E-Filed Document Sep 21 2016 16:19:34 2016-KA-00260-COA Pages: 10 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMIE ROSEBUR APPELLANT VS. NO. 2016-KA-00260-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: KAYLYN MCCLINTON SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 103632 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES................................................... ii STATEMENT OF THE CASE................................................... 1 STATEMENT OF FACTS...................................................... 1 STATEMENT OF ISSUES...................................................... 3 SUMMARY OF ARGUMENT................................................... 3 ARGUMENT................................................................. 3 I. The firearm sentence enhancement did not subject Jamie to double jeopardy......................................................... 3 CONCLUSION............................................................... 6 CERTIFICATE OF SERVICE.................................................. 7 i
TABLE OF AUTHORITIES FEDERAL CASES Blockburger v. United States, 284 U.S. 299 (1932)... 3, 4 Missouri v. Hunter, 459 U.S. 359 (1983).... 4 N. Carolina v. Pearce, 395 U.S. 711 (1969)... 4 Whalen v. U.S., 445 U.S. 684 (1980)... 4 STATE CASES Gunn v. State, 174 So.3d 848 (Miss. Ct. App. 2014)... 5 Hardy v. State, 137 So.3d 289 (Miss. 2014)... 3 Lewis v. State, 112 So.3d 1092 (Miss. Ct. App. 2013).... 5 Taylor v. State, 137 So.3d 283 (Miss. 2014).... 5 Wansley v. State., 114 So.3d 793 (Miss. Ct. App. 2013)... 4, 5 FEDERAL STATUTES U.S. Const. Amend. V.... 4 STATE STATUTES Miss. Code Ann. 97-37-29... 1, 4 Miss. Code Ann. 97-37-37... 1, 3, 4, 5 Miss. Code Ann. 97-37-37(1).... 4 OTHER AUTHORITIES 21 Am.Jur.2d Criminal Law 302 (2008)... 4 ii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMIE ROSEBUR APPELLANT VS. NO. 2016-KA-00260-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE Jamie Rosebur was indicted by the Grand Jury of Coahoma County on December 5, 2012, for the crime of shooting into a dwelling, in violation of Mississippi Code Annotated section 97-37- 29 and for using or displaying a firearm during the commission of the shooting in violation of Mississippi Code Annotated section 97-37-37. (CP 5-6). After a trial by jury, the Honorable Charles E. Webster, Circuit Judge, presiding, the jury found Jamie guilty of shooting into a dwelling with the firearm enhancement. (TR 87-88). On February 3, 2016, Jamie was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC) with five years suspended on postrelease supervision for the crime of shooting into a dwelling. (CP 89-92). Additionally, Jamie was sentenced to five years in the custody of MDOC to run concurrently under the firearm enhancement pursuant to Mississippi Code Annotated section 97-37-37. (CP 89-92). Jamie filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, which the court denied. (CP 101-102, 119). Jamie now appeals the trial court s imposition of the firearm sentencing enhancement. STATEMENT OF FACTS On the evening of August 15, 2012, Freddie Robertson, his girlfriend, Earnestine Norwood, 1
and their son, Henry Robertson, were watching television in their home on McKinley Street in Clarksdale, Mississippi. (TR 140). Suddenly, thirty-eight gun shots rang out, seventeen of which struck their home. (TR 143). The family could have easily been killed. Fortunately, the Clarksdale Police Department was in the area doing a special operation and promptly responded to the scene on McKinley Street. (TR 141). Clarksdale Police Department officers Ricky Bridges and Whit Read were in an unmarked pickup truck when they heard the shots. (TR141). The officers turned down McKinley Street and saw three men walking toward their vehicle. (TR141). The first man, Jamie Jiles, was carrying a pistol. (TR 141). The officers ordered Jiles to drop the gun, and Jiles threw it about ten feet away. (TR 141). A pat down of Jiles revealed two magazines. (TR 142). The officers investigated Jiles s gun and found two empty magazines alongside a 40-caliber Glock. (TR 142). Jamie Rosebur, the second man, was patted down and found in possession of a sock with a number of cartridges. (TR 142). The third man, the appellant s brother, Richard Rosebur, was also searched. (TR 142). Police found an empty 40-caliber Hi-Point magazine in Richard s pocket. (TR 142). After determining Richard s Hi-Point magazine would not fit in Jiles s Glock, police decided to search the area for a Hi-Point gun. (TR 142). The officers found the Hi-Point gun and a.380 gun behind a trash can about ten feet away from the scene. (TR 142). Jiles, Jamie, and Richard were arrested, and gun shot residue was taken from their bodies and clothes. (TR 142). The police collected thirty-eight shell casings from the Robertson/Norwood home on McKinley Street, and documented seventeen bullet holes in the house. (TR 142-143). At trial, the crime lab expert testified that the three men tested positive for gunshot residue. (TR 386). The crime lab s firearms expert testified that through analysis of the thirty-eight shell casings found at the Robertson/Norwood home, it was determined that each of the three guns were 2
used in the shooting. (TR 385). STATEMENT OF ISSUES I. The firearm sentence enhancement did not subject Jamie to double jeopardy. SUMMARY OF ARGUMENT Jamie was not subjected to double jeopardy when his sentence was enhanced under Mississippi Code Annotated section 97-37-37 because the legislature intended the additional sentence applied under the enhancement to be applied cumulatively to the underlying offense. 2014). ARGUMENT I. The firearm sentence enhancement did not subject Jamie to double jeopardy. Standard of Review Claims of double jeopardy are reviewed de novo. Hardy v. State, 137 So.3d 289, 304 (Miss. Argument Jamie argues that his punishment under 97-37-37, Firearms enhancement, 1 violates the double jeopardy clause because it subjected him to multiple punishments for the same offense under the Blockburger test. Blockburger v. United States, 284 U.S. 299 (1932) The double jeopardy clause of the United States Constitution provides that [n]o person shall... be subject for the same offense to be twice put in jeopardy of life or limb. U.S. Const. amend. 1 (1) Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended. 3
V. Double jeopardy provisions bar multiple punishments for the same offense. N. Carolina v. Pearce, 395 U.S. 711 (1969). With respect to cumulative sentences imposed for a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359 (1983). That being said, a legislature can enact statutes which impose cumulative punishments for the same conduct within a single proceeding. Whalen v. U.S., 445 U.S. 684, 691-92 (1980). Therefore, if the legislature in question intends to impose multiple punishments, their imposition does not violate the double jeopardy clause. 495 U.S. at 368. It is only in the absence of such clear legislative intent, that the Blockburger same-elements test applies. 495 U.S. at 368 (see Blockburger v. United States, 284 U.S. 299 (1932)). Under the same-elements test, where the same act or transaction amounts to a violation of two distinct statutory provisions, multiple punishments in a single proceedings violate double jeopardy, unless each provision requires proof of a fact which the other one does not. 284 U.S. at 304. However, the Blockburger same-elements test must yield where a legislature expresses its intent to permit cumulative punishment for crimes that would constitute the same offense under Blockburger. 21 Am.Jur.2d Criminal Law 302 (2008). Here, Jamie argues that his constitutional protection from double jeopardy was violated because he received separate sentences for shooting into a dwelling under 97-37-29 and for the firearm enhancement under 97-37-37(1). Jamie questions this Court s holding in Mayers v. State, and argues the legislature s calling 97-37-37 a sentencing enhancement does not make it one, and as such, this Court should apply the same-elements test from Blockburger. An identical argument was raised by the appellant in Wansley v. State. 114 So.3d 793, 797 (Miss. Ct. App. 2013). In Wansley, the Court first analyzed the statutory language of 97-37-37 to 4
determine whether the legislature intended the statute to permit cumulative punishments, which is permissible and do not violate the principles of double jeopardy. 114 So.3d at 797. In pertinent part, 97-37-37 provides that... any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections... (emphasis added). Miss. Code Ann. 97-37-37. Based upon the legislature s use of the terms, in addition to, and additional term, the Wansley Court determined [t]he legislature s intent that section 97-37- 37(1) s additional term of imprisonment be applied cumulatively to the underlying offense could not be more clear. 114 So.3d at 797. As such, the Court held that Wansley s argument was without merit. Here, it is clear that Jamie s argument is similarly without merit. The legislature intended 97-37-37 to impose cumulative punishments for the same offense and as a result, there is no double jeopardy violation. See also Lewis v. State, 112 So.3d 1092, 1096-97 (Miss. Ct. App. 2013); Gunn v. State, 174 So.3d 848, 866 (Miss. Ct. App. 2014); Taylor v. State, 137 So.3d 283, 288 (Miss. 2014). Furthermore, Jamie s invocation of the Blockburger test was premature because he failed to address the initial question of whether there is clear evidence that the legislature intended 97-37-37 to impose cumulative punishments. Because it has been well-established that the legislature intended 97-37-37 to impose cumulative punishments for crimes that constitute the same offense under Blockburger, Jamie s same-elements argument is inapplicable and also without merit. 5
CONCLUSION For the foregoing reasons, the State of Mississippi respectfully requests this Honorable Court to affirm Jamie Rosebur s conviction and sentence. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 BY: /s/ Kaylyn McClinton KAYLYN MCCLINTON SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 105137 6
CERTIFICATE OF SERVICE I, KAYLYN MCCLINTON, 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: Mollie M. McMillin, Esq. Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson, MS 39207-3510 Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 21st day of September, 2016. Honorable Charles E. Webster Circuit Court Judge P.O. Drawer 998 Clarksdale, MS 38614 Honorable Brenda Mitchell District Attorney P.O. Box 848 Cleveland, MS 38732 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 /s/ Kaylyn McClinton KAYLYN MCCLINTON SPECIAL ASSISTANT ATTORNEY GENERAL 7