                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2006-KA-01730-SCT

KENDRICK GRAVES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         05/09/2006
TRIAL JUDGE:                              HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   THOMAS W. POWELL
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                        ELEANOR JOHNSON PETERSON
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 11/29/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE DIAZ, P.J., DICKINSON AND LAMAR, JJ.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    This case comes to us from the Circuit Court of the First Judicial District of Hinds

County, where Kendrick Graves was convicted of aggravated assault and shooting into an

vehicle.   Graves was sentenced to consecutive terms of ten years imprisonment for

aggravated assault and five years imprisonment for shooting into a vehicle. Claiming that

his prosecution for both aggravated assault and shooting into a vehicle constituted double

jeopardy, Graves appeals to this Court.
                                            FACTS

¶2.    On June 13, 2000, Eric Washington was sitting in the driver’s seat of his car talking

with Herbert Thomas, who was in the front passenger’s seat, when a man by the name of

Charles Parker walked up to the driver’s window and fired a gun into the car.1 Washington

was shot five times, and as a result, he was paralyzed, lost a kidney, and suffered permanent

nerve damage. Graves was tried and convicted as an accomplice to Parker in the shooting.

¶3.    Parker, called by the State,2 testified that on June 13, 2000, he was picked up by

Clarence Witherspoon and Kendrick Graves and that they went to a party on Morehouse

Street in Hinds County. Once on Morehouse Street, according to Parker’s testimony,

someone told Parker and Graves that Thomas was coming and that he was going to shoot

Graves.      When Thomas arrived, Parker saw Thomas get into the passenger side of

Washington’s car. Parker, who admittedly was intoxicated at the time of the events, testified

that Graves handed him a .380 caliber pistol and said, “that’s him in the white t-shirt,” talking

about Thomas. Parker took the gun from Graves and shot into Washington’s car. According

to Parker, Graves then told him that he had shot the wrong person.

¶4.    In addition to the testimony of Parker and Washington, the State presented two

eyewitnesses to the shooting, Glenn Ford and Frank Craft. Both Ford and Craft testified that




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           It is undisputed that Charles Parker was the shooter.
       2
        Parker pleaded guilty to one count of aggravated assault and one count of shooting
into a vehicle for his part in Washington’s shooting. At the time of his testimony, he was
serving a twenty-year sentence in the custody of the Mississippi Department of Corrections.

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they were present on Morehouse Street at the time of the shooting, and both corroborated the

testimony of Parker and Washington.

                             COURSE OF PROCEEDINGS

¶5.    Graves was indicted on October 15, 2004, for one count of aggravated assault and one

count of shooting into a vehicle. A Hinds County jury found Graves guilty on both counts

on May 9, 2006. Graves did not testify in his own defense. Asserting that his prosecution

for both aggravated assault and shooting into a vehicle violated the double-jeopardy clause

of the Fifth Amendment to the United States Constitution, Graves appealed.

                                        ANALYSIS

¶6.    The sole issue presented on this appeal is Graves’s assertion that his right under the

Fifth Amendment not to be twice put in jeopardy for the same offense has been violated.

Graves made this argument for the first time on appeal. However, as the protection against

double jeopardy is a fundamental right, we will not apply a procedural bar and will address

the merits of Graves’s claim. Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995) (holding

that, while constitutional questions not raised at trial generally are deemed waived, errors

affecting fundamental constitutional rights may be excepted from procedural bars which

otherwise would prohibit consideration).

¶7.    “[N]or shall any person be subject for the same offense to be twice put in jeopardy of

life or limb . . . . ” U.S. Const. amend. V. See also, Miss. Const. art. III § 22 (1890). This

guarantee, enforceable against the states through the Fourteenth Amendment, assures three

separate protections: (1) protection from a second prosecution for the same offense after

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acquittal, (2) protection from a second prosecution for the same offense after conviction, and

(3) protection from multiple punishments for the same offense. U.S. v. Dixon, 509 U.S. 688,

695-96, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). This case deals with the protection

against multiple punishments for the same offense.

¶8.    To determine whether double-jeopardy protections apply, we look to the “same-

elements” test prescribed by the United States Supreme Court in Blockburger v. United

States, 284 U.S. 299, 304, 54 S. Ct. 180, 76 L. Ed. 2d 656 (1932). The Blockburger test

instructs us to determine whether each offense contains an element not present in the other;

if not, they are labeled the same offense for double-jeopardy purposes, and successive

prosecutions and/or punishments are constitutionally barred. Powell v. State, 806 So. 2d

1069, 1074 (Miss. 2001).

¶9.    The defendant in Blockburger was tried and convicted on two counts, the sale of a

drug not in or from the original packaging and the sale of a drug without a written order, both

charges arising from one specific drug sale. Blockburger, 284 U.S. at 301. Rejecting the

defendant’s claim that the two counts on which he was convicted constituted one offense,

the Supreme Court stated:

       The applicable rule is that 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.

Id. at 304 (citations omitted). The Court went on to say:

       A single act may be an offense against two statutes; and if each statute requires
       proof of an additional fact which the other does not, an acquittal or conviction

                                              4
       under either statute does not exempt the defendant from prosecution and
       punishment under the other.

Id. (citations omitted). The Supreme Court affirmed the defendant’s conviction, holding

that, even though both sections were violated by one sale, two offenses were committed.

¶10.   This Court dealt with a very similar set of facts to the case sub judice in Shook v.

State, 552 So. 2d 841 (Miss. 1989), wherein Philip Shook was convicted of shooting into a

dwelling house and aggravated assault. On appeal, he claimed that aggravated assault and

shooting into a dwelling house constituted the same offense for double-jeopardy purposes.

Shook, 552 So. 2d at 848.

¶11.   Applying the Blockburger test to the aggravated-assault and shooting-into-a-dwelling

statutes, this Court concluded that Shook had been properly charged and tried for both

offenses, stating:

       Clearly the two statutes require proof of different facts . . . . under the statutes,
       shooting into a dwelling house is not required to establish an aggravated
       assault and neither injury nor attempt to injure is required to prove shooting
       into a dwelling house.

Id. at 848-49.

¶12.   In applying the Blockburger test to the facts of this case, we must look to the statutes

under which Graves was convicted. Mississippi Code Annotated Section 97-3-7(2) (Rev.

2006) provides, in part, that:

       A person is guilty of aggravated assault if he . . . . (b) attempts to cause or
       purposely or knowingly causes bodily injury to another with a deadly weapon
       or other means likely to produce death or serious bodily harm.

Mississippi Code Annotated Section 97-25 47 (Rev. 2006) provides, in part, that:

                                                5
          If any person or persons shall willfully shoot any firearms or hurl any missile
          at, or into, any . . . . motor vehicle . . . . such person shall, upon conviction, be
          punished by a fine of not less than one hundred dollars ($100) nor more than
          two hundred fifty dollars ($250), or be committed to the custody of the
          department of corrections not less than one (1) year nor more than five (5)
          years, or by both such fine and imprisonment.

For the jury to find Graves guilty of aggravated assault, the State was required to prove three

elements: (1) that Graves purposely or knowingly, unlawfully and not in necessary self-

defense, caused bodily injury to Washington; (2) that he used a deadly weapon, in this case,

a gun, to do so; and (3) that shooting Washington caused the bodily injury. For the jury to

find Graves guilty of shooting into a vehicle, the State was required to prove that Graves shot

a firearm into a motor vehicle.3

¶13.      Given the elements required to prove each of these crimes, Blockburger instructs us

to determine whether there are elements in each offense not contained in the other. We find

that there are. To prove aggravated assault, no element requires proof of a firearm being shot

into a vehicle. To prove shooting into a vehicle, there is no requirement of proof of bodily

injury.

¶14.      It is true that these two crimes were committed almost simultaneously. However, this

Court has made clear that “[t]emporal proximity does not generate a juridical union of

separate and distinct criminal acts, nor does the presence of a common nucleus of operative

facts.” Pharr v. State, 465 So. 2d 294, 301 (Miss. 1984) (quoting Ball v. State, 437 So. 2d



          3
        Though Parker was the actual shooter, there is no challenge as to Graves’s liability
as an accomplice in this case.

                                                   6
423, 425 (Miss. 1983)). As it is inconsequential that these two crimes took place at the same

time, so is it unimportant that the same evidence was used to convict Graves of both of these

crimes. Clearly, aggravated assault and shooting into a vehicle each requires proof of facts

the other does not. Therefore, we find that Graves’s argument is without merit.

                                     CONCLUSION

¶15.   Application of the Blockburger test to the facts of this case reveals that elements of

each of the crimes of shooting into a vehicle and aggravated assault are not contained in the

other. Therefore, we find that Graves’s claim of double jeopardy is without merit, and his

conviction and sentence on both charges are affirmed.

¶16. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE
OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SHOOTING INTO
VEHICLE AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN
COUNT II SHALL RUN CONSECUTIVELY WITH SENTENCE IMPOSED IN
COUNT I.

    SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES,
DICKINSON AND RANDOLPH, JJ., CONCUR.




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