McIlwain v. State

• Decision Date: 07 August 1997
• Docket Number: No. 95-KA-00146-SCT,95-KA-00146-SCT
• Citation: 700 So.2d 586
• Parties: Jerry McILWAIN, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 586

700 So.2d 586

Jerry McILWAIN, Jr. v. STATE of Mississippi.

No. 95-KA-00146-SCT.

Supreme Court of Mississippi.

Aug. 7, 1997.

C. Grant Hedgepeth, Laurel, for appellant.

Michael C. Moore, Attorney General, Jackson; Pat S. Flynn, Asst. Attorney General, Jackson, for appellee.

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

MILLS, Justice, for the Court:

STATEMENT OF THE CASE AND FACTS

¶1 Jerry McIlwain, Jr. appeals his 1995 felony conviction in the Circuit Court of Wayne County, Mississippi of driving under the influence of intoxicating liquor in violation of Miss.Code Ann. § 63-11-30(2)(c) (1972). The issues on appeal, rephrased, are as follows:

ISSUES

1) Did the trial court err in overruling Defendant's Motion to Quash the Indictments?

2) Did the trial court err in allowing a blank Waiver of Rights and Entry of Guilty Plea to be admitted into evidence as proof of a Second Offense conviction of D.U.I.?

3) Did the trial court err in accepting into evidence testimony of Officer Brooks?

4) Did the trial court err in accepting into evidence Intoxilyzer results without proper predicate?

5) Did the trial court err in overruling Defendant's Motion for Directed Verdict?

6) Did the trial court err in granting State's Jury Instruction S-1?

7) Did the trial court err in denying Defendant's Peremptory Jury Instruction D-1?

8) Did the trial court err in overruling Defendant's Motion for Judgment Notwithstanding the Verdict, or the alternative, for a New Trial?

DISCUSSION

1) Did the trial court err in overruling Defendant's Motion to Quash the Indictments?

¶2 McIlwain asserts that the indictment for D.U.I. Third Offense failed to allege the requisite essential elements of the offense. Miss.Code Ann. § 63-11-30(2) (1995) provides for increased penalties for subsequent convictions as follows:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; (c) has ten one-hundredths percent (.10%) or more by weight volume of alcohol in person's blood or urine administered as authorized by this chapter; or (d) is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law.

(2)(c) For any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony and fined not less that Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00) and shall be imprisoned not less than one (1) year nor more than five (5) years in the State Penitentiary....

Miss.Code Ann. § 63-11-30.

¶3 On July 2, 1993, the Wayne County Grand Jury returned the following indictment:

The Grand Jury for the State of Mississippi, taken from the body of good and lawful men and women of Wayne County, in the State of Mississippi, elected, impaneled, sworn, and charged to inquire in and for said county, in the state aforesaid, in the name and by the authority of the State of Mississippi upon their oaths present that:

JERRY McILWAIN

did in said county, wilfully, unlawfully, feloniously and knowingly, on or about the 2nd day of July, 1993, operate a motor vehicle while under the influence of intoxicating liquor, having taken the breath test and registered .187 on the intoxilyzer-alcohol analyzer. FURTHER that this Defendant has been convicted of D.U.I. 1st and D.U.I. 2nd, making this a 3rd or subsequent offense (SEE EXHIBIT "A" FOR PRIOR CONVICTIONS)

in violation of Mississippi Code Annotated Section 63-11-30 2(c) (1972), and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

Attached to the indictment were copies of the Abstract of Court Records for McIlwain's convictions of D.U.I. First and D.U.I. Second.

¶4 In Page v. State, 607 So.2d 1163, 1168 (Miss.1992), we held that "each prior conviction is an element of the felony offense, and each must be specifically charged." Page, 607 So.2d at 1168. Page was charged with felony D.U.I. in violation of Miss.Code Ann. § 63-11-30(2)(d). The indictment listed five previous charges, the cause numbers, and when and where they occurred. However, the indictment failed to specify whether the previous convictions were for D.U.I. First, Second, or Third. Page, 607 So.2d at 1165.

¶5 This court, following the strict statutory analysis engendered by the "whiskey" cases ¹ from the 1940's, found that each subsection of the D.U.I. statute constituted a separate offense. Page, 607 So.2d at 1168-69. Lacking specific charges of prior convictions for second and third offense D.U.I., this Court stated that "[f]or all we know, Page was convicted and punished as a first offender under § 63-11-30(2)(a) each and every time." Id.

¶6 Prior to Page, in Benson v. State, 551 So.2d 188, 196 (Miss.1989), we also addressed the validity of an indictment to impose enhanced penalties. This Court stated that the purpose of the specific listing of previous convictions is to "supply enough information to the defendant to identify with certainty the prior convictions relied upon by the State for enhanced punishment." Benson, 551 So.2d at 196. Page went further and stated:

... the gravity and seriousness of each successive violation of the statute, i.e., second, third, fourth and fifth were not charged after the first offense. Therefore, Page was not made aware that his continued violations increased in punishment for the offense, and that he eventually, by his continued violations, could face a felony sentence.

Page, 607 So.2d at 1169.

¶7 We have since followed the Page decision in Ashcraft v. City of Richland, 620 So.2d 1210, 1211 (Miss.1993). The Ashcraft indictment was as follows:

[t]hat said person had previously been convicted of a violation of Section 63-11-30(1), Miss.Code Ann. (1972) 2nd time(s) and that said person is being charged as a 3rd offender within five (5) years, under Section 63-11-30(1), Miss.Code Ann. (1972); against the peace and dignity of the State of Mississippi.

Ashcraft, 620 So.2d at 1211-12. We found the indictment fatally defective stating that it "failed, however, to charge the gravity and seriousness of each successive violation of the statute, i.e., it did not allege that Ashcraft was ever tried for and convicted of a second offense...." Id.

¶8 Today we find unwarranted our prior application of the "Whiskey" cases to our D.U.I. enhanced punishment statutes. We find more persuasive the rational and well reasoned analysis of Justice Banks as stated in his dissent to Page:

[t]here is no explicit requirement [in the statute] that the offender be punished as a third offender before he is punished as a fourth or subsequent offender. It is only necessary that the defendant have been convicted of three previous offenses.

Page, 607 So.2d at 1170-71 (Banks, J., dissenting). The Page majority's interpretation of legislative will was overreaching and unwarranted. As Justice Banks stated, "It takes no great draftsman to have defined a third offender as one who has been subjected to punishment as a second offender and a fourth offender as one who has been subjected to punishment as a third offender." Id. (Banks, J., dissenting).

¶9 Today we specifically overrule Page v. State, 607 So.2d 1163 (Miss.1992) and Ashcraft v. City of Richland, 620 So.2d 1210 (Miss.1993) to the extent that they interpret the statute to require that the indictment must specifically show a previous conviction for D.U.I. First prior to being convicted for D.U.I. Second and a conviction of D.U.I. Second prior to being convicted for D.U.I. Third. The obvious intent of this statute is to remove repeat D.U.I. offenders from our streets. This goal will be better accomplished by simply reading the clear language of the statute. ²

¶10 Therefore, it is irrelevant whether McIlwain had been charged with a D.U.I. First and a D.U.I. Second. However, as required by Benson v. State, 551 So.2d 188, 196 (Miss.1989), the indictment must still "supply enough information to the defendant to identify with certainty the prior convictions relied upon by the State for enhanced punishment." Benson, 551 So.2d at 196. The attached abstracts of records state clearly that McIlwain had pleaded guilty and been convicted on two prior occasions, June 6, 1992 and April 24, 1993. Such proof complies with Benson. Further, the attachment of the abstracts provide a clear and concise statement of the charges as required by both the D.U.I. indictment case law and the Rules of Circuit Court Practice.

¶11 The indictment clearly gave the defendant sufficient notice of the gravity of the charge against him. We therefore affirm the trial court's refusal to quash the indictment.

2) Did the trial court err in allowing a blank Waiver of Rights and Entry of Guilty Plea to be admitted into evidence as proof of a Second Offense conviction of D.U.I.?

¶12 McIlwain asserts that the State failed to prove his conviction of D.U.I. Second. In attempting to prove the conviction, the State presented an abstract of McIlwain's prior court record with an attached blank waiver of rights and entry of guilty plea form. At trial, Stephanie West, Wayne County Court Clerk, testified to the accuracy of the abstracts.

¶13 Miss.Code Ann. § 13-1-77 and M.R.E. 1005 specifically provide that abstracts of records are admissible to prove prior convictions. As stated in DeBussi v. State, 453 So.2d 1030, 1031 (Miss.1984):

Mississippi's position on proof of prior convictions respects the substance of the best evidence rule: If the actual judgment of conviction is not introduced, it may only be proved by documents accorded equivalent evidentiary weight by statute.

We have regularly upheld...