendered or entered of record

and may then be set aside, vacated, modified, or annulled by that court”), 5 6 I find that Judge

Hilburn indeed had the authority to rescind the previously approved nolle prosequi order

based on the reasons Judge Hilburn stated for the record, first, at Williams’s motion-to-

dismiss hearing (over which Judge Hilburn presided) and then at the hearing before Judge

Weill.

¶43. After Judge Hilburn rescinded the nolle prosequi order, Smith informed Judge Hilburn

that his office would not prosecute the matter. At that point, Smith became “absent” for

purposes of Mississippi Code Section 25-31-21, which contemplates such a circumstance.

Judge Hilburn then acted accordingly to law.

5
Cranford, 156 So. at 877 (quoting Bronson v. Schulten, 104 U.S. 410, 26 L. Ed.
797 (1881)). The Cranford Court also cited McRaven v. McGuire, 17 Miss. 34 (1847), in
which it was recognized that the same principle applies to decisions rendered by the
Mississippi Supreme Court. In McRaven, it was said: “During the term the judgments of
that term are always under control of the court; of course the opinions of each or either of
the [justices], may be recalled, and changed, if he becomes satisfied of error.” McRaven,
17 Miss. 34.
6
See also Robinson v. State, 585 So. 2d 757, 758 (Miss. 1991)(rejecting claim that
a second sentence entered by the trial court was invalid because original sentence was a final
judgment.) Citing Jones v. Index Drilling Co., 251 Miss. 578, 170 So. 2d 564 (1965), and
Bronson, 104 U.S. 410, the Robinson Court reiterated the general rule that all judgments or
other court orders “may be set aside, vacated, modified or annulled” by that court during the
term at which they are rendered. Robinson, 585 So. 2d at 758.

24
¶44. For these reasons, I dissent. I would reverse Judge Weill’s order dismissing cause

number 03-0-969, and reinstate and affirm Judge Hilburn’s order transferring the matter to

the Attorney General’s Office.

WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION. COLEMAN,
J., JOINS THIS OPINION IN PART.

COLEMAN, JUSTICE, DISSENTING:

¶45. I do not agree with the majority’s position that the Constitution does not authorize the

Attorney General to prosecute the instant case. (Maj. Op. ¶ 11). Thus, respectfully, I dissent.

¶46. I agree with the result reached by Justice Pierce and I join his dissent in part and in

result. However, in my opinion, the Attorney General’s authority to intervene comes from

the Constitution and common law, not from statutes. Article 6, Section 173 of the

Mississippi Constitution created the Office of Attorney General. The Constitution did not

define the Attorney General’s duties, but the Court has held that the Attorney General has

the same powers and duties that were vested in him at common law. See State ex rel.

Patterson v. Warren, 254 Miss. 293, 180 So. 2d 293, 299 (1965); Kennington-Saenger

Theatres v. State ex rel. Dist. Attorney, 196 Miss. 841, 18 So. 2d 483, 486 (1944). See also

Miss. Code Ann. § 7-5-1 (Rev. 2014) (the Attorney General is “the chief legal officer and

advisor for the state, both civil and criminal, and is charged with managing all litigation on

behalf of the state” and the Attorney General has the same powers as at common law). The

Court has said the following about the Attorney General’s duties at common law:

At common law the duties of the attorney general, as chief law officer of a
realm, were numerous and varied. He was chief legal adviser of the crown,
was entrusted with the management of all legal affairs, and prosecution of all
suits, criminal and civil, in which the crown was interested. He had authority

25
 to institute proceedings to abate public nuisances, affecting public safety and
convenience [sic], to control and manage all litigation on behalf of the state,
and to intervene in all actions which were of concern to the general public.

Warren, 180 So. 2d at 299 (emphasis added). The Court has held that the Attorney General’s

power and authority “includes the right to institute, conduct[,] and maintain all suits

necessary for the enforcement of the laws of the state, preservation of order and the

protection of public rights.” State ex rel. Allain v. Miss. Pub. Serv. Comm’n, 418 So. 2d

779, 781 (Miss. 1982) (quoting Gandy v. Reserve Life Ins. Co., 279 So. 2d 648, 649 (Miss.

1973)). Thus, in my opinion, the Attorney General has the power, through the Constitution

and common law, to initiate or intervene should he so chose.

WALLER, C.J., RANDOLPH, P.J., AND PIERCE, J., JOIN THIS OPINION.

26