IN THE SUPREME COURT OF MISSISSIPPI NO IA SCT. HARVEY WILLIAMS, JR. a/k/a SMOKIE

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1 E-Filed Document Mar :10: IA SCT Pages: 28 IN THE SUPREME COURT OF MISSISSIPPI NO IA SCT HARVEY WILLIAMS, JR. a/k/a SMOKIE APPELLANT V. STATE OF MISSISSIPPI APPELLEE APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI BRIEF OF THE APPELLEE STATE OF MISSISSIPPI JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI Harold E. Pizzetta III, MSB No Assistant Attorney General Mary Jo Woods, MSB No Special Assistant Attorney General Post Office Box 220 Jackson, Mississippi Telephone (601) Facsimile (601) ORAL ARGUMENT NOT REQUESTED

2 STATEMENT REGARDING ORAL ARGUMENT The State of Mississippi, Appellee herein, respectfully submits that there exists sufficient authority on point to resolve the issues presented in this case. Moreover, the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. i

3 TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...5 I. STANDARD OF REVIEW....5 II. III. IV. THE ATTORNEY GENERAL HAS BOTH CONSTITUTIONAL AND STATUTORY AUTHORITY TO PROSECUTE CRIMINAL CASES ON BEHALF OF THE STATE OF MISSISSIPPI THE ATTORNEY GENERAL AND DISTRICT ATTORNEYS HAVE CONCURRENT AUTHORITY TO PROSECUTE THE CRIME OF MURDER ON BEHALF OF THE STATE OF MISSISSIPPI THERE IS NO CONFLICT BETWEEN ATTORNEY GENERAL AND DISTRICT ATTORNEY AUTHORITY IN LIGHT OF THE DISTRICT ATTORNEY S DISMISSAL OF HIS CRIMINAL PROSECUTION...17 V. THERE IS NO SEPARATION OF POWERS ISSUE PRESENTED IN THIS MATTER...19 VI. INTERLOCUTORY APPEAL WAS IMPROVIDENTLY GRANTED CONCLUSION...21 CERTIFICATE OF SERVICE...23 ii

4 TABLE OF AUTHORITIES Federal Cases th Cantrell v. Kelley, 1990 WL (4 Cir. 1990) Metro Med. Supply, Inc. v. Shalala, 959 F. Supp. 799 (M.D. Tenn. 1996) Wade v. Miss. Coop. Extension Serv., 392 F. Supp. 229 (N.D. Miss. 1975) Mississippi Cases A-1 Pallet Co. v. City of Jackson, 40 So. 3d 563 (Miss. 2010) Arceo v. Tolliver, 19 So.3d 67 (Miss. 2009)...5 Bell v. State, 678 So.2d 994 (Miss. 1996)...6, 12, 13, 14 Capitol Stages, Inc. v. State ex rel. Hewitt, 157 Miss. 576, 128 So. 759 (1930) , 7 Conwill v. State, 94 So.3d 1173 (Miss. 2011)...18 Dunn Const. Co. v. Craig, 2 So.2d 166 (Miss. 1941)...6, 15 Dunn v. Yager, 58 So. 3d 1171 (Miss. 2011)...20 Gandy v. Reserve Life Ins. Co., 279 So.2d 648 (Miss. 1973) passim Kennington-Saenger Theaters v. State ex rel. Dist. Atty., 18 So. 2d 483 (Miss. 1944) Miller v. State, 12 So. 265 (Miss. 1891)...12 Powe v. Byrd, 892 So.2d 223 (Miss. 2004)...5 Pursue Energy Corp. v. Miss. State Tax Comm n, 816 So.2d 385 (Miss. 2002) Smith v. State, 121 So. 282 (Miss. 1929)...8 State ex rel. Allain v. Mississippi Pub. Serv. Comm n, 418 So. 2d 779 (Miss. 1982) , 6, 7 State ex rel. Paterson v. Warren, 180 So.2d 293 (Miss. 1965) passim State ex rel. Rice v. Stewart, 184 So. 44 (1938)...7 State v. Shumpert, 723 So. 2d 1162 (Miss. 1998)...18 Williams v. State, 54 So.3d 212 (Miss. 2011)...1, 2 Mississippi Constitution and Statutes Miss. Const. art. 6, Miss. Const. art. 6, Miss. Code Ann , 9, 16 Miss. Code Ann (2)(a)...9 Miss. Code Ann (3)...9 Miss. Code Ann , 15 Miss. Code Ann Miss. Code Ann (8)...11 Miss. Code Ann Miss. Code Ann Miss. Code Ann (2)...11 Miss. Code Ann Miss. Code Ann iii

5 Miss. Code Ann Miss. Code Ann Other 2012 Miss. Laws Ch. 546 (H.B. 211)...9 iv

6 STATEMENT OF THE CASE AND FACTS The State of Mississippi, by and through the Hinds County District Attorney s Office, successfully prosecuted Harvey Smokie Williams, Jr., for murder in the shooting death of Calvin Younger in the parking lot at Jay s Lounge in Jackson, alleged by the defendant to be an act of self-defense. Williams v. State, 54 So.3d 212, 213 (Miss. 2011). On appeal, this Court held that the trial court erred in excluding, as not previously disclosed, potentially exculpatory testimony by the bouncer, Anthony Herrington, that Younger had possessed a firearm earlier that night. The Court reversed Williams conviction and remanded the case to the trial court for a new trial. Following remand, the Hinds County District Attorney s Office sought an order of nolle prosequi based on alleged new evidence of self-defense, which was signed by Circuit Judge Breland Hilburn on June 13, (C.P. 39). Within a couple of days after entering the nolle prosequi order, Judge Hilburn sua sponte submitted a withdrawal of the order. (C.P. 49, 66, 68, 70; 4/5/2012 Tr. 3, 5, 7). On March 13, 2012, Judge Hilburn entered an order signed by an assistant district attorney indicating that the Hinds County District Attorney s Office was recusing itself from this matter to allow the original prosecuting attorneys, now in the Mississippi Attorney General s Office, to handle the case moving forward. (C.P. 50). Judge Hilburn then entered an order appointing the Mississippi Attorney General s Office as special prosecutor in the case as a result of the recusal of the Hinds County District Attorney s Office. (C.P. 51). On September 10, 2012, Williams filed a motion to dismiss the case, alleging that Judge Hilburn s original nolle prosequi order effectively brought the case to an end, and that the trial 1

7 judge lacked authority to sua sponte revive the case without a new indictment. (C.P ). Williams also sought an order from the trial court holding that the appointment of the Mississippi Attorney General s Office as special prosecutor was improper. (Id.). In response, the State, through the Attorney General s Office, conceded that the nolle prosequi order concluded the prosecution of this case, and that the State would have to re-indict Williams in order to proceed with a new prosecution. However, the Attorney General s Office also cited long-standing case law providing that the Attorney General has authority to prosecute the case under his constitutional common law and statutory authority, with or without appointment by the trial judge as special prosecutor. (C.P ; 10/29/2012 Tr ). Following a hearing on the matter, Circuit Judge Jeffrey A. Weill, Sr., entered an order on February 14, 2013, dismissing the case as concluded pursuant to the nolle prosequi order. (C.P ). However, based on the common law and statutory authority of the Attorney General, the trial judge declined to grant Williams s request for a permanent injunction prohibiting the Attorney General s Office from prosecuting the case in a subsequent action. Id. It is from this order that Williams sought and was granted interlocutory appeal to this Court. 2

8 SUMMARY OF THE ARGUMENT Harvey Williams indictment for murder was voluntarily dismissed by the Hinds County District Attorney through a nolle prosequi order. The trial court confirmed that the district attorney has made clear his intentions not to prosecute this Defendant. The central issue presented in this appeal is whether a district attorney s decision to dismiss a criminal indictment through a nolle prosequi order bars the Attorney General from exercising his concurrent authority to enforce the criminal laws of the State of Mississippi by re-indicting the criminal defendant. In effect, Williams argues that the district attorney s decision to seek a nolle prosequi order operates as a permanent injunction or a de facto grant of immunity prohibiting the Attorney General from subsequently re-indicting him on the same grounds. Williams position is that only the district attorney may re-indict him following a nolle prosequi order. In the alternative, Williams appears to argue that the Attorney General lacks the independent legal authority to prosecute a defendant for the crime of murder unless the Attorney General is requested to initiate such a prosecution by the district attorney. Neither proposition is correct. As this Court recognized in State ex rel. Allain v. Mississippi Pub. Serv. Comm'n, 418 So. 2d 779, 781 (Miss. 1982), the Attorney General has both constitutionally-protected common law authority and separately enacted statutory authority to enforce the criminal laws of the State of Mississippi. The Attorney General is the chief law officer entrusted with the management of all legal affairs, and prosecution of all suits, criminal and civil, in which the state is a party or in which the state has an interest. He has the authority to institute, conduct, and maintain all suits 3

9 necessary for the enforcement of the laws of the state, preservation of order, and the protection of public rights. In the area of criminal law, the Attorney General has concurrent authority with district attorneys to enforce the criminal laws. Concurrent authority means that both have the independent authority, with or without the involvement of the other, to initiate criminal prosecutions. This matter does not present a true conflict between the authority of the Attorney General and a district attorney. The Hinds County District Attorney sought and received a nolle prosequi order dismissing the district attorney s criminal case. The district attorney has stated that he does not intend to prosecute Williams. A nolle prosequi order unconditionally dismisses a criminal indictment, but without prejudice to the state to seek re-indictment. The nolle prosequi order is not a grant of immunity and does not prohibit the Attorney General from re-indicting Williams. A district attorney s decision not to prosecute does not trump, bind, or limit the Attorney General s authority to prosecute. Williams also asserts that by refusing to enjoin the Attorney General from seeking a reindictment the trial court impermissibly and forcibly removed the district attorney from the case and substituted the Attorney General in violation of the Constitution s separation of powers provision. This is incorrect. The district attorney s office had previously and voluntarily terminated its criminal case by way of the nolle prosequi order. The district attorney has stated that he does not intend to prosecute the Williams. The district attorney was not forcibly removed. Further, the Attorney General is not being forced against his will by a trial court to conduct a criminal prosecution that he otherwise would decline to bring. The Attorney General 4

10 is freely and willingly prosecuting this important matter and will do so by seeking to re-indict Williams. In sum, the trial court did not forcibly remove the district attorney from the case nor has the trial court forced the Attorney General to prosecute this matter. Finally, the briefing in this matter evidences that the interlocutory appeal was improvidently granted and it should be dismissed. This matter does not present a separation of powers question nor a conflict between the authority of the Attorney General and district attorney as advertised by Williams. The trial court was correct in denying Williams s motion to permanently enjoin the Attorney General from seeking a subsequent indictment. A permanent injunction is an extreme remedy and can be issued only where the movant establishes that he would have no other adequate remedy at law. In the event that Williams is re-indicted, his adequate remedy at law is a motion to dismiss the indictment. ARGUMENT I. STANDARD OF REVIEW Statutory interpretation, which is a question of law, is reviewed de novo. Arceo v. Tolliver, 19 So.3d 67, 70 (Miss. 2009); Powe v. Byrd, 892 So.2d 223, 227 (Miss. 2004). II. THE ATTORNEY GENERAL HAS BOTH CONSTITUTIONAL AND STATUTORY AUTHORITY TO PROSECUTE CRIMINAL CASES ON BEHALF OF THE STATE OF MISSISSIPPI. Williams argues that district attorneys have the exclusive authority to prosecute criminal cases within the counties of their respective districts absent a conflict of interest or a request to the Attorney General by the district attorney or the Governor. To the contrary, as the state s chief legal officer for criminal matters, the Attorney General has both constitutional and statutory authority to enforce the criminal laws of the state and to prosecute criminal cases 5

11 brought in the name of the state. This includes concurrent authority with a district attorney to prosecute the crime of murder. The office of Attorney General for the State of Mississippi is created by Article 6, Section 173 of the Mississippi Constitution, which provides: 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. This Court has repeatedly held that this constitutional provision confers upon the Attorney General all powers vested in the attorney general at common law. See, e.g., Pursue Energy Corp. v. Miss. State Tax Comm n, 816 So.2d 385, 389 (Miss. 2002); Bell v. State, 678 So.2d 994, 996 (Miss. 1996); Gandy v. Reserve Life Ins. Co., 279 So.2d 648, 649 (Miss. 1973); State ex rel. Paterson v. Warren, 180 So.2d 293, 299 (Miss. 1965); Kennington-Saenger Theaters v. State ex rel. Dist. Atty., 18 So. 2d 483, 486 (Miss. 1944); Dunn Const. Co. v. Craig, 2 So.2d 166, 175 (Miss. 1941); Capitol Stages, Inc. v. State ex rel. Hewitt, 157 Miss. 576, 128 So. 759, (1930); see also Wade v. Miss. Coop. Extension Serv., 392 F. Supp. 229, (N.D. Miss. 1975). The duties of the Attorney General were not prescribed by the Constitution, nor did it provide that they would necessarily have to be prescribed by the legislature. They existed at common law.... The 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 Theaters, 18 So.2d at 486 (internal citations omitted). This Court described the Attorney General s common law duties in State ex rel. Allain v. Mississippi Pub. Serv. Comm'n as follows: 6

12 At common law the duties of the attorney general, as chief law officer of a realm, were numerous and varied. He was chief legal adviser of the crown, was entrusted with the management of all legal affairs, and prosecution of all suits, criminal and civil, in which the crown was interested. He had authority 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. * * * The Attorney General is a constitutional officer possessed of all the power and authority inherited from the common law as well as that specifically 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. State ex rel. Allain, 418 So. 2d 779, 781 (Miss. 1982) (emphasis supplied) (quoting State v. Warren, 180 So.2d 293, 299 (1965) and Gandy v. Reserve Life Insurance Company, 279 So.2d 648, 649 (Miss.1973)); see also State ex rel. Rice v. Stewart, 184 So. 44, 46 (1938) ( attorney general is vested with both statutory and common law authority to represent the sovereign in the 1 enforcement of its laws and protection of public rights. ). 1 Capitol Stages is an example of how the Attorney General s authority is more expansive than that of district attorneys in the civil context. While the Attorney General and district attorneys have concurrent jurisdiction to prosecute the crime of murder, district attorneys and the Attorney General do not have concurrent jurisdiction over civil matters brought in the name of the state. Only the Attorney General may initiate a civil suit over statewide matters. Capitol Stages, 128 So. at 764. A district attorney may not bring a civil suit of statewide concern. Id. In the criminal sphere, Capitol Stages recognized that both the district attorney and the Attorney General have prosecutorial authority. The Attorney General may bring all suits necessary for the enforcement of the laws of the state, the preservation of order, and protection of public rights. Id. at 763. Capitol Stages explicitly confirmed that the Attorney General is the chief legal adviser of the crown and entrusted with the management of all legal affairs, and the prosecution of all suits, civil and criminal, in which the crown was interested. Id. (emphasis supplied). Certainly a murder prosecution brought by the State is a criminal suit in which the crown was interested. 7

13 The Attorney General s broad prosecutorial authority is further supported by the fact that crimes are prosecuted in the name of, and on behalf of, the State of Mississippi and it is the Attorney General who serves as chief legal counsel to the state. See Smith v. State, 121 So. 282, 282 (Miss. 1929) ( The prosecution is not conducted in the name of the owner, nor for his benefit; but it is conducted in the name of the state, and the state alone, insofar as the prosecution is concerned, is the aggrieved party. ); State ex rel. Patterson, 180 So.2d at 299 (Attorney General has authority to prosecute all suits in which the crown was interested ). A prosecution in the name of the state for the crime of murder fits well within the Attorney General s authority as the chief law officer who manages the prosecution of all suits, criminal and civil. A murder prosecution brought by the state is a matter in which the crown (i.e., the state) is interested, it is brought on behalf of the state, it affects public safety, it is a concern to the general public, and it is a suit for the enforcement of the laws of the state, preservation of order and the protection of public rights. The Attorney General s constitutionally protected common law authority has been complemented and confirmed by the Mississippi Legislature by statute. The legislature has defined the Attorney General as the chief legal officer and advisor for the state, both civil and criminal,... charged with managing all litigation on behalf of the state, and having the powers 2 of the Attorney General at common law. Miss. Code Ann ; see also Miss. Code Ann. 2 Williams wrongly argues that a recent amendment to Section removed the Attorney General s general authority to prosecute crimes. See Williams Br. at 6-7. In 2012, the legislature amended by adding the underlined text: He shall be 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. No arm or agency of the state 8

14 (recognizing the Attorney General s broad prosecutorial authority by noting that statutory authority relating to white collar prosecutions, such as the authority to issue subpoenas, was in addition to the powers and authority previously granted the Attorney General by common, constitutional, statutory or case law ). Also evidencing the Attorney General s authority to prosecute violations of state criminal law, the legislature has authorized and empowered the Attorney General to appoint special prosecutors to assist the Attorney General in the prosecution of any litigation in the state... in which the state is a party or has an interest. 3 Miss. Code Ann (2)(a); see also Miss. Code Ann (3). Because all criminal government shall bring or defend a suit against another arm or agency without prior written approval of the Attorney General. He shall have the powers of the Attorney General at common law and, except as otherwise provided by law, is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest. Miss. Code Ann The recent amendments were enacted to purportedly limit the Attorney General s authority with respect to certain civil suits utilizing outside counsel. See 2012 Miss. Laws Ch. 546 (H.B. 211). Leaving for another day whether the legislature can limit the Attorney General s common law authority, it is clear that the language except as otherwise provided by law pertained to House Bill 211 s restrictions on civil suits and did not attempt to create any new restrictions on the Attorney General s criminal authority. Indeed, there is no statutory provision which otherwise explicitly limits the Attorney General s authority to prosecute crimes in general or the crime of murder. If the legislature intended to so fundamentally (and unconstitutionally) change and restrict the Attorney General s prosecutorial authority in 2012 through House Bill 211, it would be clearly stated. 3 Section 7-5-7(3) authorizes the Attorney General to employ special investigators for services that may be needed by the Attorney General in the preparation for and prosecution of suits by or against the State of Mississippi, or in suits in which the Attorney General is participating on account of same being of statewide interest. Of note, the legislature is highlighting two types of suits within the authority of the Attorney General. First, the Attorney General may prosecute suits in the name of the State, such as criminal cases. Separately, the Attorney General may also become involved in any suit, such as a civil suit, which is of statewide interest. There is no statewide interest requirement for criminal prosecutions initiated by the Attorney General. 9

15 prosecutions are brought in the name of the state, the state is a party or has an interest in all such prosecutions. Consistent with the Attorney General s broad authority to prosecute violations of criminal law, the legislature has also authorized the Attorney General to employ investigators with statewide authority to enforce the criminal laws of this state. Miss. Code Ann In sum, the Attorney General s broad common law authority conferred by the Constitution and endorsed by statute authorizes him to enforce the criminal laws of the state by prosecuting criminal defendants. III. THE ATTORNEY GENERAL AND DISTRICT ATTORNEYS HAVE CONCURRENT AUTHORITY TO PROSECUTE THE CRIME OF MURDER ON BEHALF OF THE STATE OF MISSISSIPPI. Williams advocates for a fundamental change in our constitutional and criminal structure. As an initial matter, it is not entirely clear whether Williams is arguing that (1) the Attorney General has no authority to prosecute a defendant for murder because that is a local crime (see Williams Br. at 5) or (2) the Attorney General has no authority to prosecute him because the district attorney decided to dismiss the charges through an order of nolle prosequi. Neither argument is correct. The Attorney General and district attorneys have concurrent authority to prosecute crimes, with neither office able to direct the operation of the other. There are no local crimes which are beyond the authority of the Attorney General, and, if there were, the crime of murder 4 with its unquestionable harm to public safety and order is not a local crime. While the 4 The legislature has explicitly recognized the existence of this concurrent authority to enforce criminal laws. For example, when the legislature enacted a code section addressing 10

16 legislature has authorized district attorneys to prosecute violations of state criminal law, that authority did not come at the expense of the Attorney General s authority as the chief law officer outlined above. 5 Such coexistent authority is not unusual given that the common law the duties of the attorney general, as chief law officer of a realm, were numerous and varied. See State ex rel. Patterson, 180 So.2d at 299. When two entities have independent but overlapping authority to enforce state laws, either entity may act, with or without the other. This Court addressed a similar situation in Gandy v. Reserve Life Ins. Co., and noted: We are of the opinion the Attorney General and the Commissioner of Insurance, both separately and conjunctively, have the lawful authority to maintain this suit. The Attorney General is a constitutional officer possessed of all the power and authority inherited from the common law as well as that specifically conferred white collar crime and providing the Attorney General with special authority to issue investigative subpoenas, the legislature noted: 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. Miss. Code Ann (8). Similarly, Williams notes that the legislature has authorized the Attorney General to request a statewide grand jury to consider certain drug crimes. See Miss. Code Ann et seq. Again, this is a grant of additional prosecutorial authority and is not a restriction on the Attorney General s previously existing authority. Indeed, the State Grand Jury Act notes that [w]henever the Attorney General considers it necessary, and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition for the impaneling of this special grand jury. Miss. Code Ann (2). 5 A district attorney s authority exists solely as a matter of statutory grace. District attorneys have no common law authority or independent constitutional authority. See Miss. Const. art. 6, 174 (creating the office of district attorney but noting that its duties are to be prescribed by statute). 11

17 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. Since the nature of the present bill is to maintain and preserve the lawfully enacted statutes of the state relating to insurance by restraining violations thereof, we conclude that the Attorney General is vested with the authority and, indeed, has the duty so to do. The Insurance Commissioner similarly has the authority to enforce the statutory provisions relating to insurance by the institution of suit. Section 5624, Miss. Code 1942 (1956). Since each of these officials is empowered to bring suit, certainly there is no prohibition in their joining in a bill of complaint for the enforcement of the insurance statutes. 279 So.2d at 649; Miller v. State, 12 So. 265, 266 (Miss. 1891) (suit on a state treasurer s bond may be prosecuted by the attorney general without the assent of the district attorney); cf State ex rel. Patterson, 180 So.2d at 300 ( there is no statute prohibiting the attorney general from bringing a suit of this nature. The fact that the district attorney, with the consent of the attorney general, may bring a suit of this type, does not limit or exclude the latter s general authority. ). As was the case with the Commissioner of Insurance and the Attorney General in Gandy, in this matter the Attorney General and the Hinds County District Attorney may prosecute this matter separately or conjunctively. Given the concurrent authority, the Attorney General does not require a district attorney s permission nor invitation to prosecute violations of criminal laws nor does a district attorney s objection deprive the Attorney General of his constitutional and statutory authority to prosecute criminal cases. The authority of the district attorney cannot encroach on the powers of the Attorney General. State ex rel. Patterson, 180 So.2d at 299. This Court was directly faced with the question presented here in Bell v. State, 678 So.2d 994 (Miss. 1996). The criminal defendant in that case challenged the Attorney General s authority to empanel and specially call the grand jury and present charges to the grand jury without a request for assistance by the local district 12

18 6 attorney and without the direction of the governor. Id. at 996. This Court found that the trial judge, and not the Attorney General, recalled the grand jury, albeit at the Attorney General s request. In addition, and directly on point here, the Court held: 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 Attorney 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. Id. In other words, this Court held that the Attorney General has the authority to present criminal charges before a local grand jury, without a request for assistance by the district attorney or the governor, pursuant to his common law authority. To hold otherwise would make the Attorney General s broad constitutional and statutory authority inappropriately subject to, and subordinate to, the limited statutory authority of district attorneys. That the district attorney might also prosecute this case does not limit or exclude the Attorney General s general authority to do so pursuant to his common law powers and duties as chief law officer of the state. See Warren, 180 So.2d at 300 (overlapping authority of district attorney to pursue action against county supervisors for illegal appropriations and expenditures did not limit attorney general s authority to do so). Williams citation to Section is of no assistance to his argument. Section provides in part that the Attorney General shall, when required by the public service or when 6 Contrary to Williams assertion, the district attorney in Bell did not request assistance from the Attorney General. Id. at

19 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.... Miss. Code Ann (emphasis supplied). In this matter, the Attorney General is not forcibly assisting the district attorney in the prosecution of a criminal case. Instead, as Williams recognizes, the district attorney has voluntarily terminated the district attorney s prosecution by way of a nolle prosequi order. The district attorney has made clear his intentions not to prosecute this Defendant. See Order (C.P. 81). Any subsequent prosecution of Williams by the Attorney 7 General will be an action that does not involve the district attorney. Further, even if did apply in this circumstance, it is the Attorney General s discretionary decision as the chief law officer as to whether the public service requires him to prosecute Williams. The Attorney General has the right to pursue the prosecution in the current case if in his judgment the public interest should so require, since he is a constitutional officer possessed of all the power and authority vested in such an official at common law, and, in addition, such as have been conferred on him by statute, including the right to institute, conduct, and maintain all suits necessary for the enforcement of the laws of the state, the preservation of 8 order, and protection of the public rights. Dunn Const., 2 So.2d at 174 (quotations omitted). 7 The argument that Section prohibits the Attorney General from prosecuting a matter separately and without the involvement of the district attorney was raised by the dissent in Bell but rejected by the majority. See 678 So.2d at 1000 (McRae, J., dissenting). 8 It is unquestionable that enforcing the state s criminal laws against murder would be in the public service, as well as within the Attorney General s authority to enforce the laws of the state, preserve order, and protect public rights. In this matter, two circuit court judges have implicitly concluded that this prosecution should proceed. See Orders (C.P. 74, 75, 80). Also, Assistant District Attorney Scott Rogillio represented to the trial court that the district attorney s 14

20 Williams reads Section to require either direction from the Governor or the approval of the district attorney before the Attorney General may assist in a criminal prosecution. Williams is adding phrases to the statute that do not exist. The Attorney General may assist when required by the public service or when directed by the Governor. Section is not dependent on the acquiescence of the district attorney. Moreover, as Section does not authorize a district attorney to refuse the assistance of the Attorney General when in the public service, it would be incorrect to conclude that Section authorizes a district attorney to refuse to permit the Attorney General to prosecute a matter without the involvement of the district attorney. Williams proposition that district attorneys have the authority to limit the operation of the Attorney General is contrary to the overall structure imposed on district attorneys by the legislature. For example, there are numerous statutes providing that district attorneys cannot undertake certain actions unless they have the approval of the Attorney General. See, e.g., Miss. Code Ann ( No district attorney of this state, without the consent in writing of the attorney general, shall institute or prosecute any civil suit for a violation of the anti-trust statutes of this state; and no court shall take cognizance of any such suit without such written consent of the attorney general. ); Miss. Code Ann ( the district attorney with the approval of office was voluntarily recusing itself from this case because the Attorneys that originally prosecuted this matter now work in the Mississippi Attorney General s Office. See Recusal Order (C.P. 74). While the district attorney now disavows that representation to trial court, the representation was made and reflects that prosecution by the Attorney General would be in the public service. Further, requiring a judicial determination or review of the public service of a prosecution will spur collateral litigation in each prosecution involving the Attorney General in which each criminal defendant will seek a mini-trial requiring proof of public service before the prosecution can proceed. Such a procedural diversion does not exist and should not be created. 15

21 the attorney general may file suits related to the collection of state debt); Miss. Code Ann ( with the approval of the attorney general a district attorney may pursue actions against all persons indebted to the state or any county within his district ); cf. Miss. Code Ann (the Attorney General administers the District Attorneys Operation Fund ). In contrast, the legislature has not explicitly provided that the Attorney General s prosecutorial authority is limited by, or subject to approval from, a district attorney. Instead, the legislature has recognized the broad and general authority of the Attorney General to prosecute crime by designating the Attorney General as the chief legal officer and advisor for the state, both civil and criminal. Miss. Code Ann Simply stated, Williams position that the Attorney General may only prosecute crimes when invited or approved by a district attorney is flatly wrong. Williams seeks to remove the Attorney General as the chief law officer entrusted by the Constitutional and the legislature with the authority to prosecute all criminal suits brought in the name of the state, including suits for the enforcement of the laws of the state, preservation of order, and the protection of public rights. Williams would relegate the Attorney General to the position of an assistant to the district attorneys who must receive the permission of a district attorney before enforcing the state s criminal laws. Such is not and never has been the law. The Attorney General and district attorneys have concurrent prosecutorial authority in this matter, neither office is subservient to the other, and neither office must seek the permission of the other before enforcing the criminal law against murder. IV. THERE IS NO CONFLICT BETWEEN ATTORNEY GENERAL AND DISTRICT ATTORNEY AUTHORITY IN LIGHT OF THE DISTRICT ATTORNEY S DISMISSAL OF HIS CRIMINAL PROSECUTION. 16

22 The entry of the nolle prosequi order is recognized by all parties to have dismissed the pending indictment, ended the Hinds County District Attorney s prosecution of Williams, and ended Cause Number See Order (C.P. 80). The Hinds County District Attorney has 9 indicated that he does not intend to prosecute Williams. See Order (C.P. 81). Therefore, in light of the concurrent authority of both the Attorney General and a district attorney to prosecute the crime of murder, this case does not present a conflict between the Attorney General and district attorney. Williams argues that the trial court erred because the Hinds County District Attorney s decision to enter a nolle prosequi cannot be second guessed, usurped, or interfered with by Judge Hilburn or Weill. See Williams Br. at 15. In fact, the nolle prosequi motion was granted and was recognized as validly dismissing the pending indictment. See Order (C.P ). The trial court committed no error. Given that the nolle prosequi order was entered and its validity confirmed, Williams now asks this Court to hold that a nolle prosequi order operates as a grant of de facto criminal immunity barring any further prosecution against Williams unless that prosecution is initiated by the district attorney who requested the nolle prosequi order. Of course, Williams finds no authority for such a proposition and it is for good reason that no such authority exists. A nolle prosequi order unconditionally dismisses a criminal indictment, but without prejudice to the State to seek re-indictment. Conwill v. State, 94 So.3d 1173, 1176 (Miss. 9 The fact that Assistant District Attorney Scott Rogillio informed the trial court that the district attorney s office was voluntarily recusing itself so that the Attorney General may proceed also highlights the lack of a conflict between the district attorney and the Attorney General. See Recusal Order (C.P. 74). 17

23 th 2011); see also Cantrell v. Kelley, 1990 WL 12725, at * 1 (4 Cir. 1990) (nolle prosequi entered on remand after reversal of conviction does not prohibit re-indictment). A nolle prosequi order is not an actual acquittal or conviction on the merits to bar another prosecution. State v. Shumpert, 723 So. 2d 1162, 1165 (Miss. 1998). Nor is a nolle prosequi order a grant of immunity or partial immunity shielding a defendant from future prosecution. See Conwill, 94 So.3d at 1176 (no bar to re-indictment). It is without question that after the entry of the nolle prosequi order the district attorney could reindict Williams in the name of the state. Incredibly, Williams asks this Court to find that a nolle prosequi order operates as a de facto injunction prohibiting the Attorney General from re-indicting Williams in the name of the state. This is a remarkably misguided proposition. A nolle prosequi order does not bar the re-indictment of Williams by either the district attorney or the Attorney General, either of whom are authorized to prosecute criminal cases in the name of the state. Williams is correct that district attorneys have prosecutorial discretion as to whether they will seek an indictment or whether they will seek the dismissal of an indictment through a nolle prosequi order. However, the Attorney General also retains prosecutorial discretion separate and apart from the discretion of a district attorney as to when to pursue a criminal matter. A district attorney s decision to refrain from prosecuting a criminal defendant does not limit, infringe, or trump the authority of the Attorney General to prosecute that same defendant. While a district attorney has the authority to instruct his office not to prosecute a crime, a district attorney has no authority to instruct the Attorney General not to a prosecute a crime. Similarly, a decision by the Attorney General to seek a nolle prosequi order would not veto a district attorney s authority to prosecute that same crime. 18

24 In sum, a district attorney s decision to dismiss an indictment through a nolle prosequi order does not grant a criminal defendant immunity from further prosecution by the Attorney General or even by a subsequent district attorney. V. THERE IS NO SEPARATION OF POWERS ISSUE PRESENTED IN THIS MATTER. The trial court s order appointing the Attorney General as a special prosecutor was merely a recognition of the Attorney General s independent and constitutional authority to prosecute this matter without involvement from the district attorney. It was, in fact, unnecessary. The Attorney General s prosecutorial authority is not dependent on, or defined by, the district attorney s permission nor the trial court s special prosecutor order. Moreover, all parties agree that Cause Number and the underlying indictment were dismissed as of the previously entered nolle prosequi order and before the order appointing the Attorney General was entered. See Order (C.P. at 81); Williams Br. at 4. Thus, there is nothing to review with respect to the appointment order. Williams argues that the order appointing the Attorney General should be viewed as an involuntary removal of the district attorney from an active prosecution which the district attorney was handling. This is not the case. Assuming arguendo that the appointment order had legal effect, the district attorney had voluntarily dismissed his indictment via the nolle prosequi 10 order. The district attorney could not be forcibly removed from a prosecution that the district attorney s office had previously and voluntarily terminated. 10 In addition, Assistant District Attorney Scott Rogillio has previously informed the trial court that the district attorney s office was voluntarily recusing itself from the matter. See Recusal Order (C.O.74). 19

25 Furthermore and contrary to Williams assertion that the trial court is improperly forc[ing] a criminal case to be prosecuted, the Attorney General is not being forced against his will to conduct a criminal prosecution that he otherwise would decline to bring. The Attorney General is freely and willingly prosecuting this important matter and will do so by seeking to reindict Williams. The trial court s order merely recognized that the Attorney General has complete discretion as to how to proceed and is permitted to pursue future prosecution of this Defendant, in its discretion. See Order (C.P. 82). VI. INTERLOCUTORY APPEAL WAS IMPROVIDENTLY GRANTED. The briefing in this matter evidences that the interlocutory appeal was improvidently granted and it should be dismissed. See Dunn v. Yager, 58 So. 3d 1171, 1176 (Miss. 2011) (noting the dismissal of improvidently granted interlocutory appeal); Dunn v. Yager, 58 So. 3d 1171, 1183 (Miss. 2011) (same). All parties agree that Cause Number was dismissed as of the entry of the nolle prosequi order and before the order appointing the Attorney General was entered. See Order (C.P. at 81); Williams Br. at 4. A review of the conclusion of Williams appellant brief indicates that there is no issue for this Court to resolve. See Williams Br. at 15. The special prosecutor appointment was surplusage and the dismissal of the underlying indictment through the nolle prosequi order was entered and upheld. This matter does not present a separation of powers question nor a conflict between the authority of the Attorney General and district attorney as originally advertised by Williams. 20

26 Further, the Honorable Judge Jeff Weill was correct in denying Williams motion to 11 permanently enjoin the Attorney General from seeking a subsequent indictment. See Order (C.P.81). First, nolle prosequi orders do not bar future prosecutions by either the district attorney or the Attorney General. Second, a permanent injunction is an extreme remedy and may be issued only where the movant establishes that he would have no other adequate remedy at law. See A-1 Pallet Co. v. City of Jackson, 40 So. 3d 563, 569 (Miss. 2010). In the event that Williams is re-indicted, his adequate remedy at law is a motion to dismiss the indictment. See Metro Med. Supply, Inc. v. Shalala, 959 F. Supp. 799, 804 (M.D. Tenn. 1996) ( an adequate remedy in the form of a motion to dismiss any indictment... generally weighs against the issuance of such an injunction ). The trial court did not err by refusing to enter a permanent injunction against the Attorney General. CONCLUSION The State of Mississippi respectfully requests that this Court affirm the denial of Williams motion to enjoin the Office of the Attorney General from prosecuting him for the crime of murder. Respectfully submitted, FOR THE APPELLEE STATE OF MISSISSIPPI BY: JIM HOOD, ATTORNEY GENERAL 11 Williams Motion to Dismiss does not appear to explicitly request an injunction prohibiting future prosecutions. See Motion (C.P. 53). Instead, it appears to merely ask that the originally entered nolle prosequi order be given effect. The order was given effect and the underlying indictment was dismissed. However, nolle prosequi orders do not bar future prosecutions by the district attorney or the Attorney General. 21

27 STATE OF MISSISSIPPI BY: s/ Harold E. Pizzetta, III HAROLD E. PIZZETTA III, MSB NO ASSISTANT ATTORNEY GENERAL MARY JO WOODS, MSB NO SPECIAL ASSISTANT ATTORNEY GENERAL Office of the Attorney General Post Office Box 220 Jackson, Mississippi Telephone No. (601) Facsimile No. (601)

28 CERTIFICATE OF SERVICE This is to certify that I, Harold E. Pizzetta, III, Assistant Attorney General for the State of Mississippi, have this date mailed via United States mail, postage fully prepaid, a true and correct copy of the foregoing Brief of the Appellee State of Mississippi to the following: Merrida Buddy Coxwell, Esq. Charles R. Mullins, Esq. COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, MS Robert S. Smith, Esq. Office of the Hinds County District Attorney Post Office Box Jackson, MS Honorable Jeffrey A. Weill, Sr. Hinds County Circuit Court Judge Post Office Box Jackson, MS th This the 14 day of March, s/ Harold E. Pizzetta, III Harold E. Pizzetta, III 23