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LEONARDO BROCK v. STATE OF MISSISSIPPI

AUGUST 03, 1988

LEONARDO BROCK
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., SULLIVAN & GRIFFIN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Leonardo Brock was tried and convicted of robbery with a deadly weapon. The jury being unable to affix a penalty, Brock was sentenced by the trial judge to a mandatory term of ten (10) years in the custody of the Mississippi Department of Corrections, to be served consecutively with his prior conviction of kidnapping. Aggrieved at the decision of the Circuit Court of DeSoto County, Mississippi, Brock now files this appeal.

Brock was previously convicted for this crime, but that conviction was reversed. For a narrative of the facts as they were given by Presiding Justice Hawkins see Brock v. State 483 So. 2d 358 (Miss. 1986).

 I.

 DID THE TRIAL COURT ERR IN OVERRULING BROCK'S MOTION IN LIMINE - B, REFERRING TO EVIDENCE OF "OTHER CRIMES" ?

 The circumstances surrounding this case involve several crimes only one of which was Brock on trial for, armed robbery. Prior to the trial, Brock filed a motion in limine to exclude evidence of, or reference to, the alleged rape of his victim. The evidence was ruled admissible by the trial judge.

 Brock now argues that allowing the evidence of the alleged rape was error on the basis that the crime of rape is separate from the crime of armed robbery for which he is on trial and therefore, has no probative value. Eubanks v. State, 419 So. 2d 1330 (Miss. 1982), is the only support cited by Brock and his reliance upon Eubanks is misplaced. We have noted that, as a general rule, evidence of other crimes separate from that for which the defendant is on trial is inadmissible but that the rule has many exceptions. Eubanks v. State, 419 So. 2d 1330, 1331 (Miss. 1982).

 This case is clearly an exception because the offenses are so interconnected that it is impossible to separate them. As we said in Brown v. State, 483 So. 2d 328, 330 (Miss. 1986):

 Evidence of a prior criminal activity on the part of one criminally accused is inadmissible where the prior offense has not resulted in a conviction. Tobias v. State, 472 So. 2d 398, 400 (Miss. 1985); Donald v. State, 472 So. 2d 370, 372 (Miss. 1985); Hughes v. State, 470 So. 2d 1046, 1048 (Miss. 1985); West v. State, 463 So. 2d 1048, 1051-52 (Miss. 1985); Tucker v. State, 403 So. 2d 1274, 1275 (Miss. 1981); Sumrall v. State, 257 So. 2d 853, 854 (Miss. 1972). We have held, however, that the State has a "legitimate interest in telling a rational and coherent story of what happened. . . ." Turner v. State, 478 So. 2d 300, 301 (Miss. 1985); Neal v. State, 451 So. 2d 743, 759 (Miss. 1984). Where substantially necessary to present to the jury "the complete story of the crime" evidence or testimony may be given even though it may reveal or suggest other crimes. State v. Villavicencio, 95 Ariz. 199, 388 P.2d 245 (1964).

 We most recently repeated these principles in Shaw v. State:

 . . . such evidence is admissible where offenses are so interrelated as to constitute a single occurrence or closely related occurrences; where the separate offense is material to prove motive and is apparently connected to that which is charged; . . . Where evidence of another crime forms part of a transaction of which the crime charged is so intimately connected therewith that one cannot be proven without some proof of the other, the evidence is admissible. Page v. State, 369 So. 2d 757 (Miss. 1979).

 Shaw v. State, 513 So. 2d 916, 918 (Miss. 1987).

 Finally, in Brock v. State, 483 So. 2d 358, 362 (Miss. 1986), this Court held on the same facts that the entire proof presented in the record was relevant to and admissible as to the kidnapping offense. It would therefore be relevant and admissible as to the armed robbery offense.

 This assignment is without merit.

 II.

 DID THE TRIAL COURT ERR IN FAILING TO SUSTAIN THE MOTION TO DISMISS ON A PLEA OF DOUBLE JEOPARDY?

 Brock contends that his kidnapping conviction arose from the same facts and circumstances as the present appeal. See Brock v. State, 483 So. 2d 358 (Miss. 1986). Prior to trial, Brock filed a "Motion to Dismiss," arguing that his former conviction of kidnapping constitutes the basis for a plea of double jeopardy. He contends that the kidnapping conviction would serve as a bar to prosecution for robbery with a deadly weapon first, because the facts and circumstances were the same for each case, second, that the two offenses are the same in law and fact, and third, that kidnapping is a lesser included offense for armed robbery.

 This assignment is controlled by the principles set forth in Smith v. State, 429 So. 2d 252 (Miss. 1983). Smith was appealing a burglary conviction which arose from the same set of facts which had resulted in a prior conviction of rape. See Smith v. State, 405 So. 2d 95 (Miss. 1981). Smith argued that the conviction on the burglary charge exposed him to double jeopardy. After a detailed analysis of Mississippi case law, U.S. Supreme Court decisions and law from other jurisdictions, this Court held that the prosecution was justified, legally and constitutionally, in indicting, trying, and convicting Smith of both offenses even though the testimony in both trials was essentially the same because the essential elements of the crimes in each statute were different. The court noted the applicable law on this question as follows:

 The bellwether case applicable to the question before us is Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306 (1931). In that case the charges grew out of an essentially same set of facts that resulted in multiple indictments and convictions regarding the sale of narcotics. The court, through Mr. Justice Sutherland, set out the primary principle involved in problems such as that now before us. There it was stated:

 Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation

 of two distinct statute provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 55 L.Ed. 489, 490, 31 S. Ct. 421, and authorities cited. In that case this Court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Com., 108 Mass. 433: "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."

 (284 U.S. at 304, 52 S. Ct. 182, 76 L.Ed. 309).

 In the recent case of United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979), the Fifth Circuit Court reiterated the rule in Blockburger and stated:

 To determine whether defendant was subject to multiple punishment for the same offense, we look to the leading case of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306 (1932), where the Supreme Court of the United States formulated the applicable standard.

 The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is

 whether each provision requires proof of an additional fact which the other does not. (Citations omitted).

 This standard frequently has been referred to as the "same evidence" test; however, the Blockburger test looks not to the evidence adduced at trial but focuses on the elements of the offense charged. Brown v. Ohio, 432 U.S. [161] at 166, 97 S. Ct. [2221] at 2225 [53 L.Ed.2d 187 (1977)] (Blockburger test emphasizes the elements of the two crimes); Iannelli v. United States, 420 U.S. 770, 785, 95 S. Ct. 1284, 1294, 43 L.Ed.2d 616 (1975), ("If each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes."); United States v. Dunbar, 591 F.2d 1190, 1193 (5th Cir. 1979) ("Application of the [Blockburger] test focuses on the statutory elements of the offenses charged.") Smith v. State, 429 So. 2d 252, 253-54 (Miss. 1983).

 It is clear from the applicable statutes that the crimes of armed robbery and kidnapping require different elements of proof:

 97-3-79. Robbery - use of deadly weapon.

 Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery . . . 97-3-53. Kidnapping - capital punishment authorized.

 Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person

 to be secretly confined or imprisoned against his or her will, . . . There is no merit to Brock's double jeopardy claim. III.

 DID THE TRIAL COURT ERR IN ALLOWING INTO EVIDENCE CERTAIN ...


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