Moore v. State

• Decision Date: 31 January 2006
• Docket Number: No. 2004-KA-00275-COA.,2004-KA-00275-COA.
• Citation: 938 So.2d 1254
• Parties: Tracy Darnell MOORE, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

938 So.2d 1254

Tracy Darnell MOORE, Appellant v. STATE of Mississippi, Appellee.

No. 2004-KA-00275-COA.

Court of Appeals of Mississippi.

January 31, 2006.

Certiorari Denied October 5, 2006.

James A. Williams, attorney for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

EN BANC.

GRIFFIS, J., for the Court.

¶1. Tracy Darnell Moore was convicted in the Lauderdale County Circuit Court of the crimes of kidnapping and robbery by use of a deadly weapon. For the kidnapping charge, Moore was sentenced to twenty-five years imprisonment plus payment of $8,000 restitution. For the armed robbery charge, Moore was sentenced to thirty years imprisonment. The sentences were to run concurrently. Moore's motion for judgment notwithstanding the verdict or a new trial was denied, and Moore appealed. Finding no error, we affirm.

FACTS

¶2. On the morning of January 10, 2002, two masked gunmen broke into Ralph and Elizabeth Morgan's home, bound the Morgans with duct tape, and proceeded to take the couple's money, rings, and property, while repeatedly threatening to kill the couple throughout the roughly forty-five minute ordeal. After the men left the home, the Morgans phoned the police, who arrived approximately fifteen minutes later. During an investigation of the Morgans' property, police found a cellular phone dropped near a barbed wire fence, which they quickly traced to Tracy Darnell Moore.

¶3. A grand jury initially indicted Moore on November 15, 2002, for the offenses of kidnapping and armed robbery. Moore, represented by appointed counsel, entered into a plea bargain with the State, in which he agreed to a plea of guilty to armed robbery and to testify truthfully against his co-defendant, whom he had identified as Lee Amerson, in return for a reduced sentence of fifteen years in the custody of the Mississippi Department of Corrections ("MDOC") for the armed robbery charge and nolle prosequi of the kidnapping charge. As a result of his plea agreement, the circuit court convicted Moore of armed robbery and sentenced him to fifteen years imprisonment on February 12, 2003, with credit for jail time served, and ordered payment of $248.50 in court costs and a $1,000 fine.

¶4. During Amerson's trial in April 2003, Moore refused to testify, despite his earlier plea agreement with the State. Consequently, the circuit court held Moore in criminal contempt and sentenced him to a thirty day fixed sentence and a fine of one hundred dollars. At the conclusion of the trial, Amerson was acquitted.

¶5. As a result of Moore's refusal to testify, the State moved to revoke Moore's plea bargain, vacate the armed robbery sentence, and reinstate the kidnapping charge. The circuit court granted the State's motion on April 29, 2003, and the grand jury again indicted Moore for kidnapping and armed robbery on August 1, 2003. Moore moved to dismiss on the grounds that the circuit court's April 29, 2003 order granting the State's motions was entered after the term of court had ended, and thus exceeded the court's authority. Moore's motion to dismiss additionally alleged that re-indictment on the charges constituted a violation of double jeopardy. The circuit court denied Moore's motion, and Moore was tried and found guilty of kidnapping and armed robbery.

¶6. Aggrieved by the trial court's rulings, Moore asserts the following on appeal: (1) that he was subjected to double jeopardy and denied due process of law for his re-indictment and conviction on the charges and that such conviction was additionally outside of the circuit court's authority because it was entered outside of the term in which the original sentence was entered; (2) that he was subjected to double jeopardy and denied due process of law through multiple punishments for the same crime when he was sentenced to criminal contempt for refusal to testify; (3) that he was subjected to double jeopardy and denied due process of law through being convicted of both kidnapping and armed robbery when the charges arose from the same incident; (4) that he should be granted a new trial because of a jury instruction that varied from the indictment and allowed instructions involving accomplice liability as well as containing an assumption of fact that the crime was committed; (5) that he was denied fundamental fairness and due process of law by reason of prosecutorial vindictiveness; (6) that he was denied his right to silence as a result of the State's statements during closing argument; and (7) that he was denied effective assistance of counsel.

ISSUES AND ANALYSIS

I. Whether Moore was subjected to double jeopardy and denied due process of law when re-indicted and convicted on kidnapping and armed robbery charges and whether the circuit court had authority to enter a new sentence outside of the term in which the original sentence was entered.

a. Double jeopardy as to re-indictment and conviction

¶7. Moore's plea bargain with the State entitled him to a reduced sentence on a guilty plea of armed robbery and a nolle prosequi on the kidnapping charge in exchange for his testimony against Amerson. Moore refused to testify, thereby breaching the plea agreement with the State. See United States v. Castaneda, 162 F.3d 832, 836 (5th Cir.1998) ("If the pleadings show no factual dispute, ... the court may determine breach as a matter of law").¹ Moore contends that the State subjected him to double jeopardy and denied him due process of law when the State then re-indicted and convicted him outside the term of court at which the original armed robbery sentence was entered.

¶8. "[T]he Double Jeopardy Clause ... does not relieve a defendant from the consequences of his voluntary choice." Ricketts v. Adamson, 483 U.S. 1, 11, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (quoting United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)). In Ricketts, the defendant's plea agreement with the State included in its terms that the charges would be automatically reinstated upon the defendant's breach by a refusal to testify. Id. at 9, 107 S.Ct. 2680. Breach of that agreement returned the parties in that case to the status quo ante, so that in effect, the defendant had "no double jeopardy defense to waive." Id. at 10, 107 S.Ct. 2680.

¶9. A plea agreement is contractual in nature. Wright v. McAdory, 536 So.2d 897, 901 (Miss.1988). When a defendant breaches a plea agreement, the agreement is "terminated as if it never existed and the State of Mississippi retains all powers of prosecution...." State v. Danley, 573 So.2d 691, 694 (Miss.1990) ("Danley II") (quoting Danley v. State, 540 So.2d 619, 621 (Miss.1988)). Moore's voluntary refusal to testify against Amerson constituted a material breach of the plea bargain. As a result of this breach, the parties were returned to the status quo ante, and Moore had no double jeopardy defense available concerning re-indictment and conviction on the charges. "[A]n agreement specifying that charges may be reinstated given certain circumstances is ... equivalent to an agreement waiving a double jeopardy defense." Ricketts, 483 U.S. at 10, 107 S.Ct. 2680. The transcript of Moore's February 12, 2003 guilty plea hearing clearly shows that Moore was aware that the State would seek to invalidate his plea and reinstate the charges if he failed to testify truthfully against Amerson.

¶10. As to reinstatement of the kidnapping charge, it is fully within the State's authority to "re-indict an accused for the same offense after an order of nolle prosequi has been entered." State v. Shumpert, 723 So.2d 1162, 1165(¶13) (Miss.1998). We therefore find no double jeopardy violations as to the re-indictment and conviction on the kidnapping and armed robbery charges.

b. Authority of circuit court to vacate original plea and sentence on armed robbery count

¶11. Moore further contends that the action to vacate the plea and sentence on the armed robbery count was null and void, because it was filed outside the term of the court in which the sentence was originally entered. Moore cites us to Harrigill v. State, 403 So.2d 867, 868-69 (Miss. 1981), where the Mississippi Supreme Court stated that "once a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment." Furthermore, Moore argues that "a circuit court cannot rule on motions which are not pending at the end of the term of court when sentencing was imposed." Presley v. State, 792 So.2d 950, 954(¶19) (Miss.2001). Hence, Moore contends that because the motion to vacate the plea and sentence was not pending at the end of the term of court, the judgment of the circuit court vacating the armed robbery sentence is void and we should reinstate the February 12, 2003 sentence of fifteen years imprisonment and $1,000 fine.

¶12. As discussed above, Moore materially breached his plea bargain agreement. Moore obtained the benefit of a plea bargain based solely on his promise to testify truthfully against Amerson, his co-defendant. However, the question was not whether Moore testified to the approval of the prosecutors but was that he refused to testify at all. Indeed, Moore unequivocally and materially breached the plea bargain agreement when he failed to testify.

¶13. A breached plea bargain agreement is "terminated as if it never existed and the State of Mississippi retains all powers of prosecution." Danley II, 573 So.2d at 694; Danley v. State, 540 So.2d 619, 621 (Miss.1988) ("Danley I") (emphasis added). The supreme court has thoroughly discussed the law as it relates to a breach of a plea bargain agreement in Danley I and Danley II. Danley and the district attorney agreed to a plea bargain. Id. at 621. The terms of the plea bargain were similar to the plea colloquy here. Id. Danley agreed to testify truthfully and agreed that if he did not then the State could prosecute him fully. Id. The district attorney believed that Danley lied...