Moore v. State
| Docket Number: | 2004-KA-00275-COA Linked Case(s): 2004-CT-00275-SCT ; 2004-CT-00275-SCT ; 2004-KA-00275-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-31-2006 Opinion Author: Griffis, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Kidnapping & Robbery by use of deadly weapon - Double jeopardy - Jury instructions - Prosecutorial vindictiveness - Closing argument - Ineffective assistance of counsel Judge(s) Concurring: Lee and Myers, P.JJ., Chandler, Barnes and Ishee, JJ. Non Participating Judge(s): King, C.J., Southwick and Roberts, JJ. Dissenting Author : Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-30-2004 Appealed from: Lauderdale County Circuit Court Judge: Robert Bailey Disposition: CONVICTED OF KIDNAPPING: SENTENCED TO TWENTY-FIVE YEARS IMPRISONMENT AND PAYMENT OF $8,000 RESTITUTION; CONVICTED OF ROBBERY BY USE OF A DEADLY WEAPON: SENTENCED TO THIRTY YEARS IMPRISONMENT; SENTENCES TO RUN CONCURRENTLY District Attorney: BILBO MITCHELL Case Number: 498-03 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Tracy Darnell Moore |
JAMES A. WILLIAMS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEAN SMITH VAUGHAN |
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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: | Kidnapping & Robbery by use of deadly weapon - Double jeopardy - Jury instructions - Prosecutorial vindictiveness - Closing argument - Ineffective assistance of counsel |
| Summary of the Facts: | Tracy Moore was convicted of the crimes of kidnapping and robbery by use of a deadly weapon. For the kidnapping charge, Moore was sentenced to twenty-five years imprisonment plus payment of $8,000 restitution. For the armed robbery charge, Moore was sentenced to thirty years imprisonment. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Double jeopardy Moore entered into a plea bargain with the State which entitled him to a reduced sentence on a guilty plea of armed robbery and a nolle prosequi on the kidnapping charge in exchange for his testimony against his co-defendant. However, Moore refused to testify at his co-defendant’s trial, thereby breaching the plea agreement with the State. Moore now argues that the State subjected him to double jeopardy and denied him due process of law when the State then re-indicted and convicted him outside the term of court at which the original armed robbery sentence was entered. When a defendant breaches a plea agreement, the agreement is terminated as if it never existed and the State retains all powers of prosecution. Moore’s voluntary refusal to testify against his co-defendant constituted a material breach of the plea bargain. As a result, the parties were returned to the status quo ante, and Moore had no double jeopardy defense available concerning re-indictment and conviction on the charges. Moore also argues that the action to vacate the plea and sentence on the armed robbery count was null and void, because it was filed outside the term of the court in which the sentence was originally entered. A breached plea bargain agreement is terminated as if it never existed. Therefore, Moore may not escape his rightful sentence because the term of court had ended. In addition, Moore committed a fraud, and the circuit court has the inherent power to correct judgments obtained in that court through fraud. The court sentenced Moore to criminal contempt for refusal to testify in his co-defendant’s trial. Because his failure to testify constituted a material breach of the plea agreement, the State reinstated the kidnapping charge, for which Moore was subsequently convicted and sentenced to twenty-five years imprisonment. Moore argues that the kidnapping conviction and sentence constituted a second punishment for his refusal to testify, thus subjecting him to double jeopardy. Moore was punished once for refusal to testify against the co-defendant and once for the separate and distinct crime of kidnapping the victims. Moore also argues that the armed robbery factual proof leaves no facts upon which kidnapping may be proven. The test to be applied to determine whether there are two distinct statutory offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Kidnapping requires proof of intent to cause such person to be secretly confined or imprisoned against their will, whereas armed robbery does not. Armed robbery requires the taking of personal property of another; kidnapping does not. These crimes are separate and distinct regardless of their temporal overlap or their arising from a common nucleus of operative facts. Issue 2: Jury instructions Moore argues that the court erred in granting a number of instructions. However, Moore did not object to the jury instructions on these grounds at trial, and is thus procedurally barred from raising the issue on appeal. Issue 3: Prosecutorial vindictiveness Moore argues that the court vindictively sentenced him to double the sentence he would have received under his plea agreement because of his refusal to testify against his co-defendant and his co-defendant’s subsequent acquittal. When a greater sentence is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge. There is no reasonable likelihood of vindictiveness on the part of the prosecutor or sentencing judge apparent in this case, and thus no presumption of vindictiveness is created. The statements by the assistant district attorney which Moore points to as evincing an improperly vindictive motive merely note the consequences of Moore’s breach of the plea agreement by refusing to testify against his co-defendant. Issue 4: Closing argument Moore argues that statements by the assistant district attorney during closing argument amount to an indirect comment on Moore’s right to remain silent by not testifying during his trial. Because Moore failed to object to the statements at trial, he is procedurally barred from asserting such grounds on appeal. Issue 5: Ineffective assistance of counsel Moore argues that the public defender failed to provide meaningful representation at trial. Any errors Moore’s trial counsel may have committed in this case were not prejudicial to Moore’s defense so as to create a reasonable probability of a different outcome in the absence of such errors. |
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