Verenzo Cartrell Green v. State of Mississippi ( 2016 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CT-01228-SCT
VERENZO CARTRELL GREEN a/k/a VERENZO
GREEN
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 03/07/2013
TRIAL JUDGE: HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC
DEFENDER
BY: ERIN ELIZABETH PRIDGEN
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: RONNIE LEE HARPER
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/28/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. In February 2012, the Adams County Sheriff’s Department recovered three firearms
from the trunk of Verenzo Green’s vehicle during an inventory search of the vehicle. A
grand jury indicted Green and, following a trial in the Adams County Circuit Court, a jury
convicted Green of three counts of being a felon in possession of a firearm and one count of
trafficking a firearm. The Court of Appeals affirmed Green’s convictions and sentences, and
the case is now before the Court on Green’s petition for writ of certiorari on the basis of an
alleged double jeopardy violation first raised sua sponte in a dissent by the Court of Appeals
using the plain error doctrine. For the reasons given below, the principle of law argued by
Green, which he adopted from the Court of Appeals dissent, is not appropriate for plain error
review. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. While on patrol on February 28, 2012, Lieutenant George Pirkey and Agent David
Washington, both with the Adams County Sheriff’s Department, saw Green standing by a
open-trunked vehicle in a convenience store parking lot. Lieutenant Pirkey testified that he
knew, and confirmed with dispatch, that Green had an outstanding warrant. Also according
to Lieutenant Pirkey, when Green saw them pull in the parking lot, he closed the trunk and
began to walk toward the convenience store; however, he did not enter the store. Instead, he
turned and looked toward Lieutenant Pirkey and Agent Washington and then threw a set of
keys to the ground and took off running around the side of the convenience store. Lieutenant
Pirkey chased Green, but Green evaded him. Agent Washington remained in the vehicle and
attempted to pursue Green in the car. Both Lieutenant Pirkey and Agent Washington lost
sight of Green, so they reconvened in the convenience store parking lot. Lieutenant Pirkey
approached the convenience store manager about Green’s vehicle, which was still parked
unattended in the parking lot. The convenience store manager asked that the vehicle be
towed, so Lieutenant Pirkey and Agent Washington conducted an inventory search of the
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vehicle using the keys that Green had thrown on the ground. They discovered three firearms
in the vehicle’s trunk, and a search for the recovered firearms using the National Crime
Information Center database indicated that the firearms were stolen.
¶3. Authorities later arrested Green, and a grand jury indicted him on three counts of
being a felon in possession of a firearm in violation of Mississippi Code Section 97-37-5(1)
and one count of trafficking stolen firearms in violation of Mississippi Code Section 97-37-
35. The jury convicted Green on all four counts, and the circuit court sentenced Green, as
a habitual offender, to ten years for each count of being a felon in possession of a firearm,
to run consecutively, and fifteen years for trafficking a stolen firearm, to run concurrently
with his other sentences. Green filed a motion for a new trial, which the circuit court denied.
¶4. Green appealed, and the Court of Appeals issued an opinion affirming Green’s
convictions and sentences. Green v. State, 2013 KA 01228 COA, 2015 WL 233614, *1 (¶1)
(Miss. Ct. App. Jan. 20, 2015), reh’g denied (May 19, 2015). However, one member of the
Court of Appeals authored a dissent raising, sua sponte, an alleged double jeopardy violation
that could be addressed only through the application of the plain error doctrine because
Green never had raised any concerns of double jeopardy at trial or in his appeal. Id. at *6
(¶22). The position of the dissent, which Green adopted in his petition for writ of certiorari,
stated that Green’s right to be free from double jeopardy had been violated because he could
not be convicted and sentenced for the three counts of felon in possession of firearm for the
simultaneous possession of the three firearms. Id. at **6-7 (¶22-23). We granted Green’s
petition for writ of certiorari, and we now affirm the Court of Appeals decision affirming
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Green’s convictions and sentence as well as the judgment of the Adams County Circuit
Court.
ANALYSIS
¶5. The Court of Appeals’ dissenting opinion would have reversed and remanded the case
to the circuit court with instructions to vacate two of Green’s three convictions of being a
felon in possession of a firearm and the corresponding sentences. Green v. State, 2015 WL
233614, *7 (¶24). According to the dissenting opinion, “[t]he issue of whether this statute
[(Section 97-37-5(1))], which prohibits a convicted felon from possessing ‘any firearm,’
allows for multiple convictions when several weapons are possessed simultaneously is one
of first impression for Mississippi.” Id. The instant case, in which the issue is indeed one
of first impression and the correct result unsettled and unclear, does not justify the
application of the plain error doctrine.
¶6. Green never raised any objection on the basis of double jeopardy at trial, nor did he
raise the issue on appeal; therefore, the only avenue available for review was through the
application of the plain error doctrine.1 The plain error doctrine is employed only in
situations when “a defendant’s substantive or fundamental rights are affected.” Flora v.
State, 925 So. 2d 797, 811 (¶42) (Miss. 2006) (citing Grubb v. State, 584 So. 2d 786, 789
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“A trial judge cannot be put in error on a matter which was not presented to him for
decision.” Holmes v. State, 798 So. 2d 533, 534 (¶16) (Miss. 2001) (citing Ponder v. State,
335 So. 2d 885, 886 (Miss. 1976)). However, Mississippi Rule of Evidence 103(d)
provides: “Nothing in this rule precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the court.” Mississippi Rule of
Appellate Procedure 28(a)(3) provides: “No issue not distinctly identified shall be argued
by counsel, except upon request of the Court but the Court may, at its option, notice a plain
error not identified or distinctly specified.”
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(Miss. 1989)). “Plain-error review is properly utilized for ‘correcting obvious instances of
injustice or misapplied law.’” Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss. 2008)
(citation omitted) (emphasis added). In Neal v. State, 15 So. 3d 388, 403 (¶32) (Miss. 2009)
(quoting McGee v. State, 953 So. 2d 211, 215 (¶8) (Miss. 2007)), the Court explained that,
in order to “determine if plain error has occurred, we must determine if the trial court has
deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether the
error has prejudiced the outcome of the trial.”
¶7. We never have held that treating each possession of firearm as a separate crime under
Section 97-37-5(1) violates the constitutional protection against double jeopardy. Moreover,
the Mississippi Supreme Court’s and Court of Appeals’ cases involving defendants charged
with more than one count of being a felon in possession of a firearm contradict such a rule,
in that, on multiple occasions both courts have considered cases involving convictions on
multiple counts without ever before finding or considering error – plain or otherwise. See
Conners v. State, 92 So. 3d 676, 682 (¶12) (Miss. 2012) (“The jury found Conners guilty of
two counts of felon-in-possession-of-a-firearm, based on his possession of the shotgun and
the 9–mm handgun.”); Hawthorne v. State, 174 So. 3d 306, 307-308 (¶2) (Miss. Ct. App.
2015) (“In April 2011, a Harrison County Circuit Court issued a four-count indictment
against Hawthorne for possession of cocaine with intent to distribute, possession of
marijuana with intent to distribute, and two counts of a felon in possession of a firearm[.]”);
Gunn v. State, 174 So. 3d 848, 856 (¶16) (Miss. Ct. App. 2014) (“He was tried jointly, with
no objection, for capital murder, two counts of felon in possession of a firearm, two counts
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of armed robbery, and two counts of aggravated assault. He was found guilty of all counts.”);
Massey v. State, 144 So. 3d 204 (Miss. Ct. App. 2014) (“On December 6, 2010, he pled
guilty to three offenses—two counts of possession of a weapon by a convicted felon and one
count of aggravated assault.”); Knight v. State, 983 So. 2d 348, 352 (¶15) (Miss. Ct. App.
2008) (“Knight was also charged with two counts of felon in possession of a firearm in
violation of Mississippi Code Annotated section 97–37–5(1).”); and Gavin v. State, 785 So.
2d 1088, 1090 (¶1) (Miss. Ct. App. 2001) (“Charlie Gavin was convicted after a jury trial on
three counts of being a felon in possession of firearms and a fourth of possessing a dangerous
weapon.”).
¶8. In the above-cited cases, all of the defendants were charged with more than one count
of being a felon in possession of a firearm, yet neither the defendants nor the appellate courts
ever raised or discussed a double jeopardy question. Therefore, in the case sub judice, the
trial court did not deviate from or misapply a legal rule in a “plain, clear[,] or obvious” way.
In Conner v. State, 138 So. 3d 143 (Miss. 2014), Daryl Conner stood convicted of burglary
and felony fleeing a police officer; the trial court sentenced him as a habitual offender. Id.
at 146 (¶1). A dissenting opinion raised the issue, not raised by Conner, of whether Conner’s
Confrontation Clause rights were violated because, during sentencing, Conner did not have
the opportunity to confront a witness who had submitted an affidavit detailing his criminal
history. Id. at 157 (¶46) (Kitchens, J., dissenting). The Conner majority responded to the
dissent, first, by noting that Conner had not raised the issue on appeal, and, second, that the
Court never had determined that the Confrontation Clause applies to sentencing. Id. at 152
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(¶26). Because the issue had not been determined and no guiding principle existed, the
Conner Court declined to consider whether plain error had occurred. Id.
¶9. We have not held that convictions for multiple counts of being a felon in possession
of firearms in the manner of today’s case violate constitutional protections against double
jeopardy, and indeed, our cases and those from the Court of Appeals appear to belie such a
holding. We cannot find, and Green has not identified, any other binding authority settling
the issue. The cases cited in the Court of Appeals dissent, e.g., State v. Garris, 663 S.E.2d
340 (N.C. Ct. App. 2008), held that a double jeopardy violation existed only after analyzing
the legislative intent behind the use of the word “any” in their subject jurisdictions. There
exists no standing authority or clear legal rule interpreting the intent of the Mississippi
Legislature when it enacted Section 07-37-5(1).
¶10. For the foregoing reasons, we agree with the Court of Appeals’ majority opinion that
while “certain instances permit our [appellate c]ourt[s] to address the issue of double
jeopardy as plain error, to do so using plain error in this specific instance would be
inappropriate.” Green v. State, 2015 WL 233614, *4 (¶14). Therefore, we affirm both the
judgment of the Adams County Circuit Court and the Court of Appeals judgment affirming
it.
¶11. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. COUNT
I: CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON
AND SENTENCE OF TEN (10) YEARS, AS A HABITUAL OFFENDER, IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. COUNT II: CONVICTION OF POSSESSION OF A WEAPON BY A
CONVICTED FELON AND SENTENCE OF TEN (10) YEARS, AS A HABITUAL
OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF POSSESSION OF A
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WEAPON BY A CONVICTED FELON AND SENTENCE OF TEN (10) YEARS, AS
A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF
TRAFFICKING IN STOLEN FIREARMS AND SENTENCE OF FIFTEEN (15)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS I-III SHALL RUN
CONSECUTIVELY. SENTENCE IN COUNT IV SHALL RUN CONCURRENTLY
WITH SENTENCES IN COUNTS I-III. SAID SENTENCES SHALL NOT BE
REDUCED OR SUSPENDED; NOR SHALL THE APPELLANT BE ELIGIBLE FOR
PAROLE OR PROBATION. APPELLANT SHALL PAY ALL COURT COSTS AND
FEES.
RANDOLPH, P.J., LAMAR AND PIERCE, JJ., CONCUR. KING, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.,
AND KITCHENS, J. WALLER, C.J., AND MAXWELL, J., NOT PARTICIPATING.
KING, JUSTICE, DISSENTING:
¶12. Because I believe that Green’s multiple convictions and sentences for a single offense
are unconstitutional and amount to plain error, I respectfully dissent. This Court has “the
option of recognizing plain error even when it is not brought to the attention of the trial court
or this Court. . . .” Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995). The doctrine of plain
error applies when the error results in a “manifest miscarriage of justice or seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Johnson v. State, 155 So.
3d 733, 738 (Miss. 2014) (citations omitted).
¶13. Whether a convicted felon may be punished separately for possessing each individual
firearm under Section 97-37-5 is a question of first impression in Mississippi. The issue of
whether a double jeopardy violation exists if a defendant is charged with multiple counts of
being a felon in possession of a firearm was placed squarely in front of the Court of Appeals
through Judge Barnes’s dissent. The Court of Appeals declined to address this issue of first
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impression and, through writ of certiorari, the issue was brought before this Court. The
majority states that the plain error doctrine is inappropriate when the issue is “one of first
impression, and the correct result unsettled and unclear.” However, “some issues are of such
importance and of first impression that in spite of a statutory bar, this Court should proceed
and address that particular issue.” Foster v. State, 639 So. 2d 1263, 1295 (Miss. 1994).
¶14. Under the Fifth Amendment, “no person shall be subject for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V; see Miss. Const. art. 3, § 22.
This Court has held clearly that the right to be free from double jeopardy is a fundamental
right, and procedural bars do not apply. Rowland v. State, 42 So. 3d 503, 508 (Miss. 2010).
Green was convicted of three counts of being a felon in possession of a firearm and was
sentenced to ten years in prison for each count, to run consecutively. Twenty years in prison
for two wrongful convictions clearly is an issue of great importance and is a manifest
miscarriage of justice.
¶15. Green contends that Mississippi Code Section 97-37-5(1) is ambiguous, and that the
statute can be interpreted to punish a convicted felon for possessing each separate firearm
or for possessing firearms as a whole. Section 97-37-5(1) states:
It shall be unlawful for any person who has been convicted of a felony under
the laws of this state, any other state, or of the United States to possess any
firearm or any bowie knife, dirk knife, butcher knife, switchblade knife,
metallic knuckles, blackjack, or any muffler or silencer for any firearm unless
such person has received a pardon for such felony . . . .
Miss. Code Ann. § 97-37-5(1) (Rev. 2014). This Court “will not engage in statutory
interpretation if a statute is plain and unambiguous.” Lewis v. Hinds Cty. Circuit Court, 158
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So. 3d 1117, 1120 (Miss. 2015). When a statute is ambiguous, the ultimate goal in
interpreting the statute is to discern the legislative intent. Id.
¶16. The statute criminalizes the possession of any firearm by a convicted felon. I find
merit in Judge Barnes’s dissent and in the determination that “any firearm” may be
interpreted to mean either the singular or the plural. The United States Supreme Court has
found a similarly worded statute using the word “any” to be ambiguous. In interpreting the
Mann Act, the Supreme Court found that the language “[w]hoever knowingly transports in
interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose . . .” was ambiguous and that it did not clearly
express the will of Congress. Bell v. United States, 349 U.S. 81, 82-83, 75 S. Ct. 620, 621-
22, 99 L. Ed. 905 (1955) (emphasis added). See also State of North Carolina v. Garris, 663
S.E.2d 340, 344 (N.C. Ct. App. 2008); People v. Carter, 821 N.E.2d 233, 237 (Ill. 2004);
Hill v. State of Florida, 711 So. 2d 1221, 1222 (Fla. Dist. Ct. App. 1998). I believe that
Section 97-37-5 also is ambiguous and, in interpreting this statutory section, that the
legislative intent must be determined.
¶17. Because this is an issue of first impression in Mississippi, this Court may look to
interpretation of the federal firearms statute for guidance. The Fifth Circuit interpreted
United States Code Section 922(g)(1) to permit only one conviction for a simultaneous
possession of multiple weapons.2 The court found that “[t]he evil Congress sought to
2
“It shall be unlawful for any person – who has been convicted in any court of, a
crime punishable by imprisonment for a term exceeding one year . . . to possess any firearm
or ammunition.” 18 U.S.C.A. § 922(g)(1) (2012).
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suppress by section 922 was the arming of felons; the section is based on the status of the
offender and not the number of guns possessed.” United States v. Berry, 977 F.2d 915, 920
(5th Cir. 1992). See also United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir. 1996)
(“The ‘simultaneous possession’ of multiple firearms generally ‘constitutes only . . . one
offense’ unless there is evidence that the weapons were stored in different places or acquired
at different times.”); United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998) (“While
the prohibited conduct is the possessing of any firearm or ammunition, the statute applies
only to members of [the class] specified in the statute. . . . We join the majority of circuits
which have reached a similar conclusion.”). The Fifth Circuit’s logic is sound. Mirroring
congressional intent, in enacting Section 97-37-5, I believe the Mississippi Legislature likely
intended to prevent the class of convicted felons from being armed. Therefore, the statute is
based on the status of the offender, not the number of weapons that the offender possessed.
¶18. Because the statute is ambiguous and is based on the status of the offender, the statute
must be construed in favor of Green. It is “bedrock law in Mississippi that criminal statutes
are to be strictly construed against the State and liberally in favor of the accused.” Coleman
v. State, 947 So. 2d 878, 881 (Miss. 2006) (citing McLamb v. State, 456 So. 2d 743, 745
(Miss. 1984)). As the Supreme Court stated in Bell:
When Congress has the will it has no difficulty in expressing it—when it has
the will, that is, of defining what it desires to make the unit of prosecution and,
more particularly, to make each stick in a faggot a single criminal unit. When
Congress leaves to the Judiciary the task of imputing to Congress an
undeclared will, the ambiguity should be resolved in favor of lenity. And this
not out of any sentimental consideration, or for want of sympathy with the
purpose of Congress in proscribing evil or anti-social conduct. It may fairly be
said to be a presupposition of our law to resolve doubts in the enforcement of
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a penal code against the imposition of a harsher punishment. This in no wise
implies that language used in criminal statutes should not be read with the
saving grace of common sense with which other enactments, not cast in
technical language, are to be read. Nor does it assume that offenders against
the law carefully read the penal code before they embark on crime. It merely
means that if Congress does not fix the punishment for a federal offense
clearly and without ambiguity, doubt will be resolved against turning a single
transaction into multiple offenses . . . .
Bell, 349 U.S. at 83-84, 75 S. Ct. at 622.
¶19. If the State had evidence that Green obtained the guns at different times or stored
them in separate places, then the State had the opportunity to prove those points. However,
it is undisputed in this case that the State recovered the firearms from the same location: the
trunk of Green’s car. Because Green possessed the three firearms simultaneously, with no
evidence introduced otherwise, he could be convicted only once of possession of a weapon.
Therefore, I believe that two of Green’s convictions were plain error and violated his right
to be protected against double jeopardy.
¶20. The State argues that this Court, in Watkins v. State, 101 So. 3d 628 (Miss. 2012),
rejected a similar argument in relation to possession of controlled substances, and courts in
Mississippi consistently have held that possession of more than one controlled substance
warrants multiple violations of Section 41-29-139.3 This code section clearly was enacted to
3
Mississippi Code Section 41-29-139 reads:
(a) Except as authorized by this article, it is unlawful for any person
knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with
intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled
substance . . . .
Miss. Code Ann. § 41-29-139(a)(1) (Rev. 2013).
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criminalize the possession of controlled substances, and it is not based on the status of the
possessor. Moreover, the same reasoning applies even more so to the child pornography
statute, Section 97-5-33.4 The public policy behind the child pornography statute is to convict
offenders for the possession of the images, no matter the offender’s status. Because Section
97-37-5(1) is based on the status of the offender and because the statute must be interpreted
in favor of the accused, multiple convictions for the simultaneous possession of firearms
cannot stand and are in violation of the double jeopardy clause.
¶21. I believe that Green’s fundamental right to protection from double jeopardy was
violated and that, as a result, plain error occurred. Therefore, I dissent and would affirm only
one conviction and sentence for being a felon in possession of a firearm under Section 97-37-
5.
DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.
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Mississippi Code Section 97-5-33(5) states:
No person shall, by any means including computer, knowingly possess or
knowingly access with intent to view any photograph, drawing, sketch, film,
video tape or other visual depiction of an actual child engaging in sexually
explicit conduct.
Miss. Code Ann. § 97-5-33(5) (Rev. 2014).
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