Drummer v. State
| Docket Number: | 2012-CT-02004-SCT Linked Case(s): 2012-KA-02004-COA ; 2012-KA-02004-COA ; 2012-CT-02004-SCT ; 2012-CT-02004-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 07-02-2015 Opinion Author: Kitchens, J., for Part 1. Randolph, P.J., for Part 2 Holding: Court of Appeals affirmed in part, reversed in part; Circuit court affirmed in part, vacated in part and remanded. |
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| Additional Case Information: |
Topic: Grand larceny & Attempted grand larceny - Habitual offender sentence - Section 99-19-81 - Common nucleus of operative fact - Flight instruction Judge(s) Concurring: Part 1: Waller, C.J., Lamar, Chandler and King, JJ.; Part 2: Waller, C.J., Lamar, Chandler, Pierce and Coleman, JJ. Judge(s) Concurring Separately: Coleman, J., Concurring with Part Two and Dissenting from Part One, joined by Dickinson and Randolph, P.JJ., and Pierce, J. Concur in Part, Dissent in Part 1: Randolph, P.J., Concurring in Part Two and Dissenting from Part One with Separate Written Opinion Concur in Part, Dissent in Part Joined By 1: Dickinson, P.J., Pierce and Coleman, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-29-2012 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: JAMES T. KITCHENS, JR. Disposition: Convicted of Counts I and II, grand larceny, and Count III, attempted grand larceny, and sentenced as a habitual offender of ten years and to pay a $500 fine for each count, with the sentence in Count I to run consecutively to the sentence in Count II, and with the sentence in Count III to run concurrently with the sentence in Count II District Attorney: Forrest Allgood Case Number: 2009-0103-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Vance Drummer |
OFFICE OF THE PUBLIC DEFENDER: GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA L. BLOUNT |
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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. |
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| Topic: | Grand larceny & Attempted grand larceny - Habitual offender sentence - Section 99-19-81 - Common nucleus of operative fact - Flight instruction |
| Summary of the Facts: | Vance Drummer was convicted of two counts of grand larceny and one count of attempted grand larceny. He was sentenced as a habitual offender to ten years without the possibility of parole on each count. Drummer appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Habitual offender sentence Drummer argues that his felony-fleeing conviction cannot be used as a predicate felony because it arose out of a common nucleus of operative facts with the larcenies. To qualify as a predicate felony for purposes of section 99-19-81, both prior convictions must arise out of separate incidents, i.e., they must be separate from each other and from the felony for which the defendant is being sentenced. He argues that the flight from the crime scene was a continuation of the crime of larceny; and, although chargeable as another offense, it is not sufficiently separate from the crime of larceny to be a stand-alone predicate felony. Crimes occurring on the same day may be separate incidents at different times for purpose of habitual sentencing. In this case, the Court of Appeals found that the larceny had been completed in Lowndes County, and the separate offense of fleeing was not a continuation of the asportation element of larceny. However, this conclusion belies the State’s argument at trial that the flight from police was related to the larcenies. The prosecutor argued that the only explanation for the flight was Drummer’s guilty knowledge of the larcenies that he had committed in Lowndes County. Having taken the position that flight was sufficiently probative of Drummer’s guilt on the larceny charges to warrant a flight instruction, the State could not credibly argue that the flight failed to arise from a common nucleus of operative fact. Drummer stole the items so he could take them somewhere else, which is what he was in the process of doing when he ran the stop sign in Webster County. He still was engaged in the crime of larceny when he fled police. This was a single chain of events arising out of a common nucleus of operative fact. Thus, the felony-fleeing conviction was not available to the State as a predicate felony for purposes of habitual-offender sentencing because it arose from the same incident as the larceny for which Drummer was being sentenced. Drummer’s sentence is vacated and the case remanded for resentencing as a nonhabitual offender. Issue 2: Flight instruction Drummer argues that the trial court erred in giving a flight instruction, because there was an independent reason for Drummer’s flight other than guilty knowledge of the larcenies. Prosecutors may obtain a flight instruction only if that flight is unexplained and somehow probative of guilt or guilty knowledge. Drummer’s acts involving a high-speed chase to avoid apprehension by lawful authorities, evasion of a roadblock and multiple officers, fleeing on foot after the stolen vehicle he was driving was incapacitated, and finally hiding in a shed are at least somewhat probative of guilty knowledge. His acts possess sufficient probative value of his consciousness of guilt that the trial court’s giving of a flight instruction was proper. Drummer’s argument that the flight provided the asportation element of the offense of larceny, thereby providing an independent reason for flight, is without merit. As the Court of Appeals properly stated, “the asportation element of larceny is satisfied by even a slight movement of another’s property after one wrongfully takes possession and control of the property.” Thus, the court did not err in giving the instruction. |
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