Christmas v. State

• Decision Date: 12 June 1997
• Docket Number: No. 93-KA-01164-SCT,93-KA-01164-SCT
• Citation: 700 So.2d 262
• Parties: Buford Keith CHRISTMAS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 262

700 So.2d 262

Buford Keith CHRISTMAS v. STATE of Mississippi.

No. 93-KA-01164-SCT.

Supreme Court of Mississippi.

June 12, 1997.

James G. Tucker, III, Bay St. Louis, for Appellant.

Michael C. Moore, Attorney General, DeWitt T. Allred, III, Sp. Asst. Attorney General, Jackson, for Appellee.

Before PRATHER, P.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

Buford Keith Christmas was indicted at the July Term, 1992, in the Circuit Court of Hancock County, in Cause No. 7594, under Miss.Code Ann. § 97-5-23, for the crime of fondling. The date of the crime was listed in the indictment as June of 1989. The case went to trial on January 25, 1993, before the Honorable Kosta N. Vlahos, but the jury was unable to reach a verdict. Judge Vlahos entered an order of mistrial on January 26, 1993.

The case went to trial a second time on March 8, 1993, with the jury returning a verdict of guilty on March 9, 1993. On March 15, 1993, Honorable James E. Thomas, entered judgment and sentenced Christmas to a term of six years imprisonment. The post-trial motion for j.n.o.v./new trial was denied on June 4, 1993.

STATEMENT OF THE FACTS

In May of 1989, Nicole Christenberry and her mother were at a snowball stand at the foot of State Street, which was a block away from their house in Bay St. Louis, Mississippi. Nicole noticed Buford Christmas standing behind them and "playing with his zipper and stuff," and she motioned for her mother "to turn around and look, and she saw him." When Nicole and her mother got into their car, Nicole told her mother that the guy they saw had been following her. When they got home they called the sheriff's office. Prior to this, Nicole had seen Christmas in her neighborhood on fifteen or twenty occasions.

In early June of 1989, Nicole walked from her house on First Street to get a snowball at the snowball stand at the end of the block, but the snowball stand was closed. On her way home, Christmas grabbed Nicole from behind, dragged her into a house, and began kissing and fondling her as she resisted. He said he would come after her, her parents, and grandmother if she told anyone about what had transpired. She kicked and screamed and eventually escaped after about five to seven minutes of struggling with him. At the time of this incident, Nicole was twelve years old.

In January of 1992, Nicole Christenberry told her parents and the Bay St. Louis Police for the first time about the incident that occurred in June of 1989. After watching an episode of a soap opera depicting a woman who had been raped but did not tell the police, Nicole finally told her parents about the incident involving Buford Christmas. Nicole's mother testified that after seeing this episode of the soap opera, Nicole went to dance class before telling of her experience. While at dance class, the instructor called Nicole's parents to inform them that Nicole was upset. Her father brought Nicole home, whereupon Nicole told of the incident with Christmas.

Lee Haden testified that his mother owned the house where Nicole alleged the crime took place. The house had been subdivided into apartments. Haden lived in one apartment, and Ernest Saucier lived in the other. Christmas testified that he and Saucier were somehow related. Haden had previously seen Christmas visiting at Saucier's, waiting on the porch, and riding in and driving Saucier's yellow convertible.

Christmas denied having any contact with the child. He acknowledged visiting Saucier several times, but denied driving Saucier's car. Christmas's mother and grandmother testified that he drove his father's Cadillac or his grandmother's Pontiac during that period.

Defense counsel at both trials urged that the defendant was entitled to an acquittal because the statute of limitations had expired. The motion was overruled both times. The trial court granted Instruction S-1 over the defendant's objection. Christmas pointed out that the State failed to require the jury to make a finding that the prosecution was begun within the two year statute of limitations.

Defense counsel alleges on appeal the prosecutor had a propensity to undermine the import of the phrase "beyond a reasonable doubt." First, he sought a ruling to prevent the prosecutor from saying that it simply boiled down to whether the jury believed the defendant or the State's witnesses. The judge overruled this request.

Through Instruction D-2 the defense counsel sought to inform the jury "that to be convinced beyond a reasonable doubt, you must be convinced with utmost certainty." This instruction was refused.

Buford Christmas was convicted and sentenced to serve six years imprisonment in the Mississippi Department of Corrections. Aggrieved, Christmas appeals to this Court raising the following issues:

I. WHETHER PROSECUTION UNDER AN AMENDMENT TO THE STATUTE OF LIMITATIONS EXTENDING THE LIMITATION PERIOD IN EFFECT AT THE TIME OF THE CRIME IS AN EX POST FACTO VIOLATION.

II. WHETHER THE COURT ERRED BY ALLOWING THE PROSECUTION TO ARGUE THE CASE COULD BE DECIDED BY A LESSENED BURDEN OF PROOF.

DISCUSSION OF THE ISSUES

I. WHETHER PROSECUTION UNDER AN AMENDMENT TO THE STATUTE OF LIMITATIONS EXTENDING THE LIMITATION PERIOD IN EFFECT AT THE TIME OF THE CRIME IS AN EX POST FACTO VIOLATION.

The crime was committed in June of 1989. At the time the crime occurred, the applicable statute of limitations was two years under Miss.Code Ann. § 99-1-5 ¹, for the crime of fondling ², Miss.Code Ann. § 97-5-23. On April 21, 1989, an act was approved by the legislature to take effect on July 1, 1989, amending Miss.Code Ann. § 99-1-5 to provide a seven-year period of limitations in which to commence a prosecution for the crime of fondling. ³

During the first trial, Christmas raised the statute of limitations as a ground for his motion for directed verdict. This was denied by Judge Vlahos. At the second trial, Judge Thomas, treating the motion as a motion to dismiss, concurred in Judge Vlahos's earlier ruling and denied the renewed motion.

Christmas argues that his prosecution should have been time barred under the statute of limitations in effect at the time of the crime. He committed the crime in June of 1989. His prosecution did not commence until, at the earliest, January of 1992. This was more than the original two year limitation period.

Christmas contends that his prosecution under the revised seven year statute of limitations was a violation of the ex post facto clauses as proscribed in both the state and federal constitutions. ⁴ Christmas states there are four types of laws that are considered ex post facto. They are defined as follows:

1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

2) Every law that aggravates a crime, or makes it greater that it was when committed.

3) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.

4) Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense in order to convict the offender.

Calder v. Bull, 3 U.S. (3 Dall 386, 390, 1 L.Ed. 648 (1798).

He asserts that the fourth type is applicable to this case.

The State disagrees. As of July 1, 1989, the effective date of the amendment to Miss.Code Ann. § 99-1-5, prosecution for the crime, which took place in June of 1989, had not become time barred by the two-year statute of limitations then in effect. Therefore, according to the State, it could have prosecuted Christmas at any time within the newly established period. ⁵

Had the lower court applied the statute of limitations in effect at the time the crime was committed, Christmas contends his prosecution, which began more than two years after the crime, would have been time barred. The State prosecuted Christmas within the amended statute of limitations. Christmas complains such retroactive application of a subsequently amended statute of limitations is a violation of the ex post facto clause. "It is axiomatic that statutes of limitations may not be made retroactive to the prejudice of a party." Perkins v. State, 487 So.2d 791, 792 (Miss.1986).

Although the prosecution of Buford Christmas was timely under the amended statute of limitations in Miss.Code Ann. § 99-1-5 (1985), the limitations period did not become effective until subsequent to the commission of the crime. There are two theories why the prosecution was not a violation of the ex post facto clauses. Each provide the Court with adequate authority to affirm the decision by the lower court.

1. Procedural v. Substantive

Where there is a state constitutional entitlement to some due process right, the State may not enact legislation to impede that right under ex post facto analysis. Hill v. State, 659 So.2d 547, 551 (Miss.1994) citing Johnston v. State, 618 So.2d 90, 95 (Miss.1993) (holding ex post facto prohibitions bar retroactive applications of statutory law unless the changes are "procedural and ameliorative."). In Conerly v. State, this Court analyzed criminal statutes of limitations and determined their purpose to be much like the purpose behind the right to a speedy trial, which is to avoid the bringing of stale criminal charges. Conerly v. State, 607 So.2d 1153, 1157 (Miss.1992). In its analysis, the Court reviewed 22 C.J.S. Criminal Law § 196 at 240-41 (1989), and found the following:

Protection from prosecution under a statute of limitations is a substantive right. Under some, but not all, authorities, the limitation so fixed is jurisdictional, and the time within which the offense is committed is a jurisdictional fact, it being necessary that the indictment or information be actually filed within the time prescribed. Under such statutes a substantive statute of limitation question...