Foreman v. State
| Docket Number: | 2009-KA-01785-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 01-20-2011 Opinion Author: Lamar, J. Holding: Affirmed in part, vacated in part, reversed in part and remanded. |
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| Additional Case Information: |
Topic: Aggravated assault, Murder & Shooting into vehicle - Sufficiency of evidence - Double jeopardy - Illegal sentence - Section 97-25-47 Judge(s) Concurring: Waller, C.J., Carlson, P.J., Graves, P.J., Dickinson, Randolph, Kitchens, Chandler and Pierce, JJ. Procedural History: Dismissal Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 10-02-2009 Appealed from: CLAIBORNE COUNTY CIRCUIT COURT Judge: Lamar Pickard Disposition: Dononvan Foreman was convicted of six felony counts arising from his attempt to fire a handgun and his subsequent discharge of that handgun. |
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| Note: | Count I: Conviction of murder and sentence of life imprisonment in the custody of the Mississippi Department of Corrections, Affirmed. Count II: Conviction of aggravated assault and sentence of ten (10) years in the custody of the Mississippi Department of Corrections, Affirmed. Count III: Conviction of aggravated assault and sentence of ten (10) years in the custody of the Mississippi Department of Corrections, Vacated. Count IV: Conviction of aggravated assault and sentence of ten (10) years in the custody of the Mississippi Department of Corrections, Vacated. Count V: Conviction of aggravated assault and sentence of ten (10) years in the custody of the Mississippi Department of Corrections, Vacated. Count VI: Conviction of shooting into an automobile and sentence of ten (10) years in the custody of the Mississippi Department of Corrections, Reversed in Part and Remanded for re-sentencing. Sentences in Counts II and VI are to be served concurrently with Count I. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Donovan Foreman |
MICHAEL ERIC BROWN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS, SCOTT STUART | ||
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: | Aggravated assault, Murder & Shooting into vehicle - Sufficiency of evidence - Double jeopardy - Illegal sentence - Section 97-25-47 |
| Summary of the Facts: | Donovan Foreman was convicted of four counts of aggravated assault, one count of murder, and one count of shooting into a vehicle. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Double jeopardy Foreman argues that he was impermissibly indicted and convicted on all six counts based on the same act: firing one shot into the vehicle. Foreman ignores the evidence before the jury that he had tried to shoot the gun once before firing the fatal shot that struck the victim. Foreman’s first effort to discharge the gun would support a jury verdict for a charge of aggravated assault with a deadly weapon. However, the State erroneously charged (and Foreman was erroneously convicted of) four counts of aggravated assault when the evidence supports only one attempt. Under the facts of this case, to be guilty of four counts of aggravated assault, Foreman must have attempted to cause injury to all four individuals. Foreman’s attempt to discharge the gun one time does not support the inference that he intended to injure four individuals. Therefore, the trial court erred in failing to dismiss three of the aggravated-assault charges. The double-jeopardy clause affords three protections: protection from a second prosecution for the same offense after acquittal, protection from a second prosecution for the same offense after conviction, and protection from multiple punishments for the same offense. The aggravated-assault conviction arises from Foreman’s separate act of attempting to discharge the gun, an act that was committed close in time to the actual discharge of the gun. Foreman’s attempt to discharge the gun occurred prior to and separate from the actual discharge of the firearm and was therefore a separate and distinct criminal act. Therefore, there is no “same offense” for purposes of a double-jeopardy analysis. But the one act of discharging the gun resulted in a jury verdict for two crimes: murder and shooting into a vehicle. 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 a fact which the other does not. Murder and shooting into a vehicle each requires proof of a fact which the other does not. Murder, unlike shooting into a vehicle, requires the deliberate killing of an individual. On the other hand, shooting into a vehicle requires only that an individual willfully shoot into or at a vehicle. Therefore, Foreman’s separate convictions and punishments for one count of aggravated assault, one count of shooting into a vehicle, and one count of murder do not violate the double-jeopardy clause. Issue 2: Illegal sentence Foreman argues that the trial court erroneously imposed a ten-year sentence for shooting into a vehicle, when the statutory maximum is five years. The State concedes that the maximum sentence for shooting into a vehicle in this case is five years, and that the Court should remand for resentencing. Foreman’s ten-year sentence is illegal, as it is not within the bounds of section 97-25-47. |
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