Williams v. State

• Decision Date: 26 March 1998
• Docket Number: No. 96-KA-01227-SCT,96-KA-01227-SCT
• Parties: C.L. WILLIAMS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1358

708 So.2d 1358

C.L. WILLIAMS v. STATE of Mississippi.

No. 96-KA-01227-SCT.

Supreme Court of Mississippi.

March 26, 1998.

Anthony J. Buckley, Laurel, for Appellant.

Michael C. Moore, Atty. Gen., Billy L. Gore, Special Asst. Atty. Gen., Jackson, for Appellee.

Before PITTMAN, P.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶1 C.L. Williams was indicted by the Grand Jury of Jones County, Mississippi, on April 22, 1996, for the crime of felony DUI in violation of Miss.Code Ann. § 63-11-30(2)(c). The offense occurred on January 9, 1996, when Williams was stopped on Interstate 59 in the City of Laurel, Mississippi. Williams submitted to an intoxilyzer test that showed his blood-alcohol content (BAC) to be .191. He had been convicted twice previously for DUI, with the first conviction on August 1, 1991, and the second on July 21, 1993.

¶2 Williams' trial was had on August 28, 1996, with the Honorable Billy Joe Landrum presiding. At the conclusion of the evidence the jury returned with a guilty verdict. Judge Landrum sentenced Williams to five years with the Mississippi Department of Corrections, with forty-two months suspended and eighteen months to serve in the penitentiary. He was also placed on forty-two months probation and assessed a fine of $2,000, plus court costs.

¶3 Williams' motion for a new trial was denied by the trial court. Aggrieved by the decision of the lower court, Williams has appealed to this Court raising the following:

I. WHETHER THE LOWER COURT ERRED IN OVERRULING WILLIAMS' MOTION TO DISMISS THE FELONY CAUSE ON THE GROUNDS THAT THE INDICTMENT WAS LEGALLY INSUFFICIENT TO CHARGE A FELONY.

II. WHETHER THE LOWER COURT ERRED IN OVERRULING WILLIAMS' MOTION FOR A BIFURCATED TRIAL, THEREBY ALLOWING THE TWO UNDERLYING MISDEMEANORS TO BE PUBLISHED AND ARGUED TO THE JURY.

III. WHETHER THE OFFENSE WAS PROPERLY BEFORE THE LOWER COURT BECAUSE THE ARRESTING OFFICER DID NOT ISSUE A UNIFORM STANDARD TICKET FOR THE THIRD OFFENSE.

¶4 In light of this Court's recent decisions in McIlwain v. State, 700 So.2d 586 (Miss.1997) and Weaver v. State, No. 95-KA-01034-SCT, --- So.2d ----, 1997 WL 703057 (Miss. Nov.13, 1997), we find all three issues are without merit. The lower court's decision is affirmed.

STATEMENT OF THE FACTS

¶5 C.L. Williams was traveling along Interstate 59 in the Laurel, Mississippi, on the evening of January 9, 1996. He passed an officer who was checking for speeding vehicles with radar. Officer Bryan Boutwell testified that Williams was driving with his headlights on bright, so Boutwell followed him. Boutwell stated that he observed Williams cross the center line with the left side of his car. Williams was stopped and asked to produce a valid driver's license, which he did not do. Boutwell testified that he could smell the odor of alcohol and requested Williams to get out of the car.

¶6 At this point, Boutwell observed Williams to have slurred speech and glossy eyes. Williams failed the hand-held portable intoxilyzer. Officer Doug Hill, the DUI officer on duty, was contacted. Williams was asked to perform three field sobriety tests. In the opinions of the officers, Williams failed these tests. Williams was placed under investigative detention for possible DUI, and transported to the Laurel Police Station. Having been previously convicted of two misdemeanor DUIs, Williams was charged with third offense felony DUI after he registered .191 BAC on the printout of the CMI Intoxilyzer 5000 test.

¶7 At the close of the State's case-in-chief, Williams moved for a directed verdict on the ground the evidence was insufficient as a matter of law to sustain a conviction of felony DUI. Williams claimed the proof only demonstrated two first offense misdemeanors and that by virtue of the charges alleged in the indictment he was entitled to a bifurcated trial. The defense presented no witnesses, and Williams did not testify in his own behalf. The jury found Williams guilty of felony DUI. Judge Landrum imposed the sentence and assessed the fine and court costs. Williams' motion for a new trial was overruled. Williams now seeks relief from the lower court's decision by appealing to this Court.

DISCUSSION OF THE ISSUES

I. WHETHER THE LOWER COURT ERRED IN OVERRULING WILLIAMS' MOTION TO DISMISS THE FELONY CAUSE ON THE GROUNDS THAT THE INDICTMENT WAS LEGALLY INSUFFICIENT TO CHARGE A FELONY.

¶8 Williams made a pre-trial motion and a motion for a directed verdict at the close of the State's case on the ground that the face of the indictment alleged nothing more than a misdemeanor based on this Court's holding in Page v. State. Both motions were overruled. On appeal, Williams argues that the indictment fails to specifically charge that he had been convicted of anything other than two first offense violations of the implied consent law within five years prior to the felony charge.

¶9 Williams contends the indictment must show as a condition precedent to the third offense felony charge that the defendant has been charged and convicted specifically of a "first offense" and then a "second offense". He states that the indictment fails to allege the requisite elements of the felony offense.

¶10 In response to this Court's decisions in Page v. State, 607 So.2d 1163 (Miss.1992) and Ashcraft v. City of Richland, 620 So.2d 1210 (Miss.1993), the Legislature in 1994 enacted a new paragraph to Miss.Code Ann. § 63-11-30. 1994 Miss. Laws ch. 340, § 4, approved March 14, 1994, effective June 6, 1994. In subsection (7) the Legislature added the following language:

For the purpose of determining how to impose the sentence for a second, third or subsequent conviction under this section, the indictment shall not be required to enumerate previous convictions. It shall only be necessary that the indictment state the number of times that the defendant has been convicted and sentenced within the past five (5) years under this section to determine if an enhanced penalty shall be imposed. The amount of fine and imprisonment imposed in previous convictions shall not be considered in calculating offenses to determine a second, third or subsequent offense of this section.

Miss.Code Ann. § 63-11-30(7) (1996).

¶11 This Court specifically overruled Page and Ashcraft to the extent they interpret the statute to require the indictment to specifically show a previous conviction for DUI First prior to being convicted for DUI Second and a conviction of DUI Second prior to being convicted for DUI Third. McIlwain, 700 So.2d at 589. "The obvious intent of this statute is to remove repeat DUI offenders from our streets. This goal will be better accomplished by simply reading the clear language of the statute." Id.

¶p 12 Williams argues that Page stands firmly behind URCCC 7.06, which supersedes the statutes. Williams provides this Court with no authority for this argument. "This Court has held that it is the duty of an appellant to provide authority and support of an assignment." Hoops v. State, 681 So.2d 521, 526 (Miss.1996); Kelly v. State, 553 So.2d 517, 521 (Miss.1989). "This Court has repeatedly held that failure to cite any authority may be treated as a procedural bar, and it is under no obligation to consider the assignment." Weaver, --- So.2d at ----, 1997 WL 703057, at * 4 citing McClain v. State, 625 So.2d 774, 781(Miss.1993). "If a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited." Hoops, 681 So.2d at 526; Hewlett v. State, 607 So.2d 1097, 1106 (Miss.1992).

¶p 13 Williams' failure to cite authority clearly invokes the procedural bar; thus, this issue is barred. Alternatively, his argument is without merit. This Court has recently stated that "defining crimes and prescribing punishments are exclusively legislative functions as a matter of constitutional law." Weaver, --- So.2d at ----, 1997 WL 703057, at * 4 (citing Winters v. State, 473 So.2d 452, 456 (Miss.1985)). " '[T]he authority to say what constitutes a crime, and what punishment shall be inflicted is in its entirety a legislative question....' " Id. (quoting Winters, 473 So.2d at 456).

¶p 14 In order to comply with the language in Miss.Code Ann. § 63-11-30(7), the indictment merely had to state " 'the number of times that the defendant has been convicted and sentenced within the past five (5) years under this section to determine if an enhanced penalty shall be imposed' " in order to charge Williams with felony DUI. Weaver, --- So.2d at ----, 1997 WL 703057, at * 4 (quoting Miss.Code Ann. § 63-11-30(7)). The indictment charging Williams was filed on April 22, 1996, well after the amendment to Miss.Code Ann. § 63-11-30 became effective. The indictment stated Williams "has two or more convictions for violation of Section 63-11-30(1) of the Mississippi Code of 1972. Said offenses all have occurred within a five year period of this offense, evidence of which is attached hereto by court abstracts as Exhibits 1 and 2." The abstracts showed the charge, date of violation and court date, and the judgment and the sentence imposed by the court in each of Williams' two previous DUI convictions. "[T]he attachment of the abstracts provide a clear and concise statement of the charges as required by both the DUI indictment case law and the Rules of Circuit Court Practice." McIlwain, 700 So.2d at 589. The indictment in the case presently before the Court complied with the requirements of Miss.Code Ann. § 63-11-30(7), as well as this Court's subsequent holding in McIlwain.

¶15 Williams asserts that the Constitution demands that he be made aware that his continued violations would increase the punishment for the offense. He contends that adding paragraph seven to Miss.Code Ann. § 63-11-30 cannot circumvent the constitutional requirements described in Benson v. State, 551 So.2d 188, 196 (Miss.1989).

¶p 16 This Court has found...