Lee v. State, No. 55477

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ROBERTSON; PATTERSON
• Citation: 469 So.2d 1225
• Decision Date: 13 February 1985
• Docket Number: No. 55477
• Parties: Garry LEE a/k/a Gary Lee a/k/a Gary Gene Lee v. STATE of Mississippi.

Page 1225

469 So.2d 1225 Garry LEE a/k/a Gary Lee a/k/a Gary Gene Lee
v.
STATE of Mississippi. No. 55477. Supreme Court of Mississippi. Feb. 13, 1985.
As Modified on Denial of Rehearing
May 29,
1985.

Page 1227

Andrew M.W. Westerfield, Merigold, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal follows the conviction of Garry Lee for the crime of aggravated assault on a police officer (Miss.Code Ann. Sec. 97-3-7(2)(b) Supp. 1984) for which he was sentenced as a recidivist to life imprisonment without parole (Miss. Code Ann. Sec. 99-19-83 (Supp.1984) ).

On appeal, Lee contends his conviction should be overturned: (1) because this trial subjected him to double jeopardy; (2) because the verdict was contrary to the overwhelming weight of the evidence; (3) because the trial court refused to grant an instruction which would have allowed the jury to consider the lesser-included offense of simple assault on a police officer; and (4) because the evidence of prior crimes used to convict Lee as a habitual offender was infirm.

For the reasons set forth below, the first and second assignment are without merit and are rejected; that is, this prosecution in no way subjects Lee to a violation of his rights under the double jeopardy clauses of the Federal or State Constitution and the verdict of the jury was well within the evidence. On the other hand, however, the evidence was such that the lesser-included offense instruction regarding the charge of simple assault should have been granted. Because it was not, we reverse and remand for a new trial, and Lee's final assignment of error need not be reached.

II.

On October 20, 1982, Garry Lee a/k/a Gary Lee a/k/a Gary Gene Lee, was charged in an indictment returned by the grand jury of the Second Judicial District of Bolivar County, Mississippi with aggravated assault upon Charles Griffin, at the time a deputy sheriff and jailer in Bolivar County. The incident occurred in Cleveland, Mississippi on March 29, 1982, when Griffin went upstairs in the jail to lock down the prisoners.

Griffin testified that Lee refused to get in his cell when ordered to do so. Griffin opened the back door to the area and Lee,

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with a knife drawn, told Griffin that if he moved he would throw the knife "in" him. Griffin tried to close the door, but Lee got his foot in the door. Lee struck Griffin once in the mouth and once in the nose, then held the knife on Griffin and got the keys from him. Lee then left and went downstairs.

Griffin got up and closed the control panel. Lee returned and grabbed Griffin and placed the knife to his neck. Lee, with Griffin in tow, proceeded back down the stairs. Lee said, "Don't make me kill this man," and "don't make me hurt you" as he was forcing Griffin down the stairs. When they encountered Officer Eugene Hall at the bottom of the stairs, Griffin told Hall to open the door and let them out, or he would kill Griffin. Hall opened the back door, and Lee started down the back steps with the knife still at Griffin's throat. Griffin testified that he was cut on the arm when Lee, who was leading him down the stairs, stumbled near the bottom of the stairs. A struggle ensued and Griffin was able to free himself. Lee threw the knife at Hall and ran. Hall recaptured Lee immediately.

Lee emphatically denied Griffin's version of the facts. Lee testified that he had made an arrangement with Griffin to let Lee escape in return for $200.00 and two diamond rings. When the time came to consummate the deal, Griffin backed out, hit Lee and Lee hit him back. Lee testified he never had the knife near Griffin's neck, nor intended to pull the knife or stab anyone, and he never threw the knife.

Prior to trial, Lee moved to have the charge of aggravated assault on Griffin dismissed based on double jeopardy considerations. Lee had already been convicted of aggravated assault on Eugene Hall who is also employed by the Bolivar County Sheriff's Department. Both the assault on Hall and the assault on Griffin arose out of the same occurrence when Lee was attempting to exit the Bolivar County Jail where he was imprisoned. The trial judge overruled this motion to dismiss.

The case was called for trial in the Circuit Court in Cleveland, Mississippi on November 22, 1983. In the state of the evidence outlined above, the case was submitted to the jury solely on the charge of aggravated assault on a law enforcement officer, Lee's request for a lesser-included offense instruction having been refused. The following day the jury found Lee guilty as charged, whereupon he was sentenced as a recidivist to life imprisonment without parole. Miss. Code Ann. Sec. 99-19-83 (Supp.1984).

Following denial of the usual post-trial motions, this appeal has been perfected.

III.

Lee first assigns as error that the instant prosecution abridges rights secured to him under the double jeopardy clauses of the Fifth Amendment (made applicable to the states by the Fourteenth Amendment) to the Constitution of the United States and by Article 3, Sec. 22, of the Mississippi Constitution of 1890. Each of those provisions guarantees to each citizen that he shall not twice be placed in jeopardy for the same offense. We construe the double jeopardy clause of our Constitution consistent with authoritative constructions of the Constitution of the United States. See Sanders v. State, 429 So.2d 245, 251, 252 (Miss.1983).

The facts are that on December 7, 1982, in proceedings in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi, bearing Docket No. 6120, Lee was adjudged guilty of the offense of aggravated assault on a police officer in violation of Miss. Code Ann. Sec. 97-3-7(2)(b) (Supp.1983). The police officer assaulted on that occasion was Officer Eugene Hall. That conviction has been affirmed on appeal. Lee v. State, 468 So.2d 80 (Miss.1985). The instant prosecution charges Lee with the assault of Officer Charles Griffin. There is no question but that the two assaults were committed by Lee on March 29, 1982, during the course of a purported escape from the Bolivar County Jail.

We have repeatedly recognized that separate acts though committed close in point of time to one another may constitute separate criminal offenses. See, e.g., Wilcher v. State, 455 So.2d 727, 729 (Miss.1984)

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and Wilcher v. State, 448 So.2d 927, 929 (Miss.1984) (two killings on the same occasion constitute two offenses of capital murder); Ball v. State, 437 So.2d 423, 424 (Miss.1983) (assaults on three different law enforcement officers in a single series of events on May 5, 1982, held to constitute three separate offenses); Maycock v. Reed, 328 So.2d 349, 352 (Miss.1976) (sale of two bags of marijuana took two different persons and two batches of LSD to the same two people held to constitute four offenses support four convictions and sentences); Pharr v. State, 465 So.2d 294, 299-301 (Miss.1984) (three temporally related instances of headlighting deer held to constitute three separate offenses). As stated in Ball v. State,

Temporal proximity does not generate a juridical union of separate and distinct criminal acts, nor does the presence of a common nucleus of operative facts. 437 So.2d at 425.

The double jeopardy clause of neither the Federal nor the State Constitution presents a legal impediment to the State's mounting two separate prosecutions, even where, as here, the two offenses arise out of a common nucleus of operative fact. Ohio v. Johnson, --- U.S. ----, ----, 104 S.Ct. 2536, 2540-2541, 81 L.Ed.2d 425, 433 (1984); Pharr v. State, 465 So.2d 294, 299-301 (Miss.1984); Smith v. State, 429 So.2d 252, 253 (Miss.1983); Hughes v. State, 401 So.2d 1100, 1105 (Miss.1981). The assignment of error is rejected.

IV.

Lee next challenges the sufficiency of the evidence to support his conviction. In doing so he appeals the trial court's denial of his post-trial motion for a new trial, which as stated was two separate motions: the first charging that the State had "failed to prove a prima facie case as charged in the indictment" necessarily being treated as a motion for judgment of acquittal notwithstanding the verdict, and the second being a conventional...