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EZELL JOHNSON, JR. v. STATE OF MISSISSIPPI

MAY 30, 1984

EZELL JOHNSON, JR.
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J., BOWLING, AND ROBERTSON, JJ.

ROBERTSON, JUSTICE FOR THE COURT

This case presents the question whether two convictions and sentences resulting from a single trial on a multi-count indictment is an error cognizable under this Court's plain error rule. Ezell Johnson, Jr., Defendant below and Appellant here, was convicted in the Circuit Court of Rankin County on one count of automobile burglary and one count of grand larceny. Johnson was charged with both offenses in a single indictment. After one trial, he was convicted on both counts

and sentenced to serve seven years for the burglary conviction and five years for the larceny conviction. The sentences were to be served consecutively.

 Indictments charging more than one crime which, in a single trial, result in multiple convictions and sentences have been expressly prohibited by this Court. Finding this to be plain error, we hold that Johnson's conviction for the lesser offense of grand larceny cannot stand. His sentence of five years for this charge must be vacated. In all other respects, the case is affirmed. II.

 We present the facts, as we should, in the light most favorable to the state. Both of the counts charged in Johnson's indictment stem from an auto burglary that occurred on February 21, 1983. Paul Nichols, the victim of this crime, testified that on that morning, he drove to his job at the Winn Dixie Super Market in Pearl, Mississippi at about 6:00 a.m. He parked his truck in the store's parking lot, locked it and raised all of the windows. At that time, his truck contained a Pioneer CD5 equalizer and two Pioneer TS698 speakers. When Nichols returned to his truck at 3:30 that afternoon, the vent window was broken on the passenger side of the vehicle and the larger window beside it was rolled down. Nichols' equalizer and speakers were missing. Later, Nichols realized that a box of his cassette tapes was also missing, and he found a pellet on the floor of his truck. He reported all of these events to the police immediately after they were discovered.

 In the course of the investigation that followed, the police officers learned that some time prior to this incident, Johnson and Nichols had made each other's acquaintance at Wendy's Old Fashion Hamburgers in Pearl. In the presence of Nichols' girlfriend, Robin Payne, Johnson and Nichols discussed their respective stereo systems. Both Payne and Nichols testified that the Defendant had said that his stereo system was exactly like Nichols' except that he did not have Nichols' equalizer.

 Later, about two or three days before the burglary, some of Nichols' fellow workers at Winn Dixie saw a person resembling the Defendant working on his car in Winn Dixie's parking lot on three different occasions. Evidently, this person aroused their suspicion because they reported the incidence to Nichols. None, however, were positively able to identify the Defendant as the person they had seen.

 On the day of the burglary, no one saw Johnson in the parking lot of the Winn Dixie. However, his parole officer testified that she had seen Johnson with a pellet gun earlier in the day.

 Three days after the burglary, Nichols saw Johnson's car in the parking lot of Wendy's. He called detective Manning because this car was similar to the one his fellow workers had seen in Winn Dixie's parking lot. Manning went directly to Wendy's and talked to Ezell Johnson. According to Manning, Johnson gave him permission to look at the equalizer and the speakers in Johnson's car. When Manning showed the speakers and the equalizer to Nichols, he positively identified them as his own. He claimed that he recognized the equalizer as his because it had a warped top side. Nichols identified the speakers by two rub marks that were made by his sliding rear view windows, which would rub against the speakers when it was opened or shut. He recognized one of the speakers as his because it had a bent bolt. Nichols also found one of his tapes in Johnson's car.

 After the police officers found Johnson in possession of property they believed to be stolen from Nichols, they gave him an opportunity to produce receipts or other evidence which would show that he had acquired the property from someone else. While Johnson attempted to comply with this request, the evidence he produced was grossly inadequate.

 Subsequently, Johnson was indicted for auto burglary and grand larceny in a single indictment. The day before the trial, a motion was filed on behalf of the Defendant challenging the form of the indictment. The motion alleged that the state was trying to "stack charges" against the Defendant. This motion was overruled, and on the following day, the state proceeded to try the Defendant on both charges in a single proceeding. After hearing the evidence, the jury returned two verdicts finding Johnson guilty of both automobile burglary and grand larceny. Johnson was sentenced to serve seven years in the Mississippi Department of Corrections on the automobile burglary conviction and five years on the grand larceny conviction. The sentences were to be served consecutively.

 When the state elected to indict and try Ezell Johnson on two separate counts in a single proceeding, it violated the rule of law announced in Stinson v. State, 443 So.2d 869 (Miss. 1983). In Stinson, the Defendant was indicted and tried upon three separate offenses all arising out of the same transaction or occurrence. On appeal, the Defendant challenged the state's use of the multi-count indictment. After

 extensive review of prior case law in this area the Court in Stinson found that multi-count indictments resulting in more than one conviction and sentence were not authorized under Mississippi law. The Court declined to approve multi-count indictments as implemented by the federal court system under Rule 8 (a) of the Federal Rules of Criminal Procedure.

 The holding in Stinson was reaffirmed in Friday v. State, No. 54,039, decided January 25, 1984, (not yet reported) and Bennett v. State, No. 54,837, decided May 16, 1984, (not yet reported). In ...


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