White v. State

• Decision Date: 06 November 1997
• Docket Number: No. 95-CT-00703-SCT,95-CT-00703-SCT
• Citation: 702 So.2d 107
• Parties: Tommy WHITE a/k/a Larry Burnside v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 107

702 So.2d 107

Tommy WHITE a/k/a Larry Burnside v. STATE of Mississippi.

No. 95-CT-00703-SCT.

Supreme Court of Mississippi.

Nov. 6, 1997.

Charles E. Webster, Twiford Webster & Gresham, Clarksdale, for appellant.

Michael C. Moore, Attorney General, Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SULLIVAN, Presiding Justice, for the Court:

¶1 Tommy White, a/k/a Larry Burnside, was convicted in the Circuit Court of Quitman County on one count of conspiracy to operate a chop shop (count I), one count of joint operation of a chop shop (count II), and one count of individually operating a chop shop (count III). White was sentenced separately on each count.

¶2 White appealed claiming that the verdicts were against the overwhelming weight of the evidence and that his convictions constituted double jeopardy. The Court of Appeals affirmed the convictions and denied White's motion for rehearing. White filed a timely petition for writ of certiorari which this Court granted.

¶3 Because this Court finds that the Court of Appeals erred in its application of the facts and law with regard to the issue of double jeopardy, White's conviction under count III is hereby reversed and rendered. The decision of the Court of Appeals is affirmed as to count I and count II.

Statement of Facts

¶4 In March of 1993, law enforcement officials received information that White might be involved in running a chop shop. After investigating these allegations, the officials were led to Darren Hill, White's accomplice. It was discovered that White was buying the stolen vehicles from Hill and selling the parts. Stolen items were discovered in White's salvage yard and inventoried during several searches of the property in March of 1993. White was indicted for conspiring to operate a chop shop (count I), joint operation of a chop shop (count II), and individually operating a chop shop (count III). White was convicted and sentenced separately on all three counts.

Issue Raised for Certiorari Review

¶5 In his petition for writ of certiorari, White raises one issue. White contends that his convictions on count II and count III violate the double jeopardy clause because count II is one and the same as the offense charged in count III. White claims that he was charged twice for a single continuing transaction.

Was this issue preserved for review?

¶6 White failed to raise this issue at trial. He first raises the issue in his appeal brief, but he failed to cite any authority in support of his position. In Wright v. State, 540 So.2d 1 (Miss.1989), a multi-count indictment was returned against the defendant charging him with two separate burglaries of the same house. The defendant claimed that his two entrances into the house constituted "one continuous crime." Id. at 4. This Court addressed whether the defendant had preserved the issue of double jeopardy for review:

The appellant did not at any time in trial court mount an attack on the indictment on any ground, nor did he at any time prior to, during or after the trial, raise a double jeopardy question. The appellant had not cited any authority for this assignment and procedurally should be barred by this Court. Smith v. State, 445 So.2d 227, 229 (Miss.1984).

Wright, 540 So.2d at 4. Although this Court found that the issue should be procedurally barred, this Court addressed the double jeopardy issue and found that it was without merit. Id. at 5.

¶7 In determining that the issue of double jeopardy should be procedurally barred, this Court cited Smith v. State, 445 So.2d 227 (Miss.1984). In Smith, this Court held that the "[a]ppellant does not show how or why double jeopardy will apply in a situation such as presents itself here. Under these circumstances the principle stated in Ramseur v. State, 368 So.2d 842 (Miss.1979) applies." Smith, 445 So.2d at 229. In Ramseur, the appellant failed to cite any authority in support of his assignments of error. "Where assignments of error are unsupported by argument and authority, the court does not, as a general rule, consider them." Ramseur, 368 So.2d at 844 (emphasis added).

¶8 The principle stated in Ramseur is not an absolute bar. It merely points out that this Court may, in its discretion, choose not to review an assignment of error that is not supported by authority. When this Court is confronted with a situation in which the appellant claims that he has been charged and convicted more than once for the same offense, however, this Court finds that the issue warrants review as plain error.

Double Jeopardy

¶9 Double jeopardy consists of three separate constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted).

¶10 This Court recently addressed the issue of double jeopardy in Cook v. State, 671 So.2d 1327 (Miss.1996):

The Double Jeopardy Clause of the Fifth Amendment reads as follows, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This proscription "has been applied to the states through the Due Process Clause of the Fourteenth Amendment." McNeal v. Hollowell, 481 F.2d 1145, 1149 (5th Cir.1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974) (citations omitted).

Double jeopardy protection applies to successive prosecutions for the same criminal offense. United States v. Dixon, 509 U.S. 688, 694, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). The Supreme Court has also held that:

In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" test, the double jeopardy bar applies.... The same-elements test, sometimes referred to as the "Blockburger" test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution.

Dixon, 509 U.S. at 696, 113 S.Ct. at 2856 (citations omitted). In Dixon, the Court recognized that in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), it adopted an additional test that "a subsequent prosecution must satisfy a 'same-conduct' test to avoid the double jeopardy bar." Id. at 697, 113 S.Ct. at 2853. However, the Court concluded that "Grady must be overruled.... Grady lacks constitutional roots. The 'same conduct' rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy." Dixon, 509 U.S. at 704, 113 S.Ct. at 2860. Thus, as the Supreme Court has articulated, the rule is again the "Blockburger" or "same-elements" test.

Id. at 1331.

¶11 The Court of Appeals failed to cite the relevant test or standard of review. The Court of Appeals merely made findings of fact that the evidence gathered on one visit by the investigators on March 6th was different from the evidence gathered on a later visit on March 18th. A review of the record indicates that this is an erroneous conclusion. ¹

¶12 A careful review of the facts shows that, acting upon a tip, law enforcement investigators obtained a search warrant for White's salvage yard, and, on or about March 1, 1993, Sergeant Roy Wooten and Lieutenant Bill Ellis with the Mississippi Highway Patrol, searched and inventoried numerous items at the salvage yard, but they only seized and removed three pieces of that evidence. At the conclusion of the search, Wooten and Ellis asked White not to remove anything from the salvage yard. Wooten returned on the 17th and 18th of March, accompanied by Thomas Zimmer, an investigator with the National Insurance Crime Bureau. They brought with them the results of an NCIC computer search of stolen items. A number of items listed on the March 1st inventory were recovered and seized.

¶13 On or about March 6, 1993, Ellis and Wooten visited the residence of White's coconspirator, Hill, and discovered a number of stolen vehicles. Hill's residence is several miles from White's salvage yard, and there is nothing in the record placing White at Hill's residence at any time. This is apparently the "separate evidence" to which the Court of Appeals was referring. That evidence, however, may go to proof of the conspiracy and possibly the joint operation of a chop shop, but, constrained by the language of the indictment and under the proof as presented in this record, would have little to do with a chop shop being operated solely by White, unless, in count II, White was being charged with the operation of a separate chop shop at Hill's residence, which is not supported by the record and cannot be inferred from the language in the indictment. ²

¶14 The record is somewhat confusing. Ellis was never questioned on his role in the March 1st search, and the only testimony about that search comes from Wooten. However, Wooten's testimony is uncontroverted that the items seized on the 17th and 18th of March, were the same items listed on the inventory made on March 1st. This is evident from the defense's cross-examination of Wooten:

Q. Now, when you went back on the 17th or 18th, who went with you?

A. Myself and Investigator Bill Ellis and Mr. Tom Zimmer.

Q. Now is that when y'all went about the whole thing of itemizing all of these--

A. No, sir.

Q. When did you do that?

A. We did that on March the 1st.

Q. Okay. But the only thing that you did on March the 1st was to inventory and take with you three items; is that correct?

A. We took these three items on March 1st.

Q. Yes, sir.

A. We received so many serial numbers that it would take quite a bit of time to research the NCIC files...