Washington v. State

• Decision Date: 16 October 1985
• Docket Number: No. 54937,54937
• Citation: 478 So.2d 1028
• Parties: Obie D. WASHINGTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1028

478 So.2d 1028

Obie D. WASHINGTON v. STATE of Mississippi.

No. 54937.

Supreme Court of Mississippi.

Oct. 16, 1985.

Kash M. Butani, Tylertown, for appellant.

Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

PRATHER, Justice, for the Court:

The habitual offender sentencing statutes are the basis for a constitutional separation of powers challenge in this criminal appeal from the Circuit Court of Walthall County. Obie D. Washington, appellant, was convicted of rape and sentenced as a recidivist, in a bifurcated hearing, to thirty years in the custody of the Mississippi Department of Corrections. He appeals asserting that:

(1) The court erred in overruling the defendant's motion to quash the indictment, on the grounds that the said indictment was procured in violation of section 1 and section 2 of Article 1 of the Constitution of the State of Mississippi, and in violation of the rights of the defendant under the Sixth Amendment of the Constitution of the United States.

(2) The court erred in refusing the defendant's jury instruction No. D-9 which he claims was violative of his Sixth Amendment right under the federal constitution to call and confront his own witnesses.

(3) The court erred in permitting the state to introduce the evidence of prior convictions of the defendant and hearsay evidence about the defendant's reputation in the community for truth and veracity.

I.

On the morning of June 5, 1982, just before 8:00 a.m., Annette Holmes, a 25 year old victim of cerebral palsy, was raped near her home.

Holmes was taken to the Walthall County General Hospital where samples of her hair and blood were taken, along with internal and external vaginal swabs.

Annette identified her attacker as Obie D. Washington, who was charged with forcible rape of a female over the age of twelve (12) years in violation of Miss.Code Ann. Sec. 97-3-65(2) (1984 Supp.) and as a habitual criminal within the meaning of Miss.Code Ann. Sec. 99-19-81 (1984 Supp.).

Prior to his trial, Washington moved to quash the indictment on both Mississippi and U.S. Constitutional grounds. The motion was overruled. He also moved to have the semen sample, that was removed from the victim, made available for independent testing, but was informed by the district attorney that the entire quantity had been used in testing by the Mississippi Crime Lab.

At trial, Annette Holmes was the only eyewitness to testify. Five other witnesses, all residents of Cato Street, testified that they saw Obie D. Washington on their street on the morning of June 5, 1982 at times ranging from 5:00 a.m. to 7:00 a.m. There was testimony given on Washington's behalf, all from members of his family, that he was at home from 1:00 a.m. Saturday, June 5, until the police came to arrest him.

Larry Turner, a forensic serologist at the Mississippi Crime Lab, testified that the vaginal swabs taken from Annette Holmes contained seminal fluid from a person of non-secretor status. He testified that a blood sample taken from Obie D. Washington indicated that Washington was a non-secretor. Finally, Turner testified that twenty percent of the population are non-secretors.

Obie D. Washington testified on his own behalf, and on cross-examination was questioned about his prior convictions. The defense counsel made a timely objection which was overruled. After the defense rested, the state put on rebuttal evidence, again over the objections of defense counsel. Chief of Police Lavon Magee testified that he knew of Washington's reputation for truth and veracity and that that reputation was bad.

Washington was found guilty by a unanimous jury and, in a bifurcated sentencing hearing, was sentenced to 30 years in the state penitentiary.

These facts give rise to the following assignments of error.

II.

Did the court err in overruling the defendant's motion to quash the indictment on the grounds that the said indictment was procured in violation of section 1 and section 2 of Article 1 of the Constitution of the State of Mississippi, and in violation of the rights of the defendant under the Sixth Amendment of the Constitution of the United States?

Appellant challenges the constitutionality of Mississippi Uniform Criminal Rule 6.04 and Miss.Code Ann. Sec. 99-19-81. For consideration of this issue we divide our discussion into two parts:

(A) Miss.Code Ann. Sec. 99-19-81 and Mississippi Uniform Criminal Rules of Circuit Court Rule 6.04 violate the separation of powers doctrine.

(B) Appellant was denied a fair trial because the grand jury was infected with the knowledge he was an habitual criminal.

A. Violation of the Separation of Powers Doctrine.

Appellant bases his legal argument, in part, on Article I, Section I of the Mississippi Constitution which is as follows:

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

He also bases his argument on Article 1, section 2 which reads in pertinent part:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others....

Washington was indicted as an habitual offender under Miss.Code Ann. Sec. 99-19-81, as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Following this statute and Mississippi Uniform Criminal Rules of Circuit Court Practice 6.04(1), ¹ the appellant contends that the function of sentencing has been transferred from the exclusive control of the judiciary to the office of the prosecuting attorney, an executive officer, violating the separation of the powers doctrine. This shift, claims the appellant, comes about by the use of the prosecutorial discretion in electing, or refusing, to indict as an habitual criminal.

Analyzing this argument, this Court notes first that the fixing of punishment in criminal cases is a question of legislative policy. Gabriel v. Brame, 200 Miss. 767, 28 So.2d 581 (1947); Jordan v. State, 383 So.2d 495 (Miss.1980); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958); 24B C.J.S. Sec. 1975 Criminal Law, p. 539.

In People v. Pettigrew, 123 Ill.App.3d 649, 78 Ill.Dec. 919, 462 N.E.2d 1273 (Ill.App. 4th Dist.1984) the defendant argued that the authority of the state's attorney to invoke the habitual criminal statute was actually a sentencing power and under the state constitution such power belonged exclusively to the judicial branch. The Illinois Appellate Court responded, "The power to petition the court to invoke the sanctions of the Act is not the power to sentence." Id. 78 Ill.Dec. at 921, 462 N.E.2d at 1275. The Court went on to uphold the constitutionality of the Act.

In the similar Indiana case of Thomas v. State, 471 N.E.2d 681 (Ind.1984), prosecutorial discretion, contended the defendant, improperly gave the executive branch the power to determine certain sentences. In response, the Indiana Supreme Court stated:

We have repeatedly held adversely to defendant's position since it is clear that a prosecutor is always permitted some selectivity in every case as to whether or not to charge a violation of a criminal statute. The habitual offender statute does not contravene the constitutional provisions providing for separation of powers in the respective branches of our government.

Id. at 683-684. Also, see Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979), State v. Badon, 338 So.2d 665 (La.1976), Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) (conscious selectivity in enforcement of a habitual criminal statute is not in itself a violation of the Federal constitution where the selection is not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification).

The argument in the case sub judice is almost identical to the arguments in Pettigrew and Thomas. It is this Court's opinion there is no merit to this argument.

B. Appellant Denied a Fair Trial.

The appellant asserts that he was denied a fair trial because the indictment was returned by a grand jury that "was told the defendant is a habitual criminal, and such allegations were put on record before the court at the inception of the trial, prior to the sentencing phase." It is claimed that the right to enhanced punishment matures only after conviction on the principal charge. Rule 6.04 specifically requires prior convictions to be set out in the indictment when an enhanced penalty is sought under Miss.Code Ann. Sec. 99-19-81 in part as follows:

The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous felonies, the state and federal jurisdiction of previous conviction, and the date of judgment.

Established caselaw of this jurisdiction has long established that where prior felony convictions are used to enhance punishment for a subsequent offense, specificity concerning the jurisdiction of the prior convictions, the date of the judgment, and the nature and description of the...