Rigby v. State

• Decision Date: 18 July 2002
• Docket Number: No. 2000-KA-00221-SCT.,2000-KA-00221-SCT.
• Citation: 826 So.2d 694
• Parties: Jeffrey A. RIGBY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

826 So.2d 694

Jeffrey A. RIGBY v. STATE of Mississippi.

No. 2000-KA-00221-SCT.

Supreme Court of Mississippi.

July 18, 2002.

Rehearing Denied September 26, 2002.

Pamela Luckie Castle V.W., Jr., Carmody, Attorneys for Appellant.

Office of the Attorney General, by John R. Henry, Attorneys for Appellee.

EN BANC.

SMITH, P.J., for the Court.

¶ 1. Jeffrey A. Rigby ("Rigby") was convicted by a jury of felony DUI and sentenced in the Circuit Court of Wayne County to serve five years, four years suspended, and five years under supervisory probation in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Rigby asserts five errors: 1) whether the trial court abused its discretion by overruling Rigby's motion to bifurcate the trial and his motion to prohibit the State from using evidence of prior bad acts in the actual guilt phase for the incident that occurred in question and being charged; 2) whether the indictment was insufficient and should have been dismissed; 3) whether the trial court erred when it did not allow Rigby to defend against the allegations that he refused to submit to a chemical test of his breath alcohol level in violation of the doctrine of collateral estoppel; 4) whether the trial court failed to properly instruct the jury; and 5) whether the trial court erred when it did not allow Rigby to examine the venire members about their opinions on a variety of topics. Based upon a careful review of the record and the briefs, we find no merit to the errors alleged by Rigby and affirm the trial court.

FACTS

¶ 2. Rigby was stopped by law enforcement officials at a roadblock in Wayne County, Mississippi. He was asked to produce his driver's license, but was unable to do so. Rigby was subsequently taken to the Wayne County Sheriffs Department, where he refused to take an Intoxilyzer 5000 (intoxilyzer) test stating that he was so drunk that he could not pass it.

¶ 3. Deputy Kevin Stevens first encountered Rigby as Rigby approached the roadblock, and he requested his drivers license. Rigby stated that he did not have his license. Stevens could smell an alcoholic beverage from inside the compartment of the truck. Rigby was asked to pull to the side of the road into a parking lot area, where another deputy, Wesley Waites, also approached Rigby. Waites also testified to noticing the smell of alcohol from the truck, and he subsequently performed a check on Rigby's license, which informed him that his license had been suspended because of previous DUI charges. Rigby was asked to step out of the vehicle, at which time Waites noticed two open containers of beer next to the gear shift.

¶ 4. Rigby stated that he had been drinking that night and that he was too drunk to take the intoxilyzer test and pleaded with the officers to let him go. Both officers noted Rigby's eyes were red, he was uncoordinated as he used his pickup truck for balance, and the strong smell of alcohol on his breath. An ice chest that contained beer and whiskey was also found in the back of Rigby's pick-up truck.

¶ 5. The officers transported Rigby to the Wayne County Sheriff's Department to administer a breath test on the Intoxilyzer 5000 machine ("intoxilyzer"), which is an instrument used to measure a person's breath alcohol level. Rigby refused the test, explaining that he had had too much to drink and thought he could not pass the test. Rigby did not blow into the machine and was charged with driving on a suspended driver's license under implied consent, possession of beer in a dry county, and driving under the influence (DUI).

ANALYSIS

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING RIGBY'S MOTION TO BIFURCATE TRIAL AND HIS MOTION TO PROHIBIT THE STATE FROM USING PRIOR BAD ACTS OF THE APPELLANT.

¶ 6. During pre-trial motions, Rigby moved to bifurcate the trial and to prohibit the State from using evidence of any prior bad acts. In support of these motions, Rigby requested that the State not be allowed to introduce evidence of Rigby's prior DUI convictions in its case. These motions were denied by the trial court. Rigby then offered to concede his prior convictions to the State, but he did not want to concede them in front of the jury. This issue has been addressed by this Court numerous times. This Court has consistently held that each previous conviction is an element of the felony offense. Page v. State, 607 So.2d 1163, 1168 (Miss. 1992). Accord, Ashcraft v. City of Richland, 620 So.2d 1210, 1212 (Miss.1993)

. In Weaver v. State, 713 So.2d 860 (Miss.1997), this Court again held that prior convictions are elements of the felony DUI charge. See McIlwain v. State, 700 So.2d 586, 588 (Miss.1997)(citing Page, 607 So.2d at 1168); See also McIlwain

700 So.2d at 592 (McRae, J., dissenting)(quoting Page, 607 So.2d at 1169: "As we further acknowledged in Page, prior convictions under the statute, charged and punished as separate, subsequent offenses, are as much elements of the present felony charge as the element of driving under the influence.").

¶ 7. Rigby relies upon Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), for the assertion that if he had stipulated to his prior DUI convictions, then this evidence should not have gone to the jury. Therefore, the State would not have been required to prove these convictions beyond a reasonable doubt.

¶ 8. Old Chief held that "a district court abuses its discretion if it spurns [an offer to stipulate to a prior conviction] and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction." Id. at 174, 117 S.Ct. 644. Old Chief notes that "[i]n this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available." Id. at 193, 117 S.Ct. 644. Rigby suggests, following the general concept of Old Chief, that it is better to bifurcate the proceedings so as to disallow prejudicial convictions to be put before the jury prior to a verdict on the current charge.

¶ 9. Old Chief is easily distinguishable from the present case. In Old Chief, the defendant wished to keep the nature of his prior conviction from the jury and, therefore, offered to stipulate to the jury that he had been convicted of the prior felony of assault causing serious bodily injury. Thus, Old Chief does not stand for the proposition that the prosecution does not have to put each element of the offense before the jury. A prior assault conviction as the underlying felony is irrelevant to the charge of possession of a firearm. As the Supreme Court has noted, the Constitution "requires criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444 (1995) (citing Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 2080-81, 124 L.Ed.2d 182 (1993)). This Court has repeatedly held that prior DUI convictions are necessary elements of a felony DUI charge. Thus, they must be proven beyond a reasonable doubt to the jury. Further, unlike Old Chief, the nature of convictions that are elements of felony DUI is important. Old Chief, itself, highlights the specificity of its holding:

Old Chief's proffered admission would, in fact, have been not merely relevant but seemingly conclusive evidence of the element. The statutory language in which the prior-conviction requirement is couched shows no congressional concern with the specific name or nature of the prior offense beyond what is necessary to place it within the broad category of qualifying felonies, and Old Chief clearly meant to admit that his felony did qualify, by stipulating that the Government has proven one of the essential elements of the offense. 57D App. 7. As a consequence, although the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission. Logic, then, seems to side with Old Chief.

Old Chief 519 U.S. at 186, 117 S.Ct. 644 (emphasis added). Old Chief is essentially the Supreme Court's interpretation of the Federal Rules of Evidence. Thus, in the very specific instance of a defendant charged as a felon in possession of a firearm, the Court found that the underlying felony, while an element of the crime, was irrelevant. In a felony DUI case, the nature of the underlying felonies is extremely relevant as only prior DUI convictions will justify the charge. Thus, Rigby's suggestion that we extend Old Chief's reasoning to DUI cases is more like attempting to fit a size six shoe on a size ten foot. It can not be done!

¶ 10. Simply put, bifurcation of the guilt phase of a trial is inappropriate under Mississippi law. To do as Rigby suggests would set up a system where a defendant charged with felony DUI first be tried on the newest DUI before a jury. Then, if the jury returns with a guilty verdict, the prior convictions would be put before that same jury, and it would then deliberate on the felony DUI charge. This procedure would be a direct violation of our Uniform Rules of Circuit and County Court Practice. Rule 3.10 states in pertinent part that "[a]fter the jurors have retired to consider their verdict the court shall not recall the jurors to hear additional evidence." Unif. R. Cir. & County Court Prac. 3.10.

¶ 11. Only two states have adopted the procedure suggested by Rigby. Arkansas and Florida consider...