                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2015-KA-00066-SCT

RANDY CHARLES WILSON a/k/a RANDY
WILSON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          09/25/2014
TRIAL JUDGE:                               HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED:                 WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    RICHARD T. STARRETT
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                         RICHARD EARL SMITH, JR.
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 06/23/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   A Warren County jury convicted Randy Wilson of receiving stolen property in

violation of Mississippi Code Section 97-17-70. The trial court sentenced Wilson to ten

years in the custody of the Mississippi Department of Corrections. Finding no error, we

affirm Wilson’s conviction and sentence.

                      FACTS AND PROCEDURAL HISTORY
¶2.    On April 2, 2012, between 1:00 p.m. and 2:00 p.m., Paul Powers stepped outside his

house on Canada Cross Road in Edwards, Hinds County, Mississippi. As he walked to his

truck, which was parked in the front yard, Powers observed a two-tone blue and white

“Duly”1 pickup truck parked in the driveway of the property belonging to his neighbors,

Pauline and Randy Vessel. Powers saw two African-American males, one wearing a lightly

colored, possibly white, t-shirt, and the other wearing a “greenish” colored t-shirt. Powers

testified that his observation was from a distance of about 134 yards and that he was not able

to observe the facial features of either of the two men.

¶3.    Powers testified that he previously had borrowed a sixteen-foot, tandem-axle utility

trailer from the Vessels. The trailer, according to Powers, was “parked in the front yard of

Mr. Vessel’s house right in the front of his shed.” Powers stated that the man wearing the

white t-shirt picked up a “tubular object,” such as a pipe, and proceeded to strike the front,

or the “tongue,” of the trailer. According to Powers, the “tongue,” also known as the “jack”

or the “hitch,” is the feature of the trailer which one hooks to the back of a truck. Powers

testified that the Vessels kept a lock on the trailer and that he called Pauline Vessel to inquire

whether anyone had permission to borrow the trailer.

¶4.    When he learned from Pauline that no such permission had been given, Powers

followed in his own truck: “As it [the suspect truck] was going out of Pauline’s driveway I

was pulling out [of] my driveway and got behind the vehicle on Canada Cross Road. We

       1
          Although the slang term, derived from the word dual, appears in the record as Duly,
it usually is spelled dooley. The word describes trucks with dual rear tires; there are two
tires, side by side, on each end of the rear axle. Some heavy-duty pickup trucks are so
equipped.

                                                2
came up to Highway 27 to the stop sign and took a right going towards Vicksburg on

Highway 27. At that time I had called 911 which contacted Hinds County.” Powers

observed the suspect truck leave Hinds County and enter Warren County. Powers testified

that he followed the truck “the whole time” and that two people were inside the truck.

According to Powers, “[w]e were coming up [Highway] 27 and we got to China Grove Road.

We took a left off Highway 27.” Powers continued, “[a]t that time, once we pulled onto

China Grove Road[,] the vehicle pulled over to the right hand side of the road as [if] to let

me pass. And I tried to pull in behind them and at that point the[y] started going down the

road again.” Powers stated that he remained in contact with a 911 operator, whom he

updated regarding the whereabouts of the suspect truck.

¶5.    According to Powers, the truck pulled onto the edge of the road a second time next

to a gravel driveway. Powers drove around the truck, proceeded down China Grove Road,

met an unmarked Ford F-150 law enforcement truck, and turned his own vehicle around.

Powers testified that he had not been able to observe the suspect truck the entire time. But

when Powers returned to the gravel road, he saw the suspect truck parked on the gravel road,

but with no trailer attached. The Ford F-150 law enforcement truck had “pulled in there in

front of them” and Powers recognized “the same two people with the same clothes” as he had

observed at the Vessels’ house.

¶6.    Investigator Randy Lewis, the officer who responded to Powers’s 911 call, testified

that the tag number information received from Powers indicated that the vehicle was

registered to Timothy Wilson. According to Lewis, “Mr. Wilson and his vehicle came out”



                                             3
in a blue and white Ford which matched the tag information provided by Powers. Lewis

testified that Timothy Wilson was driving and was wearing a green work shirt. The

passenger in the truck was Randy Charles Wilson, who was wearing a white shirt. Lewis

then located the sixteen-foot, double-axle trailer, which was registered to Randy Vessel of

Canada Cross Road, just off the dead-end gravel road, China Grove Lane, which turned off

from China Grove Road. Lewis arrested Randy Wilson and Timothy Wilson.

¶7.    A Warren County Grand Jury indicted Randy Wilson and Timothy Wilson, charging

that they:

       [W]hile aiding and abetting and/or acting in concert with each other and/or
       others on or about April 2, 2012, in the County aforesaid, and within the
       jurisdiction of this Court did willfully, unlawfully, and feloniously receive,
       possess or buy personal property, to wit: 16 foot tandem axle trailer which
       was feloniously taken away from Randy and Pauline Vessell [sic], knowing
       or having reasonable grounds to believe the same to have been so taken
       wherein such property has a value in excess of $500.00 in violation of Miss.
       Code of 1972, Ann. Sec. 97-17-70, contrary to the statute in such cases made
       and provided, and against the peace and dignity of the State of Mississippi.

The case was tried on September 3 and 4, 2014, in the Circuit Court of Warren County. In

addition to the testimony of Powers and Lewis, Pauline Vessel testified that she and her

husband had purchased the trailer in April of 2009 and that they had paid $1,400 for it.

Vessel added that she had seen the trailer on China Grove Road “behind a house.” Vessel

stated that she knew it was her trailer because her “husband had welded some metal pieces

on the back to put a board because we hauled four-wheelers . . . .” Eddie Calvin, the owner

of the property on which the Vessels’ trailer was found, testified that he did not see Timothy




                                              4
Wilson and Randy Wilson on April 2, 2012, but that a man he believed to be a police officer

removed the trailer from his property.

¶8.    The trial court denied ore tenus motions for directed verdict by both defendants. After

the motions for directed verdict were denied, each defendant presented his case-in-chief.

Timothy Wilson presented two alibi witnesses. Willie Dotson testified that, on April 2, 2012,

Timothy was working with him in Vicksburg from 8:00 a.m. until 12:00 p.m., when Timothy

left for lunch and “never did come back.” Henry Ray Hunter testified that he, too, worked

with Timothy on April 2, 2012, and that they were working to repair a house in Vicksburg

from about 7:00 a.m. or 8:00 a.m. until lunchtime, after which Timothy did not return to

work. He stated that Timothy was going back and forth between jobs that day.

¶9.    Randy Wilson testified in his own defense. He stated that his brother Timothy had

driven him to China Grove Road about 6:00 a.m. or 6:30 a.m. on April 2, 2012, to see a lady

friend at a house where she lived. According to Randy, he remained with his friend until

“about a quarter to one or something like that,” until his brother returned to collect him. It

was after Timothy had picked him up that Lewis “pulled us over and asked us about a

trailer.” Randy denied having been to Hinds County that day. The female friend with whom

Randy claimed to have been on April 2, 2012, now lives in Joliette, Illinois. Randy indicated

that his friend, who was married, did not wish to participate in his defense, as he and she had

been romantically involved and she did not want her husband to find out.

¶10.   The State called Jeff Riggs, Under Sheriff for the Warren County Sheriff’s Office,

who participated in the investigation on China Grove Lane on April 2, 2012. Riggs testified



                                              5
that Randy had indicated to him that he had been picked up by his brother, Timothy, from his

girlfriend’s house. He stated that China Grove Lane “is a dead-end road” on which there

were about seven houses. Because Randy did not point to a specific house, Under Sheriff

Riggs checked two random houses on China Grove Lane “to see if possibly that was where

the girlfriend was.” According to Riggs, nobody was home.

¶11.   The jury found both Randy Wilson and Timothy Wilson guilty as charged. Randy

Wilson filed a motion for judgment notwithstanding the verdict, which the trial court denied.

He was sentenced to ten years in the custody of the Mississippi Department of Corrections:

“three (3) years to serve, with remaining balance suspended with post release supervision for

five (5) years . . . .” This appeal concerns only Randy Wilson’s conviction and sentence.

                                        ANALYSIS

¶12.   Wilson raises five issues on appeal.

       1.     Whether the trial court committed plain error by allowing Jury
              Instruction S-4, which informed the jury that proof the defendant
              stole the property in question is prima facie evidence that the
              defendant knew that the property was stolen property.
              Alternatively, whether defense counsel was ineffective for failing to
              object to Instruction S-4.

¶13.   Instruction S-4 informed the jury “that proof that a defendant stole the property that

is the subject of the charge against him, or her, shall be prima facie evidence that the

defendant had knowledge that the property was stolen.” The language of the jury instruction

tracked the language of Mississippi Code Section 97-17-70(3)(b): “Proof that a defendant




                                              6
stole the property that is the subject of a charge under this section2 shall be prima facie

evidence that the defendant had knowledge that the property was stolen.” Miss. Code Ann.

§ 97-17-70(3)(b) (Rev. 2014).

¶14.   Defense counsel lodged no objection to Instruction S-4. We have held repeatedly that

“an offended party’s failure to object to jury instructions at trial procedurally bars the issue

on appeal.” Neal v. State, 15 So. 3d 388, 397 (Miss. 2009) (quoting Smith v. State, 835 So.

2d 927, 939 (Miss. 2002)). Nevertheless, an “obvious error which was not properly raised

by the defendant and which affects a defendant’s fundamental, substantive right” may be

considered by the Court under the doctrine of plain error. Johnson v. State, 155 So. 3d 733,

738 (Miss. 2014) (quoting Burdette v. State, 110 So. 3d 296, 303 (Miss. 2013)). “For the

plain-error doctrine to apply, there must have been an error that resulted in manifest

miscarriage of justice or seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. With regard to an allegation of error in instructing the jury, the

Court has held that, “‘[i]f the [jury] instructions fairly announce the law of the case and

create no injustice, no reversible error will be found.’” Victory v. State, 83 So. 3d 370, 373

(Miss. 2012) (quoting Newell v. State, 49 So. 3d 66, 73 (Miss. 2010)).



       2
           Mississippi Code Section 97-17-70(1) provides the following:

       A person commits the crime of receiving stolen property if he intentionally
       possesses, receives, retains or disposes of stolen property knowing that it has
       been stolen or having reasonable grounds to believe it has been stolen, unless
       the property is possessed, received, retained or disposed of with intent to
       restore it to the owner.

Miss. Code Ann. § 97-17-70(1) (Rev. 2014).

                                               7
¶15.   Wilson claims that Instruction S-4 deprived him “of his constitutional right to due

process,” amounting to plain error, and that Section 97-17-70(3)(b) constitutes “an

impermissible shifting of the burden of proof on an essential element of a criminal charge.”

Wilson cites Reith v. State, 135 So. 3d 862, 865 (Miss. 2014), in which the Court forbade

the use of a jury instruction which informed the jury that “[d]eliberate design may be

presumed from the unlawful and deliberate use of a deadly weapon.” The Reith Court

reversed Reith’s conviction of deliberate design murder and held that “[d]eliberate design

may not be presumed . . . .” Id. at 867. The Court continued, “[w]e admonish the circuit

courts not to grant an instruction which relies upon a presumption of intent, as it conflicts

with the presumption of innocence, relieving the State of its burden to prove guilt beyond a

reasonable doubt on an essential element of the offense.” Id.

¶16.   But the Reith Court observed that similar instructions “‘have been before the Court

for many years and a long line of cases have discussed such instructions.’” Id. at 865

(quoting Tran v. State, 681 So. 2d 514, 517 (Miss. 1996)). The Court “‘consistently held

such an instruction erroneous . . . .’” Id. In the case sub judice, at issue is not a judicially

created jury instruction, but a legislatively created statute, which provides a means by which

the State may prove the element of knowledge. The State may prove the defendant’s guilty

knowledge by adducing proof that the defendant stole the property that is the subject of the

receiving stolen property charge. Miss. Code Ann. § 97-17-70(3)(b). The jury instruction

accurately stated the law regarding the crime of receiving stolen property. See Victory, 83

So. 3d at 373.



                                               8
¶17.   Under the present circumstances, the given jury instruction, which is based on

Mississippi Code Section 97-17-70(3)(b), did not violate Wilson’s fundamental right to due

process of law. Because the allegedly offensive jury instruction accurately stated the law

regarding the crime of receiving stolen property, no manifest miscarriage of justice resulted

from giving Instruction S-4.

¶18.   Wilson alternatively argues that counsel’s failure to object to Instruction S-4

constituted ineffective assistance of counsel. Claims of ineffective assistance of counsel

generally are reviewed in post-conviction proceedings; nevertheless, we may “‘reach the

merits of the ineffectiveness issue where . . . the record affirmatively shows ineffectiveness

of constitutional dimensions. . . .’” Taylor, 167 So. 3d at 1146 (quoting Read v. State, 430

So. 2d 832, 841 (Miss. 1983)); see also M.R.A.P. 22(b) (“Issues which may be raised in post-

conviction proceedings may also be raised on direct appeal if such issues are based on facts

fully apparent from the record.”)

¶19.   We have held that “[w]hether a defendant has received ineffective assistance of

counsel is a question of law reviewed de novo under two prongs: ‘[f]irst, the defendant must

show that counsel’s performance was deficient . . . . Second, the defendant must show that

the deficient performance prejudiced the defense.’” Taylor v. State, 167 So. 3d 1143, 1146

(Miss. 2015) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984)). “‘There is a strong but rebuttable presumption that trial counsel was

competent and performed within the wide range of reasonable conduct expected from

counsel.’” Conners v. State, 92 So. 3d 676, 686 (Miss. 2012) (quoting Knight v. State, 72



                                              9
So. 3d 1056, 1060 (Miss. 2011)). The burden is on the petitioner to rebut the presumption

by showing that counsel’s performance did not meet the Strickland standard. Id. “The

failure of counsel to make certain objections may fall within the ambit of trial strategy, and

therefore may not give rise to a claim for ineffective assistance of counsel.” Nix v. State, 8

So. 3d 141, 144 (Miss. 2009) (citing Bell v. State, 879 So. 2d 423, 440 (Miss. 2004)).

¶20.   Wilson relies on two decisions from the Mississippi Court of Appeals to support his

argument that counsel’s failure to object to Instruction S-4 constituted deficient performance

and that such deficient performance prejudiced his defense. In Blunt v. State, the Mississippi

Court of Appeals reversed the circuit court’s denial of post-conviction relief to Blunt, finding

that his counsel had rendered ineffective assistance. Blunt v. State, 55 So. 3d 207, 211-12

(Miss. Ct. App. 2011). In Blunt, the language of the given jury instruction had been

condemned by the Mississippi Supreme Court: “an instruction like the one [Blunt’s counsel]

requested in Blunt’s trial ‘is contradictory and confusing and does not correctly state the

applicable law because one acting in self-defense does not act at his own peril.’” Blunt, 55

So. 3d at 211 (quoting Johnson v. State, 908 So. 2d 758, 764 (Miss. 2005)).

¶21.   Counsel’s failure to object to Instruction S-4, which stated a controlling rule of law

and tracked, almost verbatim, the language of Mississippi Code Section 97-17-70(3)(b), did

not constitute deficient performance which could be said to have prejudiced Wilson’s

defense. Unlike the defendants in Blunt and McTiller, Wilson has not presented any

evidence to rebut the presumption of his attorneys’ competency, nor has he demonstrated that

counsel’s performance fell below the Strickland standard.            Because Instruction S-4



                                              10
accurately stated the law regarding the crime of receiving stolen property, the performance

of Wilson’s counsel fell “‘within the wide range of reasonable conduct expected from

counsel.’” Conners, 92 So. 3d at 686 (quoting Knight, 72 So. 3d at 1060).

¶22.   Wilson’s claim that his counsel was constitutionally ineffective for failure to object

to Instruction S-4 is without merit.

       2.     Whether the trial court committed plain error by allowing Jury
              Instruction S-3, which informed the jury that the State is not
              required to disprove the defendant’s alibi but rather that the State
              must prove the defendant’s guilt beyond a reasonable doubt.
              Alternatively, whether defense counsel was ineffective for failing to
              object to Instruction S-3.

¶23.   Jury Instruction S-3 provided the following:

       The Court instructs the jury that the State is not required to disprove an alibi.
       In other words, the State is not required to prove that any alibi defense is not
       true; the State is only required to prove, beyond a reasonable doubt, that the
       defendants, Randy Charles Wilson and Timothy Allen Wilson, are guilty,
       beyond a reasonable doubt, of Receiving Stolen Property as charged.

Wilson claims on appeal that Instruction S-3 “unconstitutionally placed the burden of proving

the alibi squarely upon the defendants” and that “[s]hifting the burden of proving the alibi

to the defendants deprived them of a fair trial.”

¶24.   Defense counsel objected to the original language of Instruction S-3, which did not

specify that the crime was receiving stolen property. However, the State agreed to add the

requested language. Counsel did not object to the allegedly unconstitutional language of the

instruction. As stated above, the Court has held that “an offended party’s failure to object

to jury instructions at trial procedurally bars the issue on appeal.” Neal, 15 So. 3d at 397

(quoting Smith, 835 So. 2d at 939).


                                              11
¶25.   Nevertheless, the doctrine of plain error allows the Court to correct “obvious error

which was not properly raised by the defendant and which affects a defendant’s fundamental,

substantive right.” Johnson, 155 So. 3d at 738 (quoting Burdette, 110 So. 3d at 303). “For

the plain-error doctrine to apply, there must have been an error that resulted in manifest

miscarriage of justice or seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. With regard to an allegation of error in instructing the jury, the

Court has held that, “‘[i]f the [jury] instructions fairly announce the law of the case and

create no injustice, no reversible error will be found.’” Victory, 83 So. 3d at 373 (Miss.

2012) (quoting Newell, 49 So. 3d at 73).

¶26.   The Court has rejected jury instructions which misstated the prosecution’s burden:

“Harvey Holmes’s alibi instruction improperly stated that it was the government’s burden to

convince the jury that his alibi was not true. The state is not required to disprove a

defendant’s alibi; the burden is simply to prove the defendant’s guilt beyond a reasonable

doubt.” Holmes v. State, 481 So. 2d 319, 320 n.1 (Miss. 1985) (emphasis in original) (citing

Forrest v. State, 352 So. 2d 1328, 1330 (Miss. 1977)) (“It is elemental that the State does not

have to prove an alibi to be untrue. Its burden simply is to prove [defendant’s guilt] beyond

a reasonable doubt . . . .”); see also Dubose v. State, 320 So. 2d 773 (Miss. 1975) (Court

rejected jury instruction which placed on the State the burden to disprove alibi defense

“because the state, after presenting its case in chief, does not have the burden to prove that

the alibi was untrue by rebuttal testimony after the accused rests. The state’s burden is to

prove from the evidence, beyond a reasonable doubt, that the accused was at the scene of the



                                              12
alleged crime and committed the [crime].”); Newton v. State, 229 Miss. 267, 90 So. 2d 375,

377 (1956) (“Since the State’s proof in chief was contradictory of appellant’s proof of an

alibi, the State was not required to rebut by other evidence the appellant’s proof of an alibi

and thereby [negate] appellant’s proof.”).

¶27.   As in Newton, “the State’s proof, in chief, was contradictory of the appellant’s proof

of an alibi, and it was the province of the jury to determine from the evidence the guilt or

innocence of the appellant.” Newton, 90 So. 2d at 377. Because Instruction S-3 correctly

informed the jury of the State’s burden of proof where an alibi defense is concerned,

Wilson’s claim of reversible error is without merit.

¶28.   Wilson makes the alternate argument that counsel was ineffective for failing to object

to Instruction S-3. As in Issue 1, counsel’s failure to object to Instruction S-3, which stated

a controlling rule of law and tracked, almost verbatim, the language of caselaw from the

Court, did not constitute deficient performance which could be said to have prejudiced

Wilson’s defense. Wilson has not presented any evidence to rebut the presumption of his

lawyers’ competency, nor has he demonstrated that counsel’s performance fell below the

Strickland standard. Wilson’s claim of ineffective assistance of counsel is without merit.

       3.     Whether the prosecution committed plain error during closing
              argument by arguing facts not in evidence, by misstating the
              Mississippi Rules of Evidence, and by expressing a personal belief
              in the defendant’s guilt. Alternatively, whether defense counsel was
              ineffective for failing to object to the prosecution’s alleged
              misconduct.

¶29.   Wilson argues that various statements the prosecutor made in his closing argument

prejudiced his defense.


                                              13
¶30.   “The standard of review which this Court must apply to lawyer misconduct during

opening statements or closing arguments is ‘whether the natural and probable effect of the

improper argument is to create unjust prejudice against the accused so as to result in a

decision influenced by the prejudice so created.’” Galloway v. State, 122 So. 3d 614, 643

(Miss. 2013) (quoting Sheppard v. State, 777 So. 2d 659, 661 (Miss. 2000)). “The purpose

of a closing argument is to fairly sum up the evidence.” Galloway, 122 So. 3d at 643 (citing

Rogers v. State, 796 So. 2d 1022, 1027 (Miss. 2001)). Prosecutors “are not allowed to

employ tactics which are ‘inflammatory, highly prejudicial, or reasonably calculated to

unduly influence the jury.’” Galloway, 122 So. 3d at 643 (quoting Sheppard, 777 So. 2d at

661). “‘The prosecutor may comment upon any facts introduced into evidence, and he may

draw whatever deductions and inferences that seem proper to him from the facts.’”

Galloway, 122 So. 3d at 643 (quoting Bell v. State, 725 So. 2d 836, 851 (Miss. 1998)).

“Counsel ‘cannot, however, state facts which are not in evidence, and which the court does

not judicially know, in aid of his evidence. Neither can he appeal to the prejudices of men

by injecting prejudices not contained in some source of the evidence.’” Id., (quoting

Sheppard, 777 So. 2d at 661 (quoting Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So.

817, 821 (1930)).

¶31.   At trial, the defense made no objections to the prosecutor’s statements, which Wilson

claims prejudiced his defense on appeal.          “In general, the failure to object to the

prosecution’s statements in closing argument constitutes a procedural bar.” Ross v. State,

954 So. 2d 968, 1001 (Miss. 2007) (citing Spicer v. State, 921 So. 2d 292, 309 (Miss. 2006)).



                                             14
Nevertheless, the failure to object “in extreme cases, . . . will not act as a bar to

consideration.” Ross, 954 So. 2d at 1002 (citing Wood v. State, 257 So. 2d 193, 200 (Miss.

1972)).

¶32.   The prosecutor made the following statement in his closing argument:

       What they want you to believe is that there is this conspiracy, Paul Powers and
       all these cops, and under-sheriff, . . . that there is a conspiracy.

       Let me tell you about that 911 call and about all this evidence that we don’t
       have. Eugene Perrier [Timothy Wilson’s counsel] has a[ll] that evidence.
       He’s got that report from 911. But let me tell you, there are rules of evidence.
       You’ve heard us say the word, hearsay, objection hearsay? Hearsay means that
       if you have a witness that tells you about it well then you don’t need to bring
       the document in also.

In reference to Paul Powers’s testimony that he was relaying information to authorities via

911, the prosecutor stated in closing that “we know that its in Hinds County, not on

anybody’s testimony but based on that 911. He followed the truck from Hinds County to

Warren County.” Wilson argued that the State committed reversible error by referencing the

911 calls, which were not in evidence, and by misstating the hearsay rule.

¶33.   It is true that “[a]rguing statements of fact which are not in evidence or necessarily

inferable from facts in evidence is error when those statements are prejudicial.” Ross, 954

So. 2d at 1002 (internal citations omitted). However, on cross-examination by counsel for

Timothy Wilson, Paul Powers testified that he was certain that the tag number of the truck

he had followed and the tag number of the truck which appeared in the pictures adduced in

evidence were the same. Defense counsel had asked whether Powers had written down the

tag number and Powers responded, “[n]o, but I called in 911 Dispatch and I know that they



                                             15
will have the tag number on a recording.” In closing, defense counsel for Timothy Wilson

had stated the following:

       You know we heard from Mr. Paul Powers. He kept referencing his authority
       to what, a 911 report to the 911 center. And he is a fireman, a volunteer
       fireman. He professed to have personal knowledge that they have a recording
       of everything that happened, both in Hinds County and Warren County. Where
       is that information? If it is there why don’t you have it? Why don’t you know
       the exact time the call was made? Why don’t [you] know the exact person that
       was contacted? Why don’t you know what was given to the authorities[?]
       Instead, you are just lead, just trust me, believe me, this is what happened. We
       got that tag because it was called in. But we don’t have anything showing it
       was called in.

The prosecutor’s statements regarding a 911 report were responsive to what Timothy

Wilson’s defense counsel had said in his closing argument. He simply was pointing out that

Powers had testified that he had followed the truck from Hinds County into Warren County.

Powers had personal knowledge of what he had related to the 911 operator. It cannot be said

that the facts discussed were not in evidence, or that their mention by the prosecutor in his

closing argument unfairly prejudiced Wilson’s defense. Ross, 954 So. 2d at 1002.

¶34.   Wilson also takes umbrage with another statement by the prosecutor in his closing

argument: “Another jury instruction tells you and these things are very clear that any proof

that the person stole the property that they are in possession of is evidence that they knew the

property was stolen.” Wilson argues that referencing Instruction S-4 in the closing argument

“was fatally prejudicial to the defense.” However, as has been discussed above, his argument

is unavailing in light of the determination that no error occurred in the trial court’s giving of

Instruction S-4. The argument cannot be said to have been “‘inflammatory, highly




                                               16
prejudicial, or reasonably calculated to unduly influence the jury.’” Galloway, 122 So. 3d

at 643 (quoting Sheppard, 777 So. 2d at 661).

¶35.   Finally, Wilson argued that the prosecution improperly expressed personal belief in

the defendant’s guilt:

       You are going to look at all the evidence . . . . [a]nd once you do that we
       believe that you will be convinced as we are that on April 2nd, 2012[,]
       Timothy Wilson and Randy Wilson committed the crime of receiving stolen
       property of being in possession of the stolen 16-foot trailer that was owned by
       the Vessel’s [sic].

Wilson argues that the “as we are” language was an impermissible comment by the

prosecutor regarding his personal beliefs.

¶36.   It is true, as Wilson argues, that “‘[a] prosecutor is forbidden from interjecting his

personal beliefs regarding the veracity of witnesses during closing argument.’” Moffett v.

State, 156 So. 3d 835, 859 (Miss. 2014) (quoting Foster v. State, 639 So. 2d 1263, 1288

(Miss. 1994) (citing U.S. v. Young, 470 U.S. 1, 5, 20, 105 S. Ct. 1038, 84 L. Ed. 2d 1

(1985))). However, the prosecutor in the instant case was not expressing a personal belief

regarding the veracity of witnesses. Prosecutors’ statements of personal beliefs regarding

the guilt of the defendant also are disallowed: “this State does not allow a prosecutor to

comment on his personal beliefs about a defendant’s guilt or innocence.” Mack v. State, 650

So. 2d 1289, 1320-21 (Miss. 1994) (citing Jones v. Butler, 864 F.2d 348, 359-60 (5th Cir.

1988)).

¶37.   In Mack, the prosecutor was found to have “overstepped his bounds in arguing to the

jury.” Mack, 650 So. 2d at 1321. In that case, “the prosecutor’s repeated reference to what



                                             17
‘I know’ as opposed to what the state or ‘we’ know may have suggested to the jury that the

prosecutor had some information or knowledge that was not presented to the jury.” Id.

(emphasis added). The Court held that “[t]he prosecutor’s comments would have been

permissible [] had he not repeatedly used the pronoun ‘I,’” which “leaves open the inference

that the prosecutor personally believed that Mack committed the capital murder.” Id.

Nevertheless, the Mack Court held the error to have been harmless. Id. In any event, Randy

Wilson’s defense counsel made no objection. Further, the prosecutor did not repeat or

emphasize the comment, but rather said it in passing. In light of the exceptional strength of

the State’s case, and in light of the context in which the statement was made, even if there

had been error it would not arise to the level of plain error necessary to overcome the failure

to object.

¶38.   As in Wilson’s other assignments of error, he argues that his counsel was ineffective

for failing to object to the above statements. However, it cannot be said that counsel’s failure

to object to the State’s closing statement constituted deficient performance, nor that the

alleged deficient performance prejudiced Wilson’s defense. Taylor, 167 So. 3d at 1146

(quoting Strickland v. Washington, 466 U.S. at 687).

       4.     Whether cumulative error requires reversal.

¶39.   Wilson next claims that, “[e]ven if the individual errors discussed above do not merit

reversal in their own right, the cumulative effect of these errors deprived Randy Wilson of

a fair trial.” The cumulative error doctrine provides that “where one error, standing alone,

may not warrant reversal, reversal may be required if the errors, taken together, ‘create such



                                              18
an atmosphere of bias, passion, and prejudice that they effectively deny the defendant a

fundamentally fair trial.’” Dickerson v. State, 175 So. 3d 8, 35 (Miss. 2015). However, in

the absence of individual errors, no cumulative error exists. See Dickerson, 175 So. 3d at

35.

       5.     Whether Randy Wilson’s sentence is illegal.

¶40.   Mississippi Code Section 97-17-70(3) formerly provided that any person “who shall

be convicted of receiving stolen property which exceeds Five Hundred Dollars ($500.00) in

value shall be committed to the custody of the State Department of Corrections for a term not

exceeding ten (10) years or by a fine not more than Ten Thousand Dollars ($10,000.00) or

both.” Miss. Code Ann. § 97-17-70(3) (Rev. 2006). Effective July 1, 2014, Section 97-17-

70 changed to provide that the value of the stolen property be “One Thousand Dollars

($1,000.00) or more, but less than Five Thousand Dollars ($5,000.00) . . . .” Miss. Code

Ann. § 97-17-70(4) (Rev. 2014). The penalty for that offense was changed to “imprisonment

in the custody of the State Department of Corrections for a term not exceeding five (5) years

or by a fine of not more than Ten Thousand Dollars ($10,000.00) or both.” Id.

¶41.   In the instant case, the circuit court sentenced Wilson to ten years pursuant to the older

version of the statute. Relying on Mississippi Code Section 99-19-33 and Daniels v. State,

742 So. 2d 1140 (Miss. 1999), Wilson argues that the trial court erred in not sentencing him

under the newer, more lenient version of Section 97-17-70. We disagree, and we overrule

Daniels and West v. State, 725 So. 2d 872 (Miss. 1998), abrogated by Jackson v. State, 860




                                              19
So. 2d 653 (Miss. 2003), to the extent that they conflict with Mississippi Code Section 99-19-

1, as more fully set forth below.

¶42.   Mississippi Code Section 99-19-1 provides as follows:

       No statutory change of any law affecting a crime or its punishment or the
       collection of a penalty shall affect or defeat the prosecution of any crime
       committed prior to its enactment, or the collection of any penalty, whether
       such prosecution be instituted before or after such enactment; and all laws
       defining a crime or prescribing its punishment, or for the imposition of
       penalties, shall be continued in operation for the purpose of providing
       punishment for crimes committed under them, and for collection of such
       penalties, notwithstanding amendatory or repealing statutes, unless otherwise
       specially provided in such statutes.

The above-quoted statutory language provides that no new statutory enactment shall defeat

the prosecution of a crime committed before the enactment of the new statute. Moreover,

and more pertinent to the issue today, Section 99-19-1 continues by mandating – again by

using the word “shall” – that all laws prescribing punishment for a crime remain in effect for

the purpose of ascribing punishment “unless otherwise specially provided” in a newly

enacted statute. Miss. Code Ann. § 99-19-1 (Rev. 2015).

¶43.   Despite Section 99-19-1’s pronouncement that, in cases like today’s, the sentencing

court must follow the version of a statute in existence at the time a crime was committed, in

Daniels v. State, 742 So. 2d 1140 (Miss. 1999), we held that “when a statute is amended to

provide for a lesser penalty, and the amendment takes effect before sentencing, the trial court

must sentence according to the statute as amended. Any precedent holding otherwise is in

error.” Id. at 1145 (¶ 17). In short, our holding in Daniels directly contradicts the legislative

pronouncement of Section 99-19-1. The Court may be able to overrule its own cases, but



                                               20
absent a showing beyond a reasonable doubt that a statute is unconstitutional, the Court may

not overrule statutes. Accordingly, Section 99-19-1 should dictate today’s result. Even if

the Court somehow had the power to ignore statutes it dislikes, the Court’s holding in

Daniels, results from a misreading of West v. State, 725 So. 2d 872 (1998), which itself

misread State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1277 (Miss. 1987), which in turn

misread Allen v. State, 440 So. 2d 544 (Miss. 1983), such that the whole developmental

chain resembles a jurisprudential game of Telephone. In truth, Ladner did not overrule

Allen, and even if it did, the holdings of West and Daniels impermissibly result in a judicial

rewriting of two statutes – Sections 99-19-1 and 99-19-33.

¶44.   The Court has no business amending or disregarding statutes. Little v. Miss. Dep’t

of Transp., 129 So. 3d 132, 138 (¶ 12) (Miss. 2013) (“We—the judicial branch of

government—should not place ourselves in the position of changing the substantive law

enacted by the Legislature. . . .”) (citing Stockstill v. State, 854 So. 2d 1017, 1022-23 (¶ 13)

(Miss. 2003)). Courts have a “constitutional mandate to faithfully apply the provisions of

constitutionally enacted legislation.” Tallahatchie Gen. Hosp. v. Howe, 49 So. 3d 86, 92 (¶

17) (Miss. 2010). Likewise, it is not within the bailiwick of the Court to write statutes;

rather, the Court construes them as written. Zambroni v. State, 217 Miss. 418, 424, 64 So.

2d 335, 337 (1953). In Harris v. State, 179 Miss. 38, 175 So. 342 (1937), the Court wrote,

“[W]e are admonished and have clearly in mind that penal statutes must be strictly construed,

and that the court can neither add to nor take from them, and we cannot by judicial




                                              21
construction, or considerations of expediency, supply what is palpably omitted from a

statute.” Id. at 344.

¶45.   Even if the Court could obviate a statute merely by overruling a case in which we

interpreted it, the conclusion of the Daniels Court, that Allen v. State, 440 So. 2d 544 (Miss.

1983), has been overruled, is not correct. See Daniels, 742 So. 2d at 1145 (¶ 17). In Allen,

the Circuit Court of Forrest County convicted the defendant, Jesse Allen Jr., of armed

robbery. Id. at 545. The robbery took place on May 23, 1973. Id. At the time of the crime,

Mississippi Code Section 97-3-79 (1972) set the maximum penalty as death but provided that

if the jury failed to “fix the penalty at death, the court shall fix the penalty at imprisonment

in the penitentiary for any term not less than three years.” Allen, 440 So. 2d at 545. The

circuit court affixed a sixty-year sentence. Id.

¶46.   The Legislature, however, amended the sentencing statute to remove the death penalty

option before the circuit court sentenced Allen. Id. Further, in Stewart v. State, 372 So. 2d

257 (Miss. 1979), the Mississippi Supreme Court added the prohibition against sentencing

one convicted of armed robbery for a period of time exceeding the life expectancy of the

defendant. Allen, 440 So. 2d at 545. The Allen Court reached the conclusion that, “under

the amended statute Allen’s sentence is too long.” Id. Accordingly, at issue in Allen was

whether the circuit court properly had sentenced Allen under the older version of the

sentencing statute, which was in effect on the date of the crime but not on the date of

sentencing. In answering the question, the Allen Court wrote as follows:

       The power to prescribe penalties to be exacted from those committing acts
       made unlawful under the criminal laws of this state is vested entirely in our

                                              22
       Legislature. Purely and simply, our Legislature fixes the punishments for
       crimes. Gabriel v. Brame, 200 Miss. 767, 773, 28 So. 2d 581, 583 (1947);
       Howell v. State, 300 So. 2d 774, 780 (Miss. 1974); Upshaw v. State, 350 So.
       2d 1358, 1360 (Miss. 1977). There can be no doubt but that it was in the
       lawful power of the Circuit Court of Forrest County to impose upon Allen any
       sentence authorized by Section 97-3-79 as that statute read on May 23, 1973,
       the date on which Allen robbed the bank.

Id.

¶47.   In reaching the strongly worded and unanimous holding quoted above, the Allen Court

considered the now-embattled Mississippi Code Section 99-19-1. The Allen Court relied on

the statutory language and held that the sentencing court did not err in choosing to sentence

Allen pursuant to the earlier version of the statute. “We find it indisputable that the Circuit

Court had power to impose upon Jesse James Allen, Jr. any sentence within the scope of the

statute as it was written on the date he committed his offense.” Id. at 546 (citing Byrd v.

State, 165 Miss 30, 36-37, 143 So. 852, 853 (1932)).

¶48.   Four years later, the Allen Court’s holding, strongly worded though it may have been,

was whispered into the ear of the Court in State ex rel. Pittman v. Ladner, 512 So. 2d 1271

(Miss. 1987). Far from being a criminal case considering evolving sentencing statutes,

Ladner presented a dispute over a public contract. Nevertheless and as more fully explained

below, one small section of language from Ladner has led subsequent courts to the belief –

mistaken, in my view – that Ladner overruled the Allen Court’s holding that in a criminal

case a sentencing court does not err when, pursuant to Section 99-19-1, it sentences a

defendant under an earlier, harsher sentencing provision.




                                              23
¶49.   At the heart of Ladner was the grant of emergency school-repair contracts. Ladner,

512 So. 2d at 1272. The Hancock County School Board entered into contracts to repair

tornado damage to Gulfview Elementary School. Id. at 1273. The school board met,

declared an emergency situation, contracted with one party to clean up the school property,

and empowered the school superintendent to enter into other contracts for security, cleanup,

and repair. Id. In the following months, the school board authorized payment based on

several contracts, including a payment of $27,784.32 to Gulf Electric, Inc. Id. Gulf Electric

employed one of the members of the school board, Louie Ladner. Id. On the advice of the

board attorney, Ladner abstained from all board votes regarding Gulf Electric, but he actually

worked as a Gulf Electric employee on the project. Id.

¶50.   The State of Mississippi filed suit in the Chancery Court of Hancock County against

the five school-board members and the school superintendent. Id. The State alleged that the

defendants had failed to follow statutory competitive bidding requirements found in the then-

existing Mississippi Code Sections 31-7-39, 31-7-41, 31-7-43, 31-7-45 and 37-11-27 (1972),

and that the defendants had violated the conflict-of-interest statute found at Section 37-11-27.

Id. at 1273-1274. The complaint alleged that all defendants were liable as individuals and

on their official bonds for penal damages. Id. at 1274.

¶51.   The defendants filed a motion to dismiss under Mississippi Rule of Civil Procedure

12(b)(6), contending that the statutory authority that provided the basis for the complaint had

been repealed on January 1, 1981, the year after the alleged activity. Id. at 1274. Both

parties also later moved for summary judgment. Id. As to the claims founded on the



                                              24
statutory competitive bid rule, the chancery court granted partial summary judgment in favor

of the defendants because of the repeal of the statute. Id. The chancery court granted partial

summary judgment in favor of the State as to the conflict of interest claim and awarded

damages and assessed fines. Id. The State appealed and the defendants cross-appealed. Id.

¶52.   The Ladner appeal turned on whether the Court considered the three-bid requirement

as it existed in 1980 or as it stood repealed at the beginning of 1981. Id. at 1275. As the

Court wrote, “[T]he School Board without question violated the three bid requirement. If

Section 31-7-43 as it read in 1980 is enforceable, the judgment below must be reversed. On

the other hand, with the exception to be noted in Section IV below, the School Board

complied with the statutes as they read today.” Id. After a lengthy and detailed review of

the law regarding the vesting of contract duties and other interests in the State, the Ladner

Court held that for the State to proceed under a repealed statute, “the right the State seeks to

assert [must] be based upon some contract, property or other vested right, that the right have

being as a right notwithstanding the statute’s nonbeing.” Id. at 1277. In other words and

importantly, the Ladner Court’s holding that the trial court must rely on the latter version of

the bidding statutes was based on the law surrounding the vesting of contractual duties,

which would have no application in criminal cases. It is here that the brief, unexplained

mention of Allen occurs. To give context, we quote below a few sentences before the

language concerning Allen and the single sentence mentioning it:

       The legislature of this state, as the principal exponent of the public policy of
       this state, has declared that the three bid requirement will no longer obtain in
       emergency public works circumstances. Because the statute has been changed,
       and because this Court is obliged to act consistent with a rational reading of

                                              25
       the legislative declaration, we have as a matter of reason, precedent and choice
       determined that we should stay our hand from enforcement of that which has
       been repealed. Put more specifically, we accord a prior consideration to the
       public policy pronouncement of the state qua legislature, wholly interdicting
       the actions of the State qua its attorney general and its auditor.

       But it is not that the statute did not exist in 1980; rather, our perception of and
       respect for the purpose and effect of the subsequent legislative directive is
       such that we will no longer enforce the pre-1981 statute. Any intimation to the
       contrary found in Allen v. State, 440 So. 2d 544, 545–46 (Miss.1983) is simply
       in error.

Id. at 1276-1277. The above-quoted instance is the entirety of the discussion of Allen that

can be found in Ladner. The treatment of Allen hardly suffices as an overruling of the case.

The “matter of reason, precedent and choice” to which the Court refers in the above-quoted

language itself refers to the very lengthy discussion of the vesting of contractual rights. The

Ladner holding therefore resulted from a specific, specialized area of the law regarding

vested interests of the State in contract law. The Ladner Court was not overruling Allen, but

rather was holding that Allen did not obviate the previously discussed law of vested

contractual rights.

¶53.   The next participant in the game of Telephone, to in whose ear the Ladner Court

whispered its message disclaiming “any intimation” of a contrary notion from Allen, was the

Court that considered the case of West v. State, 725 So. 2d 872 (Miss. 1998), abrogated on

other grounds by Jackson v. State, 860 So. 2d 653 (Miss. 2003). In West, the defendant,

Tracy Lee West, stood convicted of capital murder and had been sentenced to death. West,

725 So. 2d at 876. The Court affirmed his conviction but reversed the death sentence

because the trial court had failed to instruct the jury that it could consider the alternate



                                               26
sentence of life without parole. Id. Between the time that West committed the underlying

murder of a store clerk in Gulfport, Mississippi, and his trial, the Legislature had amended

the capital murder sentencing statutes to allow for a possible sentence of life imprisonment

without the possibility of parole. Id. at 877 (¶ 7). On appeal, West argued that the trial court

had erred in refusing to instruct the jury, in accordance with the amended statutes, that it

could choose to sentence him to life without parole. Id.

¶54.   The statutes at issue were Section 97-3-21 and 99-19-101. The West Court relied on

the plain language of Section 97-3-21 and held that the Legislature intended the option of

life without the possibility of parole to apply to any defendant who was “charged, tried,

convicted, and sentenced to life imprisonment” after July 1, 1994. Id. at 878. The West

Court first wrote that Section 99-19-1, at issue in the case sub judice, had no application

because “Section 99-19-1 provides that all laws prescribing punishment will continue to

govern the penalties of all crimes committed under them, notwithstanding amendatory or

repealing statutes, unless otherwise especially provided in such statutes.” Id. at 878-879 (¶

16). As noted above, the West Court held that Sections 97-3-21 and 99-19-101 provided

otherwise.

¶55.   The dissent contends that the amendment to today’s pertinent statute, Section 97-17-

70, also provides otherwise, but the dissent merely cites the amendment’s effective date and

the occurrence of the word “conviction” in the text of the statute. The 1994 act amending

Section 97-3-21, at issue in West, explicitly provided that it would apply “to any case in

which pre-trial, trial or resentencing proceedings take place after July 1, 1994,” 1994 Miss.



                                              27
Laws ch. 566 § 5, and contained a separate section setting a general effective date of July 1,

1994. 1994 Miss. Laws ch. 566 § 6. The section establishing the general effective date did

not “otherwise provide” for the applicability of Section 99-19-1. Rather, the specific directive

that applied the changes to cases with proceedings that took place after July 1, 1994, did so.

The act that amended Section 97-17-70 contained no such specific provision and contained

only a general effective date of July 1, 2014. See 2014 Miss. Laws ch. 457. The distinction

also is an important difference, and unlike the statute at issue in West, no part of the

amendments at issue today directs that Section 99-19-1 does not apply.

¶56.   The West Court’s discussion of Allen and Ladner was dicta. It occurred after the

Court had reached its holding based on the above-described discussion of statutory

interpretation and after it had discussed whether the new option of life without parole

violated the prohibition against ex post facto laws. Id. at 880 (¶ 20). The Court included the

discussion in response to an argument advanced by the State, that under Section 99-19-33

and Allen, the trial court had the option of following the earlier sentencing scheme. West,

725 So. 2d at 881 (¶ 29). Section 99-19-33 read then, as now, as follows:

       If any statute shall provide a punishment of the same character, but of milder
       type, for an offense which was a crime under pre-existing law, then such
       milder punishment may be imposed by the court but no conviction, otherwise
       valid, shall be set aside and new trial granted merely because of an error of the
       court in fixing punishment. Such error shall only entitle the party injured to
       vacate or reverse the judgment as to the punishment, and the legal punishment
       shall then be imposed by another sentence based on the original conviction or
       plea of guilty.3

       3
        Indeed, Section 99-19-33 applies not to situations in which the punishment for the
same crime has been changed, but in which the Legislature has created a new, second crime
that criminalizes the same behavior. See Miss. Code Ann. § 99-19-33 (“If any statute shall

                                              28
The West Court wrote that the second sentence of Section 99-19-33 changed the word “may”

in the first sentence into “shall.” Id. at 881 (¶ 30). “Thus, it appears that the use of ‘may’

in the first sentence in fact intends to convey ‘shall,’ for there can be no discretion to decline

to apply an amendatory provision if declining to do so results in reversible error.” Id. In

doing so, the West Court made two mistakes. First, it assumed that the phrase “error of the

court in fixing punishment” found in the second half of the first sentence of Section 99-19-33

meant that it was error to sentence a defendant according to an earlier statute in place when

the defendant committed the crime in question. Nothing in the statute so states, and there are

certainly other errors that can be made in affixing punishment.

¶57.   Second, the West Court’s striking the word “may” in favor of “shall” results in the

judicial abrogation of Section 99-19-1, which explicitly obligates the trial court to do that

which the West Court rewrote Section 99-19-33 to prohibit. Sections 99-19-1 and 99-19-33

were enacted together in a special session of the Legislature in 1902. 1902 Miss. Laws ch.

102-103. Together, they comprised the entirety of Senate Bill 3, described as “AN ACT to

prevent unintended defeat of criminal prosecutions and of enforcement of penalties by

statutory changes of criminal laws.”4 Id. In the Code of 1942, the Code of 1930,

Hemingway’s 1917 Code, and the Code of 1906, the two sections were printed one after the

other, as enacted. “[L]egislative intent must be determined from the total language of the act


provide a punishment of the same character, but of milder type, for an offense which was a
crime under pre-existing law. . . .”) (emphasis added)). Accordingly, it has no application
to the instant case, where the issue is a change in punishment for a single crime.
       4
       Even the title of the act indicates that the purpose of both sections was to preserve
criminal prosecutions that had proceeded under prior versions of applicable statutes.

                                               29
and not from one section thereof considered apart from the remainder.” Lewis v. Hinds Cty.

Circuit Court, 158 So. 3d 1117, 1122 (¶ 13) (Miss. 2015). When it edited Section 99-19-33

to substitute the word “shall” for the word “may” in the first sentence, the West Court erred

and improperly rewrote the statute in a way that disregarded the total language of the act,

which the Court had no authority to do. As discussed above, the second sentence of Section

99-19-33 does not contradict the first, as other possible errors in sentencing exist.

¶58.   In short, we lack the constitutional authority to do what the West Court did.

Accordingly, we overrule West to the extent that it improperly changed the “may” to “shall,”

thereby issuing a holding that would hold trial courts in error for sentencing a defendant

under the older of two sentencing statutes.

¶59.   The West Court further compounded its problems in its treatment of Allen. The Court

wrote as follows:

       Furthermore, the State’s reliance on Allen v. State, 440 So. 2d 544 (Miss.1983)
       is of no avail. Allen is the only case which interprets § 99-19-33 to afford trial
       judges the discretion to apply the pre-amended statute. That holding, that trial
       courts had discretion to enforce a pre-amended version of a statute, was
       expressly overruled in State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1277
       (Miss.1987) . . . .

West, 725 So. 2d at 882 (¶ 31). However, as shown above, the Ladner Court hardly

overruled Allen. Secondly, the Allen Court did not so much interpret Section 99-19-33 to

afford trial judges the discretion to enforce an earlier sentencing statute, as it acknowledged

that Section 99-19-1 allowed trial judges to do so. Allen, 440 So. 2d at 546. Unlike the West

Court, the Allen Court studied the history of the two sections, noting that both dated back to

1902, and reached an interpretation that gave harmonious effect to the whole 1902 act.

                                              30
Finally, the West Court incorrectly described Allen as “the only case which interprets § 99-

19-33 to afford trial judges the discretion to apply the pre-amended statute.” West, 725 So.

2d at 882 (¶ 31). At least twice before, in cases cited by the Allen Court, the Court had

interpreted Sections 99-19-1 and 99-19-33 together to allow trial judges the discretion to

apply the earlier version of the statute. See Lampley v. State, 308 So. 2d 87, 90 (Miss. 1975)

(after considering Section 99-19-33, the Court held that Section 99-19-1 “expressly provided

that the previous law will remain in effect for the purpose of providing punishment, unless

otherwise specially provided in the new statute”); see also Byrd v. State, 165 Miss. 30, 143

So. 852, 853 (1932).

¶60.   The final stop, before the Allen Court’s Section 99-19-1 holding reaches us in today’s

case, is Daniels v. State, 742 So. 2d 1140 (Miss. 1999). Daniels cemented the above-

described missteps into our jurisprudence. In Daniels, a jury convicted Richard Daniels of

capital rape. The Coahoma County Circuit Court sentenced him to serve a life term. Id. at

1141 (¶ 3). At the time of the commission of Daniels’s crime, Mississippi Code Section 97-

3-65 (1994) provided for either a sentence of death or a sentence of life imprisonment. Id.

at 1144 (¶ 13). After the crime but before sentencing, the Legislature amended the statute

to provide for a sentence of “imprisonment for life in the State Penitentiary or such lesser

term of imprisonment as the court may determine, but not less than twenty (20) years.” Id.

(citing Miss. Code Ann. § 97-3-65(2)(c) (Supp. 1998)). The Daniels Court cited the West

Court’s opinion and held that a trial judge has no discretion but to sentence a defendant to

the lesser penalty when the Legislature so amends the statute after the commission of a crime.



                                             31
Id. at 1145 (¶ 17). The Daniels Court relied on the holding in West, in which the Court noted

the purported overruling of Allen by the Ladner Court. However, as detailed above, it is at

best a stretch to consider the Ladner Court’s brief and ambiguous treatment of Allen an

overruling based largely on a discussion of the vesting of contractual rights. Moreover, the

West Court’s holding, as the Court continues to follow it, impermissibly abrogated Section

99-19-1, which was part of the same legislative act that created Section 99-19-33. As we do

with West, we overrule Daniels to the extent that it holds that Section 99-19-33 requires a

sentencing court to apply a newer sentencing statute instead of the sentencing scheme in

effect when a crime was committed.

¶61.   Once again, the Court indeed may overrule its own cases, but we have no authority

to abrogate, disregard, or edit statutes enacted by the Legislature. The West Court’s dicta

regarding Allen and the two code sections largely relied on a clearly erroneous reading of

Ladner and resulted in editing one statute, Section 99-19-33, in a way that abrogated another,

Section 99-19-1. Again, Sections 99-19-1 and 99-19-33 were Parts I and II, respectively, of

the same act in 1902. Both sections comprised the entirety of the act, and in previous

versions of the Mississippi Code, were codified one after the other. Section 99-19-1 clearly

requires the trial court to sentence an offender under a sentencing statute in place at the time

of the crime. Accordingly, the trial judge properly sentenced Wilson, and the instant issue

has no merit.

¶62. CONVICTION OF RECEIVING STOLEN PROPERTY AND SENTENCE OF
TEN (10) YEARS, THREE (3) YEARS TO SERVE, WITH REMAINING BALANCE
SUSPENDED WITH POST-RELEASE SUPERVISION FOR FIVE (5) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                              32
AFFIRMED.    SAID SENTENCE SHALL RUN CONSECUTIVELY WITH
SENTENCE IN CAUSE NUMBER 11,0059 CRP. APPELLANT SHALL PAY COURT
COSTS IN THE AMOUNT OF $104 AND STATE ASSESSMENTS IN THE
AMOUNT OF $280.50.

     DICKINSON AND RANDOLPH, P.JJ., LAMAR AND BEAM, JJ., CONCUR.
MAXWELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KING, J.

    KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶63.   I concur in the majority’s affirmance of Wilson’s conviction for receiving stolen

property. I respectfully dissent in part, however, because I would reverse and remand the case

to the Circuit Court of Warren County for resentencing. The trial court was without authority

to sentence him to any term of imprisonment which exceeded five years under the amended

version of Section 97-17-70(4) (Rev. 2014).

¶64.   In its prior version, Mississippi Code Section 97-17-70(3) provided that any person

“who shall be convicted of receiving stolen property which exceeds Five Hundred Dollars

($500.00) in value shall be committed to the custody of the State Department of Corrections

for a term not exceeding ten (10) years or by a fine not more than Ten Thousand Dollars

($10,000.00) or both.” Miss. Code Ann. § 97-17-70(3) (Rev. 2006). Section 97-17-70

changed, effective July 1, 2014, to provide that the value of the stolen property be “One

Thousand Dollars ($1,000.00) or more, but less than Five Thousand Dollars ($5000.00) . .

. .” Miss. Code Ann. § 97-17-70(4) (Rev. 2014). The penalty for the offense of receiving

stolen property was altered to “imprisonment in the custody of the State Department of




                                             33
Corrections for a term not exceeding five (5) years or by a fine of not more than Ten

Thousand Dollars ($10,000.00) or both.” Id.

¶65.   Mississippi Code Section 99-19-33 provides that, “[i]f any statute shall provide a

punishment of the same character, but of milder type, for an offense which was a crime under

pre-existing law, then such milder punishment may be imposed by the court . . . .” Miss.

Code Ann. § 99-19-33 (Rev. 2015). This Court has held that “when a statute is amended to

provide for a lesser penalty, and the amendment takes effect before sentencing, the trial court

must sentence according to the statute as amended. Any precedent holding otherwise is in

error.” Daniels v. State, 742 So. 2d 1140, 1145 (Miss. 1999) (emphasis added).

¶66.   In Daniels, this Court reversed and remanded Daniels’s life sentence for capital rape

because, before sentencing had taken place, the applicable statute, which originally

prescribed a mandatory penalty either of death or life imprisonment, had been amended to

provide a “sentence of ‘imprisonment for life in the State Penitentiary or such lesser term of

imprisonment as the court may determine, but not less than twenty (20) years.’” Daniels, 742

So. 2d at 1144 (quoting Miss. Code Ann. § 97-3-65(2)(c) (Supp. 1998)). See Johnson v.

State, 260 So. 2d 436, 439 (Miss. 1972) (“[W]hen the facts which constitute a criminal

offense may fall under either of two statutes, or when there is substantial doubt as to which

of the two is to be applied, the case will be referred to the statute which imposes the lesser

punishment.”)

¶67.   Here, the crime occurred April 2, 2012. Wilson was indicted in January 2013 under

the prior version of Section 97-17-70, which prescribed a maximum penalty of ten years’



                                              34
imprisonment. The amendment to Section 97-17-70, which incorporated the lesser penalty

of up to five years’ imprisonment, became effective July 1, 2014. Wilson was tried and

convicted in September 2014. Wilson’s counsel argued at sentencing that the new version

of the statute should be applied and the trial court rejected the argument: “this action

happened prior to the change of the law and until the Supreme Court tells us different the

Court will stand by the original elements in sentencing.” Wilson was sentenced on September

17, 2014, to “[t]en years in the custody of the Mississippi Department of Corrections, three

(3) years to serve, with remaining balance suspended with post release supervision for five

(5) years . . . .” As such, under Section 99-19-33 and Daniels, Wilson argues that his

sentence is illegal, that his sentence should be vacated, and that the case should be remanded

for resentencing.

¶68.   The State urges us to consider Mississippi Code Section 99-19-1, which provides:

       No statutory change of any law affecting a crime or its punishment or the
       collection of a penalty shall affect or defeat the prosecution of any crime
       committed prior to its enactment, or the collection of any penalty, whether
       such prosecution be instituted before or after such enactment; and all laws
       defining a crime or prescribing its punishment, or for the imposition of
       penalties, shall be continued in operation for the purpose of providing
       punishment for crimes committed under them, and for collection of such
       penalties, notwithstanding amendatory or repealing statutes, unless otherwise
       specially provided in such statutes.

Miss. Code. Ann. § 99-19-1 (Rev. 2015). The State argues that “Section 99-19-1 is clear that

the applicable sentence at the time a crime is committed should be used. And the language

in § 99-19-33 clearly states that a milder punishment from an amended statute may be

imposed.”



                                             35
¶69.   The majority opinion agrees with the State and engages in an exegesis of this Court’s

jurisprudence, concluding that, while this “Court indeed may overrule its own cases, . . . we

have no authority to abrogate, disregard, or edit statutes enacted by the Legislature.” Maj.

Op. ¶ 61. It is true that this Court has no authority, absent a determination of

unconstitutionality, to ignore duly enacted statutes.

¶70.   In West v. State, this Court considered whether the trial court had committed

reversible error by refusing the defendant’s “repeated requests to apply the amendments to

Miss. Code Ann. §§ 97-3-21 and 99-19-101, and to instruct the sentencing jury that it could

sentence [the defendant] to life imprisonment without parole.” West v. State, 725 So. 2d 872,

877 (Miss. 1998), abrogated on other grounds by Jackson v. State, 860 So. 2d 653 (Miss.

2003). Prior to the defendant’s trial, Section 97-3-21 was amended to allow the sentencing

jury to consider, in addition to penalties of either death or life imprisonment with the

possibility of parole, the penalty of life imprisonment without the possibility of parole. Id.

The amending act provided that “‘[t]he provisions of this act shall apply to any case in which

pre-trial, trial or resentencing proceedings take place after July 1, 1994.’” Id. (quoting 1994

Miss. Laws ch. 566 § 5). The defendant’s trial commenced on August 8, 1994. Id.

¶71.   This Court observed that “Section 99-19-1 provides that all laws prescribing

punishment will continue to govern the penalties of all crimes committed under them,

notwithstanding amendatory or repealing statutes, unless otherwise especially provided in

such statutes.” Id. at 878-79 (emphasis in original). Because the “plain meaning of the

language in § 97-3-21 indicates that the legislature intended any defendant whose pretrial,



                                              36
trial, or sentencing proceedings commenced after July 1, 1994 to have his sentencing juries

instructed on the sentencing options of life, life without parole, or death,” this Court held that

“the proscriptions of § 99-19-1 do not preclude the application of the amendments” to the

defendant. Id. at 878-79.

¶72.   In the present case, Section 97-17-70 specified that it was to be effective “from and

after July 1, 2014.” Miss. Code Ann. § 97-17-70. Subsection 4 of Section 97-17-70

specifically addresses “[a]ny person who shall be convicted of receiving stolen property . .

. .” Miss. Code Ann. § 97-17-70(4) (emphasis added). Wilson was convicted in September

2014. Therefore, as in West, by its express language, Section 99-19-1 “does not preclude the

application of the amendments” to Wilson.

¶73.   The majority discredits the West Court’s interpretation of Section 99-19-33 and

determines that it does not apply in this case. Maj. Op. ¶ 56, n.3. The Court in West

considered the totality of Section 99-19-33 as follows:

       If any statute shall provide a punishment of the same character, but of milder
       type, for an offense which was a crime under pre-existing law, then such
       milder punishment may be imposed by the court but no conviction, otherwise
       valid, shall be set aside and new trial granted merely because of an error of the
       court in fixing punishment. Such error shall only entitle the party injured to
       vacate or reverse the judgment as to the punishment, and the legal punishment
       shall then be imposed by another sentence based on the original conviction or
       plea of guilty.

West, 725 So. 2d at 881 (quoting Miss. Code Ann. § 99-19-33). The Court held that Section

99-19-33 “does not grant a judge discretion” in sentencing, because “[a]lthough the language

seems to suggest discretion in stating that the lighter sentence may be imposed by the court,

the subsequent sentence states that a judge’s failure to impose the lighter sentence is error”

                                               37
and that “such error entitles the party injured to a vacation or reversal of the punishment

portion of the judgment.” West, 725 So. 2d at 881.

¶74.   This Court referenced the rule that “while permissive language of a statute is

presumably interpreted in its ordinary sense, it will be interpreted as mandatory where the

context compels such a construction.” West, 725 So. 2d at 881 (citing Leflore Bank & Trust

Co. v. Leflore County, 202 Miss. 552, 558, 32 So. 2d 744, 746 (1947)). According to this

Court, “there can be no discretion to decline to apply an amendatory provision if declining

to do so results in reversible error.” West, 725 So. 2d 881.

¶75.   The majority argues that “striking the word ‘may’ in favor of ‘shall’ results in the

judicial abrogation of Section 99-19-1, which explicitly obligates the trial court to do that

which the West Court rewrote Section 99-19-33 to prohibit.” Maj. Op. ¶ 57. With respect,

this Court did not strike the word “may” and substitute the word “shall” in West, but rather

engaged in a reasonable interpretation of a self-contradictory statute. In its first sentence,

Section 99-19-33 provides that the trial court has discretion with regard to sentencing and,

in the second sentence, it provides that erroneous sentencing entitles the defendant to a

reversal of the punishment and not the reversal of the conviction. Furthermore, as discussed

above, Section 99-19-1 does not apply to this case, nor did it apply in West, because the

respective statutes in issue incorporated an effective date, after which the respective

defendants were tried, convicted, and sentenced.

¶76.   At the very least, the rule of lenity applies to a patently ambiguous statute: “penal

statutes are to be interpreted strictly against the state and construed liberally in favor of the



                                               38
accused. Where a statute is patently ambiguous, it must be interpreted in favor of the

accused.” McLamb v. State, 456 So. 2d 743, 745 (Miss. 1984) (citing State v. Russell, 358

So. 2d 409 (Miss. 1978); Carter v. State, 334 So. 2d 376 (Miss. 1976); Walton v. State, 219

Miss. 72, 68 So. 2d 87 (1953); Terry v. State, 172 Miss. 303, 160 So. 574 (1935)) (emphasis

added).

¶77.   While I agree that Wilson’s conviction for receiving stolen property should be

affirmed, I decline to join the majority’s refusal to apply the controlling law with regard to

his sentence. Accordingly, I dissent in part.

       WALLER, C.J., AND KING, J., JOIN THIS OPINION.




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