Weaver v. State

• Decision Date: 24 September 1986
• Docket Number: No. 55901,55901
• Citation: 497 So.2d 1089
• Parties: Michael Herbert WEAVER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1089

497 So.2d 1089

Michael Herbert WEAVER v. STATE of Mississippi.

No. 55901.

Supreme Court of Mississippi.

Sept. 24, 1986.

Rehearing Denied Dec. 10, 1986.

Charles R. Brett, Tupelo, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and GRIFFIN, JJ.

ROBERTSON, Justice, for the Court:

I.

This arson case finds the Defendant mounting numerous challenges to the fairness of his trial and conviction and his ten year recidivism sentence. Though the prosecution turns largely upon the credibility of an accomplice-turned-state's-evidence, we find the evidence more than adequate to place the jury's verdict beyond our authority to disturb. Moreover, we have reviewed with care Defendant's several assertions of procedural error and find none with merit. We affirm.

II.

Around 3:00 a.m. on November 15, 1982, the Hi-Lo Dollar Store in Maben, Mississippi, burned. Investigation revealed that an accelerant had been used to start the fire. In addition, the front door lock had been torn out of its casing and a drug locker in the pharmacy section had been broken into. Merchandise, including drugs from the pharmacy and jewelry and cigarettes from the dollar store, were missing.

Several days after the fire, Oktibbeha County law enforcement authorities arrested an individual named Ron Vanderviss on unrelated charges. On December 8, 1982, Vanderviss gave the sheriff a detailed statement admitting that he and Michael Herbert Weaver, Defendant below and Appellant here, had burned the Hi-Lo Dollar Store as hired arsonists. Several days later, Vanderviss took the sheriff to various places in and around Maben where the events, as indicated in his statement, had occurred. Prior to trial, the prosecution made a deal with Vanderviss: In return for his testimony at the trial of Mike Weaver, the State would not try Vanderviss as a habitual criminal, he would receive help for his drug addiction while incarcerated and he would not be incarcerated with Weaver.

On April 17, 1984, Weaver was formally charged with the arson of the Hi-Lo Dollar Store in an indictment returned by the Oktibbeha County Grand Jury. By reason of two prior felony convictions, Weaver was further charged as a recidivist within the meaning and contemplation of Miss.Code Ann. Sec. 99-19-81 (Supp.1985). The case was called for trial on April 30, 1984.

The building that burned was owned by Louis Williams who rented a part of it to his son, Tom Williams, who operated the Hi-Lo Dollar Store. The remainder was rented to Andy Andrews who operated the pharmacy. Vanderviss' testimony at trial was that Weaver had been engaged to fire the building at the behest of the proprietors of the store. Weaver obtained the keys to the store and the burglar alarm from Tommy Williams, a cousin of the operator of the Hi-Lo Dollar Store. The purpose of the arson was to allow the proprietors to collect the insurance. Vanderviss and Weaver were supposed to make it appear that the fire was set to cover up a burglary. In this regard, a part of the consideration Vanderviss and Weaver were to receive for their arsonist services was anything they could carry away from the store, especially drugs.

Vanderviss testified that the arson plan was originally scheduled to be consummated on the night of November 13, 1982. Vanderviss, Weaver and Weaver's girlfriend, Ruth McAlpin, traveled to Maben in Weaver's car. McAlpin was to have the car parked in a certain place for the getaway. Vanderviss testified that he and Weaver entered the store with the key, disarmed the burglar alarm, stashed some jugs of gasoline, forced open the drug cabinet, and took 800 to 1,000 cartons of cigarettes plus some watches and drugs. Before burning the store Vanderviss and Weaver decided to check and make sure McAlpin was parked where she was supposed to be. Vanderviss went to look for McAlpin and was unable to find her or the car she was driving.

Upon returning to the store, Vanderviss and Weaver decided not to burn the store that night because they did not know where McAlpin was. Vanderviss testified that they then loaded the goods that they had taken into a blue dump truck parked behind a Big Star Store across the street from the Hi-Lo Dollar Store. They drove the truck to where McAlpin was to have parked and stashed the goods. Afterwards they drove to a home in the country where Weaver obtained a four-wheel drive vehicle and told Vanderviss to follow him in the dump truck. The dump truck ran out of gas and they abandoned it on the side of the road. Once they got to town, the four-wheel drive ran out of gas and Weaver called someone who gave them a ride to a bar known locally as the Bloody Bucket, where Weaver picked up a small yellow car that belonged to one of his cousins.

Vanderviss further testified that he and Weaver then drove back into Maben and found McAlpin at a convenience store. McAlpin told them that she had ran off in a ditch the night before. They put gasoline in the four-wheel drive and used it to pull the car that McAlpin had driven from the ditch. Vanderviss then took Weaver's car, returned to the place where they had stashed the goods, loaded them into Weaver's car and drove to McAlpin's home in Houston, Mississippi.

Vanderviss then testified that he and Weaver returned to Maben that night, which was Sunday night, and burned the Hi-Lo Dollar Store.

The prosecution produced fourteen other witnesses to corroborate the testimony of Vanderviss. The defense introduced two witnesses, in addition to calling Vanderviss as a hostile witness, for its case-in-chief. One of these witnesses for the defense testified that she, McAlpin and Weaver were together at McAlpin's home on the Sunday night of the incident. The other witness testified that Vanderviss had told him that an individual named Frank Hemphill had instructed Vanderviss to testify as he did against Weaver so that he (Vanderviss) might get out of jail and stay out of the penitentiary.

After a four day trial the jury returned a verdict that Weaver was guilty as charged. Thereafter, Weaver was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections without eligibility for probation or parole. A motion for a new trial was heard and overruled on June 5, 1984. Weaver now presents this appeal.

III.

The criminal code of this state contains seven separate offenses falling within the generic category of arson. Miss.Code Ann. Secs. 97-17-1, et seq. (1972). While there is much overlap between them, each of these offenses contains at least one factual element distinguishing it from the others. Differing penalties are also prescribed, no doubt reflecting legislative policy judgments that some arsons are more serious than others, their perpetrators more deserving of severe punishment than others.

The present indictment charges simply that Weaver

did unlawfully, willfully and feloniously and maliciously set fire to and burn a building commonly known and called Hi-Lo Dollar Store.

The Circuit Court considered--and the State argues here--that this indictment charges an offense under our second decree arson statute, Miss.Code Ann. Sec. 97-17-5 (1972), which reads as follows:

Any person who willfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any building or structure of whatsoever class or character, whether the property of himself or of another, not included or described in Section 97-17-1 or Section 97-17-3, shall be guilty of arson in the second degree, and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than ten years.

Weaver argues that a combined reference to the proof and the indictment compels consideration of this case solely under the insured property arson statute, Miss.Code Ann. Sec. 97-17-11 (1972), which reads as follows:

Any person who willfully and with intent to injure or defraud the insurer sets fire to or burns or attempts so to do or who causes to be burned or who aids, counsels or procures the burning of any building, structure or personal property of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire, shall be guilty of a felony and without conviction thereof, be sentenced to the penitentiary for not less than one nor more than five years.

The principal practical consequence of the point is that, if Weaver is correct, his maximum sentence would be five years imprisonment instead of ten.

Our law regarding this point is clear. Where we have two or more statutes covering a given course of conduct, the prosecution may choose to proceed against the accused under either, so long as the accused is given fair notice of that with which he is charged. Cumbest v. State, 456 So.2d 209, 222-23 (Miss.1984); Brooks v. State, 236 So.2d 751, 753 (Miss.1970); see Rule 2.05, Unif.Crim.R.Cir.Ct.Prac. On the other hand, where, from a fair reading of the indictment in the light of the several statutes in our criminal code, the accused cannot identify with reasonable certainty the statute the prosecution has elected to proceed under, the accused upon conviction will be liable for punishment only under the lesser statute. Grillis v. State, 196 Miss. 576, 586, 17 So.2d 525, 527 (1944).

The indictment at issue does not designate a specific statute. We have held, however, that this is not fatal where from the language of the indictment the accused may fairly ascertain under what statute he has been charged. Harbin v. State, 478 So.2d 796, 799 (Miss.1985); Harden v. State, 465 So.2d 321, 324 (Miss.1985); Henderson v. State, 445 So.2d 1364, 1367-68 (Miss.1984); Dalgo v. State, 435 So.2d 628, 630 (Miss.1983); Rule 2.05, Miss.Unif.Crim.R.Cir.Ct.P.

The charging language of the instant...