Drummer v. State

Decision Date02 July 2015
Docket NumberNo. 2012–CT–02004–SCT.,2012–CT–02004–SCT.
Citation167 So.3d 1180
PartiesVance DRUMMER v. STATE of Mississippi.
CourtMississippi Supreme Court

Office of the Public Defender by George T. Holmes, attorney for appellant.

Office of the Attorney General by Lisa L. Blount, attorney for appellee.

EN BANC.

KITCHENS, Justice, for the Court:

PART ONE

¶ 1. A jury convicted Vance Drummer of two counts of grand larceny and one count of attempted grand larceny in Lowndes County Circuit Court in 2012. The trial court granted the State's request for a flight instruction because Drummer, after absconding with the stolen goods, fled from police when they attempted to pull him over after he had run a stop sign in Mathiston, Mississippi. The trial court sentenced Drummer as an habitual offender pursuant to Mississippi Code Section 99–19–81. One of the felony convictions the State used to prove Drummer's status as an habitual offender was the felony-fleeing conviction to which he pled guilty as a result of his flight from police in Mathiston. We find that the trial court erred when it sentenced Drummer as an habitual offender. Drummer's flight from police arose from the same nucleus of operative facts as the larcenies for which he was convicted and therefore should not have been used as a predicate felony pursuant to Section 99–19–81. Accordingly, Drummer's sentence as an habitual offender is vacated, and we remand this case to the Lowndes County Circuit Court for resentencing of Drummer as a nonhabitual offender.

FACTS AND PROCEDURAL HISTORY

¶ 2. The relevant facts are found in the Court of Appeals' opinion:

While finishing his patrol around 3:55 a.m. on January 2, 2009, Officer Happ Anderson witnessed a vehicle run through a four-way stop in Mathiston, Mississippi, which is located in both Webster County and Choctaw County. The vehicle, a white utility van, was pulling a trailer loaded with a John Deere lawnmower. Officer Anderson turned on his siren and flashed his lights as he pulled behind the van heading west on Highway 82. As Officer Anderson later testified at trial, for the majority of the highway chase, he and the van drove in excess of ninety miles per hour. When the van's driver, later identified as Drummer, failed to slow down or otherwise respond to his pursuit, Officer Anderson attempted to pass the van. However, each time Officer Anderson tried this maneuver, Drummer swung the trailer into the left lane to prevent Officer Anderson from pulling alongside the van.
Officer Anderson contacted another law enforcement officer in a nearby town. This second officer attempted to stop the van by parking his patrol car in the westbound lanes of the highway. However, Drummer managed to drive around the roadblock and continue along Highway 82. After passing Winona, Mississippi, about forty miles from Mathiston, Officer Anderson's radio signal failed, and he called 911 for assistance. The dispatcher eventually reached law enforcement officers in Leflore County, who were able to set up a roadblock at the county line between Carroll County and Leflore County before the van reached them.
As the van neared the roadblock, Drummer turned into a church parking lot and hit a light pole. Drummer then exited the van and, with the police pursuing him, ran through a pasture and into a utility shed. When Drummer refused to exit the utility shed, the police officers sent a police dog into the shed. Soon after the dog entered the shed, Drummer exited. An inspection of both the van and the utility shed confirmed that Drummer was the only person involved in the chase. The police's investigation revealed that the white van, trailer, and John Deere lawnmower had been stolen from businesses in Columbus, Mississippi, which is situated in Lowndes County. The white van was stolen from Thompson Truck Center, and the trailer and John Deere lawnmower were both stolen from Agri–Turf, located about a mile down the road from Thompson Truck Center. Police also learned in the course of their investigation that one of Thompson Truck Center's trucks had sustained interior damage when someone had apparently tried to start the vehicle without a key.

Drummer v. State, 167 So.3d 1222, 1225–26 (¶¶ 2–4), 2014 WL 3409099, *1 (¶¶ 2–4) (Miss.Ct.App. July 15, 2014).

¶ 3. In 2009, Drummer pled guilty to felony fleeing1 in Webster County, the county where his flight from police began. Drummer was indicted for two counts of grand larceny and one count of attempted grand larceny in Lowndes County in 2009, but he was not brought to trial on those charges until November 27, 2012.2 On November 26, 2012, the day before trial began, the State filed a motion to amend Drummer's indictment to charge him as an habitual offender. The trial court granted the motion and amended Drummer's indictment the same day that his trial began.3 One of the two predicate felonies used by the State to establish Drummer's habitual-offender status was his 2009 felony-fleeing conviction in Webster County.

¶ 4. The Lowndes County jury convicted Drummer of two counts of grand larceny and one count of attempted grand larceny. At the sentencing hearing, the trial court found that the two predicate felonies proven by the State were sufficient to allow the court to sentence Drummer as an habitual offender pursuant to Section 99–19–81. Accordingly, Drummer was sentenced to ten years without the possibility of parole on each count, with the sentences for Counts I and II to run consecutively, and the sentence for Count III to run concurrently with the sentence for Count II. Drummer appealed, and the Court of Appeals affirmed his convictions and sentences.

¶ 5. Drummer petitioned this Court for a writ of certiorari, asking us to review whether the trial court erred in granting the State's flight instruction and whether it erred in sentencing him as an habitual offender. Having granted Drummer's petition, we now proceed to analyze those issues.

ANALYSIS

I. The trial court erred in sentencing Drummer as an habitual offender.

¶ 6. Because Drummer's flight was so inextricably intertwined with his commission of larceny that the trial court found a flight instruction to be proper, it is obvious that the same flight could not be used as a predicate felony “arising out of” a separate incident for the purpose of habitual-offender sentencing. See Miss.Code Ann. § 99–19–81 (Rev.2007).

¶ 7. Mississippi Code Section 99–19–81 permits the trial court to sentence a defendant to the maximum term of imprisonment for the felony of which he is convicted without the possibility of parole if that defendant has “been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times....” To qualify as a predicate felony for purposes of Section 99–19–81, both prior convictions must arise out of separate incidents, meaning they must be separate from each other and from the felony for which the defendant is being sentenced. Drummer contends that his felony-fleeing conviction cannot be used as a predicate felony because it arose out of a common nucleus of operative facts with the larcenies. He argues that the flight from the crime scene was a continuation of the crime of larceny; and, although chargeable as another offense, it is not sufficiently separate from the crime of larceny to be a stand-alone predicate felony.

¶ 8. But before we address Drummer's specific argument, we must speak to the interpretation of the habitual-offender statute advanced by my esteemed colleague, Justice Coleman. According to him, Section 99–19–81 “contains no requirement that either predicate felony arise ‘out of separate incidents at different times' from the primary felony. Coleman Op. at ¶ 61 (emphasis added). Respectfully, this interpretation twists the language of Section 99–19–81 and constrains the clear intention of the Legislature. In practice, most prosecutors and criminal defense attorneys throughout this State understand that Section 99–19–81 requires both that the predicate felonies be separate from each other and from the felony for which the defendant currently is being sentenced.

¶ 9. More importantly, this Court has stated such on at least two occasions. In Buckley v. State, this Court wrote that [a] prior offense may be considered under the statute even if [it] occurred on the same day as the instant offense as long as the two charges arose from ‘separate incidents.’ Buckley v. State, 511 So.2d 1354, 1359 (Miss.1987) (emphasis added). And in Crawley v. State, 423 So.2d 128, 129 (Miss.1982), this Court said that [a]lthough one of the previous offenses occurred on the same day as the one included in the present case, it was separately brought and arose out of a separate incident which occurred at a different time of day which brings it clearly within the statute. (Emphasis added.) Justice Coleman acknowledges that Crawley supports our interpretation, but dismisses the quoted language as dicta. Coleman Op. at ¶ 67. To the contrary, we view the language as this Court's interpreting, as a matter of course, the statute's language the same way that we do. In short, this Court long has held that the predicate felonies must be separate from each other and from the felony for which the defendant currently is being sentenced.

¶ 10. As for Drummer's argument that his flight from the crime scene was a continuation of the crime of larceny and therefore not sufficiently separate from the larceny to be a stand-alone predicate felony, this Court has held that crimes occurring on the same day may nevertheless be “separate incidents at different times” for purpose of habitual sentencing. Jackson v. State, 518 So.2d 1219, 1220 (Miss.1988). As for when two incidents are sufficiently separate and apart to qualify for enhanced sentencing, the law is mixed. In Riddle v. State, 413 So.2d 737 (Miss.1982), the defendant broke into a trailer home, kidnapped a young girl, took her away, and raped her. He was tried on all...

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