Miss. R. Crim. P. 19.1

As amended through October 22, 2024

Rule 19.1 - Proceedings at Trial

(a) Order of Proceedings. Following the impanelment of the jury, the trial shall proceed in the following order unless otherwise directed by the court:

(1) A summary of the charge and the plea of the defendant may be provided by the court. In summarizing the charge, all references to prior conviction(s) alleged as sentencing enhancers shall be omitted.

(2) The prosecuting attorney may make an opening statement to the jury, confining the statement to the facts the prosecutor expects to prove.

(3) The defendant (personally or by counsel) may make an opening statement to the jury at the conclusion of the State's opening statement or prior to the defendant's case-in-chief. The statement shall be confined to a statement of the defense and the facts, if any, the defendant expects to prove in support thereof.

(4) The prosecuting attorney shall offer the evidence in support of the charge.

(5) The defendant (personally or by counsel) may then make an opening statement, if it was deferred, and offer evidence in defense.

(6) The prosecuting attorney shall then be allowed to offer evidence in rebuttal.

(7) The court may allow surrebuttal for good cause.

(8) The judge shall then read the instructions to the jury. The court clerk may read the instructions to the jury when the judge is unable by reason of physical infirmity.

(9) The prosecuting attorney may then make a closing argument to the jury. Thereafter, the defendant may make a closing argument to the jury. Failure of the prosecuting attorney to make a closing argument shall not deprive the defendant of the right to argue. The prosecuting attorney may then make a rebuttal argument, not to exceed one-half (1/2) of the prosecuting attorney's allotted time. If, after the prosecuting attorney's initial closing argument, a defendant declines to make a closing argument, the prosecuting attorney shall make no further argument.

(b) Enhancement of Punishment.

(1) Sentencing enhancements based upon prior conviction(s). In cases involving enhanced punishment based upon prior conviction(s), the trial shall proceed as follows:

(A) Separate trials shall be held on the principal charge and on the charge of previous conviction(s). In the trial on the principal charge, the previous conviction(s) will not be mentioned by the state or the court except as provided by the Mississippi Rules of Evidence.

(B) If the defendant is convicted or enters a plea of guilty on the principal charge then, unless there is an agreement or ruling to the contrary, a hearing before the court without a jury will be conducted on the previous conviction(s).

(2) Elevated crimes based upon facts required to be found by a jury.

(A) Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum shall be submitted to a jury and must be proved beyond a reasonable doubt.

(B) When a prior conviction is an element of the principal charge, the fact of a prior conviction shall be submitted to a jury and proved beyond a reasonable doubt. However, the defendant may stipulate to, or waive proof regarding, the prior conviction and the trial court shall accept such a stipulation. The stipulation then shall be submitted to the jury with a proper limiting instruction.

Miss. R. Crim. P. 19.1

Adopted eff. 7/1/2017.

Comment

Section (a) provides a presumptive method of proceeding at trial. Under section (a)(7), the court retains discretion to allow surrebuttal upon a showing of good cause. See Moody v. State, 841 So. 2d 1067, 1090 (Miss. 2003) (surrebuttal "is discretionary with the trial judge, who controls the manner and mode of examination of witnesses"). Pursuant to sections (a)(8) and (a)(9), the court will generally give final instructions to the jury before closing arguments of counsel in order to enhance jurors' ability to apply the applicable law to the facts; the court may wish, however, to withhold giving necessary procedural and housekeeping instructions until after closing arguments. See Rules 22(f), 23.1(a), and 23.3(a).

Section (b)(1) continues the practice under former Rule 11.03 of the Uniform Rules of Circuit and County Court in cases involving enhanced punishment based upon prior conviction(s). A jury resolves the principal charge, then the court determines whether the defendant satisfies the requirements for enhanced sentencing. See, e.g., Nathan v. State, 552 So. 2d 99, 106 (Miss. 1989); Seely v. State, 451 So. 2d 213, 214-15 (Miss. 1984).

Section (b)(2)(A) is consistent with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in that facts which increase the penalty beyond the statutory maximum, other than prior convictions, must be found by a jury. See, e.g., Miss. Code Ann. § 41-29-142 (enhanced penalty based upon proximity to school, church, etc.); Miss. Code Ann. § 97-37-37(1) (general firearms enhancement); Taylor v. State, 137 So. 3d 283, 287 (Miss. 2014) ("Apprendi requires the jury to find not the sentence enhancement itself, but every fact required for the sentence enhancement to be imposed") (emphasis in original); Brown v. State, 995 So. 2d 698, 703 (Miss. 2008) ("The existence of a church within 1,500 feet of Brown's crime . . . is a fact that he was entitled to have determined by a jury").

Section (b)(2)(B) addresses instances in which a prior conviction is an element of the principal charge. See, e.g., Miss. Code Ann. §§ 63-11-30(2)(c) (third and subsequent offense DUI), 97-37-5 (possession of firearm, etc., by a convicted felon), 97-37-37(2) (firearms enhancement applicable to "any convicted felon who uses or displays a firearm during the commission of any felony"). A criminal defendant is "indisputably entitle[d]" to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Apprendi, 530 U.S. at 477 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)). See also Smith v. State, 950 So. 2d 1056, 1060 (Miss. Ct. App. 2007). Therefore, when a prior conviction is an element of the principal charge, that fact must be determined by a jury. See Sallie v. State, 155 So. 3d 760, 762 (Miss. 2015) ("the jury must find the elements of the firearm enhancement beyond a reasonable doubt under Apprendi before a trial court may apply the enhancement"); Rogers v. State, 130 So. 3d 544, 550 (Miss. Ct. App. 2013); Rigby v. State, 826 So. 2d 694, 700 (Miss. 2002) ("This Court has repeatedly held that prior DUI convictions are necessary elements of a felony DUI charge. Thus, they must be proven beyond a reasonable doubt to the jury"). That said, the defendant may stipulate to the prior conviction(s), and such a stipulation "should be submitted to the jury with a proper limiting instruction." Rigby, 826 So. 2d at 702. In Rigby, the limiting instruction was addressed as follows:

[t]he instruction should explain to the jury that the prior DUI convictions should be considered for the sole purpose of determining whether the defendant is guilty of felony DUI and that such evidence should not be considered in determining whether the defendant acted in conformity with such convictions in the presently charged offense.

Id. Additionally:

[w]here evidence of a prior conviction is a necessary element of the crime for which the defendant is on trial (i.e., possession of firearm by a convicted felon), but evidence of the specific nature of the crime for which the defendant was previously convicted . . . , is not an essential element of the crime for which the defendant is on trial, as it is in DUI cases, the trial court should accept a defendant's offer to stipulate and grant a limiting instruction.

Williams v. State, 991 So. 2d 593, 605-06 (Miss. 2008) (emphasis in original). See also Herrington v. State, 102 So. 3d 1241, 1248 (Miss. Ct. App. 2012) ("The jury did not need to know the details of Herrington's prior convictions to reach a verdict on the charge of felon in possession of a weapon; it needed only to know that there was one prior felony conviction. The type of prior conviction has no probative value regarding whether Herrington was a felon in possession of a weapon").