                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-IA-01526-SCT
STATE OF MISSISSIPPI
v.
ANTHONY HICKS

DATE OF JUDGMENT:                                    09/03/1999
TRIAL JUDGE:                                         HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                           HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              JAMES H. POWELL, III
ATTORNEY FOR APPELLEE:                               W. S. STUCKEY, JR.
DISTRICT ATTORNEY:                                   JAMES H. POWELL, III
NATURE OF THE CASE:                                  CRIMINAL - FELONY
DISPOSITION:                                         DISMISSED- 01/31/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                      2/21/2002

      EN BANC.

      SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1. Anthony Hicks was indicted in the Circuit Court of Holmes County for the murder of Howard Sam
Brown. Hicks filed a pre-trial motion to suppress DNA evidence used in the trial of Hicks's codefendant,
Jontae Morris. The trial court granted Hicks's motion. Aggrieved by the trial court's ruling, the State filed
this interlocutory appeal. Because we find that the State lacks statutory authority to prosecute this appeal,
we need not address the merits of the State's argument. Accordingly, this appeal is dismissed.

                                                   FACTS

¶2. On June 6, 1997, Morris and Hicks were indicted for the capital murder of Sam Brown. Brown was
killed during the course of a robbery at his convenience store on January 28, 1997.

¶3. The Circuit Court of Holmes County severed the trials of Morris and Hicks. Morris went to trial May
13, 1998. He was found guilty of capital murder and sentenced to life imprisonment, without the possibility
of parole, in the custody of the Mississippi Department of Corrections. On appeal the conviction and
sentence were affirmed by this Court. Morris v. State, 777 So. 2d 16 (Miss. 2000).

¶4. Hicks was granted a change of venue. Hicks's trial was set to begin on August 30, 1999, in the Circuit
Court of Madison County. On August 17, 1999, Hicks filed a motion to suppress DNA evidence obtained
from Morris's blue jeans. Kelly Franovich, DNA analyst for the Mississippi Crime Laboratory, testified at
Morris's trial that she extracted DNA samples from the front pocket of Morris's jeans and found that the
DNA matched both Morris and Brown. Julie Golden, a DNA analyst for the defense, testified that the
sample from Morris's jeans contained DNA from two donors. Golden's testimony was consistent with that
of Franovich - the major donor was Brown and the minor donor was Morris.
¶5. The Circuit Court of Holmes County granted Hicks's motion to suppress the DNA evidence and denied
the State's motion to reconsider. The State informed the court that it intended to pursue an interlocutory
appeal and requested that Hicks's trial be stayed pending the appeal. On September 3, 1999, the circuit
court certified its order for interlocutory appeal. In turn, this Court granted the State leave to bring this
interlocutory appeal pursuant to M.R.A.P. 5.

                                               DISCUSSION

¶6. Though the issue of whether the State has standing to prosecute this appeal has not been raised by the
parties, this Court may sua sponte address the question of standing. Benedict v. City of Hattiesburg, 693
So. 2d 377, 381 (Miss. 1997). This Court cautiously reviews motions for interlocutory appeal to ensure
that the appeal meets all requirements of Miss. Code Ann. § 99-35-103 (2000) and Rule 5 of the
Mississippi Rules of Appellate Procedure. We have not been hesitant to dismiss when these requirements
have not been satisfied. See, e.g., Crawford v. Wall, 593 So. 2d 1014 (Miss. 1992) (rejecting petition for
rehearing on interlocutory appeal because the petition did not present a question of law as to which there
existed a substantial basis for a difference of opinion); American Elec. v. Singarayar, 530 So. 2d 1319
(Miss. 1988) (no substantial basis for a difference of opinion on the procedural issue of the legal standards
for the grant or denial of a preliminary injunction); State v. Parks, 415 So. 2d 704, 705 (Miss. 1982)
(holding that State's interlocutory appeal of defendant's sustained motion to suppress was not allowable
under § 99-35-103).

¶7. The right of the state or a municipality to appeal is governed by Miss. Code Ann. § 99-35-103 (2000),
which provides:

      The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court
      in a criminal cause in the following cases:

      (a) From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit
      charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the
      same offense.

      (b) From a judgment actually acquitting the defendant where a question of law has been decided
      adversely to the state or municipality; but in such case the appeal shall not subject the defendant to
      further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall
      nevertheless decide the question of law presented.

      (c) From a ruling adverse to the state or municipality in every case in which the defendant is convicted
      and prosecutes an appeal; and the case shall be treated as if a cross appeal had been formally
      presented by the state. All questions of law thus presented shall be decided by the Supreme Court.

¶8. This statute does not permit the State to appeal the trial court's ruling in this case. We have previously
held that the State may not appeal a criminal case except where specific statutory authority grants it the right
to do so. State v. Parks, 415 So. 2d 704, 705 (Miss. 1982) (citing State v. Key, 93 Miss. 115, 46 So.
75 (1908)). This prohibition is not limited to interlocutory appeal, but speaks to all appeals. See, e.g.,
State v. Insley, 606 So. 2d 600 (Miss. 1992) (holding that the State had no right to appeal from and order
granting acquittal notwithstanding the verdict.); State v. Lee, 602 So. 2d 833 (Miss. 1992) (holding that the
State had no right to appeal the failure of the trial court to impose a sentence of life without parole as
required by statute).

¶9. The facts of State v. Parks, 415 So. 2d 704, 705 (Miss. 1982), are procedurally similar to the case
sub judice. In Parks, the defendant moved to suppress marijuana seized from the trunk of his automobile
after he was stopped for a traffic violation. The trial court sustained his motion to suppress finding that the
law enforcement officers had no justification for seizing the vehicle and there was no probable cause to
inventory the trunk. The State filed an interlocutory appeal. We specifically held that interlocutory appeals
from adverse rulings on the admission or exclusion of evidence are not within the allowable appeals
enumerated in § 99-35-103. 415 So. 2d at 706. The State's appeal was dismissed. Id.

¶10. Rule 5 of the Mississippi Rules of Appellate Procedure specifically provides for, and governs,
interlocutory appeals. Rule 5 states:

      (a) Petition for Permission to Appeal. An appeal from an interlocutory order may be sought if the
      order grants or denies certification by the trial court that a substantial basis exists for a difference of
      opinion on a question of law as to which appellate resolution may:

      (1) Materially advance the termination of the litigation and avoid exceptional expense to the parties; or

      (2) Protect a party from substantial and irreparable injury; or

      (3) Resolve an issue of general importance in the administration of justice.

¶11. Though our decision in Parks predates the promulgation of the Rules of Appellate Procedure, the
judicially enacted Rules of Appellate Procedure do not alter the applicability of § 99-35-103. Even
considering Rule 5 in determining whether to grant an interlocutory appeal in this case, this case is not
proper for Rule 5 certification and consideration by this Court. This Court has stated:

      Before reaching the merits, a point need be made clear. Nothing in our new Rules places in the hands
      of the trial court the keys to this Court's front door. That the court below has given the Rule 5(a)
      certificate in no way precludes our de novo review of whether the rule's criteria have been met and
      whether the application for interlocutory appeal should be granted. This Court retains absolute
      authority to decide whether an interlocutory appeal should be granted, notwithstanding the rule's
      provision that the lower courts may assist us in the exercise of that authority. This is not to denigrate
      the role of the trial court in the interlocutory appeals process. That Court's proximity and sensitivity
      will often provide invaluable insights whether we ought exercise our authority and grant an
      interlocutory appeal.

Singarayar, 530 So. 2d at 1322. Considering Rule 5 as it might pertain to this case, neither of the three
components apply to an admittedly critical but otherwise routine pre-trial evidentiary ruling by a trial judge.

¶12. As this Court observed in State v. Insley, 606 So. 2d 600, 602 (Miss. 1992), the United States
Supreme Court held in 1892 that the government could not take an appeal in a criminal case without
express statutory authority. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892).
In discussing the "tradition of requiring that a prosecutorial appeal be affirmatively sanctioned by the same
sovereign that sponsors the prosecution," the Supreme Court in Arizona v. Manypenny, 451 U.S. 232,
249, 101 S. Ct. 1657, 68 L.Ed. 2d 58 (1981), observed:
      Both prudential and constitutional interests contributed to this tradition. The need to restrict appeals
      by the prosecutor reflected a prudential concern that individuals should be free from the harassment
      and vexation of unbounded litigation by the sovereign. This concern also underlies the constitutional
      ban against double jeopardy, which bars an appeal by the prosecutor following a jury verdict of
      acquittal. In general, both concerns translate into the presumption that the prosecution lacks appellate
      authority absent express legislative authorization to the contrary. This presumption was first
      announced as a rule of federal law in United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36
      L.Ed. 445 (1892). There, the Court held that no appellate right by the Federal Government exists in
      the absence of express enabling legislation from Congress.

451 U.S. at 249 (citations omitted).

¶13. Though subsequent enabling legislation has granted the government severely limited appellate rights, the
Sanges rule remains in effect. Insley, 606 So. 2d at 602. Even states which have statutorily allowed
interlocutory appeals on pre-trial evidentiary rulings, have in most instances restricted such appeals to
orders suppressing evidence for alleged violation of the constitutional rights of the accused under the Fourth,
Fifth or Sixth Amendments to the Constitution of the United States. See People v. Lindsey, 660 P.2d 502
(Colo. 1983); McPhadder v. State, 475 So. 2d 1215 (Fla. 1985). The instant appeal would not be
allowed in those states because it involves a ruling regarding relevance, and more particularly the question
whether probative value outweighed prejudicial effect, not the suppression of evidence based upon the
violation of any constitutional right of the accused tainting that evidence. Id.

¶14. A close reading of § 99-35-103 reveals a clear statutory prohibition, with only limited exceptions,
against the State taking an appeal in criminal cases. This prohibition is a clear legislative pronouncement of
the policy of this State regarding the conduct of criminal proceedings. As criminal proceedings are brought
by the State, that expression of policy is not subject to modification by this Court except as may be
necessary to protect the constitutional rights of the accused. Moreover, this Court would be ill advised to
become involved in interlocutory review of routine pre-trial evidentiary rulings in limine as involved here.

¶15. This result is dictated by the principles of strict construction of the statutes and by judicial prudence.
Pre-trial evidentiary rulings in limine are inherently subject to change depending upon what actually
transpires at trial. For an appellate court to make a ruling regarding relevance and probative value relative to
prejudice prior to trial suggests a binding ruling inconsistent with the nature of an ordinary trial court pre-trial
ruling and with traditional trial practice.

                                                CONCLUSION

¶16. We conclude that the trial court's order is not properly subject to review on interlocutory appeal.
Accordingly, this Court's prior order granting leave to bring this interlocutory appeal is vacated, and this
appeal is dismissed.

¶17. DISMISSED.

      PITTMAN, C.J., McRAE, P.J., WALLER, COBB, DIAZ, CARLSON AND GRAVES, JJ.,
      CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
