Hughes v. State, No. 52363

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: SUGG; PATTERSON
• Citation: 401 So.2d 1100
• Parties: David Lee HUGHES v. STATE of Mississippi.
• Decision Date: 11 March 1981
• Docket Number: No. 52363

Page 1100

401 So.2d 1100 David Lee HUGHES
v.
STATE of Mississippi. No. 52363. Supreme Court of Mississippi. March 11, 1981.

Page 1101

Robert B. Prather, Columbus, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

SUGG, Justice.

The principal issue in this case is whether the constitutional guarantees against double jeopardy bar prosecution of a defendant for the separate crimes of rape and kidnapping when the defendant rapes his kidnapped victim.

Defendant was convicted of kidnapping and sentenced to imprisonment for ten years. He was previously convicted of raping his kidnapped victim and sentenced to thirty years imprisonment. ¹ Defendant's assignments of error are:

I. The Trial Court erred in overruling the Motion to Quash and Plea in Bar of the Appellant.

II. The Trial Court erred in allowing evidence of other crimes to be admitted into evidence.

III. The Trial Court erred in admitting into evidence irrelevant photographs of the victim's arms.

I

In his first assignment of error, defendant asserts his plea in bar and motion to quash the indictment should have been sustained because the issues in the present case were previously litigated in the rape case.

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His argument is based on double jeopardy and the collateral estoppel rule, ² a part of the Fifth Amendment's guarantee against double jeopardy. Defendant's two arguments present a single question. Was he subjected to double jeopardy in his prosecution for kidnapping after he had been convicted of raping his victim?

We briefly summarize the evidence in both cases in order to state the factual background of defendant's claim of double jeopardy and collateral estoppel. In the rape case the prosecutrix, a cab driver, testified she picked up defendant as a fare on April 30, 1979. At the direction of defendant she drove to a rural area in Lowndes County. After stopping at several homes eleven or twelve miles outside the City of Columbus and driving towards another place in accord with defendant's instruction, defendant, who was seated in the backseat of the cab, placed a knife at her throat, forced her to stop the cab, bound her hands behind her back with wire, and locked her in the trunk of the cab. The cab traveled five to fifteen minutes and became stuck after which defendant opened the trunk and the prosecutrix fled but was overtaken by the defendant. Defendant cut her clothes off, raped her, and upon their return to the cab raped her a second time. After unsuccessfully attempting to move the car defendant promised to let her go free if she would not tell what had happened, but if she did tell he had a brother who was a detective who would kill her. After she promised she would not tell, defendant untied her hands and they walked out of the forest. Prosecutrix walked ahead of defendant and when they reached a public road, they came upon a crew working on the road. The prosecutrix was carried to town by her uncle, one of the crew members. Defendant admitted in the rape trial that he had sexual relations with the prosecutrix but claimed no force was used because the sexual relations were with the consent of the prosecutrix.

Defendant states the same evidence relied on in the rape trial was introduced in the kidnapping trial; however, the prosecutrix was not asked and did not testify that defendant raped her in the kidnapping case. Neither did defendant testify about having sexual relations with the prosecutrix. Otherwise the evidence in the two cases was essentially the same except for evidence corroborating her testimony that she was raped by defendant.

Mr. Justice Rehnquist succinctly stated the three primary purposes of the Double Jeopardy Clause in his dissent in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) as follows. (1) It protects against a second prosecution for the same offense after an acquittal. (2) It protects against a second prosecution for the same offense after a conviction. (3) It protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

In this case, we must determine whether defendant was prosecuted for the same offense after a conviction or received multiple punishment for the same offense.

The leading case on the question of whether a defendant was subjected to multiple punishment for the same offense is Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ³ Blockburger was charged with violating the Harrison

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Narcotics Act in an indictment which contained five counts. The third count charged a sale of eight grains of morphine hydrochloride not in or from the original stamped package. The fifth count charged the same sale as having been made not in pursuance of a written order of the purchaser as required by the statute. One of the contentions of Blockburger was that the sale charged in the third count and the same sale charged in the fifth count constituted but one offense for which only a single penalty could be imposed. In holding that two sections of the Harrison Narcotic Act were violated by the one sale and two offenses were committed, the Court stated:

Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Compare Albrecht v. United States, 273 U.S. 1, 11, 12, 47 S.Ct. 250, 253, 254, 71 L.Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed. (284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309)

In this case, the inquiry under the Blockburger test is to determine whether the rape and the kidnapping were two offenses, or only one, by comparing the statutes defining the crimes to ascertain if each statute requires proof of an additional fact which the other does not. Defendant was indicted for kidnapping under section 97-3-51 Mississippi Code Annotated (1972) which follows:

Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other with intent to cause such person to be secretly confined or imprisoned in the state against his will, or to cause such other person to be sent out of this state against his will, or to cause such other person to be deprived of his liberty, or in any way held to service against his will, shall upon conviction, be punished by imprisonment in the penitentiary not exceeding ten years. Upon the trial of any such offense the consent of the person so kidnapped or confined shall not be a defense, unless it appear that such consent was not extorted by threats or duress. ⁴

The indictment against the defendant for rape was returned under section 97-3-65 Mississippi Code Annotated (Supp.1977) which provides in part as follows:

(2) Every person who...