IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHNNY LEWIS WASHINGTON NO CP COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Jul :56: CP COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHNNY LEWIS WASHINGTON APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT PROPOSITION: WASHINGTON WAS NOT SUBJECTED TO DOUBLE JEOPARDY BASED ON THE PROSECUTION OF THE TWO ARMED ROBBERIES CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES FEDERAL CASES Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) , 4 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) North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) Washington v. Watkins, 655 F.2d 1346 (5th Cir. Unit A Sept.1981) STATE CASES Boyd v. State, 977 So. 2d 329, 334 (Miss. 2008) Brown v. State, 731 So.2d 595, 598 (Miss.1999) Culp v. State, 933 So. 2d 264, (Miss. 2005) Hughes v. State, 401 So.2d 1100 (Miss. 1981) Morey v. Commonwealth, 108 Mass. 433, 434 (Mass.1871) Pickle v. State, 345 So2d 623, 625 (Miss. 1977) Powell v. State, 806 So.2d 1069, 1074 (Miss.2001) Rowland v. State, 42 So3d 503 (Miss. 2010) Shavers v. State, 94 So.3d 362(Miss. Ct. App. 2012) Towner v. State, 812 So.2d 1109 (Miss. Ct. App. 2002) Washington v. State, 361 So.2d 61 (Miss.1978) , 4 Washington v. State, --- So.3d ----, 2012 WL (Miss. Ct. App. 2012) STATE STATUTES Miss. Code Ann (2)(e) Miss. Code Ann ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHNNY LEWIS WASHINGTON APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE This pro se appeal proceeds from the summary denial of Johnny Lewis Washington s motion for post-conviction relief by the Circuit Court of Lowndes County. (CP 33). Aggrieved, Washington appealed raising the following issues: I. Whether the Circuit Court erred in accepting the pleas of guilty to Armed Robbery which was used as the underlying felony in the capital murder charge. II. Whether the Circuit Court erred in not ruling that Proposition I. was plain error. STATEMENT OF THE FACTS Johnny Lewis Washington was convicted of the March 26, 1977 capital murder of J. K. Wood, a convenience store owner, during an armed robbery and was sentenced to death. The Mississippi Supreme Court affirmed the conviction and sentence on direct appeal. Washington v. State, 361 So.2d 61 (Miss.1978). In response to a mandate from federal court, the circuit court resentenced Washington to life imprisonment for the crime of capital murder. See Washington v. Watkins, 655 F.2d 1346 (5th Cir. Unit A Sept.1981). On the same date, Washington was indicted for the armed robbery of Roy Thompson, a store employee, and the aggravated assault of Eloise Clark, 1

5 another employee, arising out of the same underlying armed robbery. [CP 28, 39]. Washington entered guilty pleas in both cases and was sentenced to consecutive terms of 40 years for the armed robbery, and 20 years for the aggravated assault. [CP 29-38; 40-48]. In July 2011, Washington filed separate motions for post-conviction relief challenging the armed robbery conviction and sentence and the aggravated assault conviction and sentence. The Circuit Court dismissed in part and denied in part the motion relating to the aggravated assault conviction, holding the capital murder charge and aggravated assault charge did not subject Washington to double jeopardy. This Court affirmed the denial of post conviction relief in the aggravated assault case. Washington v. State, --- So.3d ----, 2012 WL (Miss. Ct. App. 2012). Washington filed the subject post conviction motion in June 2013 and asked the court to vacate and set-aside the conviction and sentence for the armed robbery of Roy Thompson in cause number [CP 49-76]. The Lowndes County Circuit Court, after reviewing the record of proceedings in the trial court, the plea petition, sentencing order, plea colloquy transcript and the pleadings in Washington s cases, found the motion to be without merit. The court denied the motion without an evidentiary hearing by order filed December 6, [CP 77]. Washington appealed. SUMMARY OF THE ARGUMENT This Court should affirm the December 6, 2013 order from the Circuit Court of Lowndes County denying Washington s motion for post-conviction relief. The underlying armed robbery in the capital murder of J. K. Wood, cause number 5859, and the armed robbery of Roy Thompson, cause number 7925, are two separate offenses. The capital murder of Woods and the armed robbery of Thompson had one or more elements different from the other, required different proof, and thus it was no violation of the jeopardy provision to prosecute and convict Washington for both crimes. The prosecution and conviction of both offenses does not subject Washington to double jeopardy. 2

6 ARGUMENT PROPOSITION: Washington was not subjected to double jeopardy based on the prosecution of the two armed robberies. Washington claims that his conviction for capital murder in Lowndes County Circuit Court cause number 5859 and his conviction for armed robbery in cause number 7925 constitute double jeopardy. Washington argues that he was punished multiple times for the same offense, armed robbery. An appellate court applies a de novo standard of review to claims of double jeopardy. Boyd v. State, 977 So. 2d 329, 334 (Miss. 2008) citing Brown v. State, 731 So.2d 595, 598 (Miss.1999). 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 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). To determine whether double-jeopardy protections apply, we look to the same-elements test prescribed by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test instructs us to determine whether each offense contains an element not present in the other; if not, they are labeled the same offense for double-jeopardy purposes, and successive prosecutions and/or punishments are constitutionally barred. Powell v. State, 806 So.2d 1069, 1074 (Miss.2001). A conviction can withstand 3

7 double-jeopardy analysis only if each offense contains an element not contained in the other. Powell v. State, 806 So.2d 1069, 1074 (Miss.2001). If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both. Id. Conversely, where each offense includes an element not included in the other, "an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Blockburger, 284 U.S. 299, 304, 52 S.Ct. 180, quoting Morey v. Commonwealth, 108 Mass. 433, 434 (Mass.1871). Facts relevant to this case, as set out in Washington v. State, 361 So.2d 61(Miss.1978), show that Johnny Lewis Washington and Booker T. Cole entered Woods Quick Pick convenience store, while masked and armed with shotguns. J. K. Woods, the store owner, employee Roy Thompson, and female employee Eloise Clark were in the store at the time of the robbery. Cole and Washington pointed their shotguns at Woods and Thompson, and told them to open the cash registers and give us the money. Thompson put the money from the first cash register into a sack. Washington also ordered Woods to put the money from the second cash register into a sack. Washington hit Woods over the head with the gun barrel. Woods accidentally knocked over the sack of money that Thompson bagged and the money fell on the floor. Thompson tried to intervene and pickup the money. Washington told Thompson not to move and placed the shotgun about 8 inches from Thompson's head. Woods sacked the money from the second cash register and gave it to Washington. Just before he left, Washington shot and killed Woods. Mississippi Code Annotated s (2)(e) (Supp.1976) states: (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies;... 4

8 Pickle v. State, 345 So2d 623, 625 (Miss. 1977). Washington's indictment for capital murder, cause number 5859, provided: th That Johnny Lewis Washington, on or about the 26 day of March, in the year of our Lord, 1977, did then and there wilfully, unlawfully, feloniously and of his malice aforethought kill and murder a human being, J. K. Woods, without authority at law and not in necessary self-defense while he, the said Johnny Lewis Washington was then and there engaged in the commission of the crime of armed robbery in violation of Section (2)(E) of the Mississippi Code Annotated, 1972,... [CP 14]. Washington was later indicted and entered a guilty plea to the armed robbery of Roy Thompson. Armed robbery is defined by Mississippi Code Annotated Section : Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery... Washington's indictment for the armed robbery in cause number 7925 provides in part: Johnny Lewis Washington[,] late of the County aforesaid, on or about the 26th day of March, 1977, in the County aforesaid did unlawfully, wilfully, and feloniously, take, steal, and carry away from the presence of Roy Thompson, the personal property of J. K. Woods, to-wit: money, against the will of the said Roy Thompson, by putting the said Roy Thompson in fear of immediate injury to his person by the exhibition of a deadly weapon, to-wit: a shotgun, with the intent to permanently deprive the owner thereof[.] [CP 28]. Washington is under the misconception that he cannot be charged with robbing Roy Thompson if the property taken belonged to J. K. Woods. Having title or ownership of property taken in a robbery is not a requirement to be a victim of the robbery. [I]t is not relevant whether the potential victim of a robbery has ownership of the property taken. Towner v. State, 812 So. 2d 1109, (Miss. Ct. App. 2002). In Towner, this Court held robbing two people of one item of property at gunpoint while the property is within their proximity and control, even if neither of them owns it, may be two robberies. In support of his double-jeopardy claim Washington relies Rowland v. State, 42 So3d 5

9 503(Miss. 2010). It can be distinguished. Rowland was charged and convicted of two counts of capital murder and two counts of armed robbery. Rowland was convicted of the indicted charges of capital-murder for killing during the commission of the armed robberies of O. B. Singleton and Pat Bolton, and then separately for the armed robberies of O.B. Singleton and Pat Bolton, placing him in double jeopardy. Such is not the case with Washington. The case subjudice, involves Washington's crime of the armed robbery of Roy Thompson not the robbery of J.K. Woods. This Court has held that separate offenses, though committed under a common nucleus of operative fact, do not present a legal impediment to multiple prosecutions under the double jeopardy clause of both the federal and the state constitutions. Washington v. State, --- So.3d ----, 2012 WL (Miss. Ct. App. 2012) (quoting Shavers v. State, 94 So.3d 362, 363 ( 5) (Miss. Ct. App. 2012)). Multiple offenses arising from the same set of facts, each offense having different elements, may be prosecuted. Where each felony charged has an element or elements different from the others, there is no impediment under the jeopardy provision to prosecuting all of them. Hughes v. State, 401 So.2d 1100 (Miss. 1981). In order to prove the elements of the capital-murder offense, the State had to prove: 1. the killing of J.K. Woods 2. while engaged in the commission of armed robbery. Thus, the elements of the felony underlying the capital-murder indictment armed robbery were: 1. taking the personal property of J. K. Woods 2. from the person of J. K. Woods 3. against the will of J. K. Woods 4. by putting J. K. Woods in fear of immediate injury to his person by the exhibition of a deadly weapon. In order to prove that Washington committed armed robbery in the second case, the State was required to prove the following elements: 6

10 1. taking the personal property of J. K. Woods 2. from the presence of Roy Thompson 3. against the will of Roy Thompson 4. by putting Roy Thompson in fear of immediate injury to his person by the exhibition of a deadly weapon. When each separate crime charged requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. Culp v. State, 933 So. 2d 264, (Miss. 2005). Clearly, the capital-murder conviction required proof of additional elements that the armed-robbery conviction did not: the killing of J. K. Woods. This leaves the question of whether Washington's armed-robbery conviction required proof of an additional element that the capital-murder conviction did not. It did; the armed robbery required proof of the separate armed robbery of Roy Thompson. There is at least one different element in each of the armed robberies, namely, the different victim. 7

11 CONCLUSION There is no merit to Washington's claim that a violation of his double-jeopardy rights occurred, as such he is not entitled to any relief. Because there is no double-jeopardy violation, there is no plain error for this Court to find. Based upon the arguments presented herein as supported by the record on appeal the State would ask this reviewing court to affirm the trial court s denial of post-conviction relief. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) BY: /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

12 CERTIFICATE OF SERVICE I, LISA L. BLOUNT, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 30th day of July, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO Honorable James T. Kitchens, Jr. Circuit Court Judge P.O. Box 1387 Columbus, MS Honorable Forrest Allgood District Attorney P.O. Box 1044 Columbus, MS Johnny Lewis Washington, #32209 MSP Unit 25 P.O. Box 1057 Parchment, MS /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL 9