JONES v. STATE

JONES v. STATE
1983 OK CR 127
668 P.2d 1170
Case Number: PC-83-422
Decided: 09/01/1983
EDWIN EDGAR JONES, APPELLANT, v. THE STATE OF OKLAHOMA, APPELLEE
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Pittsburg County; Robert Layden, District Judge.

Edwin Edgar Jones, appellant, was granted partial post-conviction relief, PC-83-422 in the Pittsburg County District Court. He and the State each appealed. The order is AFFIRMED, and the State's appeal is DISMISSED.

Gregory Stidham, Dist. Atty., Landis Shook, Asst. Dist. Atty., Eufaula, for appellee.

James A. Mitchell, Oklahoma City, for appellant.

OPINION

CORNISH, Judge:

¶1 Appellant was convicted in 1971 of two counts of Murder in the First Degree and of one count of Assault and Battery with a Deadly Weapon with Intent to Kill. This Court affirmed his convictions, Jones v. State,

¶2 The central issue we will consider on this appeal is whether ex parte communications initiated by the trial judge to the prosecution deprives an accused of a fair and impartial trial as guaranteed by the Oklahoma and United States Constitutions.

¶3 The present application for post-conviction relief cites as error ineffective assistance of counsel at trial, insufficient evidence, and denial of a fair trial by reason of untempered prosecutorial misconduct at trial and prejudicial ex parte communications which occurred between the trial judge and prosecution prior to trial. Only part of the final error is properly asserted in this proceeding, since the first two allegations of error and part of the third were decided adverse to the appellant in his prior application for post-conviction relief, and are barred by res judicata.

¶4 At the hearing below, appellant presented to District Judge Layden evidence that the original trial judge, Robert J. Bell, actively attempted to help the district attorney develop trial strategy for the prosecution of appellant. This was manifested by confidential letters being sent to the prosecutors suggesting various procedures to be followed. Also, there was an important letter withheld by the prosecution from appellant written by a physician who had examined one of the victims wherein the doctor explained why he felt the caliber of the weapon used was contrary to that theorized by the prosecution. This letter was not made available to appellant who might have used it to weaken the State's circumstantial case.

¶5 District Judge Layden held that the improper conduct was sufficient to have prevented appellant from receiving a fair and impartial trial. He vacated the judgments and ordered a new trial. Judge Layden found

that the Trial Judge sent ex parte communications to the Prosecuting Attorneys in the trial of this action, that the bias of the trial Judge prejudicially affected the right to a fair trial and that defendant's conviction was obtained in violation of his rights to due process under the constitutions of the State of Oklahoma and of the United States.

¶6 The Code of Judicial Conduct, 5 O.S. 1981, Ch. 1, App. 4, provides in pertinent part:

A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding . . . . (Emphasis added.)

Canon 3(A)(4). Both the State and the accused are entitled to a hearing before an impartial judge. Oklahoma Constitution, Article II, § 6; C.R.B. v. State,

¶7 In the original opinion in this matter, reported at Jones v. State,

We commend the trial judge in his extreme caution to safeguard defendant's fair and impartial trial.

In view of the unfortunate actions of the trial judge, Judge Bell, we deem it appropriate to order that this language be stricken from the opinion.

¶8 The order of the district court is AFFIRMED, and the State's appeal is DISMISSED. The State is ordered to announce to the district court within thirty (30) days of entry of this order whether appellant will be reprosecuted. If not, the district court shall grant appellant appropriate relief under

BUSSEY, P.J., and BRETT, J., concur.