Daryl Conner v. State of Mississippi ( 2011 )


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  •                      IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2011-CT-00941-SCT
    DARYL CONNER
    v.
    STATE OF MISSISSIPPI
    ON WRIT OF CERTIORARI
    DATE OF JUDGMENT:                           07/01/2011
    TRIAL JUDGE:                                HON. ROBERT P. CHAMBERLIN
    TRIAL COURT ATTORNEYS:                      DAVID CLAY VANDERBURG, ANGELA M.
    JONES, JENNIFER MUSSELWHITE
    COURT FROM WHICH APPEALED:                  DESOTO COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
    BY: JUSTIN T. COOK
    ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
    BY: JEFFREY A. KLINGFUSS
    DISTRICT ATTORNEY:                          JOHN W. CHAMPION
    NATURE OF THE CASE:                         CRIMINAL - FELONY
    DISPOSITION:                                AFFIRMED - 05/15/2014
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    CHANDLER, JUSTICE, FOR THE COURT:
    ¶1.    A jury found Daryl Conner guilty of burglary and felony fleeing a police officer, and
    the Circuit Court of DeSoto County sentenced him as a habitual offender to two consecutive
    life sentences. Conner appealed to the Court of Appeals, which affirmed his convictions and
    sentences. This Court granted Conner’s petition for certiorari in which Conner argues that
    the evidence was insufficient to support his conviction for felony fleeing, that the trial court
    erred by failing to instruct the jury on the elements of larceny, and that, because the pen
    packs establishing Conner’s habitual-offender status were not admitted at the sentencing
    hearing, the trial court erred by sentencing him as a habitual offender.
    ¶2.    We affirm the judgments of the Court of Appeals and the trial court. We find that the
    evidence was sufficient to support Conner’s felony-fleeing conviction and that the jury was
    fully and fairly instructed. We further find that the pen packs establishing Conner’s status as
    a habitual offender were admitted at the sentencing hearing. Therefore, we affirm Conner’s
    convictions and sentences.
    FACTS AND PROCEDURAL HISTORY
    ¶3.    One morning, Mary Campbell entered her master bedroom to discover an unknown
    man in her home on Windersgate Drive in Olive Branch, Mississippi. The man fled from the
    home, entered a small, dark automobile parked in an adjacent driveway, backed his car down
    Windersgate Drive to Collinswood Road, and drove off. Once the car left her sight, Campbell
    entered her home and called 911.
    ¶4.    The 911 dispatcher relayed the description of the dark vehicle to officers in the area.
    Within approximately one minute of the dispatch, Officer Matthew Kinne spotted a car
    matching Campbell’s      description of the car at the corner of Collinswood Road and
    Germantown Road. Officer Kinne initiated a pursuit of that vehicle, which ended when the
    vehicle crashed. Then, a foot pursuit ensued and officers arrested the driver.
    ¶5.    Campbell later identified Daryl Conner from a photo lineup as the man in her home.
    The grand jury indicted Conner for burglary of a dwelling, felony fleeing, and petty larceny.
    Later, the trial court amended Conner’s indictment to charge him as a habitual offender. The
    2
    jury convicted Conner of burglary of a dwelling and felony fleeing, and the trial court
    sentenced him as a habitual offender to serve two consecutive life sentences without the
    opportunity for parole.
    ANALYSIS
    I.     Whether the State presented sufficient evidence of Conner’s
    identity to support his conviction for felony fleeing.
    ¶6.    The Court of Appeals recognized that no witness had identified Conner as the person
    arrested following the pursuit. Conner v. State, No. 2011-KA-00941-COA, 
    2013 WL 1800065
    , *3 (Miss. Ct. App. April 30, 2013). But the Court of Appeals also found that:
    [t]he short passage of time from Campbell’s report of a man in her home and
    the short distance from her home to the point where Officer Kinne spotted the
    similar vehicle and began the chase were sufficient evidence for the jury to
    infer that Conner was the individual who was driving the car and fled the arrest
    and whom Officer Kinne caught and arrested at the end of the chase.
    
    Id. Conner argues
    that no reasonable juror could draw such an inference from the evidence
    presented at trial. Although we agree with the Court of Appeals’ conclusion that the evidence
    was sufficient to support the felony-fleeing conviction, we do so for a different reason.
    ¶7.    On a challenge to the sufficiency of the evidence, this Court will reverse and render
    “if the facts and inferences point in favor of the defendant on any element of the offense with
    sufficient force that reasonable men could not have found beyond a reasonable doubt that the
    defendant was guilty . . . .” Young v. State, 
    119 So. 3d 309
    , 315 (Miss. 2013) (quoting
    Hughes v. State, 
    983 So. 2d 270
    , 275-76 (Miss. 2008)). Our “relevant inquiry is whether any
    rational trier of fact could have found the essential elements of the crime beyond a reasonable
    doubt.” 
    Young, 119 So. 3d at 315
    . “This Court considers the evidence in the light most
    3
    favorable to the state.” 
    Hughes, 983 So. 2d at 276
    (citing Bush v. State, 
    895 So. 2d 836
    , 843
    (Miss. 2005)). “The state receives the benefit of all favorable inferences that may reasonably
    be drawn from the evidence.” 
    Hughes, 983 So. 2d at 276
    (citing Wilson v. State, 
    936 So. 2d 357
    , 363 (Miss. 2006) (citing Hawthorne v. State, 
    835 So. 2d 14
    , 22 (Miss. 2003))).
    Likewise, the sufficiency of the evidence used to identify the accused “is primarily a question
    for the jury, provided the evidence could reasonably be held sufficient to comply with the
    requirement of proof beyond a reasonable doubt.” Passons v. State, 
    239 Miss. 629
    , 634, 
    124 So. 2d 847
    , 848 (1960).
    ¶8.    The Court of Appeals primarily relied on the proximity between the location of the
    burglary and where Officer Kinne spotted a vehicle matching the description provided by
    Campbell. This circumstantial evidence turns on the fact that Campbell last saw Conner
    driving down Collinswood Road, which leads only to Germantown Road, and that Officer
    Kinne spotted the vehicle he pursued at the corner of Collinswood and Germantown Roads
    approximately one minute after he received the description from dispatch.
    ¶9.    But none of the evidence presented at trial established the distance Conner had to
    travel on Collinswood Road in order to reach Germantown Road. If that distance were, for
    example, 500 yards, then the jury’s verdict based upon the timing of events established by
    the evidence would appear reasonable. But if that same distance were ten miles, the one-
    minute time frame would operate against the State, and the jury’s decision would prove
    completely unreasonable, as no reasonable juror could infer that Conner could travel ten
    miles in one minute. Accordingly, in the absence of any evidence of the length of
    Collinsworth road, the Court of Appeals’ reliance on proximity was misplaced.
    4
    ¶10.   That said, a reasonable juror could draw a chain of inferences through the evidence
    presented at trial to sufficiently identify Conner as the perpetrator of the felony fleeing.
    Campbell identified Conner at trial as the man she had seen in her home. She also testified
    that she provided a description to the 911 dispatcher of a tall black man fleeing in a dark car.
    Officer Kinne testified that he received a description of the car and suspect from dispatch and
    that, after receiving that description, he began looking for a black man in a dark sedan,
    wearing a dark shirt.
    ¶11.   At trial, the prosecution entered into evidence a video from Officer Kinne’s dashboard
    camera that revealed a black male, wearing a dark-colored shirt, fleeing from the dark sedan
    Officer Kinne pursued. A reasonable juror could conclude that the man running from the
    sedan was the same man described by Campbell to the dispatcher, and therefore the same
    man Campbell identified during trial. Accordingly, the State presented sufficient evidence
    to identify Conner as the perpetrator of the felony fleeing, and we affirm his conviction on
    that charge.
    II.     Whether the trial court erred by failing to instruct the jury on the
    elements of larceny.
    ¶12.   Conner was convicted of burglary under Mississippi Code Section 97-17-23, which
    provides that “[e]very person who shall be convicted of breaking and entering the dwelling
    house or inner door of such dwelling house of another, whether armed with a deadly weapon
    or not, and whether there shall be at the time some human being in such dwelling house or
    not, with intent to commit some crime therein, shall be punished . . . .” Miss. Code Ann. §
    5
    97-17-23 (Rev. 2006). The trial court gave the following instruction on the elements of
    burglary:
    In Count I, Defendant Daryl Conner has been charged with the crime
    of Burglary of a Dwelling.
    If you find from the evidence in this case, beyond a reasonable doubt,
    that:
    1)      On or about August 18, 2007, the Defendant Daryl Conner
    unlawfully broke and entered;
    2)     The dwelling house of Billy and/or Mary Francis Campbell;
    3)     With the intent to commit the crime of Larceny inside the
    building;
    then you shall find Defendant Daryl Conner guilt of Burglary of a
    Dwelling in Count 1.
    If the State has failed to prove any one of these elements beyond a
    reasonable doubt, then you shall find the Defendant not guilty in Count 1.
    The trial court also instructed the jury that “[a]n inference of the intent to steal may arise
    from proof of the breaking and entering.”
    ¶13.   Conner argues that the jury instructions were defective because the jury was not
    instructed on the elements of the intended crime of larceny. But he failed to request a larceny
    instruction at trial. Nonetheless, the issue is not procedurally barred. The trial court must
    “assure that the jury is ‘fully and properly instructed on all issues of law relevant to the
    case.’” Harrell v. State, 
    134 So. 3d 266
    , 270 (Miss. 2014) (quoting Kolberg v. State, 
    829 So. 2d
    29, 46 (Miss. 2002), overruled on other grounds. “There is no doubt that the trial court
    is ultimately responsible for rendering proper guidance to the jury via appropriately given
    6
    jury instructions, even sua sponte.” 
    Harrell, 134 So. 3d at 270
    (quoting Kolberg, 
    829 So. 2d
    at 45).
    ¶14.      This Court reviews jury instructions “as a whole to determine whether the jury was
    fully and fairly instructed according to the applicable law.” Clark v. State, 
    40 So. 3d 531
    ,
    544 (Miss. 2010). We will not find error if the instructions fairly, though not perfectly,
    announce the applicable rules of law. 
    Id. The crime
    of burglary requires the jury to find
    beyond a reasonable doubt that the defendant broke and entered the dwelling house of
    another with the intent to commit some crime therein. Miss. Code Ann. § 97-17-23(1) (Rev.
    2006). This Court has held that jury instructions on burglary must identify the crime the
    defendant intended to commit. Daniels v. State, 
    107 So. 3d 961
    , 964 (Miss. 2013).
    ¶15.      Conner’s jury instructions complied with Daniels by identifying larceny as the crime
    he intended to commit. The jury was instructed to find Conner guilty of burglary if it
    concluded, beyond a reasonable doubt, that Conner unlawfully broke and entered the victim’s
    dwelling house with the intent to commit the crime of larceny therein. The jury also was
    instructed that “[a]n inference of the intent to steal may arise from proof of the breaking and
    entering.” See Gillum v. State, 
    468 So. 2d 856
    , 861 (Miss. 1985) (holding that proof of
    breaking and entering raises a reasonable inference of an intent to steal).
    ¶16.      We find that, although the jury instructions did not list the elements of larceny, they
    fully and fairly informed the jury of the intent requirement for burglary. The elements of
    larceny are the taking and carrying away of another’s personal property without consent and
    with felonious intent, that is, the intent to permanently deprive the owner of his property.
    Love v. State, 
    208 So. 2d 755
    , 756 (Miss. 1968). The Court has described “felonious intent”
    7
    as “the intent to steal.” Smith v. State, 
    214 Miss. 453
    , 
    59 So. 2d 74
    (1952). The jury
    instructions expressly stated that the “required intent” that the jurors had to find was “the
    intent to steal.” And the general lay understanding of the term “larceny” is that it connotes
    stealing or theft. Commonwealth v. Lawrence, 
    418 N.E.2d 629
    , 631 (Mass. App. Ct. 1981).
    While the trial court should instruct the jury on the elements of the intended crime in a
    burglary trial, here, the jury instructions correctly instructed the jurors that they could find
    Conner guilty of burglary if they found he broke and entered the victim’s dwelling with the
    intent to steal. We find that the jury instructions fairly, although not perfectly, instructed the
    jury on the applicable law; therefore, we affirm Conner’s burglary conviction.
    III.    Whether the trial court erred by sentencing Conner as a habitual
    offender.
    ¶17.   Prior to trial, the State moved to amend Conner’s indictment to charge him as a
    habitual offender under Mississippi Code Section 99-19-83, which provides for life
    imprisonment without parole or early release. Miss. Code Ann. § 99-19-83 (Rev. 2007).
    During a pretrial hearing on the State’s motion, the State presented certified pen-pack records
    listing Conner’s prior convictions and an affidavit from Candace Whisman, Director of
    Sentence Management Services for the Tennessee Department of Corrections, explaining that
    Conner had served the necessary separate sentences of more than one year. The trial court
    granted the State’s motion and amended the indictment to add habitual-offender status.
    ¶18.   At Conner’s sentencing hearing, the State did not produce the pen packs and affidavit.
    Instead, the State asked the trial court to “refer back to the record that the Defendant has been
    amended as a 1983 habitual offender.” The trial court asked if the defense had any objection
    8
    to the “convictions that have previously been submitted in a motion to amend hearing being
    incorporated into this sentencing hearing by reference.” Conner did not lodge an objection
    to the incorporation by reference. He did object to the admission of the convictions on the
    grounds of hearsay and violation of his right of confrontation. The trial court overruled these
    objections. Conner then objected to habitual-offender sentencing as cruel and unusual
    punishment. The trial court found that the documents established Conner as a habitual
    offender under Section 99-19-83, rejected Conner’s proportionality argument, and sentenced
    him to life imprisonment as a habitual offender. Conner then objected to being sentenced as
    a habitual offender on the ground that his habitual-offender status had not been proven
    beyond a reasonable doubt.
    ¶19.   Conner now argues that the State failed to meet its burden of proving his habitual-
    offender status because the pen-pack documents and affidavit (pen packs) were never
    introduced into evidence at the sentencing hearing. Conner’s argument is procedurally barred
    because he never raised it before the trial court. Clark v. State, 
    40 So. 3d 531
    , 539 (Miss.
    2010). However, this Court may employ plain-error review if “a defendant’s substantive or
    fundamental rights are affected.” Grayer v. State, 
    120 So. 3d 964
    , 969 (Miss. 2013). A
    defendant has a fundamental right of freedom from an illegal sentence. 
    Id. Because Conner
    argues that the State failed to submit evidence proving his habitual-offender status at the
    sentencing hearing, the argument is reviewable as plain error. 
    Grayer, 120 So. 3d at 969
    (defendant’s argument that the State failed to prove his habitual-offender status with
    competent evidence was reviewable as plain error). “To determine if plain error has occurred,
    this Court must determine ‘if the trial court has deviated from a legal rule, whether that error
    9
    is plain, clear[,] or obvious, and whether that error has prejudiced the outcome of the trial.’”
    
    Id. (quoting Lafayette
    v. State, 
    90 So. 3d 1215
    , 1220 (Miss. 2012) (Carlson, P.J., specially
    concurring)).
    ¶20.   When the defendant is indicted as a habitual offender, “[a] jury is to decide the
    question of guilt and subsequently the circuit judge is to serve as the finder of fact in
    determining whether the habitual offender part of the indictment is established by the
    requisite degree of proof.” Seely v. State, 
    451 So. 2d 213
    , 215 (Miss. 1984). A sentencing
    hearing on a defendant’s habitual-offender status must occur separately from the trial on the
    principal charge. URCCC 11.03. At this hearing, the elements in the applicable habitual-
    offender statute must be proven beyond a reasonable doubt. Davis v. State, 
    680 So. 2d 843
    ,
    851 (Miss. 1996). We have held that pen-pack records may constitute competent evidence.
    Taylor v. State, 
    122 So. 3d 707
    , 709, 711 (Miss. 2013). The defendant must be afforded a
    reasonable opportunity to challenge the State’s proof. Keyes v. State, 
    549 So. 2d 949
    , 951
    (Miss. 1989).
    ¶21.    “[T]he state has the same burden of proof as to the habitual offender portion of the
    indictment as it has on the principal charge.” Young v. State, 
    507 So. 2d 48
    , 50 (Miss. 1987).
    The defendant has the same rights at the habitual-offender sentencing hearing as at trial. 
    Id. In Young
    v. State, we observed that “there appears to be some tendency to routinely allow
    the state to produce some documentation of prior offenses and for the trial court to
    perfunctorily find the defendant an habitual offender, then routinely pass out the sentence
    mandated. . . .” 
    Id. The Court
    emphasized that “a bifurcated trial means a full two-phase trial
    10
    prior to any finding that the defendant is an habitual offender and subject to enhanced
    punishment.” 
    Id. ¶22. The
    Court in Young reversed and rendered Young’s habitual-offender sentencing
    enhancement due to deficiencies in the sentencing hearing. 
    Id. at 50.
    At the sentencing
    hearing, the State introduced documents showing Young was a habitual offender. 
    Id. at 49.
    Young objected to their admission on the ground that no foundation had been laid. 
    Id. The prosecutor
    referred the trial court to Young’s trial testimony, in which he had admitted the
    convictions. 
    Id. at 50.
    The trial judge overruled Young’s objection based on his testimony
    from the trial. 
    Id. This Court
    held that the trial court had erred by relying on trial testimony
    that had not been introduced at the sentencing hearing. 
    Id. The Court
    stated that “the
    language employed by [the prosecutor] cannot be stretched so as to be considered a
    reintroduction of the evidence. On the contrary, it seems simply an invitation to the trial
    judge to rely on that evidence without having it reintroduced, which he subsequently did.”
    
    Id. ¶23. In
    Grayer v. State, 
    120 So. 3d 964
    (Miss. 2013), this Court also found a habitual-
    offender sentence to have been based on insufficient evidence. After the State recited
    Grayer’s prior felony convictions and referred the trial court to the indictment, the trial court
    found Grayer to be a habitual offender. 
    Grayer, 120 So. 3d at 967
    . The State never put
    certified copies of the prior convictions into evidence. 
    Id. at 969.
    This Court held that,
    because the State had produced no evidence at the sentencing hearing to support Grayer’s
    habitual-offender status, the State had failed to prove beyond a reasonable doubt that Grayer
    11
    was a habitual offender, and the trial court had erred by sentencing him as a habitual
    offender. 
    Id. ¶24. Conner
    argues that the pen packs were not introduced into evidence at his sentencing
    hearing; therefore, the State failed to prove his habitual-offender status beyond a reasonable
    doubt. We disagree. The trial court expressly incorporated the pen packs into the record of
    the sentencing hearing and gave Conner an opportunity to object; Conner made no objection
    to the incorporation of the pen packs by reference. The trial court rejected Conner’s
    arguments against the admission of the pen packs, and then the court considered the pen
    packs before finding Conner to be a habitual offender. It is manifest from the trial court’s
    statements on the record that the trial court actually reviewed the pen packs at the sentencing
    hearing. The facts show that, while there was some irregularity in the manner in which the
    pen packs were introduced into evidence, they were, in fact, introduced into evidence. We
    note that the pen packs are part of the appellate record.
    ¶25.   We observe that the incorporation of pen packs introduced at a prior proceeding “by
    reference” at a sentencing hearing is not the preferred method of introduction. See Stanford
    Young, Miss. Trial Handbook for Lawyers §22:2 (3d ed. 2013) (stating that “an attorney
    seeking to admit a document into evidence should identify it and have the reporter mark it
    for record identification”). The record of a sentencing hearing should clearly and
    unambiguously reflect the admission of habitual-offender evidence. This saves the appellate
    court from the task of combing the record to ascertain whether the State’s proof actually was
    admitted at the sentencing hearing. But here, unlike in Young and Grayer, the State’s
    12
    evidence supporting Conner’s status as a habitual offender was admitted at the sentencing
    hearing. Therefore, no error occurred, and this issue is without merit.
    ¶26.   Finally, we address Justice Kitchens’s argument that Conner’s Sixth Amendment right
    of confrontation was violated by the admission of Whisman’s affidavit. We have not held
    that Confrontation-Clause guarantees exist during sentencing, even if sentencing occurs
    under our habitual-offender statutes. Holland v. State, 
    705 So. 2d 307
    , 328 (Miss. 1997); but
    see Pitchford v. State, 
    45 So. 3d 216
    , 252 (Miss. 2010) (applying the Confrontation Clause
    to jury sentencing). The Supreme Court of the United States has held that the Confrontation
    Clause does not apply during the sentencing process. Williams v. Oklahoma, 
    358 U.S. 576
    ,
    583-84, 
    79 S. Ct. 421
    , 
    3 L. Ed. 2d 516
    (1959); Williams v. New York, 
    337 U.S. 241
    , 246-
    251, 
    69 S. Ct. 1079
    , 
    93 L. Ed. 1337
    (1949). Post-Crawford, the federal circuit courts
    continue to apply Williams and do not recognize a right to confrontation during sentencing
    proceedings. Crawford v. Washington, 
    541 U.S. 36
    , 51, 
    124 S. Ct. 1354
    , 1364, 
    158 L. Ed. 2d
    177 (2004); see, e.g.,United States v. Beydoun, 
    469 F.3d 102
    , 108 (5th Cir. 2006). In
    light of the fact that this Court has not determined that the Confrontation Clause applies to
    sentencing proceedings, and Conner does not raise this issue on appeal, we decline to find
    that the admission of Whisman’s affidavit was plain error. We affirm the judgments of the
    Court of Appeals and the DeSoto County Circuit Court.
    ¶27. COUNT I: CONVICTION OF BURGLARY OF A DWELLING AND
    SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
    OF CORRECTIONS AS AN HABITUAL OFFENDER, WITHOUT THE
    ELIGIBILITY FOR PAROLE, AFFIRMED. COUNT III: CONVICTION OF
    FELONY FLEEING AND SENTENCE OF LIFE IN THE CUSTODY OF THE
    MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES
    SHALL RUN CONSECUTIVELY TO ANY SENTENCE CURRENTLY BEING
    13
    SERVED. APPELLANT SHALL PAY COURT COSTS AND A FINE OF $1,000.00
    WITH CONDITIONS AND SHALL BE GIVEN CREDIT FOR 349 DAYS FOR TIME
    SERVED.
    WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ.,
    CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH
    SEPARATE WRITTEN OPINION JOINED IN PART BY KITCHENS AND KING,
    JJ., KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH
    SEPARATE WRITTEN OPINION JOINED BY KING, J.
    DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND
    DISSENTING IN PART:
    ¶28.   I fully join the majority’s decision to affirm Conner’s conviction for felony fleeing
    and his sentence as a habitual offender on that charge. But, because the trial court failed to
    instruct the jury adequately on Conner’s burglary charge, I would reverse that conviction.
    ¶29.   The trial judge instructed the jury that, in order to convict Conner of burglary, it must
    find beyond a reasonable doubt that he intended to commit a larceny in Campbell’s home.
    But, because the trial judge did not instruct the jury on the legal requirements for a larceny,
    Conner now argues that the jury could not determine whether he possessed the requisite
    intent to commit larceny.
    ¶30.   Neither the State nor Conner requested a larceny instruction at trial. In most cases,
    a litigant who fails to request a certain jury instruction waives the issue for appeal.1
    However, we have made it clear that the trial judge had the ultimate duty to provide the jury
    with proper instructions. And a jury that has not been properly instructed on the elements
    of a crime is inherently unable to render a verdict based on those elements. It follows that,
    1
    Ballenger v. State, 
    667 So. 2d 1242
    , 1252 (Miss. 1995).
    14
    in such cases, the defendant’s fundamental right to due process of law and a fair trial have
    been compromised, and we may grant relief under the plain-error doctrine.2
    ¶31.   Conviction for burglary of a dwelling requires the jury to find beyond a reasonable
    doubt that the defendant broke and entered the dwelling of another with the intent to commit
    “some crime” therein.3 But, unless the prosecution informs the jury of the specific crime the
    State alleges the defendant intended to commit, the indictment is “fatally flawed.” 4
    ¶32.   Indeed, the trial court must instruct the jury on the specific crime the State contends
    the defendant intended to commit because “[t]he failure to instruct the jury on some specific
    crime in the second element of burglary would have allowed each of the jurors to arbitrarily
    select some crime of which there was no proof, and use that nonexistent offense to convict
    [the defendant] of burglary.” 5
    ¶33.   Here, the trial judge instructed the jury that, in order to find Conners guilty of
    burglary, it must have found that he intended to commit “larceny.” But the jury was left to
    guess what it means to commit a larceny. While the prosecutor was not required to prove the
    elements of larceny – indeed, the State could never prove the elements of larceny where the
    2
    Flora v. State, 
    925 So. 2d 797
    , 811 (Miss. 2006) (quoting Williams v. State, 
    794 So. 2d
    181, 187 (Miss. 2001), overruled on other grounds by Brown v. State, 
    995 So. 2d 698
    (Miss. 2008), (citing Gray v. State, 
    549 So. 2d 1316
    , 1321 (Miss. 1989)); Bolton v. State,
    
    113 So. 3d 542
    , 544 (Miss. 2013) (quoting Rogers v. State, 
    95 So. 3d 623
    , 632 (Miss.
    2012)).
    3
    Miss. Code Ann. § 97-17-23(1) (Rev. 2006).
    4
    Lambert v. State, 
    462 So. 2d 308
    , 311 (Miss. 1984) (citing Newburn v. State, 
    205 So. 2d 260
    (Miss. 1967); State v. Buchanan, 
    75 Miss. 349
    , 
    22 So. 875
    (1898)).
    5
    Daniels v. State, 
    107 So. 3d 961
    , 964 (Miss. 2013).
    15
    defendant broke and entered in an unsuccessful attempt to commit a larceny – it failed to
    consider the jury’s need to know those elements in order to analyze whether the defendant
    intended to commit them.
    ¶34.   Larceny is “the taking and carrying away from any place, at any time, of the personal
    property of another, without his consent, by a person not entitled to the possession thereof,
    feloniously, with intent to deprive the owner of his property permanently, and to convert it
    to the use of the taker or of some person other than the owner.” 6
    ¶35.   It is not an answer to say that jurors understand what is a larceny. I find it highly
    unlikely that all members of a jury consisting predominantly of lay persons – not attorneys
    and judges – would know the requirements for a larceny. But, even if some of the jurors
    claimed to know the requirements for a larceny, they are specifically instructed not to
    consider their own views of what the law requires and to apply only the law given to them
    by the trial judge.
    ¶36.   So, when a trial judge requires the jury to determine whether the defendant intended
    to commit larceny, that judge may not leave the jury to speculate as to the meaning of
    larceny. This is not to say that all jurors are completely ignorant of the law – they are not.
    But, because jurors are forbidden from applying their own knowledge of the law, they must
    be informed by the trial judge of the law to be applied.
    ¶37.   By failing to instruct on the elements of larceny, the trial judge left the jurors to assign
    their own meaning to that word. This eliminated their ability to determine whether the
    6
    Mapp v. State, 
    248 Miss. 898
    , 904, 
    162 So. 2d 642
    , 645 (1964) (quoting 52 C.J.S.
    Larceny § 1, p. 779; Jackson v. State, 
    211 Miss. 828
    , 
    52 So. 2d 914
    (Miss. 1951)).
    16
    defendant intended to commit that crime beyond a reasonable doubt. And this failure was
    not remedied because the trial judge instructed that the jury might infer an intent to steal from
    the act of breaking and entering. The intent to steal, standing alone, is not larceny. One must
    intend to permanently deprive the other of his or her property. And, even if stealing and
    larceny were synonymous, the trial judge never instructed the jury to find the intent to steal
    beyond a reasonable doubt, nor did he explain that he intended the instruction on the intent
    to steal to define or explain the meaning of larceny. He merely instructed the jury that the
    intent to steal might be inferred from the circumstances of breaking and entering.
    ¶38.   The instructions left the jury to speculate as to the meaning of a legal term,
    eviscerating the jury’s ability to consider Conner’s guilt. Accordingly, I would reverse
    Conner’s conviction for burglary of a dwelling and remand for a new trial on that charge.
    KITCHENS AND KING, JJ., JOIN THIS OPINION IN PART.
    KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
    PART:
    ¶39.   There can be no doubt that prosecutions under Mississippi’s habitual-offender statutes
    must occur in bifurcated trials. Seely v. State, 
    451 So. 2d 213
    , 214 (Miss. 1984). At the
    sentencing trial, “the circuit judge is to serve as the finder of fact in determining whether the
    habitual offender part of the indictment is established by the requisite degree of proof[,]” that
    is, beyond a reasonable doubt. 
    Id. at 215.
    After reviewing the transcript of the pretrial
    hearing on the motion to amend the indictment as well as the sentencing hearing, I am
    convinced that the State failed to prove the allegations of habitual-offender status in Conner’s
    indictment beyond a reasonable doubt, and Conner was denied his right to confront a witness
    17
    against him in the process. Because the State failed in its proof, and Conner’s constitutional
    right to confrontation was violated, I must respectfully dissent in part. I would vacate his
    sentences and remand for resentencing as a nonhabitual offender. I also join the part of
    Justice Dickinson’s opinion arguing for the reversal of Conner’s burglary conviction. With
    the majority, the only point upon which we agree is that Conner’s conviction of felony
    fleeing should be affirmed.
    ¶40.   Conner’s amended indictment alleges that he has five prior convictions: two for
    robbery with a deadly weapon, and three for robbery. The indictment alleges that he was
    sentenced to and served more than one year on each of those prior charges.7 The motion to
    amend the indictment was accompanied by pen packs from the State of Tennessee
    Department of Corrections and an affidavit from Candace Whisman, a corrections official,
    outlining her interpretation of Conner’s sentences and prison time. The trial court amended
    the indictment based upon the State’s representation that, at sentencing, it would be able to
    prove beyond a reasonable doubt that Conner had served more than a year on two prior
    convictions, at least one of which was a violent crime. In other words, the trial court’s
    acceptance of the pen packs and affidavit for the purpose of amending the indictment opened
    the door for the State to undertake the task of proving Conner’s habitual-offender status. By
    7
    Mississippi Code Section 99-19-83 requires proof of only two prior convictions for
    which the defendant was sentenced to and served more than one year. However, the State
    apparently wanted to make it abundantly clear that Conner had five prior convictions that
    could meet the standard for a life sentence as an habitual offender. See Miss. Code Ann. §
    99-19-83 (Rev. 2007).
    18
    no means did the trial court’s ruling mean that the State also had crossed the threshold of
    reasonable doubt necessary for it to sentence Conner as an habitual offender.
    ¶41.   Both at the pretrial hearing and at sentencing, Conner objected to the admission of the
    pen pack and explanatory affidavit because it violated his right to confront the witnesses
    against him. Additionally, at the sentencing hearing, he argued that the State had failed to
    meet its burden of proof in showing that he should be sentenced as an habitual offender.
    Because I find that the issues are interrelated, I will address them together.
    ¶42.   It is undisputed that Conner has an extensive criminal history. At the age of forty-nine,
    he has amassed an impressive rap sheet. However, the scope and depth of Conner’s criminal
    past in no wise relieves the State of proving beyond a reasonable doubt, in a separate trial,
    that Conner has twice been convicted of crimes for which he was sentenced to and served
    more than one year, one of those being a violent crime.8 Miss. Code Ann. § 99-19-83 (Rev.
    2007). The prosecution set out to make such proof by means of the extensive pen-pack
    records outlining Conner’s criminal history, as well as Whisman’s accompanying affidavit
    providing her interpretation of those records’ meaning. The State attempted to place the pen
    packs and affidavit into evidence by asking the court to incorporate them into the record
    through reference to the pretrial hearing on the motion to amend the indictment. At that point,
    8
    The State could have greatly eased its requirement of proof by charging Conner
    under Section 99-19-81. That section requires that the State show only that Conner was
    sentenced to a year on two separate crimes. For such proof, just the judgment of conviction
    and sentence would have been enough. At Conner’s age, he likely would have served out the
    remainder of his life under that sentence. See Miss. Code Ann. § 99-19-81 (Rev. 2007).
    19
    the trial court determined that the State had met its burden, and that Conner should be
    sentenced as an habitual offender.
    ¶43.   After reviewing the transcript of the sentencing hearing, I cannot see how the trial
    court was able to determine beyond a reasonable doubt that Conner was an habitual offender
    under Section 99-19-83 based upon the pen pack itself. The pen pack covers multiple felony
    convictions, misdemeanor convictions, and parole releases and revocations over a twenty-
    year period. It is extensive. In the record on appeal, it is not in chronological order. After
    studying the pen pack, it is not clear to me how much time Conner served for a number of
    the felonies for which he was convicted. The only way to reach a conclusion as quickly as
    the trial court did, without an extensive knowledge of the Tennessee Department of
    Corrections’s administrative regulations, would be to rely totally upon the affidavit provided
    by Whisman.
    ¶44.   When the court asked Conner whether he objected to incorporating the pen pack and
    affidavit into evidence, he argued that the documents were inadmissible hearsay and that they
    violated his right to confront the witnesses against him.9 The judge overruled those
    objections. He then conducted a brief examination of Conner’s prior convictions and
    sentences.
    9
    Conner did not raise the confrontation clause issue on appeal. However, he did object
    on that basis at the sentencing trial. “Under the doctrine of plain error, we can recognize
    obvious error which was not properly raised by the defendant on appeal, and which affects
    a defendant’s fundamental, substantive right.” Corbin v. State, 
    74 So. 3d 333
    , 337 (¶ 11)
    (Miss. 2011) (quoting Smith v. State, 
    986 So. 2d 290
    , 294 (Miss. 2008) (internal quotations
    omitted)).
    20
    Court: First and foremost, I’ll note that the documents before the Court do
    establish Mr. Conner as a Section 99-19-83 habitual offender and he will be
    sentenced as such.
    I’m looking at Mr. Conner. Here’s a conviction for a robbery with a deadly
    weapon, appears to be a second conviction, appears to be contemporaneously,
    but a second conviction for robbery with a deadly weapon. The third,
    apparently contemporaneous, robbery conviction. Appears to be a repeat of
    that same conviction, the next one. And another non-contemporaneous later in
    time, robbery conviction.
    ¶45.   At no point did the court specifically find that Conner had served a year or more on
    any of those listed prior convictions, nor did it indicate which prior convictions alleged in the
    indictment specifically were being used to enhance Conner’s sentence or for which ones the
    State had met its burden of proof. It is obvious to me, after having reviewed the extensive pen
    packs, that the only way to make real sense out of Conner’s conviction and sentencing
    history is through the affidavit from Whisman. This constituted the real proof against Conner
    in adjudicating him an habitual offender. Her absence from Conner’s sentencing hearing
    deprived him of the fundamental right to confront the witnesses against him, and his sentence
    as an habitual offender should be reversed.
    ¶46.   “[T]he admission of a testimonial statement of a witness who does not appear at trial
    is barred, unless that witness is unavailable, and the defendant has had a prior opportunity
    for cross-examination.” Corbin v. State, 
    74 So. 3d 333
    , 338 (¶ 13) (Miss. 2011) (emphasis
    added). “[A] statement is testimonial when it is given to the police or individuals working
    in connection with the police for the purpose of prosecuting the accused.” Hobgood v. State,
    
    926 So. 2d 847
    , 852 (¶ 11) (Miss. 2006). The United States Supreme Court has stated that
    testimonial statements can be “ex parte in-court testimony . . . material such as affidavits, .
    21
    . . [or] statements that were made under circumstances which would lead an objective witness
    reasonably to believe that the statement would be available for use at a later trial.” Crawford
    v. Washington, 
    541 U.S. 36
    , 51-52, 
    124 S. Ct. 1354
    , 
    158 L. Ed. 2d
    177 (2004) (emphasis
    added) (internal quotations omitted). Whisman’s affidavit, explaining the complicated and
    extensive pen pack detailing Conner’s sentencing history, was unequivocally testimonial. It
    explained the meaning of the attached pen-pack documents and was used to remove any
    doubt as to Conner’s prior sentences and their length. Whether Whisman’s interpretation of
    the pen-pack materials is right or wrong, it is, nevertheless her interpretation. Conner had
    a state and federal constitutional right to cross examine her. See U.S. Const. amend. VI; Miss.
    Const. art. 3, § 26.
    ¶47.   The State had a burden to prove its case at the sentencing hearing. It provided the
    certified pen-pack documents, which the majority correctly recognized as competent
    evidence. See Taylor v. State, 
    122 So. 3d 707
    , 709, 711 (¶ 11) (Miss. 2013). However, as
    clearly recognized by the State, the documents are difficult to interpret without the
    knowledge of someone well versed in the administrative procedures of the Tennessee
    Department of Corrections. Whisman interpreted the documents in the pen pack and stated
    her conclusions regarding Conner’s prior convictions and sentences. It was incumbent upon
    the State to produce Whisman as a witness to ensure that she could explain her reasoning for
    her conclusions, and it was incumbent upon the State to provide Conner the opportunity to
    cross-examine her and challenge the validity of her conclusions. At the sentencing hearing,
    the State argued that Conner should have subpoenaed Whisman if he wished to cross-
    examine her. This is incorrect. The burden is on the State to prove the defendant qualifies for
    22
    habitual-offender status; it is not on the defendant to prove that he does not. Whisman was
    necessary to prove the State’s case, and the State had the burden to ensure her appearance
    at the sentencing hearing. Whisman’s affidavit was the State’s strongest and clearest proof
    that Conner was an habitual offender beyond a reasonable doubt. Such a testimonial
    statement is barred from admission into evidence when its author does not appear at trial.
    
    Corbin, 74 So. 3d at 338
    . As Whisman did not appear at trial, her affidavit should have been
    denied admission into evidence. The trial court’s failure to do so was reversible error.
    ¶48.   As for the majority’s contention that this Court has never held that confrontation rights
    exist at sentencing, I must disagree. This Court unequivocally has held that those rights exist
    at the sentencing stage of a bifurcated trial.
    A jury is to decide the question of guilt and subsequently the circuit judge is
    to serve as the finder of fact in determining whether the habitual offender part
    of the indictment is established by the requisite degree of proof. The state has
    the same burden of proof as to the habitual offender portion of the indictment
    as it has on the principal charge. The defendant also has the same rights at
    both stages of trial.
    
    Seely, 451 So. 2d at 215
    (Miss. 1984) (emphasis added). Clearly, in a proceeding against an
    alleged habitual offender in Mississippi, the accused’s right to confront the witnesses against
    him exists at the guilt phase of his bifurcated trial, and that same right exists at sentencing.
    ¶49.   This Court long ago recognized that, in cases in which the State seeks to punish a
    defendant as an habitual offender, “[t]here appears to be some tendency to routinely allow
    the state to produce some documentation of prior offenses and for the trial court to
    perfunctorily find the defendant an habitual offender. . . .” 
    Id. The Court
    recognized that the
    only way to adjudicate habitual-offender status was to hold “a full two-phase trial prior to
    23
    any finding that a defendant is an habitual offender and subject to enhanced punishment.”
    
    Id. Here, the
    trial court perfunctorily examined an extensive and confusing record of
    Conner’s criminal history and relied on an inadmissible, testimonial affidavit to conclude that
    Conner qualified for habitual-offender status. Conner’s right to confrontation was violated,
    and he was summarily adjudicated an habitual offender in a hearing resembling a trial in only
    the loosest terms, as far as its recognition of the rules of evidence and the constitutional rights
    of a criminal defendant are concerned. Without Whisman’s affidavit in evidence, the State
    did not remove all reasonable doubt from its allegations that Conner was an habitual
    offender. Accordingly, I would hold that Conner’s sentence as an habitual offender should
    be reversed, and his case should be remanded for resentencing as a nonhabitual offender.
    KING, J., JOINS THIS OPINION.
    24