Gray v. StateGray v. State
I.
II.
Sentencing on remand was conducted in June of 1988. The sentencing jury failed to impose the sentence of death. As Gray‘s original indictment charged him with capital murder as an habitual offender, a bifurcated habitual offender status hearing was held June 23, 1988. At the close of the hearing, the trial court sentenced Gray to life as an habitual offender pursuant to
I. THE HABITUAL OFFENDER STATUS HEARING SHOULD NOT HAVE BEEN HELD BECAUSE:
A. IT SUBJECTED GRAY TO DOUBLE JEOPARDY and
B. SPEEDY TRIAL VIOLATION BECAUSE THE BIFURCATED HEARING WAS NOT HELD WITHIN 270 DAYS OF ARRAIGNMENT ON THE MURDER CHARGE.
II. IF IT WAS PROPER TO HOLD THE HABITUAL OFFENDER STATUS HEARING, THE HEARING WAS PROCEDURALLY INCORRECT UNDER TURNER V. STATE, 573 So.2d 657 (Miss. 1990).
III. FAILURE TO PROVE HABITUAL OFFENDER STATUS.
III.
In his first assignment of error Gray contends that the trial court subjected him to double jeopardy and violated his right to a speedy trial in holding a bifurcated hearing to determine his status as an habitual offender. Each of his arguments is individually addressed.
A.
Gray contends that since he has already been sentenced for the crime of murder, and since the State failed to press forward with habitual offender adjudication at his original trial, the State should be precluded at re-sentencing from enhancing his life sentence for murder with the habitual offender statute. Gray contends that double jeopardy1 has attached to charges that were not presented to the trier of fact. Gray cites Davis v. Herring, 800 F.2d 513, 519 (5th Cir.1986) as support for his argument.
The defendant in Davis discharged a gun into a tavern and killed the owner. While
Gray‘s reliance upon the Davis case is misplaced. Gray was indicted as an habitual offender, but because he was initially sentenced to death, his status as an habitual was not determined until after the sentencing trial on remand. Therefore, since Gray‘s status as an habitual offender was not previously determined, the present finding of habitual offender status was not barred by double jeopardy. This argument is without merit.
B.
Gray next argues a speedy trial violation. However, Gray does not argue denial of speedy trial for delay in sentencing on remand. See Trotter v. State, 554 So.2d 313 (Miss. 1989). Instead, Gray claims speedy trial violation because his status as an habitual offender was not determined within 270 days of arraignment of the indictment pursuant to
Gray claims that he was prejudiced when, six (6) years after arraignment, the State pulled a rabbit out of its hat and sentenced him under charges that had not previously been prosecuted. Gray contends that during the years between indictment in June of 1982 and actual determination of habitual offender status in June of 1988 he was oblivious to any danger of habitual status imposition and, had he known, he would have spent the six (6) years researching and examining the underlying convictions contained in the original indictment.
IV.
In his second assignment of error, Gray argues an alternative position: if the trial court did not err in holding the habitual offender status hearing, the trial court violated Turner v. State, 573 So.2d 657 (Miss. 1990) and procedurally erred in holding the hearing after the jury deliberations. Gray is asking this Court to vacate and render on the finding of habitual offender status based upon the failure to follow the procedure articulated Turner so that he will be eligible for probation and/or parole.
Turner, decided December 12, 1990, altered the procedure for determining habitual offender status in death penalty cases: the status hearing must be conducted prior to the sentencing phase so that the jury will have before it all relevant information that “could `cause it to decline to impose the death sentence.‘” Turner at 675, quoting McCleskey v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 1773, 95 L.Ed.2d 262 (1987). This Court has demonstrated its commitment to this procedure. See Ladner v. State, 584 So.2d 743 (Miss. 1991); Mackbee v. State, 575 So.2d 16 (Miss. 1990); Berry v. State, 575 So.2d 1 (Miss. 1990). The remedy for failure to follow the Turner procedure is to vacate the death sentence and remand. See Ladner v. State, 584 So.2d 743 (Miss. 1991); Mackbee v. State, 575 So.2d 16 (Miss. 1990); Berry v. State, 575 So.2d 1 (Miss. 1990).
Under Turner, the remedy in this case — vacate life sentence and remand for new jury imposition of life sentence with the possibility of parole — would be a waste of judicial resources. Gray is asking this Court to fashion a new remedy for violation of the Turner procedure when the death sentence is not imposed — invalidate and render the finding of habitual offender status. The invitation is declined. This assignment is without merit.
V.
Finally, Gray challenges the sufficiency of the evidence produced by the State in proving his status as an habitual offender. A review of the record shows that the evidence presented by the State to prove Gray‘s status was not only sufficient, Gray himself admitted to all previous convictions. Gray wants this Court to allow him, during the habitual offender status hearing, to deny his prior testimony admitting the prior convictions. This assignment is without merit.
SENTENCE OF LIFE AS AN HABITUAL OFFENDER AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS, P.J., PRATHER, ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.