Wilson v. State

• Decision Date: 04 March 1981
• Docket Number: No. 52408,52408
• Parties: George WILSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 957

395 So.2d 957

George WILSON v. STATE of Mississippi.

No. 52408.

Supreme Court of Mississippi.

March 4, 1981.

Rehearing Denied April 1, 1981.

Jon M. Barnwell, Greenwood, for appellant.

Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

BROOM, Justice, for the Court:

Aggravated assault upon a law enforcement officer pursuant to Mississippi Code Annotated § 97-3-7(2) (Supp.1980) is the offense for which the defendant George Wilson was convicted in the Circuit Court of Leflore County. Pursuant to Mississippi Code Annotated § 99-19-83 (Supp.1980), he was mandatorily sentenced to life imprisonment, and on his appeal argues that (1) the state failed to prove assault as a matter of law, (2) the evidence was insufficient, and (3) he was unconstitutionally denied a jury trial on the issue of his two prior felony convictions. We affirm.

The facts upon which the indictment and conviction rested relate to an altercation in Greenwood, Mississippi, on February 4, 1980, at a cafe where the defendant hit one Boyd with a rifle. After the defendant left the cafe, Boyd called the police. Two officers came and talked with Boyd about making formal charges against the defendant who then emerged from his residence across the street from the cafe. At that point the defendant stated that he would kill Boyd if Boyd made out papers against him. When Boyd made it clear that he was going to file charges, the defendant re-entered his house and came back with a rifle in his hand which he aimed at Officer Stanciel and pulled the trigger. Fortunately, the gun did not fire. The defendant denied pointing the gun at anyone but said that he got the gun out because one Joe Wade cursed and threatened him. Other facts will be stated as appropriate in this opinion.

First argument made is that the state failed to prove an assault as a matter of law. This argument is based in the main upon the thesis that the evidence showed that the rifle used by the defendant was inoperable and would not fire. On this basis he says that even if it were true that he pointed the gun at the officer, there cannot be any assault because the gun was inoperable.

As to this aspect of the case, Officer Keys testified:

After we was talking to Mr. Boyd, Mr. Wilson (appellant) told Mr. Boyd for him to go down town and press charges. If he wanted to, he was going to kill him. Mr. Boyd said, "o.k., that was what he was going to do." "Baby George" (appellant) turned Officer Stanciel and me started walking back to the car to get in the car and so, he turned and run into the house

Mr. Wilson (appellant) there "Baby George" he turned and run into the house. Well, at that point I come around the front of the car to go on the other side. When I looked around again, I seen Mr. Wilson (appellant) "Baby George" come to the door; had a rifle in his hand; pointed it at Officer Stanciel and it clicked. At the time it clicked, I was ducking at the same time. I was ducking. When I saw the rifle, I started going down and I heard it click. When I heard the rifle click, Stanciel opened he already had the car door open, he ducked. When he pulled the shotgun out of the car, he run around the back of the car and I went around the front of the car. He went into the house and I went around behind the house.

Officer Stanciel also testified that "... he (appellant) came back out with a rifle and pointed it at me and pulled the trigger." Stanciel's testimony was also supported by Joe Wade's testimony.

We have previously held that in order for there to be a basis of a criminal charge, it is not necessary that the gun either be loaded or operable. As stated in Macon v. State, 295 So.2d 742, 745 (Miss.1974), "The gun was a deadly weapon even though it was not loaded." Accordingly, there is no merit to this argument. See also Gray v. State, 389 So.2d 1384 (Miss.1980).

Next proposition argued is that the evidence was insufficient to sustain the verdict. This is without merit.

Most serious is the argument that the defendant had a constitutional right to a jury trial on the issue of whether he was an habitual criminal for having had two prior felony convictions. When the state rested its case as to the assault on the law officer, the court stated that the jury would not be permitted to hear anything regarding the two prior felony convictions. After a guilty verdict, the court would then hear evidence and make the determination as to enhanced punishment under §§ 97-3-7(2) and 99-19-83, supra. The former code section defines the crime of aggravated assault upon a law officer. The latter section provides for a sentence of life imprisonment if one has been convicted of having two prior felony convictions, one of which is a crime of violence for which such person served one year in a penal institution. Accordingly, under those circumstances the defendant would be sentenced to life imprisonment without suspension or reduction of sentence. Pertinent here is Rule 6.04 of the Uniform Criminal Rules of Circuit Court Practice adopted by this Court on August 15, 1979, which provides:

In cases involving enhanced punishment for subsequent offenses under the Habitual Criminal Statute, Miss.Code Ann. § 99-19-83 (Supp.1978):

(1) 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 or federal jurisdiction of previous conviction, and the date of judgment.

The indictment shall not be read to the jury.

(2) Separate trials shall be held on the principal charge and on the charge of previous convictions. In the trial on the principal charge, the previous conviction will not be mentioned by the state or the court except for impeachment purposes.

(3) If the defendant is convicted on the principal charge, a hearing before the court will then be conducted on the previous convictions. (Emphasis added).

The trial court construed Rule 6.04, supra, to mean that the "trial judge" (without a jury) should make the determination of whether the defendant was guilty of being an habitual offender. According to the defendant, a jury should determine whether he had been previously convicted under § 99-19-83, supra.

Mississippi Code Annotated § 99-19-83 (Supp.1980) is as follows:

§ 99-19-83. Sentencing of habitual criminals to life imprisonment.

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 and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

This precise question has not been decided by this Court in a case where the issue was squarely presented. Lay v. State, 310 So.2d 908, 910 (Miss.1975) discussed the trend of our cases dealing with enhanced punishment but is factually distinguishable from the present case. Without deciding the issue now before us, this Court stated in Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980) that the "trial court held a distinct hearing following the jury's guilty verdict" on the primary charge there involved, and at the separate hearing determination was made of the defendant's status as an habitual offender for sentencing purposes. Jackson is not controlling because in it the issue of jury trial on the habitual offender aspect was not raised or argued.

Various aspects of the question of a jury trial in situations like that presented here were considered by the United States Supreme Court in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Spencer clearly leaves it up to the states to decide whether or not an accused must be accorded a jury trial in cases like the present one. Our conclusion is that Rule 6.04, supra, and § 99-19-83, supra, both contemplate that the court (in the second phase of the trial) without a jury should hear evidence and make a determination of whether the defendant has been previously convicted under § 99-19-83. At this second phase hearing, the burden rests upon the State of Mississippi to prove the previous convictions and prove them beyond a reasonable doubt.

Our decision here was foreshadowed by Usry v. State, 378 So.2d 635 (Miss.1979), wherein we noted with approval that in the lower court on the principal or substantive charge of burglary, Usry was given a jury trial after which (without a jury) the court tried the issue of Usry's prior convictions. ¹

The substantive charge here was aggravated assault upon a law officer under § 97-3-7(2) as charged in the indictment which appropriately advised the defendant Wilson that if he were convicted of the primary charge he was subject to being sentenced as an habitual offender under § 99-19-83. Eutsey v. State, 383 So.2d 219 (Fla.1980) was very similar to the present case, and we commend it as quite instructive on the present issue. Of course, at the second stage of the trial when the habitual criminal issue is tried the defendant must be afforded ample opportunity to dispute the truth of the assertion made by the state that he is an habitual offender. The defendant must be accorded his right to be confronted with witnesses and cross examine them when appropriate in the conduct of the second stage of the trial. Of course at that time he will have his usual right to secure the presence of witnesses by process of the court. In consideration of § 99-19-83, supra, as to whether a jury should decide the issue of prior convictions,...