David Earl King v. State of Mississippi
| Docket Number: | 2002-KA-00928-COA Linked Case(s): 2002-CT-00928-SCT2002-KA-00928-COA |
|
| Oral Argument: | 02-18-2004 | |
* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users). |
||
| Additional Case Information: |
Topic: Tax evasion - Double jeopardy - Section 27-3-79(2) - Jury instructions - M.R.E. 404(b) - Recusal of judge - Illegal search - Ineffective assistance of counsel - Evidentiary rulings - Sufficiency of evidence |
|
| Party Name: | Attorney Name: | |||
| Appellant: | David Earl King |
Gary L. Honea; James A Williams |
||
| Appellee: | State of Mississippi | Charles W. Maris, Jr.; Jeffrey A. Klingfuss; Jim Hood |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Tax evasion - Double jeopardy - Section 27-3-79(2) - Jury instructions - M.R.E. 404(b) - Recusal of judge - Illegal search - Ineffective assistance of counsel - Evidentiary rulings - Sufficiency of evidence |
| Summary of the Facts: | David King was convicted of six counts of tax evasion based on the charge that, for six consecutive years, he had substantial business income from the sale of peanut brittle candy upon which a sales tax was due to the State of Mississippi, but that King purposely and knowingly refused to file the proper returns and pay the taxes due. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Double jeopardy King argues that because he was subjected to a civil fine for failure to timely file sales tax returns, he has been punished in a separate proceeding by the State and, therefore, to subject him to further criminal prosecution is a violation of the Double Jeopardy Clause. The Double Jeopardy Clause protects only against the imposition of multiple criminal punishments for the same offense, and then only when such occurs in successive proceedings. The fines assessed against King in a civil proceeding prior to his indictment are not so punitive in nature as to constitute a criminal penalty. King also argues that his evasion of taxes was a continuing course of conduct constituting but a single offense. Under section 27-3-79(2), an attempt to evade or defeat paying such sales tax for any single month constitutes a felony. King willfully evaded paying due tax returns from his candy sales for six years, equaling seventy-two months. Each month constituted a separate and distinct offense. Issue 2: Jury instructions King argues that by refusing two proposed instructions which elaborated on the meaning of the terms “willfully” and “intent,” the court failed to instruct the jury as to “willfully attempts,” an essential element of tax evasion. The court properly refused to give the jury an instruction on “intent” because it is not an element of tax evasion under section 27-3-79(2). The court also properly refused to give the jury an instruction defining “willfully” because of the likelihood of confusing the jury as to criminal intent and to the fact that negligence is not a defense. The court did instruct the jury that it needed to determine whether King, on each individual count, did “wilfully, unlawfully and feloniously intend not to pay, and did not pay sales tax on sales that were due and owing to the State of Mississippi” which sufficiently satisfies the “willfully attempts” language of the statute. King also argues that two instructions which were given in accordance with M.R.E. 404(b) constituted improper comments on the evidence. The instructions stated that the jury, in determining guilt or innocence, must not consider any testimony or documentary evidence regarding incidents prior to 1995, or any checks and drafts written on the church bank account. This evidence was only offered to prove personal knowledge, personal use and benefit, control, continuous modus operandi, opportunity, intent, preparation, plan, identity, or absence of mistake by King, and therefore complied with Rule 404(b). Issue 3: Recusal of judge King argues that the judge erred in denying his motion to recuse, because the trial judge presided over a previous criminal proceeding in which King was convicted of several unrelated felonies. Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances. King’s accusations of impartiality and bias by the judge, based merely on receiving maximum sentences without a sentencing hearing and having the jury panel list sequestered, fail to establish such reasonable doubt. Issue 4: Illegal search King argues that seizure of a notebook containing monetary figures and King’s federal income tax returns was a unilateral enlargement of the search warrant which was issued for the seizure of pornographic materials and sexual instruments. The Supreme Court has already addressed this search and seizure issue in a prior case. King is consequently procedurally barred from litigating this issue again. Issue 5: Ineffective assistance of counsel King argues that his counsel rendered ineffective assistance by failing to request a change of venue, by failing to raise a Batson challenge, and by failing to adequately prepare for and conduct trial. Not only does King fail to cite any authority supporting the claim that his counsel’s failure to request a change of venue demands reversal, but the decision by King’s counsel to refrain is viewed as trial strategy. With regard to a Batson challenge, King fails to cite any authority. Because King fails to demonstrate with reasonable probability that without counsel’s error the outcome of the trial would have been different, his claim is without merit. Issue 6: Evidentiary rulings King argues that the judge made numerous erroneous rulings throughout the trial, most of which were evidentiary including allowing testimony regarding King’s character, allowing testimony of prior bad acts, sequestering the jury panel list without a hearing, allowing Tracy Berry to participate at trial in a dual capacity, allowing evidence to show continuous control of the business, imposing a sentence disproportionate to the crime, and making a prejudicial comment on the evidence. His claims are either procedurally barred or without merit. Issue 7: Sufficiency of evidence King argues that the indictment only charged evasion of taxes for one month in each of the relevant years, but the State presented evidence proving that King evaded taxes for several months in each of the relevant years. Being very generalized and vague, King’s assertion unquestionably lacks the requisite specificity for preserving the issue for appeal. In addition, his motion for a JNOV failed to preserve this issue since the legal sufficiency of the evidence was never mentioned. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
