King v. State

• Decision Date: 11 May 1988
• Docket Number: No. 57687,57687
• Citation: 527 So.2d 641
• Parties: Eddie Lee KING v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 641

527 So.2d 641

Eddie Lee KING v. STATE of Mississippi.

No. 57687.

Supreme Court of Mississippi.

May 11, 1988.

Rehearing Denied July 20, 1988.

Seth Wheatley, Caroline R. Moore, Greenwood, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, ROBERTSON and ANDERSON, JJ.

DAN M. LEE, Presiding Justice, for the Court:

This appeal presents several issues concerning application of Miss.Code Ann. Sec. 99-19-83 (Supp.1987) to Eddie Lee King. King was indicted for rape as an habitual offender, then tried and convicted. Following his conviction, the trial court held a separate sentencing hearing where it found beyond a reasonable doubt that King was an habitual offender. The trial court sentenced King to life without reduction or suspension and without opportunity for parole

or probation. King appeals only his sentencing as an habitual offender. He assigns these errors:

I. THE TRIAL COURT ERRED IN OVERRULING EDDIE LEE KING'S OBJECTION TO THE INTRODUCTION OF COPIES OF THE COMMITMENT ORDERS IN CAUSE NUMBERS 18,946 AND 19,367 OF THE CIRCUIT COURT OF LEFLORE COUNTY, MISSISSIPPI, IN THE COLLECTIVE EXHIBIT NUMBER S-1, AND IN FINDING BEYOND A REASONABLE DOUBT THAT EDDIE LEE KING, APPELLANT IN THIS CAUSE, WAS CONVICTED IN EITHER CAUSE NUMBER 18,946 OR CAUSE NUMBER 19,637 IN THE CIRCUIT COURT OF LEFLORE COUNTY, MISSISSIPPI.

II. THE TRIAL COURT ERRED IN FINDING BEYOND A REASONABLE DOUBT THAT EDDIE LEE KING HAD BEEN SENTENCED TO AND HAD SERVED A SEPARATE TERM OF ONE YEAR ON A SENTENCE IN CAUSE NUMBER 19,637 IN THE CIRCUIT COURT OF LEFLORE COUNTY, MISSISSIPPI.

III. THE TRIAL COURT ERRED IN FINDING BEYOND A REASONABLE DOUBT THAT THE OFFENSE FOR WHICH EDDIE LEE KING WAS ALLEGEDLY CONVICTED IN CAUSE NUMBER 18,946 IN THE CIRCUIT COURT OF LEFLORE COUNTY, MISSISSIPPI WAS A "CRIME OF VIOLENCE."

IV. THE TRIAL COURT ERRED IN OVERRULING EDDIE LEE KING'S OBJECTION ON THE GROUNDS OF DOUBLE JEOPARDY TO A SECOND HEARING ON THE SENTENCING PHASE IN THIS CAUSE AFTER THE PROSECUTION HAD FAILED AT THE FIRST HEARING TO ADDUCE PROOF THAT EDDIE LEE KING HAD SUFFERED ANY PREVIOUS CONVICTIONS.

We reject King's assigned errors and affirm his sentence.

The indictment in this cause alleged that Eddie Lee King was an habitual offender under Miss.Code Ann. Sec. 99-19-83 (Supp.1987). The two underlying felonies alleged in the indictment were:

1) an armed robbery conviction and sentence of 10 years in cause No. 18,946, rendered December 9, 1976, and

2) a conviction of burglary of a dwelling house and sentence of five years in cause No. 19,637, rendered June 15, 1981.

Both previous convictions occurred in Leflore County and the indictment alleged King served more than one year on both sentences.

On December 6, 1985, a jury convicted King of rape but failed to set punishment. Following this conviction, the trial court began a hearing on the habitual offender allegations contained in the indictment.

The prosecution introduced Lt. Lewis Grones with the identification and records division of the Greenwood Police Department. The prosecution qualified Grones as a fingerprint expert, then sought to establish King's identity as the person convicted of and sentenced for the two crimes charged in the indictment. The prosecution tried to do this by introducing fingerprint cards obtained from Greenwood Police and from Parchman; however, the prosecutor tried to accomplish this through Lt. Grones' testimony. Counsel for King objected when Grones attempted to testify that the fingerprint cards from Parchman bore "the known fingerprints of...." The trial court sustained the objection to introduction of the fingerprint cards after Grones stated he did not take either the set of prints from Parchman or the prints taken by the Greenwood Police Department.

At this point, the prosecution moved for a continuance until such time as it could obtain the presence of the records custodian at Parchman. The trial court granted this continuance without objection from King.

The hearing resumed on December 12, 1985, at which point King objected that further proceedings violated the bar against double jeopardy. The trial court overruled the objection.

The proof showed King had been convicted of armed robbery in cause No. 18,946 from Leflore County, and had served this sentence from March 9, 1977, through December 9, 1980, at which point he was paroled.

After being paroled, King was indicted for and convicted of two separate burglaries. Because of these charges, King returned to Parchman as a parole violator and began serving the remainder of his armed robbery sentence on March 23, 1981. The subsequent burglary convictions were also in Leflore County, cause No. 19,637 and cause No. 19,638. In No. 19,637, King received a sentence of five years, the sentence to run concurrently to his sentence for his armed robbery conviction, the remainder of which King was serving as a parole violator. In No. 19,638 King received a five-year sentence to run consecutively to his sentence for burglary under No. 19,637. However, No. 19,638 was not alleged in the indictment, and the trial court sustained King's objection to any proof concerning No. 19,638.

The 10-year sentence for armed robbery was completed June 24, 1983, more than two years after the June 15, 1981, judgment and sentence for burglary of a dwelling in No. 19,637.

Thus, the evidence is without dispute that following his conviction and sentence for burglary of a dwelling in cause No. 19,637 King served more than one year in Parchman. Likewise, there appears to be no dispute that King served his five-year sentence for No. 19,637 concurrently with his completion of his 10-year sentence for armed robbery.

The trial court found King to be an habitual offender and sentenced him to life without reduction or suspension, or without possibility of parole or probation.

This appeal followed in due course.

I. Is King's Sentence Barred by Double Jeopardy?

King alleges that granting a continuance and holding a subsequent hearing violated his protection against double jeopardy.

In DeBussi v. State, 453 So.2d 1030 (Miss.1984), this Court held that a convicted felon could not be resentenced as an habitual after the prosecution failed in its first attempt to produce sufficient evidence of defendant's habitual status. King argues from this that jeopardy attached at the habitual offender hearing, citing this language from DeBussi :

The habitual offender sentencing hearing, like the capital sentencing hearing, is itself a trial on eligibility for a harsher sentence, and therefore constitutes jeopardy.

Id. at 1033.

King correctly argues that jeopardy attaches for a bench trial when the first witness is sworn. See United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

In Watts v. State, 492 So.2d 1281, 1284 (Miss.1986), this Court stated:

The double jeopardy prohibition does not mean that every time a trial aborts or does not end with a final judgment the defendant must be set free. Schwarzauer v. Miss, 339 So.2d 980, 982 (Miss.1976).

However, if a mistrial is granted upon the court's own motion, or upon the state's motion, a second trial is barred because of double jeopardy unless there was a manifest necessity for the mistrial, taking into consideration all the circumstances. Jones v. State, 398 So.2d 1312 (Miss.1981). Some examples of manifest necessity are: failure of a jury to agree on a verdict, Jones at 1315; biased jurors, Id.; an otherwise tainted jury, Id. at 1318; improper separation of jury, Schwarzauer, supra; when jurors otherwise "demonstrate their unwillingness to abide by the instructions of the court," Schwarzauer, 339 So.2d at 982.

Thus, there would seem to be two questions: 1) is a continuance in a bench trial sufficiently like a mistrial in a jury trial setting to invoke the Watts analysis, and, if so, 2) was there any "manifest necessity" for the mistrial.

We need not reach the second question, however, for we hold that a continuance is not a mistrial in all situations, especially where, as here, the continuance is granted without defendant's objection.

The Fourth Circuit Court of Appeals addressed a similar question in Webb v. Hutto, 720 F.2d 375 (4th Cir.1983), cert. denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984). In Webb, the court of appeals addressed a habeas corpus petition containing a claimed double jeopardy violation based on a continuance granted the prosecutor "solely because of his realization that the case could not be made against the petitioner without the testimony of at least one of the codefendants." Id. at 377.

The trial court continued the trial for five days, at which time a co-defendant provided especially damaging testimony. The Fourth Circuit affirmed, stating:

The simple, yet to us controlling, consideration is that the accused must be placed in jeopardy twice for double jeopardy to exist. It happens when the second event involves a completely new beginning, i.e., when the second proceeding takes place before a new trier of fact, whether that be a different judge or jury, or the same judge starting with a clean slate. It simply does not occur when the very same proceeding continues on after a brief postponement before the first and only trier of fact, as was the case here.

Id. at 379. Substance rather than form should control the determination of whether a trial is continued or started anew. Id. at 380.

Other courts have fashioned different analytical models to help decide this issue. See, e.g., State v. O'Keefe, 135 N.J.Super. 430, 343 A.2d 509 (1975) (resuming trial not barred unless prosecutorial neglect triggering continuance is inexcusable and the continuance is an unreasonable break in the continuity of the trial).

We lean toward accepting the rationale of the Fourth Circuit in Webb, but under either analysis we would reach the...