IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI STATE OF MISSISSIPPI v. NO._16-0-837 ED ROBERT SCHULER SMITH and ri JAMIE K. MCBRIDE SFP 21 2016 DEFENDANTS ‘ZACK WALLACE, CIRCUIT CLERK CO-DEFENDAN fy JAMIE K, 2 MOTION TO QUASH THE INDICTMENT COMES NOW, Co-Defendant, Jamie K. McBride, by and through his attorney of record and files this his Motion to Quash the Indictment in the within Cause, and would show unto this honorable Court the following, to-wit: FACTS 1, On September 7, 2016, a Hinds County Grand Jury returned a two count indictment (Exhibit A) against Co-Defendant, Jamie K. McBride, alleging that said Co- Defendant did commit the crimes conspiracy and hindering prosecution in violation of §97-1-1 and 97-9-105 of the Mississippi Code of 1972. In particular such indictment alleges that ‘MeBride conspired with Co-Defendant Robert Smith and Ivon Johnson to hinder the prosecution of Christopher Butler in Hinds County Cause Numbers 12-0-452 & 12-0-831 (Count One) and in Hinds County Cause Numbers 16-0-050 & 16-0-275 (Count Two). ‘The within Cause was presented to the Hinds County Grand Jury by the Mississippi Attomey General’s Office and such office is prosecuting the within matter. 2, Atal times alleged herein, Co-Defendant Robert Shuler Smith was acting as the duly elected District Attorney for the Seventh Circuit Court District of Mississippi, which district encompasses Hinds County Mississippi.3 At all times alleged herein, Co-Defendant Jamie K. McBride was serving the Hinds County Dis authorized by§25-31-5 Miss. Code Ann. (Exhibit B). Attorney as a full time Legal Assistant, Assistant District Attomey, as 4, Atall times alleged herein, alleged Co-Conspirator Ivon Johnson was employed as a full time Assistant District Attorney with the Hinds County District Attorney's Office. On and about July 28, 2016, Ivon Johnson pleaded guilty, via a bill of information, in the United States District Court, Southern Division, to the crime of conspiracy, a felony. According to the bill of information, Ivon Johnson utilized his position as an Assistant District Attorney in. Hinds County, Mississippi, to accept bribes in exchange for lowering criminal defendant’s felony bonds, On information and belief, at all times alleged herein, Ivon Johnson was acting as an undercover informant, at the Hinds County District Attomey’s Office, on behalf of and at the bequest of the Mississippi Attorney General’s Office. Alleged Co-Conspirator, Ivon Johnson has not been charged in the within Cause. 5. Atal times alleged herein, Christopher Butler has been in pretrial incarceration and has been incarcerated in the custody of Hinds County, Mississippi 6. On April 12, 2012, in Hinds County Cause Number 12-0-452, (Exhibit C), a Hinds County Grand Jury retumed an indictment against Christopher Butler alleging that he possessed marijuana, a controlled substance, in violation of §41-29-139 Miss. Code Ann... Hinds County Cause Number 12-0-452 was presented to the Hinds County Grand Jury by the Hinds County District Attorney's Office and the Hinds County District Attomey’s Office is prosecuting that cause. Hinds County Cause Number 12-0-452 is currently on Hinds County Circuit Judge Jeff Weill’s active Cireuit Court docket. 7. On July 18, 2012, in Hinds County Cause Number 12-0-831, (Exhibit D), a Hinds County Grand Jury returned an indictment against Christopher Butler alleging that_he possessed marijuana, a controlled substance, in violation of §41-29-139 Miss. Code Ann... Hinds County Cause Number 12-0-831 was presented to the Hinds County Grand Jury by the Hinds County District Attorney’s Office and the Hinds County District Attomey’s Office is prosecuting,that cause, Hinds County Cause Number 12-0-831 is currently on Hinds County Cireuit Judge Jeff Weill’s active Circuit Court docket. 8. On April 7, 2016, in Hinds County Cause Number 16-0-275, (Exhibit E) a Hinds County Grand Jury retumed a two count indictment against Christopher Butler alleging that he committed the crimes of false pretenses and fraud by mail in violation of §97-17-39 and §97-19- 83 Miss. Code Ann, respectively. Hinds County Cause Number 16-0-275 was presented to the Hinds County Grand Jury by the Mississippi Attorney General's Office and the Mississippi Attorney General’s Office is prosecuting that cause. Hinds County Cause Number 16-0-275 is currently on Hinds County Circuit Judge Jeff Weill’s active Circuit Court docket. 9. On December I, 2015, in Hinds County Cause Number 16-0-050 a Hinds County Grand Jury retuned an indictment against V.S. alleging that he committed a felony crime. (The Indictment in Hinds County Cause Number 16-0-050 has not been served on V.S. and therefore is not public record.) Hinds County Cause Number 16-0-050 was presented to the Hinds County Grand Jury by the Hinds County District Attomey’s Office and the Hinds County District Attorney's Offi on Hinds County Circuit Judge Winston Kidd’s active Circuit Court docket. is prosecuting the same. Hinds County Cause Number 16-0-050 is currently THE INDICTMENT IN THIS CAUSE IS LEGALLY INSUFFICIENT AND MUST AS A MATTER OF LAW BE QUASHED Counts One and Two, of the Indictment in the within Cause, fail to charge a necessary element of the crime of hindering prosecution and as a consequence thereof are not legally sufficient and as such must be quashed. Both Count One and Two of the Indictment allege that Co-Defendant, Jamie MeBride, “on or about and between the dates of December 1, 2015 and June 22, 2016 did then and there knowingly, unlawfully and feloniously, without authority of law, conspire with Ivon Jobnson and others known and unknown to the Grand Jury to commit the crime of Hindering Prosecution in the First Degree in violation of §97-9-105 of the Mississippi Code, 1972, as amended, (Exhibit F) by conspiring to hinder the prosecution, com ‘ion and punishment of Christopher Butler in Hinds County Cause Numbers in violation of §§97-I-1 and 97-9-105 of the Mississippi Code of 1972, as amended.” The crime ofhindering prosecution requires the State to prove that the person charged with committing the crime “renders criminal assistance to the other person.” Nowhere in the Indictment in the within Cause is it alleged that Co-Defendant, Jamie K. McBride, ever rendered criminal assistance to Christopher Butler or any other person. The phrase “renders criminal assistance”, as it relates to the crime of hindering prosecution, is specifically defined under §97-9-103 Miss Code Ann., (Exhibit G). ‘Under §97- 9-103, in order to commit the crime of hindering prosecution, a person must: harbor or conceal another person; warn another person of impending discovery or apprehension; provide or aids in providing another person with money, transportation, weapon, disguise or other means to avoid discovery or apprehension; prevents or obstructs, by means of force, deception or intimidation, anyone from performing an act that might aid in the discovery, apprehension, prosecution or conviction of another person; or, suppresses, by an act of concealment, alteration or destruction, any physical evidence that might aid in the discovery, apprehension or conviction of another person. Id, “Rendering criminal assistance” is an essential element of the crime of hindering prosecution. Section §97-9-103 Miss Code Ann. proscribes that “(a) person commits the crime of hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction or punishment of another for conduct constituting a felon, he renders criminal assistance to the other person.” Id, Emphasis added. In order for an indictment for the crime of hindering prosecution to be legally sufficient it must necessarily charge that the accused did render eriminal assistance to another person as required by § 97-9-105 Miss Code Ann, and such indictment must identify the type of criminal assistance that was alleged to be rendered as required by §97-9-103 Miss Code Ann. “The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare adequate defense. Warren v. State, 187 So. 34. 616, 621 (Miss 2016); Brawner v. State, 947 So. 2d 254, 265(Miss 206). An indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to please double jeopardy in the event of a future prosecution for the same offense. Young v. State, 119 So.3d 309, 313 (Miss 2013). Rule 7.06 of the Uniform Rules of Circuity and County Court Practices state, inpertinent part, thet “(t)he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense.” /d. The ultimate test, when considering the validity for an indictment on appeal, is whether the defendant ‘was prejudiced in the preparation of his defense. Medina v. State, 688 So.2™ 727, 730 (Miss 1996). ‘The Mississippi Supreme Court has held that an indictment that tracks the language of the statute is generally sufficient to inform the accused of the nature and cause of the accusation King v. State, 580 $0.2” 1182, 1185 (Miss 1991). Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them. URCC 7.06. The Mis issippi Supreme Court has held repeatedly that “(s)o long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient.” Berry v. State, 996 So.2d 782, 787 (Miss 2008) (citing Farris v. State, 164 $0.24 411, (Miss 2000)). ‘The Mississippi Supreme Court also has, held repeatedly that “the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Jones v. State, 856 So. 2d 285, 289 (Miss 2013). ‘The Indictment in the within Cause is legally insufficient on its face. Specifically it fails to allege that Co-Defendant, Jamie K. McBride, rendered criminal assistance to another person as required by §97-9-105 Miss Code Ann. and failed to set forth sufficient facts to fairly inform McBride of the charge(s) he must defend. Section §97-9-103 Miss Code Ann. defines what actions constitute “rendering criminal assistance” as utilized in 97-9-105 Miss Code Ann. For the purposes of Sections§ 9-9-105 and §97-9-107, a person “renders criminal assistance” to another if he knowingly: (a) Harbors or conceals the other person; (>) Wars the other person of impending discovery or apprehension, except that this paragraph (b) does not apply to a warning given in connection with an effort to bring another into compliance with the law; (0) Provides or aids in providing the other person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension;(d) Prevents or obstructs, by means of force, deception or intimidation, anyone from performing an act that might aid in the discovery, apprehension, prosecution or conviction of the other person; or (©) Suppresses, by an act of concealment, alteration or destruction, any physical evidence that might aid in the discovery, apprehension or conviction of the other person”, §97-9-105 Miss. Code Ann, The Indictment, in order to be sufficient must, allege actions that are prohibited by §97-9-103 Miss Code Ann. when alleging the crime of hindering prosecution. In the within Cause, the indictment fails to allege any actions on McBride's part that specifically violate the conduct proscribed by §97-9-103 Miss Code Ann. In fact, the indictment doesn’t allege any actions at all other than a vague conclusion that the law has been violated. Consequently, MeBride is prejudiced in that he is unable to prepare a defense to the charge of hindering prosecution in as much as the Indictment herein fails to articulate any conduct that would amount to “rendering criminal assistance” a necessary element of the crime of hindering prosecution, Whether an indictment is legally sufficient is a matter of law. ‘The Indictment in the within Cause, charging Co-Defendant, Jamie K. McBride, with two counts of hindering prosecution is legally insufficient and as such must be quashed and dismissed. ALLEGATIONS CONTAINED IN COUNT TWO OF THE INDICTMENT RELATING TO HINDS COUNTY CAUSE NUMBER 16-0-050 MUST BE DISMISSED Count Two of the Indictment in the within Cause charges that the Co-Defendant, Jamie K. McBride, did conspire with Ivon Johnson and others to commit the crime of Hindering Prosecution in the First Degree in violation of §97-9-105 of the Mississippi Code, 1972, as amended, by conspiring to hinder the prosecution, conviction and punishment of Christopher Butler in Hinds County Numbers 16-0-050 and 16-0-275, In Hinds County Cause Number 16-0- 050 V.S, has been charged with a felony crime. In as much as Christopher Butler has not been charged with any crime in Hinds County Cause Number 16-0-050, it would be legally impossible for MeBride to hinder his prosecution in that Cause, Consequently, all allegations in Count Two of the Indictment relating to Hinds County Cause Number 16-0-050 must be dismissed.CO-DEFENDANT, JAMIE K. MCBRIDE, ACTING IN HIS OFFCICAL CAPACITY AS AN ASSISTANT DISTRICT ATTORNEY CANNOT COMMIT THE CRIME OF HINDERING PROSECUTION AS A MATTER OF LAW Co-Defendant, Robert Shuler Smith, is the duly elected District Attorney for Hinds County Mississippi. Co-Defendant, Jamie K. McBride, and Ivon Johnson, at all times alleged herein, were serving the Hinds County District Attorney as Assistant District Attorneys, pursuant to §25-31-5 Miss. Code Ann.. The Office of District Attorney, was ereated by Section 174 of the Mi ssippi Constitution, which provided that his duties should be prescribed by the legislature. Section 25-31-11 Miss Code Ann. (Exhibit H) provides “[iJt 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 prosceute for the state in his district all criminal prosecutions . .. in which the state or any county within his district may be interested.” Jd. The District Attomey is authorized, under §25-31-5 Miss. Code Ann., to employ Legal Assistants, Assistant District Attomeys, to assist him in the performance of his constitutional duties. The within Indictment apparently is alleging that strategies and actions taken or contemplated by the Hinds County District Attorney, with his Assistant District Attorneys, in a Hinds County case that he was prosecuting, have amounted to the crime of hindering prosecution in violation of §97-9-105 Miss. Code Ann.§97-9-105 Miss. Code Ann. The Indictment contemplates that District Attomey Robert Shuler Smith could conspire with his Assistant District Attomeys, in the narcoties cases District Attomey Smith was prosecuting against Christopher Butler, to hinder Butler’s prosecution, specifically in Hinds County Cause Numbers 12-0-452 and 12-0-831. How and in what manner District Attorney Smith chooses to prosecute criminal cases indicted by his office is left to his sole discretion. Strategies and actions developed by District Attorney Smith, through consultation with his Assistant District Attorneys, on how to resolve criminal cases in his office cannot amount to the crime of hindering prosecution for those Assistants. ‘The Mississippi Attorney General has no legal interest in how District Attorney Smith prosecutes his cases. To allow the Mississippi Attorney General to indict Hinds County District Attorney Smith, and his Assistant District Attorney McBride, solely because the Mississippi Attorney General would handle the prosecution of the aforementioned cases differently would be improper. “The powers of the district attorneys can neither beincreased nor diminished by the Atlomey General. Williams v. State, 184 So, 34 908, 913 (Miss. 2014), The Mississippi Attorney General is not Hinds County District Attorney Robert Shuler Smith’s boss and he has no authority over him. /d. Co-Defendant, Jamie K. McBride, cannot commit the crime of hindering prosecution through the lawful exercise of his duties, under §25- 31-5 Miss. Code Ann., by assisting Hinds County District Attorney Robert Shuler Smith to resolve Hinds County Cases 12-0-452 and 12-0-831, in which cases the Office of the Hinds County District Attomey is prosecuting. Co-Defendant, Jamie K. McBride, acting in his official capacity as an Assistant District Attomey cannot as a matter of law commit the crimes of hindering prosecution as alleged in the within Cause. The Indictment in the within Cause, charging Co-Defendant, Jamie K. McBride, with two counts of hindering prosecution is illegal and as such must be quashed and dismissed. THE MISSSISSIPPI ATTORNEY GENERAL DOES NOT, AS A MATTER OF LAW, HAVE THE AUTHORITY TO CONVENE A GRAND JURY TO INVESTIGATE THE CRIME OF HINDERING PROSECTUIION IN HINDS COUNTY, MISSISSIPPI Co-Defendant, Jamie K. McBride, was indicted in the within Cause by a special grand jury called solely at the instance of the Mississippi Attomey General. All of the witnesses to the grand jury were subpoenaed at the instance of the Mississippi Attorney General and the Hinds County District Attorney took no part in calling such special grand jury nor presented any evidence before said grand jury. As previously discussed, the Mississippi Attomey General was not directed by the Governor, in writing, to intervene in Hinds County, Mississippi, to prosecute the elected Hinds County District Attorney and one of his Assistant District Attorneys for the crime of hindering prosecution nor did the Hinds County District Attomey request the Mississippi Attorney General to assist him with the prosecution of the same. No statutory authority exists which grants the Mississippi Attorney General the power to specially call a grand jury session. The State Grand Jury Act, §13-7-1 et seq. Miss Code Ann, specifically sets forth that the Attorney General may enter the grand jury while it is in session and assist the district attorney in the discharge of his duties. The statutes do not provide that the Mississippi Attomey General may have a grand jury empaneled. If the legislature had intended for the Mississippi Attorney General to be empowered to call a special grand jury, it would haveso stated. To interpret these statutes otherwise would be contradictory to their legislative intent and impermissibly broaden the powers of the Mississippi Attorney General. Additionally, the Mississippi Attorney General did not have the authority, in the within Cause, to command the circuit court to empanel a grand jury in this case, Pursuant to the State Grand Jury Act, the Mississippi Attorney General powers involving grand juries are limited and only extend to drug and narcotics cases. §13-7-7(1) Miss Code Ann.. Section 13-7-7(2) Miss Code Ann., (Exhibit N) provides as follows: “Whenever the Attomey General considers it necessary, and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the senior court judge of any circuit court district in this case for an order impaneling a state grand jury.” Jd. However, §13-7-7 Miss. Code Ann., (Exhibit 1) only empowers the Mississippi Attorney General to petition, in writing to a senior court judge, a state grand jury for the purposes specifically authorized in §13-7-1(1) Miss Code Ann., drug and narcotic matters. In the within matter the Mississippi Attorney General called a grand jury to investigate and indict the sitting Hinds County District Attorney and one of his Assistant District attorneys, Co- Defendant, Jamie K. McBride for the crime of hindering prosecution, a crime under which the Mississippi Attomey General is not authorized to petition a grand jury for. Mississippi Supreme Court Justice Chuck McRae in his dissent in Bell v, State, 678 So. 2d 994 (Miss. 1996), (Exhibit J), apply addresses the issue at hand. Our system of government calls for checks and balances on each of its various ‘branches and agencies. The Attomey General's Office is no different. The Attorney General position is entrusted with protection of the statewide public interests of Mississippi, as opposed to the local interests of each community. The local district attomeys are responsible for protecting the local interests of their individual communities. This is the reason the Attorney General is not permitted to become intimately involved in local interests such as the one presented by the case at hand. Just as the Attorney General is a constitutionally created position, so is the position of the local district attomeys. Mississippi Constitution of 1890, art. VI, §§ 173-74, This Court may not under our Constitution permit the Attorney General to usurp the powers of another constitutionally created office. Since our Constitution of 1890, the Attomey General historically has not been given the statutory or common law power to empanel a grand jury. Such is the reason this Court should find the indictment in this case was entirely improper. See Kennington-Saenger Theatres v. State, 196 Miss. 841, 18 So. 2d 483, 487 (1944). Id.‘The Mississippi Supreme Court in Williams v. State, 184 So. 3d 908 (Miss 2014), (Exhibit K) found that neither Mississippi's Constitution nor its common law permits the involuntarily disqualification of a duly elected district attorney from the lawful performance his duty and the substitution of the attomey general in the district attorney's place and stead in a case in which no legal grounds for the district attorney's disqualification exists. Id., 914-915. The Williams Court distinguished itself from the Court in Bell v, State, supra, in that in Bell unlike Williams, no evidence was adduced that the local district attorney opposed the involvement of the attorney general. Clearly, in the within Cause Hinds County District Attorney Robert Shuler Smith opposes the Mississippi Attorney General’s action regarding the grand jury herein, which lead to his indictment in this Cause. ¢ office of district attomey, unlike that of Attorney General, is of modem origin, its duties are prescribed by statute; the civil and criminal business of the state, which once pertained to the office of Attomey 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 Attormey General may advise the district attomeys, 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 Attomey General. Id. ‘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 attomey 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 attomey. 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 eases in which the state or any county within his district may be interested . ...") (Emphasis added.) Williams, 184 So. 34 at 913, Without question, the Mississippi Attomey General does not have the power to convene a grand jury to investigate and indict the district attorney and one of his Assistant District Attomeys for the crime of hindering prosecution. The indictment in the within Cause is fatally deficient and must be quashed in as much as it was retumed by a grand jury that ‘was improperly empaneled by the Mississippi Attorney General who does not have the authority to do the same.THE MISSSISSIPPI ATTORNEY GENERAL DOES NOT, AS A MATTER OF LAW, HAVE THE AUTHORITY TO PROSECUTE THE CRIME OF HINDERING PROSECTUION IN HINDS COUNTY, MISSISSIPPI ‘The Mississippi Attorney General’s Office does not have the authority to prosecute a charge of hindering prosecution against the duly elected District Attomey for Hinds County Mississippi or any of his Assistant District Attorneys in Hinds County, Mississippi. “Both the attomey general and the district attorney are constitutional officers of the State of Mississippi. But the Mississippi Attomey General is not the local district attorneys boss. The Mississippi Attorney General is without authority over him or her.” Williams v. State, 184 So.3d. 908, 913 (Miss 2014). Section 7-5-1 Miss Code Ann. Codifies the common law language that the attorney general is the chief legal officer and advisor of 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 and that the attorney general shall have the powers of the Attorney General at common law. However, §7-5-1 Miss, Code Ann. “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) (Exhibit L) (“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...” Williams, 108 So. 3d at 914. No statutory authority exists allowing the Mississippi Attomey General's Office to charge the crime of hindering prosecution in violation of §97-9-105 Miss Code Ann., in Hinds County, Mississippi. The Mississippi Atorney General’s authority to prosecute crimes in Hinds County, Mississippi, is limited to those enumerated in, §7-5-59 Miss Code Ann. (Exhibit M) which authorized the Mississippi Attorney General to investigate and prosecute specifically enumerated crimes for public corruption and white collar crimes. That section, however, does not authorize the Mississippi Attorney General to investigate or prosecute the crime of hindering prosecution as proscribed by §97-9-105 Miss Code Ann. Since the statutory authority toprosecute the crime of hindering prosecution is not provided to that office, the Mississippi Attorney General may not prosecute the same, in Hinds County, Mississippi. The Mississippi Attorney General can only intervene in the prosecution of criminal ‘matters in Hinds County, Mississippi, but in extremely limited circumstances. Only one statute authorizes intervention by the Mississippi Attorney General. Mississippi “Code Section § 7-5- 53- provides: “ The Attomey General shall, when required by public service or when directed by the Governor in writing, repair or in person, or by any regular or specially designated assistant, to any county or district in the state and assist the distriet attorney there in the discharge of his duties and in prosecution against as state officer, and shall have the same right as the district attomey 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.” 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 Tanguage, the attorney general may assist a local district attorney in the discharge of his or her duties.” Williams, 184 So.3d at 914, Under Miss Code Ann, §7-5-53, (Exhibit N), 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 attomey general may be allowed to assist the local district attorney in the discharge of his or her duties. Williams, 184 So, 3d. at 915. In the within Cause, the Mississippi Attorney General was not directed by the Governor, in writing, to intervene in Hinds County, Mississippi, to prosecuted the elected Hinds County District Attorney and one of his Assistant District Attomeys for the crime of hindering prosecution, Neither did the Hinds County District Atiomey request the Mississippi Attorney General to assist him with the prosecution of the same. Therefore, as a matter of law, the Mississippi Attomey General does not have the authority to bring the within prosecution of Co- Defendant, Jamie K. McBride, for the crime of hindering prosecution of Hinds County, Mississippi. The within Cause must be dismissed. WHEREFORE, premises consider, Co-Defendant, Jamie K. McBride respectfully requests this Court to quash the indictment in the within Cause for the following reasons:‘The Indictment in this Cause is legally insufficient; The allegation contained in Count II of the Indictment relating to Hinds County Case ‘Number 16-0-050 must be dismissed since Christopher Butler is not being prosecuted in that Cause; Co-Defendant, Jamie K. McBride, an Assistant District Attorney, acting in his official capacity cannot commit the crime of hindering prosecution; ‘The Mississippi Attomey General did not have the authority to convene the grand jury that returned the Indictment in this Cause; and, ‘The Mississippi Attorney General does not have the authority to prosecute the crime of hindering prosecution, in Hinds County, Mississippi. Respectfully submitted, JAMIE K. MCBRIDE, Defendant BY: jale Danks, Jr. (MSB#5789) Counsel for the Defendant OF COUNSEL Dale Danks, Jr. (MSB# 5789 DANKS, MILLER & Cory 213 South Lamar Street Jackson, Mississippi (39201) Post Office Box 1759 Jackson, Mississippi 39215-1759 Telephone: 601.957.3101 Facsimile: 601.957.3160CERTIFICATE OF SERVICE 1, Dale Danks, attomey for Jamie K. McBride, do hereby certify that I have this day emailed and mailed, by United States mail, postage prepaid, a true and correct copy of the above and foregoing, Co-Defendant, Jamie McBride's, Motion to Quash the Indictment to the following: Robert G. Anderson, Esq. Office of the Attomey General Post Office Box 220 Jackson, MS 39205-0220 rande@ago.state.ms.us So certified this the 21* day of September, 2016. ale Danks, JrNOTICE OF HEARING TO: ALL COUNSEL OF RECORD Please be advised that the CoDefendant, Jamie K. McBride's, Motion To Quash Indictment, in the above-styled and numbered cause, by and through his undersigned attorney, will bring on for hearing as soon as counsel may be heard before Honorable Larry E. Roberts, Special Circuit Judge, at the Circuit Court of The First Judicial District of Hinds County, Mississippi. SO NOTICED this the 21" day of September, 2016. le Danks, Jr.» 59 Appendix Indictment Section 25-31-5 Miss. Code Ann. Indictment Hinds County Case Number 12-0-242 Indictment Hinds County Case Number 12-0-831 Indictment Hinds County Case Number 16-0-275 Section 97-9-105 Miss. Code Ann. Section 97-9-103 Miss. Code Ann. Section 25-31-11 Miss. Code Ann. Section 13-7-7 Miss. Code Ann. Bell v. State, 678 So. 2d 994 (Miss. 1996) Williams v, State, 184 So. 3d 908 (Miss 2014) Section 25-31-11 Miss. Code Ann. Section 7-5-59 Miss. Code Ann. Section 7-5-53 Miss. Code Ann.EXHIBIT ACase: 25C11:16-cr-00837-LER Document #:1 Filed: 09/07/2016 Page 1 of 3 FiLlep SEP ~7 2016 CONSPIRACY MCA § 97-1-1 - Counts I and IT MULTI-COUNT MCA § 99-7-2. (Common Plan or Scheme) TAK IDUNS ek DISTRICT ATTORNEY NOT © TO ADVISE CRIMINALS MCA § 97-11-3 - Count IIT INDICTMENT, STATE OF MISSISSIPPI CIRCUIT COURT HINDS COUNTY FIRST JUDICIAL DISTRICT September Term, A.D., 2016 Cause Number:_- 27S 37_ ‘The Grand Jurots for the State of Mississippi, taken from the body of good and lawful persons of Hinds County, First Judicial District, in the State of Mississippi, elected, impaneled, swom and charged to inquire in and for said County and State aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: COUNT. that, ROBERT SHULER SMITH and JAMIE K. McBRIDE, in the First Judicial District of Hinds County, Mississippi on or about and between the dates of December 1, 2015, and June 22, 2016, did then and there knowingly, unlawfully and feloniously, without authority of law, conspire with Ivon Johnson and with others known and unknown to the Grand Jury to commit the crime of Hindering Prosecution in the First Degree in violation of § 97-9-105 of the Mississippi Code, 1972, as amended, by conspiring to hinder the prosecution, conviction and punishment of Christopher Butler in Hinds County Cause Numbers 12-452 and 12-831 in violation of §§ 97-1-1 and 97-9-105 of the Mississippi Code, 1972, as amended, andCase: 25C11:16-cr-00837-LER Document #:1 Filed: 09/07/2016 Page 2 of 3 COUNT II that, as part of a common scheme and plan, in the First Judicial District of Hinds County, Mississippi on or about and between the dates of December 1, 2015, and June 22, 2016, ROBERT SHULER SMITH and JAMIE K. McBRIDE did then and there knowingly, unlawfully and feloniously, without authority of law, conspire with Ivon Johnson and with others known and unknown to the Grand Jury to commit the crime of Hindering Prosecution in the First Degtee in violation of § 97-9-105 of the Mississippi Code, 1972, as amended, by conspiring to hinder the prosecution, conviction and punishment of Christopher Butler in Hinds County Cause Numbers 16-50 and 16-275 in violation of §§ 97-1-1 and 97-9-105 of the Mississippi Code, 1972, as amended, and COUNT IT as part of a common scheme and plan, in Hinds County, Mississippi on or about and between January 14,2016, and June 22, 2016, ROBERT SHULER SMITH while acting in his capacity as District Attomey for the Seventh Circuit Court District, Hinds County, Mississippi, did wilfully and unlawfully consult, advise and counsel defendant Christopher Butler, who was then and there a defendant charged with a crime in the Seventh Circuit Court District, Hinds County, Mississippi, by meeting with Christopher Butler at the Hinds County Jail outside the presence of Butler's attomey, by later advising Butler's attomey in various ways to attack the State’s pending case against Butler, and by other means seeking the release of Butler from jail in violation of § 97-11-3 of the Mississippi Code, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.Case: 25CI1:16-cr-00837-LER Document #:1 Filed: 09/07/2016 Page 3 of 3 hat t, dadlealer Special Assistant Attomey General aiecourt Deputy Cireuit Court Clerk ENDORSED: A TRUE BILL COMES NOW Shel Sacha , Foreman of the Grand Jury of Hinds County, Mississippi, and makes oath that this indictment presented to this Court was concurred in by twelve (12) or more members of the Grand Jury and at least fifteen (15) members thereof were present during all deliberations. MAN OF THE GRAND JURY SWORN TO AND SUBSCRIBED before me on this, the _77 day of. ‘Sept 2016. ZACK WALLACE, CIRCUIT CLERKEXHIBIT B§ 25-31-5. Legal assistants to district attorney; expenditure of certain federal funds for additional legal assistants and criminal investigators authorized, Mississippi Statutes Title 25. PUBLIC OFFICERS AND EMPLOYEES; PUBLIC RECORDS Chapter 31. DISTRICT ATTORNEYS Current through 2016 Second Extraordinary Session § 25-31-5. Legal assistants to district attorney; expen re of certain federal funds for additional legal assistants and criminal investigators authorized (1) The following number of full-time legal assistants are authorized in the following circuit court districts: (a) First Circuit Court District. _nine (9) legal assistants. (b) Second Circuit Court District... ten (10) legal assistants. (©) Third Circuit Court District... sonnefive (5) legal assistants. (d) Fourth Circuit Court District... Six (6) legal assistants. (©) Fifth Circuit Court District... five (5) legal assistants. (f) Sixth Circuit Court District. evento (2) egal assistants. (9) Seventh Circuit Court District... eleven (11) legal assistants. (h) Eighth Circuit Court District. three (3) legal assistants. (i) Ninth Circuit Court District. ree (3) legal assistants. () Tenth Circuit Court District... four (4) legal assistants. (k) Eleventh Circuit Court District. ....nenennnsseufive (5) legal assistants. () Twelfth Circuit Court District, five (5) legal assistants.(2) (m) Thirteenth Circuit Court District, . four (4) legal assistants. (n) Fourteenth Circuit Court District sos sunseefive (5) legal assistants. (0) Fifteenth Circuit Court District... six (6) legal assistants. (p) Sixteenth Circuit Court Distrct.. five (5) legal assistants. (a) Seventeenth Circuit Court District... seven (7) legal assistants. (r) Eighteenth Circuit Court District....c.nnnnnsnntWO (2) legal assistants. (s) Nineteenth Circuit Court District. Six (6) legal assistants. (8) Twentieth Circuit Court District. six (6) legal assistants. (u) Twenty-first Circuit Court District.......snennnethtee (3) legal assistants (v) Twenty-second Circuit Court District. three (3) legal assistants. In addition to any legal assistants authorized pursuant to subsection (1) of this section, the following number of full-time legal assistants are authorized (|) in the following circuit court districts if funds are appropriated by the Legislature to adequately fund the salaries, expenses and fringe benefits of such legal assistants, or (i) in any of the following circuit court districts in which the board of supervisors of one or more of the counties in a circuit court district adopts a resolution to pay all of the salaries, supplemental pay, expenses and fringe benefits of legal assistants authorized in such district pursuant to this subsection: (a) First Circuit Court District to (2) legal assistants. (b) Second Ciroult Court District....nsnsseenunnnntWo (2) legal assistants. (©) Third Circuit Court District... two (2) legal assistants.(d) (e) i) (9) ” (m) (n) (0) (p) Fourth Circuit Court District. two (2) legal assistants. Fifth Circuit Court District......cssineananntW0 (2) legal assistants. Sixth Circuit Court District. resect WO (2) legal assistants. Seventh Circuit Court District......sssennnetW0 (2) legal assistants. Eighth Circuit Court District... seseen WO (2) legal assistants. Ninth Cirouit Court District, svoatWO (2) legal assistants. Tenth Circuit Court District. wo (2) legal assistants. Eleventh Ci legal assistants. Court District... two (2) ‘Twelfth Circuit Court District... legal assistants. two (2) Thirteenth Circuit Court District .....s.onennentWO (2) legal assistants. Fourteenth Circuit Court Distri two (2) legal assistants. Fifteenth Circuit Court District tO (2) legal assistants. Sixteenth Circuit Court District..n..nnennnst0 (2) legal assistants. Seventeenth Circuit Court District... two (2) legal assistants. Eighteenth Circuit Court District... two (2) legal assistants. Nineteenth Circuit Court District. two (2) legal assistants.() Twentieth Circuit Court Distri legal assistants. two (2) (u) Twenty-first Circuit Court suuto (2) legal assistants. (Vv) Twenty-second Circuit Court District.......0...c.0ntWO (2) legal assistants. (3) The board of supervisors of any county may pay all or a part of the salary, supplemental pay, expenses and fringe benefits of any district attorney or legal assistant authorized in the circuit court district to which such county belongs pursuant to this section (4) The district attorney of any circuit court district may employ additional legal assistants or criminal investigators, or both, without regard to any limitation on the number of legal assistants authorized in this section or criminal investigators authorized by other provisions of law to the extent that the district attorney's office receives funds from any source. Any source shall include, but is not limited to, office generated funds, funds from a county, a combination of counties, a municipality, a combination of municipalities, federal funds, private grants or foundations, or by means of an Interlocal Cooperative Agreement authorized by Section 17-13-1 which may be expended for those positions in an amount sufficient to pay all of the salary, supplemental pay, expenses and fringe benefits of the positions. Such funds may either be paid out of district attomey accounts, transferred by the district attorney to the Department of Finance and Administration or to one or more of the separate counties comprising the circuit court district, and said funds shall be disbursed to such employees in the same manner as state-funded criminal investigators and full-time legal assistants. The district attorney shall report to the board of supervisors of each county comprising the circuit court district the amount and source of the supplemental salary, expenses and fringe benefits, and the board in each county shall spread the same on its minutes. The district attorney shall also report such information to the Department of Finance and Administration which shall make such information available to the Legislative Budget Office. (8) The district attorney shall be authorized to assign the duties of a legal assistant regardless of the source of funding for such legal assistants. Cite as Miss. Code § 25-31-5 Source: Codes, 1942, § 3920.5; Laws, 1955, Ex. ch. 38, §§ 1-4; Laws, 1960, ch. 271, §§ 1-5; Laws, 1962, 2d Ex. Sess. ch. 18; Laws, 1966, ch. 368, § 1; Laws, 1972, ch. 497, § 1; Laws, 1973, ch. 494, § 4; Laws, 1974, ch. 544, § 1; Laws, 1975, ch, 506; Laws, 1976, ch. 468; Laws, 1977, ch. 453, §§ 2, 5; Laws, 1978, ch. 509, § 5; Laws, 1982, ch. 492; Laws, 1984, 1st Ex Sess, ch. 7; Laws, 1985, ch. 502, § 58; Laws, 1987, ch. 458; Laws, 1988, ch. 552; Laws, 1993, ch. 597, § 4; Laws, 1994, ch 564, § 100; Laws, 1996, ch. 512, § 1; Laws, 1997, ch. 677, § 5; Laws, 1999, ch. 501, § 1; Laws, 2005, ch. 606, § 9, eff. 7/15/2005; Laws, 2006, ch. 561, § 1; Laws, 2007, ch. 558, § 1;Laws, 2009, ch. 455, § 1; Laws, 2010, ch. 529, §1, eff. 4/14/2010. History. Amended by Laws, 2014EX1, ch. 1, HB 1, §1, eff. 7/1/2016. ‘Amended by Laws, 2014EX1, ch, 1, HB 1, §1, eff. 11/1/2014.EXHIBIT CINDICTMENT CIRCUIT COURT NO. LIAS vK) Possession ~ 41-29-147 2" Subsequent Offender ~ 41-29-147 Habitual - 99-19-81 The State of Mississippi Circuit Court First District, Hinds County January Term, A.D., 2012 First Judicial District of Hinds County The Grand Jurors for the State of Mississippi, taken from the body of good and lawful persons of the State of Mississippi, elected, impaneled, sworn, and charged to inquire in ‘and for said District, County and State aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: Tha! in said District, County, and State ‘on or about the 19" day of April, 2011 Did willfully, untawfully, feloniously and knowingly possess Marijuana, in an amount of more than 1 kilogram but less than 5 kilograms, in violation of Section 41-29-139 of the Mississippi Code of 1972 Annotated, as amended and Kwanza Hilliard, the said having been previously convicted of the offense of Possession of Marijuana, on June 29, 2000, in the Circuit Court of the First Judicial District of Hinds County, Mississippi in cause number 99-1-261, pursuant tothe provisions of Section 41- 29-147, Mississippi Code, 1972, as amended, He, the said Christopher Butler, having been twice previously convicted of felonies, to-wit the crime of Possession of Marijuana, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on January 11, 2000, in Cause number 98-4-128, in said Court, the crime of Sale of Cocaine, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on January 12, 2000, in Cause number 99-0-986, in said Court, the crime of Motor Vehicle Theft, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on February 24, 2000, iri Cause number 9-0-0411, in said Court, the crime of Possession of Marijuana, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on January 11, 2000, in Cause number 98-2-186, in said Court, and the crime of Possession of Cocaine, in the Circuit Court of First Judicial District of Hinds County, Mississippi, on September 20, 1996, in Cause number 96-1-224, in said Court, each of said felony convictions being upon charges separately brought and arising out of separate incidents at different times, and upon each of said convictions, the aforesaid named defendant was sentenced to separate terms of one year or more in a penal institution of the above-named state, this indictment being returned pursuant to the provisions of Section 99-19-81, Mississippi Code, 1972, as amended, andHe, the said Christopher Butler, having been previously convicted of the offense of Possession of Marijuana, on January 11, 2000, in the Circuit Court of the First Judicial District of Hinds County, Mississippi in cause number 98-4-128, pursuant to the provisions of Section 41-29-147, Mississippi Code, 1972, as amended, Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi fand Jury Fofeman Assistant District AttorneyEXHIBIT DINDICTMENT CIRCUIT COURT NO.. [2 ASL Ac Possession — 41-29-139 2° Subsequent Offender ~ 41-29-147 Habitual - 99-19-84 The State of Mississippi Circuit Court First District, Hinds County Jurie Term, A.D., 2012 First Judicial District of Hinds County _The Grand Jurors for the State of Mississippi, taken from the body of good and lawful persons of the State of Mississippi, elected, impaneled, sworn, and charged to inquire in and for said District, County and State aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: That Christopher Butler in said District, County, and State on or about the 13” day of April, 2012 Did willfully, unlawfully, feloniously and knowingly possess Marijuana, in an amount of more than 1 kilogram but less than 5 kilograms, in violation of Section 41-29-139 of the Mississippi Code of 1972 Annotated, as amended and He, the said Christopher Butler, having been previously convicted of the offense of Sale of Cocaine, on January 12, 2000, in the Circuit Court of the First Judicial District of Hinds County, Mississippi in cause number 99-0-986, pursuant to the provisions of Section 41- 29-147, Mississippi Code, 1972, as amended, He, the said Christopher Butler, having been twice previously convicted of felonies, to-wit the crime of Sale of Cocaine, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on January 12, 2000, in Cause number 99-0-986, in said Court, the crime of Possession of Marijuana, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on January 11, 2000, in Cause number 98-2-156, in said Court, the crime of Possession of Marijuana, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on January 11, 2000, in Cause number 98-4-128, in said Court and the crime of Possession of Cocaine, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on September 20, 1996, in Cause number 96-1-224, in said Court, each of said felony convictions being upon charges separately brought and arising out of separate incidents at different times, and upon each of said convictions, the aforesaid named defendant was sentenced to separate terms of one year or more in a penal institution of the above-named state, this indictment being returned pursuant to the provisions of Section 99-19-81, Mississippi Code, 1972, as amended, and12-43) Christopher Butler Page -2- Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi Jot rand Jury Foreman ppt Assistant District AttorneyEXHIBIT EINDICTMENT Page | of 3 ‘THE STATE OF MISSISSIPPI, CIRCUIT COURT APRIL, A. D., 2016 COUNTY OF HINDS 1* JUDICIAL DISTRICT No._Ile-a1sjau/ FALSE PRETENSE FILE Dp Section 97-19-39, Miss. Code of 1972, as amended FRAUD BY MAIL OR OTHER MEANS OF COMMUNICATION APR 07 2016 Section 97-19-83, Miss, Code of 1972, as amended HABITUAL OFFENDER ZACK WALLACE, GIRCUTT CLERK. Section 99-19-81, Miss, Code of 1972, as amended ee a ‘THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful citizens of the First Judicial District of Hinds County, duly elected, empaneled, swom and charged to inquire in and for the said State, County and District, at the Term of Court aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: ‘That: CHRISTOPHER BUTLER Count One in Hinds County, Mississippi, on or about August 20, 2015 Did willfully, unlawfully, and feloniously with intent to defraud Uown, did designedly by color of false token or writing, did obtain a sum in excess of $500.00 to the detriment of Uown, in violation of Miss. Code ‘Ann, § 97-19-39 as amended, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi. Count Two in Hinds County, Mississippi, on or about August 20, 2015 Did unlawfully and feloniously devised or intended to devise a scheme and artifice to deftaud Uown, by ‘means of false or fraudulent pretenses, representations or promises to Uown; in furtherance of and for the purpose of executing the aforesaid scheme and artifice to defraud Uown, Christopher Butler did willfully and unlawfully cause money to be transmitied across county jurisdictional in violation of Miss. Code Ann. § 97-19-83, as amended, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi he, the said Christopher Butler, having been twice previously convicted of felonies, to-wit: the crime of Sale of Cocaine in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on Jamuary 12, 2000, in Cause Number 99-0-986 in said Court, the crime of Possession of Marijuana in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on January 11, 2000, in Cause Number 98-2-156 in said Court, the crime of Possession of Marijuana in the Circuit Court of Hinds County, Mississippi, on January 11, 2000, in Cause Number 98-4-128 in said Court, the crime of Possession of Cocaine in the Circuit Court of Hinds County, Mississippi, on September 20, 1996, in Cause Number 96-1-224 in saidINDICT Page 2 of 3 THE STATE OF MISSISSIPPI, CIRCUIT COURT APRIL, A. D., 2016 COUNTY OF HINDS I* JUDICIAL DISTRICT No. Court, each of said felony convictions being upon charges separately brought and arising out of separate indictments at different times, and upon each of said convictions, the said Christopher Butler, was sentenced to separate terms of one year or more in a penal institution of the above named state, this indictment being returned pursuant to the provisions of Section 99-19-81, Mississippi Code, 1972, as amended, and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi. ENDORSED: A TRUE BILL OF THE GRAND JURYINDICTMENT Page 3 of 3, THE STATE OF MISSISSIPPI, CIRCUIT COURT APRIL, A. D., 2016 COUNTY OF HINDS 1" JUDICIAL DISTRICT No. AFFIDAVIT Comes now lobed’ ‘€Sreman of the aforesaid Grand Jury, and makes oath that this indictment presented to this Coukt was concurred in by twelve (12) ot more members of the Grand Jury and that at least fifteen (15) members of the Grand Jury were present during aff delibgrations OF THE GRAND JUR’ ‘Swom to and subscribed before me this the day of, 2016, CIRCUIT CLERK Dc aEXHIBIT F§ 97-9-105. Hindering prosecution in the first degree. Mississippi Statutes Title 97. CRIMES Chapter 9. OFFENSES AFFECTING ADMINISTRATION OF JUSTICE Article 3. OBSTRUCTION OF JUSTICE Current through 2016 Second Extraordinary Session § 97-9-105. Hindering prosecution in the first degree (1) Aperson commits the crime of hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction or punishment of another for conduct constituting a felony, he renders criminal assistance to the other person. (2) Hindering prosecution in the first degree is a Class 1 felony. Cite as Miss. Code § 97-9-105 Source: Laws, 2006, ch. 387, § 3, eff. 71/2006,EXHIBIT G§ 97-9-103. Hindering prosecution or apprehension; definition of “criminal assistance.” Mississippi Statutes Title 97. CRIMES Chapter 9. OFFENSES AFFECTING ADMINISTRATION OF JUSTICE Article 3. OBSTRUCTION OF JUSTICE Current through 2016 Second Extraordinary Session § 97-9-103. Hindering prosecution or apprehension; defi For the purposes of Sections 97-9-105 and 97-9-107, a person "renders criminal assistance" to another if he knowingly: nal assistance.” (a) Harbors or conceals the other person; (b) Wars the other person of impending discovery or apprehension, except that this, paragraph (b) does not apply to a warning given in connection with an effort to bring another into compliance with the law; (©) Provides or aids in providing the other person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; (4) Prevents or obstructs, by means of force, deception or intimidation, anyone from performing an act that might aid in the discovery, apprehension, prosecution or conviction of the other person; or (e) Suppresses, by an act of concealment, alteration or destruction, any physical evidence that might aid in the discovery, apprehension or conviction of the other person. Cite as Miss. Code § 97-9-103 Source: Laws, 2006, ch. 387, § 2, eff. 7/1/2008.EXHIBIT H§ 25-31-11. Powers and duties. Mississippi Statutes Title 25. PUBLIC OFFICERS AND EMPLOYEES; PUBLIC RECORDS Chapter 31. DISTRICT ATTORNEYS. Current through 2016 Second Extraordinary Session § 25-31-11, Powers and duties a) (5) 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; but if two (2) or more counties are adversely interested, the district attorney shall not represent either. Any district attorney may also institute and prosecute to final judgment or decree any case in the name of the state against any person or corporation for any violation of the Constitution or the laws of this state, in order to enforce any penalties, fines or forfeitures imposed by law in any court of his district having jurisdiction, with like effect as if the suit was instituted by the Attorney General. The district attorney may transfer any case handled by him to a county prosecuting attorney when charges in such case no longer constitute a felony. The validity of any judgment or sentence shall not be affected by the division of jurisdiction Under this section, and no judgment or sentence may be reversed or modified upon the basis that the case was not processed according to this section. A county prosecuting attorney or municipal prosecuting attomey may be designated by the district attorney to appear on behalf of the district attorney pursuant to an agreement relating to appearances in certain courts or proceedings in the county of the county prosecuting attorney or in the municipality of the municipal prosecuting attorney. Such agreement shall be filed with the circuit court clerk of any county where such agreement shall be operative. Such agreement shall be binding upon the district attorney and county prosecuting attorney or municipal prosecuting attorney until dissolved by either of them in writing upon five (5) days’ notice. Where any statute of this state confers a jurisdiction, responsibility, duty, privilege or power upon a county attorney or county prosecuting attorney, either solely, jointly or alternatively with a district attorney, such county prosecuting attorney shall be responsible for the prosecution, handling, appearance, disposition or other duty conferred by such statute. Any such provision shall not be construed to bestow such responsibilty, jurisdiction or power upon the district attorney where there is no elected county prosecuting attorney, and any such matter shall be handled pursuant to Section 19-3-49, Mississippi Code of 1972. The district attorney or his designated assistant, or the county prosecuting attorney or his designated assistant, shall assist the Attorney General in appeals from his district to the@) (8) Mississippi Supreme Court and in other post judgment proceedings, and shall appear for oral argument before the Supreme Court when directed by the Supreme Court. The several district attorneys shall submit reports of revenues and expenditures and shall submit budget requests as required for State General Fund agencies. For purposes of budget control, the several offices of district attorney shall be considered General Fund agencies and the budget and accounts of the several offices, including salaries, travel expenses, office expenses and any other expenditures or revenues, shall be consolidated for all districts as far as such consolidation is practical. All revenue or funds allocated or expended by a district attorney, whether such funds are appropriated from state funds, or whether such funds are received from county funds, grants or otherwise, shall be reported to the Legislative Budget Office. A district attorney shall be authorized to assign the duties of employees regardless of the source of funding for such employees, Cite as Miss. Code § 25-31-11 ‘Source: Codes, Hutchinson's 1848, ch. 22, art 3 (4); 1857, ch. 6, art 70; 1871, § 214; 1880, § 256; 1892, § 1555; 1906, § 1661; Hemingway's 1917, § 1398; 1930, § 4363; 1942, § 3920; Laws, 1978, ch. 509, § 9; Laws, 1979, ch. 490, § 2; Laws, 1984, ch. 488, § 175; Laws, 2009, ch. 455, § 4, eff. 7/1/2008.EXHIBIT I§ 13-7-7. [Repealed effective 7/1/2024] Jurisdiction of state grand jury; petition to impanel state grand jury; impaneling state grand jury; powers and duties of impaneling judge. Mississippi Statutes Title 13. EVIDENCE, PROCESS AND JURIES Chapter 7. STATE GRAND JURY ACT Current through 2016 Second Extraordinary Session § 13-7-7. [Repealed effective 7/1/2024] Jurisdiction of state grand jury; petition to impanel state grand jury; impaneling state grand jury; powers and duties of impaneling judge (1) The jurisdiction of a state grand jury impaneled under this chapter extends throughout the state. The subject matter jurisdiction of a state grand jury in all cases is limited to offenses involving any and all conduct made unlawful by the Mississippi Uniform Controlled Substances Law or any other provision of law involving narcotics, dangerous drugs or controlled substances, or any crime arising out of or in connection with a crime involving narcotics, dangerous drugs or controlled substances, and crimes involving any attempt, aiding, abetting, solicitation or conspiracy to commit any of the aforementioned crimes if the crimes occur within more than one (1) circuit court district or have transpired or are ing or have significance in more than one (1) circuit court district ofthis state (2) Whenever the Attorney General considers it necessary, and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the senior circuit court judge of any circuit court district in this state for an order impaneling a state grand jury. For the purposes of this chapter, such judge shall be referred to as the impaneling judge. The petition must allege the following: (a) The type of offenses to be inquired into; (b) That the state grand jury has jurisdiction to consider such matters; (c) That the offenses to be inquired into have occurred within more than one (1) circuit court district or have transpired or are transpiring or have significance in more than ‘one (1) circuit court district of this state; (d) That the Attorney General has conferred with the Commissioner of Public Safety and the Director of the Mississippi Bureau of Narcotics and that each of such officials join in the petition; and (e) That the Attomey General has conferred with the appropriate district attorney for each jurisdiction in which the crime or crimes are alleged to have occurred. (3) The impaneting judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve (12) calendar months. Upon petition by the Attorney General, the impaneling judge, by order, may extend the term of that state grand jury for a period of six (6) months, but the term of that state grand jury, including any extension thereof, shall not exceed two (2) years,(5) (6) Cite as Mi The impaneling judge shall preside over the state grand jury until its discharge. ‘The impaneling judge may discharge a state grand jury prior to the end of its original term or any extensions thereof, upon a determination that its business has been completed, or upon the request of the Attomey General. If, at any time within the original term of any state grand jury or any extension thereof, the impaneling judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the impaneling judge may limit the investigations so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under subsection (5) of this section shall not become effective less than ten (10) days after the date on which it is issued and actual notice given to the Attorney General and the foreman of the state grand jury, and may be appealed by the Attomey General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal. - Code § 13-7-7 Source: Laws, 1993, ch. 553, § 4; reenacted without chango, Laws, 1998, ch. 382, § 4, reenacted without change, Laws, 1999, ch. 480, § 4; reenacted without change, Laws, 2002, ch. 471, § 4; reenacted without ‘change, Laws, 2011, ch. 337, §4, off. 7/1/2011 History. Reenacted by Laws, 2014, ch, 526, $B 2484, 4, eff. 71/2014.EXHIBIT J678 So.2d 994 (Miss. 1996), 91-KA-00282, Bell v. State /**/ div.ct {text-align: center} /**/ Page 994 678 So.2d 994 (Miss. 1996) John E. BELL, No. 91-KA-00282-SCT. Supreme Court of Mississippi. August 15, 1996 Cynthia A. Stewart, Thomas E. Royals & Associates, Jackson, for Appellant. Michael C. Moore, Attorney General, DeWitt T. Allred, Ill, Sp. Asst. Attorney General, Jackson, for Appellee. En Bane. Page 995 PRATHER, Presiding Justice, for the Court: INTRODUCTION (On March 20, 1990, a specially called Grand Jury indicted John E. Bell for racketeering under Miss.Code Ann. § 97-43-5(3) (1972). Bell was convicted by a jury, sentenced to four years in the custody of MDOC, and fined $15,000. Bell raises the following issues for review by this Court: |. WHETHER THE OFFICE OF THE ATTORNEY GENERAL HAD LEGAL AUTHORITY TO EMPANEL AND SPECIALLY CALL THE GRAND JURY AND TO PRESENT ANY CHARGES TO THIS SPECIALLY CALLED GRAND JURY WITHOUT THE REQUEST FOR AID AND ASSISTANCE BY THE LOCAL DISTRICT ATTORNEY OR AT THE DIRECTION OF THE GOVERNOR OF THE STATE OF MISSISSIPPI? Il. WHETHER THE TRIAL COURT ERRED IN ITS RULING ON THE MEMORANDUM OF UNDERSTANDING BETWEEN BELL AND THE ATTORNEY GENERAL, RESULTING IN THE PREJUDICIAL ADMISSION OF IRRELEVANT OTHER CONDUCT, IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS AND ARTICLE 3, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION? Il, WHETHER THE TRIAL COURT ERRED IN NOT HOLDING JOHN BELL IMMUNE FROM PROSECUTION PURSUANT TO § 99-17-27, MISSISSIPPI CODE ANNOTATED, IN VIOLATION OF THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS AND ARTICLE 3, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION? IV. WHETHER THE TRIAL COURT ERRED IN DENYING BELL INFORMATION ABOUT AND FROM THE GRAND JURY THAT INDICTED HIM IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS AND ARTICLE 3, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION? V. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE STATE TO INTRODUCE TESTIMONY IT FAILED TO TIMELY PRODUCE IN DISCOVERY, PREJUDICING BELL AND DENYING HIM THE RIGHT TO DUE PROCESS, A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL?VI. WHETHER THE TRIAL COURT ERRED IN NOT DECLARING A MISTRIAL DUE TO A CONFLICT BETWEEN DEFENSE ATTORNEYS AND JOHN BELL? VII. WHETHER THE TRIAL JUDGE ERRED IN NOT RECUSING HIMSELF FROM HEARING THE POST-TRIAL MOTIONS FILED IN THE CASE? Vill, WHETHER THE TRIAL COURT ERRED IN FAILING TO ENSURE THAT ALL MATTERS AND PROCEEDINGS WERE TRANSCRIBED? IX, WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTIONS DIRECTING THE JURY TO FIND JOHN BELL GUILTY? This Court will address the first two issues. The other issues are without merit and/or are procedurally barred STATEMENT OF THE FACTS Prior to October 1988, John E. Bell, through Bell Music Company, owned and managed the proceeds of several video poker machines throughout the Vicksburg area. On October 8, 1988, Investigator Bill East Page 996 with the Attomey General's office went to the Battlefield Truck Plaza owned by Bell, bought quarters from one of Bell's employees, and was subsequently paid for the credits he had earned while playing video poker on one of Bell's machines. Based on Investigator East's experience, the authorities raided the Truck Plaza on October 10, 1988. ‘On November 22, 1988, Bell entered into identical service and maintenance agreements and promissory notes with the Elks Lodge and American Legion. These contracts provided that Bell would receive 5% of the gross proceeds towards the purchase of the video poker machines and 25% of the gross weekly proceeds towards the service and maintenance on the machines. Thereafter, in February 1989, Bell and the Attomey General's office reached an agreement entitled "Memorandum of Understanding" ("Memo"). The Attorney General's office agreed not to prosecute Bell if he ceased his involvement with gambling operations in compliance with the spirit and letter of the Memo agreement. The Attorney General was not aware of the poker machine service and maintenance agreements that Bell had entered into with the Elks Lodge and the American Legion, ‘When the Attorney General became aware of these contracts, he asserted that the Memo agreement had been violated and requested that the Circuit Judge reconvene the Grand Jury of Warren County to consider indictments against Bell, which indictments were returned. Other relevant facts are discussed as they apply to the issues. |. WHETHER THE OFFICE OF THE ATTORNEY GENERAL HAD THE LEGAL AUTHORITY TO EMPANEL AND SPECIALLY CALL THE GRAND JURY AND TO PRESENT ANY CHARGES TO THIS SPECIALLY CALLED GRAND JURY WITHOUT THE REQUEST FOR AID AND ASSISTANCE BY THE LOCAL DISTRICT ATTORNEY OR AT THE DIRECTION OF THE GOVERNOR OF THE STATE OF MISSISSIPPI? ‘The record reflects that the Attorney General requested in writing that the trial judge recall the grand jury. Thereafter, the trial judge recalled the grand jury which indicted Bell. Bell filed a pre- trial motion to dismiss the indictment, and asserted that the Attorney General did not have theauthority to empanel a grand jury. The trial judge denied this motion. Bell's argument on this point fails because the trial judge recalled the grand jury-not the ‘Attorney General. A similar argument was raised in Oates v. State, 421 So.2d 1025 (Miss.1982). In Cates, the defendant argued that, because the District Attomey had recalled the grand jury, the indictment in that case was improperly handed down. This Court held that the grand jury was “duly recalled by court order." Oates 421 So.2d at 1028. The court further stated that (even though the District Attomey had selected the days that the grand jury would actually meet) the district attorney “was not recalling the grand jury.” Id Therefore, even though the Attorney General requested that the trial judge recall the grand jury, the Attorney General did not actually recall the grand jury. Rather, the grand jury that indicted Bell was duly impaneled by the trial judge. Furthermore, the Attorney General is "a constitutional officer possessed of all the power and authority inherited from the common law as well as that ‘specially conferred upon him by statute. This 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.” Gandy v. Reserve Life Ins. Co., 279 So.2d 648, 649 (Miss.1973). Therefore, the Attomey General did not act improperly when he requested that the trial judge recall the grand jury in this case. Such action was necessary to “institute” a criminal prosecution against Bell. For these reasons, Bell's contention on this point is without merit, Il WHETHER THE TRIAL COURT ERRED IN ITS RULING ON THE MEMORANDUM OF UNDERSTANDING BETWEEN BELL AND THE ATTORNEY GENERAL, RESULTING IN THE PREJUDICIAL ADMISSION OF IRRELEVANT Page 997 OTHER CONDUCT, IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS AND ARTICLE 3, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION? Bell was indicted based on allegations that he engaged in a pattern of racketeering activity encompassing an approximate span of time from October 10, 1987, until March 30, 1990. In March 1988, Bell and the State entered into a Memorandum of Understanding ("Memo") wherein Bell agree to immediately cease and desist operation of any gambling activities within the State of Mississippi, including the placement for rent or lease or any control of video draw poker machines. In retum the State agreed not to prosecute Bell as long as he complied with both the letter and spirit of the agreement. Importantly, the Memo stated, "It is currently the understanding of this office that Mr. Bell has discontinued these gambling operations in Warren County." The State claims that at the time of the signing of the agreement, they were unaware that Bell had contracted with the Elks Lodge and the American Legion Post for the sale and service of video poker machines, Subsequently, when the State became aware of these contracts, the criminal prosecution of Bell was initiated and an indictment was returned in March 1990. ‘Among Bell's pre-trial motions was a "Motion to Quash the Indictment Because The Prosecution Is In Violation of an Immunity Memorandum Agreement Wherein The State Agreed Not to Prosecute The Defendant.” An extensive hearing was held on this motion, after which, the trial judge denied the motion to quash. He declined, however, to make a finding of fact on thequestion of whether or not Bell had violated the terms of the Memo, and held that this was a factual issue, to be decided by the jury. The trial judge reasoned that to rule on this question would be a decision regarding the ultimate issue of Bell's guilt, Bell then moved for a bifurcated trial, and requested that the question of whether he had violated the Memo be decided by a separate tral ‘The court denied this motion, and held that the question should be submitted to the jury through instructions. !"] On appeal, Bell argues that the trial judge erred in denying the motion to quash the indictment Interpretation of the Memo agreement in this case is a question of contract law. "Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder." Mississippi State Highway Commission v. Patterson Enterprises Ltd., 627 So.2d 261, 263 (Miss.1993). Therefore, the trial judge should have determined whether Bell violated the agreement, in order to determine whether the prosecution of Bell was properly before his court. This Court remands for a hearing and determination from the trial judge as to whether Bell Violated the Memo agreement, in order to determine whether the indictment was proper. Should the trial judge rule that Bell's actions violated the memo agreement, then a new trial would be in order--such trial to be conducted in accordance with the applicable rules of evidence, Otherwise, if the trial judge finds that Bel’s actions did not violate the Memo agreement, then the trial court should entertain a motion to quash the indictment. (21 Page 998, CONCLUSION This case is reversed and remanded for the trial judge, after evidentiary hearing, to determine whether Bell violated the terms of the Memo agreement. The other issues raised by Bell on this, appeal are without merit REVERSED AND REMANDED. PITTMAN, BANKS, JAMES L. ROBERTS, Jr. and SMITH, JU., concur. DAN LEE, C.J., and MILLS, J., concur in result only, MeRAE, J., dissents with separate written opinion joined by SULLIVAN, P.J. MoRAE, Justice, dissenting: ‘The majority fails to realize the significance of Danley v. State, 540 So.2d 619, 622 (Wiss.1988), in its decision to remand this case to the trial court for a determination of whether Bell violated the memorandum of understanding. As a matter of public policy, and in recognition of the limitations on the office of the attomey general, Danley requires prior court approval of the attorney general's compromise of a case or his decision to rescind a memorandum of understanding or plea bargain, How can the trial court on remand possibly give prior court approval of the Attorney General's agreement with Bell in 1989 or the Attomey General's unilateral decision to rescind the agreement in 1990? ‘The majority has implicitly overruled the Danley case and ignored Miss. Code Ann. § 99-15-83 (1972), in its decision to remand this case for further proceedings. Pursuant to Danley, this case should be reversed and Bell discharged due to the Attorney General's failure to obtain prior court approval of the compromise of Bell's prosecution and subsequent withdrawal of the agreement.Not only did the Attorney General exceed his powers of office in negotiating with Bell, but he also lacked the authority to call the Warren County Grand Jury for the purpose of indicting Bell Therefore, even if the trial court had the authority under our law to again review the agreement with Bell, the indictment was stil defective. ‘The majority attempts to ignore Danley on the basis that Bell failed to raise the issue addressed in that case. To the contrary, Bell's brief under Issue D expressly provided as follows: This agreement was probably not legal. Section 9-15-53, Mississippi Code Annotated, as amended, provides that "a District Attorney shall not compromise any cause or enter @ nolle prosequi, either before or after indictment, without the consent of the court..." No consent was obtained prior to the immunity agreement between the Attorney General's office and John Bell The trial court here also expressed strong disapproval of the failure to obtain court approval for the agreement. (R. 121) Appellant's Brief, p. 34-35. The Danley case is a direct interpretation of Miss.Code Ann. § 99- 15-53 which, as indicated above, was expressly cited by Bell as grounds for the court below and this Court to find there was no violation of the agreement. See Danley, 540 So.2¢ at 622 (expressly relying on Miss.Code Ann. § 99-15-53 to find agreement with defendant invalid where Attorney General failed to obtain prior court approval of memorandum of understanding). The trial judge even alluded to the rule of Danley in his decision in the court below. Consequently, it was properly rai Despite the claimed procedural bar, the majority also somehow vaguely attempts to distinguish Danley on the basis of detrimental reliance. The existence of detrimental reliance, however, is irrelevant to a claim that the agreement was void without prior court approval Detrimental reliance is only relevant to the subsequent withdrawal of the plea bargain. Even so, 9 that Bell .ed as an issue by Bell. [1] there was sufficient evidence in the record reve: Page 999 detrimentally relied upon the agreement by substantially altering his conduct after signing the memorandum of understanding. The majority's attempts to ignore Danley are not persuasive. ‘The record in this case reveals there was no court participation in the signing of the memorandum of understanding between Bell and the attorney general, or in the decision of the attorney general's office to pursue prosecution of Bell. Miss.Code Ann. § 99-15-53 (1972) provides as follows: A district attomey, or other prosecuting attorney, shall not compromise any cause or enter a nolle prosequi either before or after indictment found, without the consent of the court; (emphasis added) In Danley v. State, 540 So.2d 619, 622 (Miss.1988), this Court held that a district attorney cannot unilaterally enter into and later conclude that a plea bargain agreement has been violated. (21 This Court reasoned that any agreement or memorandum of understanding with a defendant is, in effect, a plea bargain which is therefore subject to prior court approval under § 99-15-53. Danley, 540 So.2d at 622. The defendant in Danley failed to lead law enforcement officials to the body of the victim as agreed with the district attorney ina memorandum of understanding, Id, at 620-21. As in the casesub judice, there was no indication in the Danley record that the agreement was ever approved by the trial court at the time it was made. Id. at 622. The district attomey, asserting that Danley had lied about a key element of the transaction, decided unilaterally to rescind the memorandum of understanding. Id, at 621-22. The Court found error in both the failure to obtain prior court approval of the agreement and its unilateral recision, although it was noted that the district attomey’s unilateral decision to rescind the agreement was the more egregious error, tantamount to allowing the government to escape from an obligation it had undertaken when entering the agreement. Id. (quoting U.S. v. Simmons, 537 F.2d 1260, 1261-62 (4th Cir.1976)). Based on Danley, the agreement set forth in the Memorandum of Understanding between Bell and the State in this case was void as against public policy and in violation of Miss. Code Ann. § 99-15-53. It essentially involved an agreement by the prosecuting attorney not to indict an individual for an alleged felony which might be construed as a crime in and of itself. The only way a prosecutor is permitted to propose such an agreement is through prior court approval. Danley, 540 So.2d at 622. The State suggests that we construe the Memo as something wholly different than a plea bargain agreement so that Danley would not apply. The Meme, although signed before Bell was indicted, is stil subject to the dictates of Danley and, therefore, requires court approval when itis made, as well as before any recision of the agreement. To hold otherwise would allow the attorney general's office and local district attorneys to subvert the checks and balances we so adamantly championed in Danley. 1 The Attorney General should not play the combined role of judge, jury and executioner. There can be no remand of this case for reconsideration of the “agreement” where, pursuant to Danley, the “agreement” was void as a matter of law for lack of prior court consent. The indictment should be dismissed and Bell discharged. The indictment against Bell was likewise defective because the Attorney General did not possess the power to convene the Warren County Grand Jury. The majority is not the slightest bit persuasive in its discussion of this issue. The facts of Oates v. State, 421 So.2d 1025 (Miss.1982), are clearly distinguishable from the facts of this case as evidenced Page 1000 by the majority's own discussion. The district attomey in Oates merely selected the days that the grand jury would be empaneled after it was initially called by the court. Id, at 1028. In the case at hand, the grand jury was initially called at the command of the Attorney General. It makes no difference that a court order was used to fulfil the Attorney General's demand that the grand jury be called. The fact remains that the Attorney General was the individual who called for the grand jury. The Attorney General is empowered by statutory and common law authority. [4] in Gandy v. Reserve Life, 279 So.2d 648 (Miss. 1973), this Court stated that the "Attomey General is a Constitutional officer possessed of all the power and authority inherited from the common law as well as that specially conferred upon him by statute, This 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." Id. at 649 (emphasis added). We should not infringe upon the Attorney General's common law powers; however, we should not be inclined to broaden themeither. The right of the Attorney General to institute proceedings for the enforcement of laws does not include a right to specially call a grand jury session. Additionally, there exists no statutory authority allowing the Attorney General to specially call a grand jury session under the facts of the case sub judice. His office can participate and enter into the grand jury room only at the request of the Governor of Mississippi or to aid and assist the local district attorney. [9] miss.code Ann. § 7-5-53 and § 7-5-54 define the extent of the Attorney General's authority. Miss.Code Ann. § 7-56-53 (1972) provides that the Attorney General shall assist district attorneys as follows The Attorney General shall, when required by the public service or when directed by the Governor, in writing, ... 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. (emphasis added). Miss.Code Ann. § 7-5-54 (1972), which provides for prosecution of official corruption and other white collar crimes, reads in pertinent part: When requested by a district attorney and in the public interest, the Attomey General may, in person or by his designated staff, assist the district attorney in the discharge of his duties. The ‘Attorney General... 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 attomey is authorized to perform. (emphasis added). The facts of this case demonstrate that the Attomey General neither was acting in the public interest as defined by case law nor at the behest of the Governor [61 or at the request of the local district attorney. !7] in fact, it was stipulated by the Attomey General's office that the calling of the grand jury was Page 1001 at the instance of the Attorney General, that the subpoenaing ofall the witnesses was at the: instance of the Attomey General, and that the district attorney took no part in the calling of the grand jury or the presentation of any evidence, Amazingly, this stipulation is entirely ignored by the majority. Furthermore, even if the Governor or local district attorney had requested intervention, we are still unable to find any statutory authority which grants him the power to specially call a grand jury session. '8] the statutes specifically set forth that the Attorney General may enter the grand jury while itis in session and assist the district attorney in the discharge of his duties. The statutes do not provide that the Attorney General may have a grand jury empaneled. If the legislature had intended for the Attomey General to be empowered to call a special grand jury, it would have so stated, To interpret these statutes otherwise would be contradictory to their legislative intent and impermissibly broaden the powers of the Aitomey General. Consequently, Bell correctly asserts that the Attomey General indeed did not have the authority to command the circuit court to empanel a grand jury in this case, and accordingly, the indictment handed down against him is void,Our system of government calls for checks and balances on each ofits various branches and agencies. The Attorney General's Office is no different. The Attorney General position is entrusted with protection of the statewide public interests of Mississippi, as opposed to the local interests of each community. The local district attorneys are responsible for protecting the local interests of their individual communities, This is the reason the Attorney General is not permitted to become intimately involved in local interests such as the one presented by the case at hand. Just as the Attorney General is a constitutionally created position, s0 is the position of the local district attorneys. Mississippi Constitution of 1890, art. VI, §§ 173-74, This Court may not under our Constitution permit the Attorney General to usurp the powers of another constitutionally created office. Since our Constitution of 1890, the Attomey General historically has not been given the statutory or common law power to empanel a grand jury. Such is the reason this Court should find the indictment in this case was entirely improper. See Kennington-Saenger Theatres v. State, 196 Miss. 841, 18 So.24 483, 487 (1944) Not only has the majority completely misinterpreted both issues it actually decided to address, what about the remaining issues raised by Bell? [®] what if the lower court approves of the ‘Attorney General's unilateral decision to rescind its agreement without prior court approval? The remaining issues raised by Bell then become relevant to the disposition of his appeal, yet the majority fails to address them. Can Bell appeal these same issues to this Court again? Will there be a double jeopardy violation if Bellis tried again years later when or if this appeal is ultimately disposed of in a meaningful way by the majority? The majority has only scratched the surface of this appeal ifit chooses, as it has apparently done, to ignore the mandates of Danley and our Constitution regarding the powers of the attomey general Page 1002 For these reasons, | cannot join the majority's superficial treatment of the issues raised by Bellin this case. Accordingly, I dissent SULLIVAN, PJ, joins this opinion, Notes [1] instruction D-26 reads “The Court instructs the jury that unless you find from the evidence beyond a reasonable doubt that John E, Bell did violate the agreement not to prosecute, entered into by John E. Bell and the State of Mississippi, then you must find John E. Bell not guily.” [2] itis noteworthy that the parties do not raise the question addressed in Danley v. State, 540 So.2d 619 (Miss.1988). In Danley, the defendant gave up a valuable right in reliance on an agreement-only to have the State subsequently renege, Danley, 540 So.2d at 622. The importance of this element of detrimental reliance was again recognized in Singleton v. State, 618 S0.2d 1290 (Miss.1993). In Singleton, this Court held that "faJbsent a guity plea or some other detrimental reliance by defendant, the prosecutor was under no legal inhibition to revoke his agreement.” Singleton, 618 So.2d at 1291. The parties in the case sub judice, do not raise the issue; furthermore, there was no evidence of any kind that Bell relied on the agreement to his, detriment. Rather, the question raised by the parties is whether the agreement was broken by the defendant. For these reasons, this Court does not address the issue raised in Danley, 640 So.2dat 622 (11 the author of the Danley opinion is also the author of this opinion. Since the issue of prior court approval of the plea bargain was properly raised on appeal, the author has apparently firmly retreated from her position in Danley, [2] the attomey General should have full knowledge of the requirements established in Danley and § 99-15-53 since he was the prosecuting attomey in the appeal ofthat case as well as the District Attorney who formed the initial agreement. 15] «[r}his Court {has] emphasized the importance of upholding plea bargain agreements when the defendant has relied on them to his detriment... To allow the prosecution to renege on its promise after the appellant had complied with his part of the ‘bargain,’ would be inherently unjust." Danley, 540 So.2d at 623. I the attorney General is a constitutional officer whose office is established by Miss. Const. art. VI, § 173 under the judiciary branch of our government. '5] We take judicial notice that the Attorney General unsuccessfully has sought to obtain additional authority from the legislature [6] request by the Governor that the Attorney General assist the district attorney in the performance of his duties must be in writing. Bush v. State, 585 So.2d 1262, 1264 (Miss.1991) 7] During oral arguments, the State assured the Court that there had been correspondence between the Attorney General's Office and the local district attorney in which the district attomey pledged to assist the Attorney General should the Attorney General need his assistance. However, the alleged letter is not in the record. Moreover, such a letter would not be dispositive of the matter since it was not the district attorney who requested assistance. [8] pursuant to the State Grand Jury Act, Miss.Code Ann. § 13-7-1 (1993) et seq., the Attorney General has limited powers involving grand juries in drug and narcotics cases. § 13-7-7(2) provides as follows: Whenever the Attorney General considers it necessary, and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the senior court judge of any circuit court district in this case for an order impaneling a state grand jury. ‘The fact that an amendment to § 26 of the Mississippi Constitution was necessary to give the ‘Attorney General authority to seek in writing an order to call a grand jury for drug related cases is, in and of itself, indicative that no such authority existed at the time Bell was indicted. Furthermore, the limited authority granted extends only to drug-related matters. 91 Bell also assigned as error the trial court's failure to declare a mistrial; its refusal to hold him immune from prosecution pursuant to Miss.Code Ann. § 99-17-27; its denial of information from and about the grand jury that indicted him; its ruling allowing the State to introduce testimony not timely produced in discovery; its failure to insure that all proceedings were transcribed; its failure to grant certain jury instructions, and finally, the circuit cours refusal to recuse itself from hearing post-trial motions fied in the case. Because the issues discussed in this opinion are dispositive, we decline to address the other issues raised.EXHIBIT K184 So.3d 908 (Miss. 2014), 2013-IA-00402-SCT, Williams v. State /**/ div.ct {text-align: center} /* 1 Page 908 184 So.3d 908 (Miss. 2014) HARVEY WILLIAMS, JR. a/k/a SMOKIE a/k/a HARVEY WILLIAMS v. STATE OF MISSISSIPPI No, 2013-1A-00402-SCT Supreme Court of Mississippi December 11, 2014 DATE OF JUDGMENT: 02/14/2013 COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY. TRIAL JUDGE: HON. JEFF WEILL, SR. FOR APPELLANT: CHARLES RICHARD MULLINS, MERRIDA COXWELL. FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, HAROLD EDWARD PIZZETTA, Ill, MARY JO WOODS. 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.s COLEMAN, J., JOINS IN PART. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., RANDOLPH, P.J., AND PIERCE, J. OPINION Page 909 NATURE OF THE CASE: CIVIL - OTHER KITCHENS, JUSTICE [114] Following this Court's reversal and remand of the murder conviction of Harvey Williams, Robert Shuler Smith, the Hinds County District Attomey, 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, o statutory authority of the State of Mississippi FACTS AND PROCEDURAL HISTORY [12] 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. Wiliams 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. Wiliams 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. Jd. [113] Following remand, Hinds County District Attorney Robert Shuler Smith sought an order of rnolle prosequi based on * new evidence" indicating "that the defendant, Harvey Willams, may have acted in self-defense." Judge Hilburn, who had presided over Williams's 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] Page 910 [14]. Nine months later, on March 13, 2012, Judge Hilburn signed the following " Order of Recusal" IT APPEARING that the District Attorey 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 Attomey 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 Attomey'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. [115] On September 10, 2012, Williams fled 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 rolle 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. [116] 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 Attomey General is vested with constitutional, common law, and statutory authority which entitle it to prosecute the case. District Attomey 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 | have jurisdiction as the elected district attorney.” [117] 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 special prosecutor. Judge Weill continued that the Office of the Attorney Page 911 General "is permitted to pursue future prosecution of this Defendant, in its discretion.” [13] 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. [119] 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: | Whether the Constitution and/or common law of the State of Mississippi authorize the intervention of the Office of the Attomey 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 attormey opposes such interference, DISCUSSION [1110] 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 Hilbum'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 |. Whether the Constitution and/or common law of the State of Mississippi authorize the intervention of the Office of the Attorney General in a cri local district attorney opposes such interference. [14] Neither the Constitution nor any case law authorized Judge Hilburn's Page 912 or Judge Weil'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. [1112] 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 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.24 779, 781 (Miss. 1982) (quoting State ex rel, Patterson v. Warren, 254 Miss. 293, 307, 180 So.2d 293, 299 (1965). [1113] Justice Coleman takes the position that the Constitution and broad common law language authorize the attomey 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 attormey 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 shail be prescribed by law, and 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 inal prosecution in which the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. [1114] 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 Page 913 and to present charges to it in the absence of a request from the local district attomey 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. [1115] This Court has recognized that " [there 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: The office of district attorney, unlike that of Attorney General, is of modem 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 attomey 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 attomey. 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.) [1116] 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. Attomeys 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 . .. 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 Attomey. 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 attomey and has no authority over him or her. [1117] Neither Mississippi's Constitution nor its common law permits the involuntarily disqualification of a duly elected district attorney from the lawful performance Page 914 of his duty and the substitution of the attomey general in the district attomney's place and stead in a case in which no legal grounds for the district attorney's disqualification exists |. Whether the statutes of the State of the intervention of the O' the Attorney General in a criminal prosecution in which the local district attorney opposes such interference. [1118] 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 [9119] Judge Weill found: Ata 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, inits discretion. 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 Attomey General at common law..." Miss. Code Ann. § 7-5-1 (Rev. 2014) (emphasis added). But that statute does not support the usurpation by the attomey 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 ofthe 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). [120] Only one statute authorizes intervention by the attomey general. Mississippi Code Section 7- 5-53 provides: The Attorney Generall@! 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 oF 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 attomey is authorized by law to perform ice of wuthori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 attomey 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, {9} Page 915 never sought the assistance of the attorney general; and, indeed, at the hearing before Judge Weill he testified that he had opposed the attomey 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: | 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: | object to the attorney general's office not contacting the district attomey ~ Q: Regarding what? A: - - and -- gelting involved in cases where | have jurisdiction as the elected district attorney. [921] The statute permitting the attomey 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, 1922] The record does not support any finding, and Judge Hilburn never found, that the attomey 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 Hilbum, in due course, granted on June 13, 2011. Mississippi Code Section 7-5-3 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, infact, objects to the involvement of the attomey general. [1123] Mississippi Code Section 25-31-21 provides for the appointment of a district attomey pro tempore, but in specific, limited circumstances: If, at the time of impaneling the grand jury in any circuit cour, 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 Page 916 appoint some attorney at law to act for the state in the place of the district attomey 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 rict attomey pro tempore shall be appointed: the district attorney is absent, the district attomey is unable to perform his duties, or the district attorney is disqualified. [1124] 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, [125] 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 Weil: 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, '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 | would have ~- | 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 " [did you, as the publicly elected district attorney, approve or consent to an order recusing your office?,” District Attomey Smith responded: " | did not and I cannot think of any recusal at this time, but this appears to be signed by an assistant district attorney. | don't know if he set forth — sets for the reasons for the recusal ...." No motion ever was filed by the Hinds County District Attomey'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 Hilbum had signed the order of nolle prosequi. Page 917 1126} In the orders appointing the Office of the Attomey 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, CONCLUSION which a19127] Mississippi law does not permit atrial court to disqualify a duly elected and serving district attomey and replace him with the attorney general where the district atlorney has decided, in the lawful exercise of his discretion, not to prosecute a criminal case. The attempted appointments of the Attomey General of Mississippi, or members of his staff, in the place and stead of the District ‘Attomey of the Seventh Circuit Court District is reversed and rendered. This Court's stay of the criminal prosecution against Wiliams is lifted. [928] REVERSED AND RENDERED. DICKINSON, P.J., LAMAR, CHANDLER AND KING, W., CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND RANDOLPH, PJ; COLEMAN, J., JOINS IN PART, COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., RANDOLPH, P.J., AND PIERCE, J. DISSENT PIERCE, JUSTICE, DISSENTING 11129] | 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 Hillburn 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 Hilbum likewise had the authority to transfer the case to the Attorney's General Office once the Hinds County District Attomey 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 Wiliams v. State, 54 So.3d 212 (Miss. 2011). For these reasons, as will be explained, | dissent. [1130] At the outset, the majority finds the question as to whether Judge Hilbum had the authority to rescind his previous nolle prosequi order, not before us. Respecttuly, 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 Hilbum did not have the authority to appoint the Attorney's General Office because Judge Hilbum 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 prosequ/ order and after District Attorney Smith then declined to prosecute the case.!4] Judge Hilbum, as he testified below before Judge Weill, proceeded accordingly because Page 918 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 nal ground is practice is to avoid reaching constitutional questions if a dispositive non-constit available." ) (citation omitted).[131] The district attorney is an important official, but the people, through their representative: 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, itis 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. [1132] 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 nolfe prosequi, lies in the sole discretion of the prosecutor. U.S. v. Cowan, 24 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.2¢ 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). [1133] 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. 641, 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. /d. 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. /d. 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 Page 919 [1134]. 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 abused its discretion in not quashing the defendant's indictment in light of the defendant's detrimental reliance on an agreement with thedistrict attomey). 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, [1135] 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. {1136] 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. /d. at 153. The State appealed, and we reversed the circuit-court judgment for failure to consider the " public interest” before transferring the case, /d. 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, " [nleither 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." /d. at 155-56. We added that the trial court " is mandated by statute to consider matters beyond the interest of the child[; } [the lower court must also review issues before it from an ‘interest of justice’ or public interest view point." /d, " The State has a duty to represent the public's interest in prosecuting violent criminals, ‘no matter what their age.” /d. at 156. [9137] | see no distinction between the mandates of Section 43-21-159(4) and Section 99-15-53, [1138] 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 Attomey 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 Page 920 that [had] come in, whether the [Supreme [Court 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. [1139] 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 Hilbum could not recall how the order was presented, but he stated that 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 prosequ/ 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 Hilbum 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, "| 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. [140] 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 Hilbum 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. [1141] As Judge Hilbumn 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 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 II 177, 68 N.E.2d 265 (1946), the linois 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 Page 921 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 toa 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). [1142] Given Mississippi precedent adhering to the common-law rule that "all judgments, decrees or {court orders}, however conclusive in their character, are under the contol 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" ), 16] fing that Judge Hilburn indeed had the authority to rescind the previously approved nolle prosequi order based on the reasons Judge Hilbum stated for the record, first, at Williams's motion-to-dismiss hearing (over which Judge Hilbum presided) and then at the hearing before Judge Weill [1143] After Judge Hilburn rescinded the nolle prosequi order, Smith informed Judge Milburn that his office would not prosecute the matter. At that point, Smith became " absent" for purposes of sippi Code Section 25-31-21, which contemplates such a circumstance. Judge Hilburn then acted accordingly to law. [144] For these reasons, | dissent. | would reverse Judge Weil's order dismissing cause number 03-0-969, and reinstate and affirm Judge Hilburn's order transferring the matter to the Attomey General's Office Page 922 WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION. COLEMAN, J., JOINS THIS. OPINION IN PART. COLEMAN, JUSTICE, DISSENTIN [1145] | do not agree with the majority's position that the Constitution does not authorize the Attorney General to prosecute the instant case. (Maj. Op. #111). Thus, respectfully, | dissent. [1146] | agree with the result reached by Justice Pierce and | 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 Attomey 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 Attomey General's duties at common law: At common taw 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egal 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 [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. Notes [Io notice was provided Williams or his counsel that Judge Hilburn’s June 13, 2011, order of, rnolle prosequi had been withdrawn two days after its entry. At a hearing before Judge Kilburn ten months later, on April 5, 2012, Williams's counsel related that he had received no notice of the withdrawal. [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 attomeys. Only the attorney general and his or her assistants are eligible. See Miss. Code Ann. § 25-31-21 (Rev. 2010) 3the Seventh Circuit Court District is now comprised of Hinds County only. lo be clear, Judge Hilbur testified before Judge Weill that he rescinded the nolle prosequi order, drafted by the District Attorney's Office, after Judge Hillburn 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, "| don't care.” ©lcranford, 186 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 cour; of course the opinions of each or either of the {justices}, may be recalled, and changed, if he becomes salisfied of error." McRaven, 17 Miss. 34. {8) 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 Driling Co., 251 Miss. 578, 170 $0.2¢ 564 (1965), and Bronson, 104 U.S 410, 26 L.Ed. 797, 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.EXHIBIT L§ 25-31-11, Powers and duties, Mississippi Statutes Title 25, PUBLIC OFFICERS AND EMPLOYEES; PUBLIC RECORDS Chapter 31. DISTRICT ATTORNEYS Current through 2016 Second Extraordinary Session § 25-31-11. Powers and duties (1) (2) (3) (4) (5) (6) 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; but if two (2) or more counties are adversely interested, the district attomey shall not represent either. Any district attorney may also institute and prosecute to final judgment or decree any case in the name of the state against any person or corporation for any violation of the Constitution or the laws of this state, in order to enforce any penalties, fines or forfeitures imposed by law in any court of his district having jurisdiction, with like effect as if the suit was instituted by the Attorney General. The district attomey may transfer any case handled by him to a county prosecuting attorney when charges in such case no longer constitute a felony. The validity of any judgment or sentence shall not be affected by the division of jurisdiction under this section, and no judgment or sentence may be reversed or modified upon the basis that the case was not processed according to this section A county prosecuting attorney or municipal prosecuting attorney may be designated by the district attorney to appear on behalf of the district attorney pursuant to an agreement relating to appearances in certain courts or proceedings in the county of the county prosecuting attorney or in the municipality of the municipal prosecuting attorney. Such agreement shall be filed with the circuit court clerk of any county where such agreement shall be operative. Such agreement shall be binding upon the district attomey and county prosecuting attorney or municipal prosecuting attorney until dissolved by either of them in writing upon five (5) days' notice, Where any statute of this state confers a jurisdiction, responsibility, duty, privilege or power upon a county attorney or county prosecuting attorney, either solely, jointly or alternatively with a district attorney, such county prosecuting attorney shall be responsible for the prosecution, handling, appearance, disposition or other duty conferred by such statute, Any such provision shall not be construed to bestow such responsibility, jurisdiction or power upon the district attorney where there is no elected county prosecuting attorney, and any such matter shall be handled pursuant to Section 19-3-49, Mississippi Code of 1972 ‘The district attorney or his designated assistant, or the county prosecuting attorney or his designated assistant, shall assist the Attorney General in appeals from his district to thea (8) Mississippi Supreme Court and in other post judgment proceedings, and shall appear for oral argument before the Supreme Court when directed by the Supreme Court The several district attomeys shall submit reports of revenues and expenditures and shall submit budget requests as required for State General Fund agencies. For purposes of budget control, the several offices of district attomey shall be considered General Fund agencies and the budget and accounts of the several offices, including salaries, travel expenses, office expenses and any other expenditures or revenues, shall be consolidated for all districts as far as such consolidation is practical All revenue or funds allocated or expended by a district attorney, whether such funds are appropriated from state funds, or whether such funds are received from county funds, grants or otherwise, shall be reported to the Legislative Budget Office. A district attorney shall be authorized to assign the duties of employees regardless of the source of funding for such employees Cite as Miss. Code § 25-31-11, Source: Codes, Hutchinson's 1848, ch. 22, art 3 (4); 1857, ch. 6, art 70; 1871, § 214; 1880, § 256; 1892, § 1555; 1906, § 1661; Hemingway's 1917, § 1398; 1930, § 4363; 1942, § 3920; Laws, 1978, ch. 509, § 9; Laws, 1979, ch. 490, § 2; Laws, 1984, ch. 488, § 175; Laws, 2009, ch. 455, § 4, eff. 7/1/2009.EXHIBIT M§ 7-5-59. Investigation of official corruption, other white collar crimes, and computer crimes. Mississippi Statutes Title 7. EXECUTIVE DEPARTMENT Chapter 5. ATTORNEY GENERAL IN GENERAL Current through 2016 Second Extraordinary Session § 7-5-59. Investigation of official corrupt n, other white collar crimes, and computer crimes (1) The following terms shall have the meanings ascribed to them herein unless the context requires otherwise: (2) "Computer crimes" means those crimes defined in Chapter 45 of Title 97 and sex offenses involving a computer affecting children as defined in Chapter 5 of Title 97. (b) "White-collar crime and official corruption" includes crimes chargeable under the following provisions of law: (i) ) (i (w) w wi) (vil) (viii (ix) (x) i) xi) Paragraphs (b) and (c) of Section 7-5-59(4), which relates to obstruction of white-collar crime investigations, Section 97-7-10, which relates to the defrauding of state and local governments. Section 97-19-73, which relates to fraud by mail, wire, radio or television. Section 97-9-10, which relates to commercial bribery. Section 97-45-3, which relates to computer fraud. Sections 97-11-25 through 97-11-31, which relate to embezzlement by public officials. Section 97-11-33, which relates to extortion by public officials. Sections 97-19-5 through 97-19-31, which relate to unlawful procurement or use of credit cards. Sections 97-23-1 and 97-23-3, which relate to false, misleading or deceptive advertising Sections 97-15-3 and 97-15-5, which relate to bribery of members and employees of the Highway Commission and the defrauding of the state by Highway Commission members, employees or highway contractors. Section 97-5 5, which relates to bribery of jurors. Sections 97-11-11, 97-11-13 and 97-11-53, which relate to acceptance of bribes by public officials and bribery of public officials,(xili_ Sections 97-13-1 and 97-13-3, which relate to bribery of electors or election ) officials. (xiv Sections 97-23-19 through 97-23-27, which relate to embezzlement. ) (c) "White-collar crime investigations” means an investigation into any illegal act or acts defined as white-collar crime. (4) “Computer crimes investigations" means an investigation into any illegal act or acts defined as computer crime. {e) "Person" means and includes not only an individual, but also a partnership, corporation, professional firm, nonprofit organization or other business entity. (2) The Attorney General is hereby authorized to conduct official corruption investigations and such other white-collar crime investigations and computer crime investigations that are of statewide interest or which are in the protection of public rights. (3) (a) _In conducting white-collar crime and computer crime investigations, the Attorney General shall have the authority to issue and serve subpoenas to any person in control of any designated documents for the production of such documents, including, but not limited to, writings, drawings, graphs, charts, photographs, phono-records, subscriber records and other data compilations from which information can be obtained, or translated through detection devices into reasonably usable form. Such subpoenas shall require the named person, his agent or attorney, to appear and deliver the designated documents to a location in the county of his residence unless the court for good cause shown directs that the subpoena be issued for the person to deliver such documents to a location outside of the county of his residence. Mere convenience of the Attorney General shall not be considered good cause. The Attorney General or his designee shall have the authority to inspect and copy such documents. Such subpoenas shall be issued only upon the ex parte and in camera application of the Attorney General to the circuit or chancery court of the county of residence of the person in control of the documents or the circuit or chancery court of the county where the person in control of the documents may be found, and only upon a showing that the documents sought are relevant to a criminal investigation under this act or may lead to the discovery of such relevant evidence. Thereafter said court shall have jurisdiction to enforce or quash such subpoenas and to enter appropriate orders thereon, and nothing contained in this section shall affect the right of a person to assert a claim that the information sought is privileged by law. (b) A subpoena issued pursuant to this subsection shall be in substantially the(c) following form "SUBPOENA TO PRODUCE DOCUMENTS PURSUANT TO AN INVESTIGATION BY THE ATTORNEY GENERAL TO: YOU ARE HEREBY COMMANDED to appear before the Attorney General of the State of Mississippi or his designated staff attorney at the place, date and time specified below in an investigation being conducted by the Attorney General pursuant to Section 7-5-59, Mississippi Code of 1972: Place Date and Time YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s), You are advised that the Court of the Judicial District of County, Mississippi, has approved the ex parte and in camera application of the Attorney General to issue this subpoena, and jurisdiction to enforce and/or quash the subpoena and to enter appropriate orders thereon is statutorily vested in the said court; enforcement and penal provisions applicable to an Attorney General's investigation include those set forth in Section 7-5-59(4), Mississippi Code of 1972; and disclosure of testimony andlor records coming into possession of the Attorney General pursuant to this subpoena shall be limited by and subject to the provisions of Section 7-5-59(6), Mississippi Code of 1972, (for informational purposes, these cited statutes are reproduced on the reverse side of this subpoena). ‘You may wish to consult an attorney in regard to this subpoena. You have certain state and federal constitutional rights, including your protection against self- incrimination and unreasonable search and seizure which this subpoena may affect ISSUED BY AND UNDER SEAL OF THE ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, this the day of , 20 (SEAL)" Following service of any subpoena, pursuant to the provisions of this subsection, a record of the return shall be made and kept by the Attorney General and subject only to such disclosure as may be authorized pursuant to the provisions of this section (4) Enforcement and penal provisions applicable to an investigation under this section shall include the following (a) Ha person who has been served with a subpoena, which has been issued and served upon him in accordance with the provisions of this section, shall fail to deliver or have delivered the designated documents at the time and place required in the subpoena, on application of the Attorney General the circuit or chancery court having approved the issuance of the subpoena may issue an attachment for such person, returnable immediately, or at such time and place as the court may(5) (b) (c) (a) (b) direct. Bond may be required and fine imposed and proceedings had thereon as in the case of a subpoenaed witness who fails to appear in circuit or chancery court. Every person who shall knowingly and willfully obstruct, interfere with or impede an investigation under this section by concealing or destroying any documents, papers or other tangible evidence which are relevant to an investigation under this section shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($ 5,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment. Every person who shall knowingly and willfully endeavor, by means of bribery, {force or intimidation, to obstruct, delay or prevent the communication of information to any agent or employee of the Office of the Attorney General or who injures another person for the purpose of preventing the communication of such information or an account of the giving of such information relevant to an investigation under this section shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($ 5,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment. The provisions of paragraphs (a), (b) and (c) of this subsection shall not prohibit the enforcement of, or prosecution under, any other statutes of this state. Hf any person shall refuse, or is likely to refuse, on the basis of his privilege against self-incrimination, produce the designated documents as requested by a subpoena issued under this section or issued by a court, the Attorney General may request the court, ex parte and in camera, to issue an order requiring such person to produce the documents information which he refuses to give or provide on the basis of his privilege against self-incrimination. The Attorney General may request said order under this subsection when, in his judgment (i) The documents sought from such individual may be necessary to the public interest; and (ii) Such individual has refused or is likely to refuse to produce the designated document on the basis of his privilege against self-incrimination Following such request, an order shall issue in accordance with this section requiring such person to produce the documents which he refuses to produce on the basis of his privilege against self-incrimination. Whenever a witness refuses, on the basis of his privilege against self-incrimination, to produce documents, and the court issues to the witness an order under paragraph (a) of this subsection, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination, but no documents orinformation compelled under the aforesaid order, or any information directly or indirectly derived from such documents may be used against the witness in any criminal proceeding, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. (6) Documents in the possession of the Attorney General gathered pursuant to the provisions of this section and subpoenas issued by him shall be maintained in confidential files with access limited to prosecutorial and other law enforcement investigative personnel on a “need-to-know” basis and shall be exempt from the provisions of the Mississippi Public Records Act of 1983, except that upon the filing of an indictment or information, or upon the filing of an action for recovery of property, funds or fines, such documents shall be subject to such disclosure as may be required pursuant to the applicable statutes or court rules governing the trial of any such judicial proceeding, (7) No person, including the Attorney General, a member of his staff, prosecuting attorney, law enforcement officer, witness, court reporter, attorney or other person, shall disclose to an unauthorized person documents, including subpoenas issued and served, gathered by the Attorney General pursuant to the provisions of this section, except that upon the filing of an indictment or information, or upon the filing of an action for recovery of property, funds or fines, or in other legal proceedings, such documents shall be subject to such disclosure as may be required pursuant to applicable statutes and court rules governing the trial of any such judicial proceeding. In event of an unauthorized disclosure of any such documents gathered by the Attomey General pursuant to the provisions of this section, the person making any such unauthorized disclosure shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than (One Thousand Dollars ($ 1,000.00), or imprisonment of not more than six (6) months, or by both such fine and imprisonment. (8) The powers of the Attorney General under this section shall not diminish the powers of local authorities to investigate or prosecute any type of white-collar crime violation, computer crime violation or any other criminal conduct within their respective jurisdictions, and the provisions of this section shall be in addition to the powers and authority previously granted the Attorney General by common, constitutional, statutory or case law. (9) No person, agent or employee upon whom a subpoena is served pursuant to this section shall disclose the existence of the investigation to any person unless such disclosure is necessary for compliance with the subpoena. Any person who willfully violates this subsection shall be guilty of a misdemeanor and may be confined in the county jail for a period not to exceed one (1) year or fined not more than Ten Thousand Dollars ($ 10,000.00), or both. Cite as T.C.A. § 7-5-59 ‘Source: Former § 7-5-59 [Codes, 1942, § 3828-11; Laws, 1964, ch. 331; Laws, 1968, ch. 358, § 1] Repealed byLaws, 1981, § 58. New § 7-5-59 enacted by Laws, 1988, ch. 511, § 1; Laws, 2009, ch. 387, § 4, eff. 7/1/2009.EXHIBIT N§7-5-53. To assist district attorneys, ississippi Statutes Title 7. EXECUTIVE DEPARTMENT Chapter 5. ATTORNEY GENERAL IN GENERAL Current through 2016 Second Extraordinary Session §7-5-53. To assist district attorneys ‘The Attomey General shall, when required by the 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. Cite as T.C.A, § 7-5-53 Source: Codes, 1892, § 184; 1906, § 190; Hemingway's 1917, § 3478; 1930, § 3674; 1942, § 9845; Laws, 1988, ch. 611, § 5, eff. 7/1/1988,