Opinion
No. 97-KA-01019-COA.
May 4, 1999. Petition for Rehearing May 18, 1999
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT, HON. R. KENNETH COLEMAN, JUDGE, DATE OF JUDGMENT: 01/08/1997.
AFFIRMED.
FOR APPELLANT: DAVID O. BELL.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY DISTRICT ATTORNEY: JAMES M. HOOD, JR.
EN BANC.
¶ 1. Ronald J. Walls was found guilty of aggravated assault by a Lafayette County Circuit Court jury. The trial judge, finding Walls an habitual offender, sentenced Walls to twenty years, without possibility of parole, in the custody of the Mississippi Department of Corrections. Aggrieved of this ruling, Walls raises the following issues as error: 1) whether the trial court erred in denying him a lesser-included-offense instruction on simple assault, and 2) whether the trial court improperly sentenced him as an habitual offender. Finding the evidence to fully support the verdict and sentence in this case, we affirm.
FACTS
¶ 2. The Lafayette County Grand Jury returned a multi-count indictment against Walls, charging him with one count of burglary of a dwelling, one count of aggravated assault, and one count of kidnaping. He was also indicted as an habitual offender. Prior to trial, the State moved to dismiss the burglary charge, which motion was granted by the trial court. Walls was tried on both counts, but the jury returned a verdict finding Walls not guilty of kidnaping but guilty of aggravated assault.
¶ 3. On March 25, 1996, Walls forced his way into the home of Allen Harris in Abbeville, Mississippi, where his former girlfriend, Judy Kesler, was temporarily residing. Kesler was alone. While in the residence, Walls beat Kesler with his fists, dragged her by the hair through the residence, pulled a knife on her, kicked her in the lower back and the back of her head, hit her repeatedly in the head the with handle of the knife, and struck her head against a table. After the beating, Walls packed some of Kesler's belongings into a suitcase and took her into the woods to an abandoned trailer. Walls forced her to remain there against her will as he pleaded with her for forgiveness and for reconciliation in their relationship.
¶ 4. Harris returned home and, finding Kesler gone and seeing blood on the floor and coffee table, and seeing a knife scabbard which did not belong to him, he alerted the police. The police were able to locate Walls and Kesler, and Kesler was released.
I. HE TRIAL COURT ERRED IN REFUSING THE DEFENDANT'S REQUEST THAT THE JURY INSTRUCTIONS INCLUDE PERMITTING THE JURY TO CHOOSE TO CONVICT THE DEFENDANT OF THE LESSER CRIME OF SIMPLE ASSAULT.¶ 5. At the close of the evidence, Walls's counsel orally requested that the trial court give a lesser-included-offense instruction on simple assault. The trial court refused the request.
¶ 6. The Mississippi Supreme Court has clearly delineated the circumstances under which a defendant is entitled to have the jury pass on a lesser-included-offense instruction. The court has held that "the submission of a lesser degree of an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one. . . ." Hoops v. State, 681 So.2d 521, 535 (Miss. 1996) (quoting Rowland v. State, 531 So.2d 627, 632 (Miss. 1988)). Consequently, whether a defendant on trial for aggravated assault is entitled to a lesser-included-offense instruction on simple assault "turns on whether there is an evidentiary basis for it." Jackson v. State, 684 So.2d 1213, 1230 (Miss. 1996).
¶ 7. Walls's claim is guided by our supreme court's opinion in Hutchinson v. State, 594 So.2d 17 (Miss. 1992). In Hutchinson, as with the case at bar, the defendant was on trial for aggravated assault and requested that the jury be given a lesser-included-offense instruction on simple assault. Our supreme court analyzed Mississippi's aggravated assault and simple assault statutes, concluding that:
[f]rom the language of these statutes, it becomes apparent that aggravated assault is a carbon copy of simple assault, with the exception that aggravated assault has added the words ". . . with a deadly weapon. . . ." This suggests a statutory scheme where conduct which is simple assault under [s]ection 97-3-7(1)(a) becomes aggravated assault under [s]ection 97-3-7(2)(b) when "done with a deadly weapon." The scheme is completed when we realize that a subsequent subsection of the simple assault definition includes the negligent injury to another with a deadly weapon. No evidence suggests or even hints that [the defendant] acted negligently.Hutchinson, 594 So.2d at 19 (citations omitted). The court then held that Mississippi's statutory scheme precluded an intentional assault with a deadly weapon from ever being simple assault. Id. at 20 (emphasis added). In arriving at this conclusion, the court noted that "the statute draws a distinction between intentionally inflicted bodily injury, which is simple assault, and a like, intentionally inflicted injury `with a deadly weapon,' which is defined as aggravated assault." Id. The court went on to hold that "[t]he further distinction between negligently inflicted injury with a deadly weapon, which are simple assaults, and intentionally inflicted bodily injuries with a deadly weapon, which are aggravated assaults, confirms this view." Id. The court concluded that the defendant's use of a deadly weapon removed the case from our simple assault statute. Hutchinson, 594 So.2d at 20. Accordingly, under Mississippi law "[o]nce a deadly weapon is introduced, the distinction between simple and aggravated assault, as defined by Miss. Code Ann. §§ 97-3-7 (1) and (2), hinges upon whether the injuries were inflicted negligently or intentionally." Jackson, 684 So.2d at 1230 (citing Hutchinson, 594 So.2d at 20).
¶ 8. The weapon in this case would be more appropriately labeled as a "dagger" or a "dirk." The weapon used in this case was not the type that could easily be mistaken for a pocket knife. Nor could it ever be mistaken as a common kitchen utensil that characteristically has a wooden end. A mere inspection of the photographs of this weapon clearly shows that the handle of this knife, when used as a bludgeoning tool, certainly was capable of producing serious bodily injury as to constitute a deadly weapon within the meaning of the statute. Walls's weapon that he used to assault Kesler was a large, long double-edged Willis and Fink knife with a decorative gold metal end, containing several pointed tips, any of which could produce serious bodily injury (See the attached exhibit). This was no ordinary knife. Thus, just as a pistol used to "pistol whip" a person would still be classified as a deadly weapon despite the fact that the pistol was "not used for its designed purpose," or as a hammer's end would still be classified as a deadly weapon, a knife handle such as the one here, used in the manner it was here, should also be classified as a deadly weapon. Upon viewing the photograph of this weapon and from Kesler's testimony, it is clearly apparent that this weapon's design would constitute it as a deadly weapon, irrespective of which end was used, and that Walls's use of the knife excluded it from the lesser-included-offense of simple assault.
¶ 9. We need not decide whether Kesler suffered any bodily injury in this case. Although, Kesler went to see her doctor immediately and there was evidence that she suffered from substantial head injuries as a result of the blows administered by Walls with the knife handle. In Hutchinson, 594 So.2d at 19, the supreme court stated that an instruction on simple assault as a lesser-included-offense of aggravated assault was not required where injuries sustained by the victim could not reasonably be characterized as less than serious bodily injuries. "[J]ust because the injuries may be characterized as slight does not mean the case is automatically one of simple assault. Rather, here, as always, the offense is defined by the statute as the legislature has given us and read it as fairly and sensibly as we may." Id. Under the statute, it is enough that the use of the weapon constitutes "a means likely to produce [either] death or serious bodily harm." Jackson v. State, 594 So.2d 20, 24 (Miss. 1992). It is not necessary to prove that the victim suffered serious bodily injury. Id. "Mere `bodily injury' is sufficient so long as it was caused with `other means likely to produce death or serious bodily harm.'" Id.
¶ 10. Kesler testified that Walls kicked in the door, came at her, and started beating her with his fist. He then drug her through the trailer by her hair from the living room, down the hall back to the bedroom, and then back up to the front of the trailer. Kesler stated that Walls then "pulled the knife and he kicked me in my lower back and in the back of my head and he hit me with the knife, the handle of the knife in the head, repeatedly." He then banged her head against the table. Kesler stated that he gathered her things and forced her to leave with him. Kesler testified that after the police came she went immediately to her family doctor. The record reads as follows, in pertinent part:
Q: Did you have any cuts[,] bruises or abrasions?
A: Yes, I had a cut here and above my eye and felt like my lower back bone was fractured. I couldn't hardly walk or hear or see at that point.
Q: Were your eyes swollen?
A: Yes, sir.
Q: Go ahead. I'm sorry. What else did Dr. Hopkins tell you?
A: He just-that is it. I just basically went home and took like Advil or something for the pain.
Q: Did you have to stay at home because of the pain?
A: Yes, sir, I had to stay home for about 4 days from work. I couldn't hardly walk when I left there.
¶ 11. Additionally, there was testimony from the police officers on the scene that Kesler was covered in blood, that blood was on the coffee table as well as on papers on the coffee table, and that blood was on the carpet. Officer Hill stated that Kesler's face was "covered with blood. The front of her clothes were covered with blood. She looked distraught." Furthermore, photographs were taken that showed how the door had been forced open as well as pictures that showed the knife scabbard lying on the stove covered in blood. It is quite apparent from the evidence that this assault did produce a substantial amount of blood from the head injuries.
¶ 12. The question to be asked in this case is whether the statutory scheme precludes an intentional assault with a knife such as that used here ever being simple assault. We think it does. Even viewing the evidence in the light most favorable to Walls, we believe that no reasonable jury could have found him innocent of aggravated assault, yet guilty of simple assault. Walls's use of this particular kind of knife and his deliberate wielding of this deadly weapon removes this case from the simple assault provision of the statute. The trial judge was correct when he refused Walls's request for a lesser offense instruction on simple assault.
II.
HE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT WAS AN HABITUAL OFFENDER AND SENTENCING HIM AS SUCH.
¶ 13. Walls argues that the trial court erred in sentencing him as an habitual offender because his prior offenses arose out of the same incident. At the sentencing hearing, the State argued that Walls could properly be charged as an habitual offender as the two prior convictions were for simple assault on two separate law enforcement officers. Walls countered that he was not an habitual offender within the meaning of Miss. Code Ann. § 99-19-81 (Rev. 1994), because the charges arose out of the same incident. The trial court conducted an evidentiary hearing to determine if the prior convictions were for two separate incidents.
¶ 14. The evidence adduced at the hearing showed that Walls was stopped by Officers Leslie White and James Watts for a moving violation on February 15, 1992. The officers became suspicious that he was intoxicated and were going to subject him to a chemical breathalyzer test at the detention center. While White was checking Walls's drivers's license, he looked up and saw Watts and Walls having an altercation. It took both officers to get Walls into the patrol car. White testified that this altercation formed the basis for the first charge of assaulting a law enforcement officer. A few minutes later, Walls, though handcuffed and being transported to jail, apparently became incensed over his predicament and proceeded to kick out the window of the patrol vehicle. White was forced to stop in a public parking lot and obtain the assistance of another officer following in a separate vehicle to again subdue Walls. This second occurrence formed the basis for the second charge of assaulting a law enforcement officer.
¶ 15. In relevant part, the habitual offender statute provides: "Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times. . . ." Miss. Code Ann. § 99-19-81. "We have on several occasions held that `priors' arising out of incidents occurring on the same date may nevertheless be `separate incidents at different times' within Section 99-19-81." Pittman v. State, 570 So.2d 1205, 1207 (Miss. 1990). There need be little separation between the two crimes to satisfy the statutory requirements.
¶ 16. In Nicolaou v. State, the defendant had embarked on a crime spree that involved two murders followed by two kidnapings committed in the course of fleeing the murder scene. Nicolaou v. State, 534 So.2d 168, 173 (Miss. 1988). The court held that the murders were related to the same incident but that the kidnapings were separate incidents from the murders for considerations of habitual offender sentencing. Id.
¶ 17. In Pittman, the defendant burglarized, apparently in rapid succession, two school buildings that shared the same campus but operated as different schools under separate names and with different administrations. Pittman, 570 So.2d at 1205-06. Again, the court held that these two break-ins, even could it be shown that they were done "as quickly as one could physically accomplish these acts," would nonetheless, be separate incidents for purposes of habitual offender analysis. Id. at 1207.
¶ 18. Based on the Mississippi Supreme Court's prior interpretation of the statute, we find that the trial court was correct in finding these two prior assault convictions arose out of separate incidents. Multiple crimes committed during the course of a series of related events may constitute separate and distinct offenses for purposes of section 99-19-81. Thus, as to Walls's second issue on appeal, we find no error in the trial court's decision to sentence Walls as an habitual offender.
¶ 19. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY. KING, P.J., DIAZ, LEE, PAYNE, AND THOMAS, JJ., CONCUR. McMILLIN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., COLEMAN AND IRVING, JJ. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J.
¶ 20. For the reasons set forth in the dissent by Chief Judge McMillin, I respectfully dissent from the majority's conclusion that Walls was not entitled to a lesser included offense instruction on simple assault. Therefore, I would reverse and remand for a new trial. Additionally, because I am not persuaded that the two (2) previous guilty pleas, which form the basis for his being sentenced as a habitual offender, arose out of separate incidents at different times as required by the habitual offender statute, Miss. Code Ann. § 99-19-81 (1972), I would also reverse the sentencing of Walls as a habitual offender.
COLEMAN, J., JOINS THIS SEPARATE WRITTEN OPINION.
¶ 21. I respectfully dissent. I have no disagreement with the proposition that a knife, depending on its construction, is perfectly capable of being a deadly weapon when used to bludgeon a victim with the handle rather than to cut or stab that victim with the blade. My contention is that the question of whether a particular knife so used constituted a deadly weapon is a question of fact that must be decided by the jury and is incapable of being resolved as a matter of law (except perhaps for the most extreme cases where the handle's unique configuration might suggest its ability to almost inevitably inflict a serious injury). I do not find, from the examination of the photographs, that the knife involved in this case is such a uniquely-constructed weapon. This case is indistinguishable from the situation where a pistol is used as a bludgeoning tool to injure rather than as a device to discharge a bullet toward the assault victim. In that situation, the matter of the deadly nature of the instrument is one that must be submitted to the jury for resolution. Griffin v. State, 540 So.2d 17, 21 (Miss. 1989).
¶ 22. The proper method of submitting that issue of fact to the jury in this case was to instruct both as to aggravated assault and simple assault. The failure of the trial court to so instruct the jury in this case, in my view, requires reversal of Walls's conviction.