Powell v. State, 97-KA-00793-SCT.
| Decision Date | 18 October 2001 |
| Docket Number | No. 97-KA-00793-SCT.,97-KA-00793-SCT. |
| Citation | 806 So.2d 1069 |
| Parties | Eric Troy POWELL a/k/a Troy McClinton v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Kent E. Smith, Oxford, Attorney for Appellant.
Office of the Attorney General by Dewitt T. Allred, III, Jackson, Attorney for Appellee.
Before PITTMAN, C.J., MILLS and COBB, JJ.
COBB, J., for the court:
¶ 1. On August 22, 1996, Eric Troy Powell was convicted of aggravated assault on a police officer following a jury trial in the Marshall County Circuit Court. He was sentenced as a habitual offender to twenty years in the custody of the Mississippi Department of Corrections. He now appeals his conviction, raising the following issues:
¶ 2. Concluding that these issues are without merit, we affirm the judgment of the trial court.
FACTS
¶ 3. On August 13, 1995, Officer Randy Harper of the Holly Springs Police Department saw a vehicle matching the description of one reported stolen earlier that day. Harper later testified that he followed the vehicle until he could positively identify it as the stolen vehicle. Harper notified his dispatcher that he had found the vehicle and then made the stop. Once stopped, Eric Troy Powell, the driver of the vehicle, jumped out of the vehicle and ran towards nearby woods. Harper pursued Powell into a gully and found him after a brief search.
¶ 4. At that point, the facts become disputed, but according to Harper's testimony at trial, he fell on top of Powell, Powell pointed a gun at him, and he and Powell struggled over the gun, which then went off. Harper was not hit by the gunshot, and other deputies soon arrived to help him take Powell into custody. Harper could not say for certain whether Powell already had the gun out or whether he pulled it out after Harper fell onto Powell. Harper also testified on cross-examination that, after the shot was fired, Powell said "You shot me."1 Harper was the sole witness offered by the State during its case-in-chief.
¶ 5. Powell later took the stand in his own defense, basically agreeing with Harper's account, but adding that he ran so that he could dispose of the gun and some drugs that he was carrying on his person. He also claimed to have told Harper "I have a gun in this hand" because he feared getting shot, and that Harper responded to that statement by trying to grab the gun away from him, thereby causing it to fire accidentally. Powell claimed that he did not even realize that his gun had fired and that he initially thought that he himself had been shot.
¶ 6. On cross-examination, Powell claimed that he bought the gun from a friend who also let him borrow the vehicle. In rebuttal, the State then called Teddy Dwight Dallas, the actual owner of the gun and vehicle, who identified Powell as one of two men who robbed him at gunpoint, taking the vehicle and the gun that was kept in it, as well as other possessions of Dallas's. At the conclusion of Dallas's testimony, Powell's attorney moved for a mistrial, and the court denied the motion without giving any justification. After about fifty minutes of deliberation, the jury convicted Powell of aggravated assault on a police officer. The circuit judge sentenced Powell as a habitual offender to a term of twenty years.
ANALYSIS
I. WHETHER THE APPELLANT WAS DENIED HIS RIGHT TO PROTECTION AGAINST DOUBLE JEOPARDY AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 22 OF THE MISSISSIPPI CONSTITUTION OF 1890.
¶ 7. Powell's first argument is that he was denied his right to protection from double jeopardy which was triggered when he pled guilty to charges of resisting arrest stemming from the same incident that gave rise to this aggravated assault charge. The Double Jeopardy Clause of the Fifth Amendment states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This proscription is made applicable to Mississippi through the Due Process Clause of the Fourteenth Amendment. Cook v. State, 671 So.2d 1327, 1331 (Miss.1996). Also, the Mississippi Constitution contains a Double Jeopardy Clause which provides that "[n]o person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution." Miss. Const. art. 3, § 22.
¶ 8. Double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In other words, the Double Jeopardy Clause bars successive prosecutions for the same criminal offense. Cook, 671 So.2d at 1331. In determining whether the protection is applicable under either the Federal or State provision, we apply the "same-elements" test as articulated by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Keyes v. State, 708 So.2d 540, 544 (Miss. 1998). The Blockburger test "inquires whether each offense contains an element not contained in the other; if not, they are the `same offence' [sic] and double jeopardy bars additional punishment and successive prosecution." Cook, 671 So.2d at 1331 (quoting United States v. Dixon, 509 U.S. 688, 689, 113 S.Ct. 2849, 2851, 125 L.Ed.2d 556 (1993)).
¶ 9. The State argues as a threshold matter that Powell's double jeopardy claim is procedurally barred because he failed to pursue it to a hearing and ruling. The record reflects that this issue was raised in a Motion to Dismiss Indictment on Grounds of Double Jeopardy, but there is nothing in the record which reveals the disposition of that motion. However, the issue of double jeopardy was raised again by Powell in his Motion for J.N.O.V., which was denied by the trial court.
¶ 10. The State also argues that Powell's claim is barred because the record contains no proof that Powell was actually convicted of resisting arrest. However, the State does concede the existence of abstracts of the records of the Municipal Court of Holly Springs showing Powell's conviction for resisting arrest, and the record does contain an affidavit of Powell's trial attorney averring that Powell did plead guilty to charges of resisting arrest which arose out of the same incident. There is sufficient evidence to consider this claim on the merits and to establish Powell's conviction for resisting arrest for Blockburger purposes.
¶ 11. Powell's double jeopardy argument relies on the proposition that double jeopardy "bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Harrelson v. State, 569 So.2d 295, 296 (Miss.1990)(quoting Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)). Harrelson adopted the "same conduct" test which had recently been established in Grady v. Corbin. Harrelson, 569 So.2d at 296. However, the "same conduct" test was expressly overruled by the U.S. Supreme Court in Dixon, 509 U.S. at 704, 113 S.Ct. 2849, as noted by this Court in Cook, 671 So.2d at 1331. Harrelson, to the extent it conflicts with Cook, is hereby overruled, and the proper test for establishing a double jeopardy claim is the Blockburger test.
¶ 12. Under Blockburger, a conviction can withstand double jeopardy analysis only if each offense contains an element not contained in the other. Keyes, 708 So.2d at 544. At the time of Powell's arrest, a person was guilty of resisting arrest under Miss.Code Ann. § 97-9-73 (2000)2 if he:
Miss.Code Ann. § 97-9-73 (2000)(as amended in 1994).
¶ 13. The elements of aggravated assault on a law enforcement officer under Miss.Code Ann. § 97-3-7(2)(b)3 are:
¶ 14. As these lists plainly show, each of the two offenses contains an element lacking in the other. To convict a defendant of resisting arrest, the State must show that either the defendant or someone else was actually being arrested at the time of the offense. To convict a defendant of aggravated assault on a law enforcement officer, the State must prove the use of a deadly weapon or some equivalent means of producing death or serious bodily injury. Since each of the two offenses contains an...
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