Lead Opinion
for the Court:
PART ONE
¶ 1. A jury convicted Vance Drummer of two counts of grand larceny and one count of attempted grand larceny in Lowndes County Circuit Court in 2012. The trial court granted the State’s request for a flight instruction because Drummer, after absconding with the stolen goods, fled from police when they attempted to pull him over after he had run a stop sign in Mathiston, Mississippi. The trial court sentenced Drummer as an habitual offender pursuant to Mississippi Code Section 99-19-81. One of the felony convictions the State used to prove Drummer’s status
FACTS AND PROCEDURAL HISTORY
¶ 2. The relevant facts are found in the Court of Appeals’ opinion:
While finishing his patrol around 3:55 a.m. on January 2, 2009, Officer Happ Anderson witnessed a vehicle run through a four-way stop in Mathiston, Mississippi, which is located in both Webster County and Choctaw County. The vehicle, a white utility van, was pulling a trailer loaded with a John Deere lawnmower. Officer Anderson turned on his siren and flashed his lights as he pulled behind the van heading west on Highway 82. As Officer Anderson later testified at trial, for the majority of the highway chase, he and the van drove in excess of ninety miles per hour. When the van’s driver, later identified as Drummer, failed to slow down or otherwise respond to his pursuit, Officer Anderson attempted to pass the van. However, each time Officer Anderson tried this maneuver, Drummer swung the trailer into the left lane to prevent Officer Anderson from pulling alongside the van.
Officer Anderson contacted another law enforcement officer in a nearby town. This second officer attempted to stop the van by parking his patrol car in the westbound lanes of the highway. However, Drummer managed to drive around the roadblock and continue along Highway 82. After passing Winona, Mississippi, about forty miles from Ma-thiston, Officer Anderson’s radio signal failed, and he called 911 for assistance. The dispatcher eventually reached law enforcement officers in Leflore County, who were able to set up a roadblock at the county line between Carroll County and Leflore County before the van reached them.
As the van neared the roadblock, Drummer turned into a church parking lot and hit a light pole. Drummer then exited the van and, with the police pursuing him, ran through a pasture and into a utility shed. When Drummer refused to exit the utility shed, the police officers sent a police dog into the shed. Soon after the dog entered the shed, Drummer exited. An inspection of both the van and the utility shed confirmed that Drummer was the only person involved in the chase. The police’s investigation revealed that the white van, trailer, and John Deere lawnmower had been stolen from businesses in Columbus, Mississippi, which is situated in Lowndes County. The white van was stolen from Thompson Truck Center, and the trailer and John Deere lawnmower were both stolen from Agri-Turf, located about a mile down the road from Thompson Truck Center. Police also learned in the course of their investigation that one of Thompson Truck Center’s trucks had sustained interior damage when someone had apparently tried to start the vehicle without a key.
¶ 3. In 2009, Drummer pled guilty to felony fleeing
¶ 4. The Lowndes County jury convicted Drummer of two counts of grand larceny and one count of attempted grand larceny. At the sentencing hearing, the trial court found that the two predicate felonies proven by the State were sufficient to allow the court to sentence Drummer as an habitual offender pursuant to Section 99-19-81. Accordingly, Drummer was sentenced to ten years without the possibility of parole on each count, with the sentences for Counts I and II to run consecutively, and the sentence for Count III to run concurrently with the sentence for Count II. Drummer appealed, and the Court of Appeals affirmed his convictions and sentences.
¶ 5. Drummer petitioned this Court for a writ of certiorari, asking us to review whether the trial court erred in granting the State’s flight instruction and whether it erred in sentencing him as an habitual offender. Having granted Drummer’s petition, we now proceed to analyze those issues.
ANALYSIS
I. The trial court erred in sentencing Drummer as an habitual offender.
¶ 6. Because Drummer’s flight was so inextricably intertwined with his commission of larceny that the trial court found a flight instruction to be proper, it is obvious that the same flight could not be used as a predicate felony “arising out of’ a separate incident for the purpose of habitual-offender sentencing. See Miss.Code Ann. § 99-19-81 (Rev.2007).
¶ 7. Mississippi Code Section 99-19-81 permits the trial court to sentence a defendant to the maximum term of imprisonment for the felony of which he is convicted without the possibility of parole if that defendant has “been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times.... ” To qualify as a predicate felony for purposes of Section 99-19-81, both prior convictions must arise out of separate incidents, meaning they must be separate from each other and from the felony for which the defendant is being sentenced. Drummer contends that his felo
¶ 8. But before we address Drummer’s specific argument, we must speak to the interpretation of the habitual-offender statute advanced by my esteemed colleague, Justice Coleman. According to him, Section 99-19-81 “contains no requirement that either predicate felony arise ‘out of separate incidents at different times’ from the primary felony. ” Coleman Op. at ¶ 61 (emphasis added). Respectfully, this interpretation twists the language of Section 99-19-81 and constrains the clear intention of the Legislature. In practice, most prosecutors and criminal defense attorneys throughout this State understand that Section 99-19-81 requires both that the predicate felonies be separate from each other and from the felony for which the defendant currently is being sentenced.
¶ 9. More importantly, this Court has stated such on at least two occasions. In Buckley v. State, this Court wrote that “[a] prior offense may be considered under the statute even if [it] occurred on the same day as the instant offense as long as the two charges arose from ‘separate incidents.’” Buckley v. State,
¶ 10. As for Drummer’s argument that his flight from the crime scene was a continuation of the crime of larceny and therefore not sufficiently separate from the larceny to be a stand-alone predicate felony, this Court has held that crimes occurring on the same day may nevertheless be “separate incidents at different times” for purpose of habitual sentencing. Jackson v. State,
¶ 11. In Pittman v. State,
We do not write upon a clean slate. We have on several occasions held that “priors” arising out of incidents occurring on the same date may nevertheless be “separate incidents at different times” within Section 99-19-81. Nicolaou v. State, 5[3]4 So.2d 168 , 173 (Miss.1988); Jackson v. State,518 So.2d 1219 (Miss.1988); Burt v. State493 So.2d 1325 ,1329 (Miss.1986); see also Crawley v. State,423 So.2d 128 , 129 (Miss.1982). In Burt the defendant broke and entered two dwelling houses at “Route 1, Duck Hill, Mississippi” on June 26, 1980, and we held these separate incidents because Burt had burglarized “separate dwellings occupied by two individuals.” Burt,493 So.2d at 1329 . In Nicolaou the priors concerned a robbery and two kidnappings that took place following the completion of two murders, all of which were a part of the same continuous crime spree but which we held “separate incidents” within Section 99-19-81. Nicolaou,534 So.2d at 173 . These cases, however, afford no bright line rule-telling us how separate the incidents must be, nor how different the times must be.
Pittman,
¶ 12. In Pittman, the Court held that two burglaries of adjacent schools with a common fence on the same illegal excursion qualified as “separate incidents” for purpose of habitual sentencing. Id. Because the two schools were separate places, “notwithstanding their proximity and common use of the auditorium and cafeteria,” the burglaries of the two schools were separate incidents. Id.
¶ 13. Here, we must determine whether Drummer’s flight from police in Webster County was sufficiently separate and distinct from his earlier larcenies and attempted larceny earlier in Lowndes County. The Court of Appeals held that the fleeing and larceny offenses did not “arise from a common nucleus of operative facts.” Drummer,
¶ 14. However, this conclusion belies the State’s argument at trial that the flight from police was related to the larcenies. In seeking the flight instruction, the State argued that Drummer “absolutely fled the scene of the crime.” It averred that he was apprehended traveling away from the place from which he had stolen the van and lawn mower. The prosecutor argued that the only explanation for the flight was Drummer’s guilty knowledge of the larcenies that he had committed in Lowndes County. Having taken the position that flight was sufficiently probative of Drummer’s guilt on the larceny charges to warrant a flight instruction, the State could not credibly argue that the flight failed to arise from a common nucleus of operative fact.
¶ 15. Although the larcenies became completed crimes as soon as Drummer had removed the property from the owners’ possession and control, it is well established that “larceny is a continuous offense, and is being committed at all
¶ 16. The Court of Appeals confronted a similar situation in Bergeron v. State,
¶ 17. Here, Drummer stole the van and trailer, committing larceny, and fled when confronted by police so that he could get away with larceny. Drummer’s intent with respect to the larceny and the flight was essentially the same: to steal some chattels and not be caught. The felony-fleeing conviction was not available to the State as a predicate felony for purposes of habitual-offender sentencing because it arose from the same incident as the larceny for which Drummer was being sentenced. Drummer must be resentenced as a nonhabitual offender, because “the State is not entitled to a second chance to prove a defendant’s habitual-offender status on remand, because that would violate the prohibition against double jeopardy under the Mississippi Constitution.” Grayer v. State,
CONCLUSION
¶ 18. Because one of Drummer’s predicate felonies used for sentencing him as an habitual offender arose out of the same incident as the crime for which he was being sentenced, the trial court erred in sentencing him as an habitual offender. Accordingly, we vacate Drummer’s sentence and remand the case to the Circuit Court of Lowndes County for resentencing as a nonhabitual offender. The judgment of the Court of Appeals is reversed with respect to the habitual-offender sentencing. The judgment of the Circuit Court of Lowndes County is vacated in part, and the ease is remanded for resentencing.
for the Court:
PART TWO
Was a flight instruction proper?
¶ 19. We will overturn a trial court’s giving of a jury instruction only where the trial court abused its discretion. Higgins v. State,
¶ 20. Vance Drummer argues on appeal that the trial court erred in giving the following instruction to the jury in his case:
The Court instructs the Jury that “Flight” is a circumstance from which guilty knowledge may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the Defendant, VANCE DRUMMER, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the Defendant, VANCE DRUMMER.
¶21. Drummer argues on appeal that the giving of the instruction was improper because there was an independent reason for Drummer’s flight other than guilty knowledge of the larcenies. Drummer argues this Court should consider reasons not presented to the judge or jury below:
¶ 22. Flight instructions repeatedly have been approved by this Court for almost ninety years, in contrast to the dissent’s claim of rarity. (Kitchens Op. at ¶ 53). See Harrell v. State,
¶ 23. The flight instruction approved by the Court in Tatum has been refined to
As we understand the law of flight, it is to be considered in connection with all the other evidence in the case, and the jury will determine from all the facts whether this flight was from a conscious sense of guilt, or whether it was caused from other things, and give it such weight as the jury thinks it is entitled to, in connection with all the other evidence in the case.
Ransom,
¶ 24. Our flight-instruction jurisprudence was refined in Pannell v. State,
¶ 25. In a special concurrence in Pan-nell, Justice Robertson expressed a concern with flight instructions, calling for their abolition, but he failed to draw a single vote. Pannell
¶ 26. The United States Supreme Court addressed Justice Robertson’s concerns long before he penned his special concurrence, observing that an innocent may “hesitate to confront a jury” due to a want to avoid such consequences as the cost of defending a suit or the “popular odium of an arrest and trial.” Alberty v. United States,
While there is no objection to that part of the charge which permits the jury to take into consideration the defendant’s flight from the country as evidence bear*1189 ing upon the question of his guilt, ... [t]he criticism to be made' upon this charge is that it lays too much stress upon the fact of flight, and allows the jury to infer that this fact alone is sufficient to create a presumption of guilt.
Id. Less than a year later, the Supreme Court affirmed a flight instruction-stating that Alberty was not meant to
intimat[e] that the flight of the accused was not a circumstance proper to be laid before the jury as having a tendency to prove his guilt.... Indeed, the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt.
Allen v. United States,
¶ 27. As the Court of Appeals found, “the record provides no evidence that would support an independent reason or basis for Drummer’s flight from law enforcement.” Drummer v. State,
¶ 28. A flight instruction is not an impermissible comment on the evidence, but it can be a beneficial guide to jurors to not place undue weight on flight alone. When presented with evidence of flight, uninstructed jurors may convict a defendant simply because he fled from the scene of the crime. A properly drafted flight instruction can serve to protect innocents from jurors who might assign disproportionate weight to flight evidence by instructing jurors that they must consider all other evidence and may not rely solely on flight evidence.
¶29. We have reversed the giving of flight instructions for various reasons,
¶ 30. Likewise, Drummer’s argument on appeal that the flight provided the as-portation element of the offense of larceny, thereby providing an independent reason for flight, is without merit. As the Court of Appeals properly stated, “the asportation element of larceny is satisfied by even a slight movement of another’s property after one wrongfully takes possession and control of the property.” Drummer,
¶ 31. The Court of Appeals found no abuse of discretion and neither do we. The judgment of the Court of Appeals concerning the trial court’s giving of the flight instruction is affirmed.
¶ 32. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. COUNT I: CONVICTION OF GRAND LARCENY, AFFIRMED. SENTENCE OF TEN (10) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, VACATED AND THE CASE IS REMANDED FOR RESEN-TENCING. COUNT II: CONVICTION OF GRAND LARCENY, AFFIRMED. SENTENCE OF TEN (10) YEARS, AS A HABITUAL OFFENDER, IN THE
PART I: WALLER, C.J., LAMAR, CHANDLER AND KING, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART II AND DISSENTS IN PART I WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., PIERCE AND COLEMAN, JJ. COLEMAN, J., CONCURS IN PART II AND DISSENTS IN PART I WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON AND RANDOLPH, P.JJ., AND PIERCE, J.
PART II: WALLER, C.J., LAMAR, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., CONCURS IN PART I AND DISSENTS IN PART II WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. COLEMAN, J., CONCURS IN PART II AND DISSENTS IN PART I WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON AND RANDOLPH, P.JJ., AND PIERCE, J.
APPENDIX OF ALBERTY FLIGHT INSTRUCTION
Alberty v. United States,
You take into consideration, in other words, the facts and circumstances which led up to the killing, the facts and circumstances that transpired at the time of the killing; and you do not stop there, but you take into consideration the facts and circumstances as affecting the defendant subsequently to the killing. For instance, you take into consideration the defendant’s flight from the country — his going into another part of the country — as evidence; and you are to pass upon the question as to whether or not he has sufficiently explained away the presumption which the law says arises from flight when a man has taken human life. It is a principle of human nature-and every man is conscious of it, I apprehend — that, if he does an act which he is conscious is wrong, his conduct will be along a certain line. He will pursue a certain course not in harmony with the conduct of a man who is conscious that he has done an act which is innocent, right, and proper. The truth is — and it is an old scriptural adage — “that the wicked flee when no man pursueth, but the righteous are as bold as a lion.” Men who are conscious of right have nothing to fear. They do not hesitate to confront a jury of their country, because that jury will protect them. It will shield them, and the more light there is let in upon their case the better it is for them. We are all conscious of that condition, and it is therefore a proposition of the law that, when a man flees, the fact that he does so may be taken against him, provided he does not explain it away upon some other theory than that of his flight because of his guilt. A man accused of crime hides himself, and then absconds. From this fact of absconding, we may infer the fact of guilt. This is a presumption of fact, or an argument of a fact from a fact.
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Flight by a defendant is always relevant evidence when offered by the prosecution, and that it is a silent admission by the defendant that he is unwilling or unable to face the case against him. It is in some sense, feeble or strong, as the case may be,
Notes
. See Miss.Code Ann. § 97-9-72(2) (Rev. 2014).
. Drummer filed a motion for a speedy trial, and the trial court held a hearing on the motion on November 19, 2012. The trial court held that Drummer’s right to speedy trial was not violated, and Drummer has not raised this issue on appeal.
. Counsel for Drummer did not object to the timing of the motion to amend. When asked whether there was any surprise that Drummer was eligible to be tried as an habitual offender, counsel for Drummer stated that there was not.
. In order to obtain a larceny conviction, the State must prove that the criminal defendant had the "intent permanently to deprive the owner of his property.” Lewis v. State,
. This was raised by Drummer on appeal as Issue' Number One.
. At trial. Drummer presented no testimony and called no witnesses on his behalf. Drummer’s counsel objected to the giving of the flight instruction at trial due to a lack of connection between Drummer and the scene of the larcenies. The trial court determined that, because there was sufficient evidence of flight and because “there’s no explanation offered by the defense or anybody on the defendant’s behalf,” the instruction was warranted.
. On occasion, other justices have expressed concerns, centered on improperly given flight instructions leading to error and reversal in what were otherwise solid convictions. See Randolph v. State,
. For the complete content of the Alberty instruction, see the attached Appendix.
. In the presentence investigation, Drummer admitted he had three prior felonies: taking a motor vehicle, possession of stolen property, and felony fleeing.
. This Court approved a flight instruction on facts substantially similar to Drummer’s. In Sims,
had left the scene of the homicide and was several miles away, and his statement to the officers showed that he had run part of the way; and we think it was competent for the court to instruct the jury that they might consider the circumstance of flight in connection with the other evidence in the case in determining whether the defendant was guilty or innocent.
. For insufficient evidence, see States v. State,
. Our rules of evidence and caselaw allow evidence of unexplained flight if it is somewhat probative and does not fail the Rule 403 balancing test. " ‘Relevant Evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules.” M.R.E. 402. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. A trial judge determines if there is sufficient evidence of flight for it to be presented to the jury, and the judge may exclude flight evidence if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant from its introduction. See, e.g., Williams,
Concurrence Opinion
concurring in part two and dissenting from part one:
¶ 33. I am in accord with Justice Coleman in opining that the Lowndes County Circuit Court did not err in sentencing Drummer, based on a purely objective reading of Section 99-19-81. Thus I dissent to Part I of the majority opinion.
¶34. The statute provides the rule of law, and not a single habitual-offender case supports the majority’s innovative interpretation.
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
Miss.Code Ann. § 99-19-81 (Rev.2007).
¶ 35. A plain reading of these words in the order written leads to the conclusion that only the prior felonies are required to be separate and distinct from each other. “Every person convicted in this state of a felony” describes the present charge — the one for which the defendant may be sentenced as a habitual offender if the remainder of the statute is satisfied. The defendant must have twice previously been convicted of a felony or federal crime. The priors must have been separately brought and must have arisen out of separate incidents at different times. In other words, the priors must be separate and distinct from each other. Finally, the priors must each have resulted in a sentence of one year or more. If these elements are met, the trial court must sentence the defendant on the present charge to the maximum term of imprisonment prescribed by law.
¶36. The majority’s interpretation is alluring, but is available only by rearranging the King’s English and the clauses used in the statute.
¶ 37. A thorough review of our habitual-offender cases shows that all that is required is that the prior charges be separate and distinct from each other. There has never been a separate requirement that the present charge be separate from the priors. In Riddle v. State,
¶ 38. The defendant need only have two prior convictions at the time of his present trial; there is no requirement that the present offense have been committed after the prior conviction. Crawley v. State,
¶ 39. “It is clear the statutory phrase ‘at different times’ refers, albeit redundantly, to the incidents giving rise to the previous charges, and not to the date of conviction.” Rushing v. State,
¶ 40. Similarly, a defendant was previously convicted on two separate charges of uttering a forgery — she passed two separate checks on two separate consecutive days — but claimed they should have been considered the same incident for habitual-sentencing purposes. McCullum v. State,
The statute provides that one convicted of a felony may be sentenced as a recidivist upon proof that he or she has been “convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times.”
Id. ■ The Court’s emphasis on the quoted language further emphasizes that the “sep
¶ 41. A defendant presently charged with uttering a forgery had two prior convictions of burglary. Burt v. State,
¶ 42. In holding that concurrent sentences qualify as “separate terms,” the Court found a defendant who had been sentenced to concurrent seven-year sentences for his three prior felonies qualified as a habitual offender for sentencing purposes. Jackson v. State,
¶ 43. Allen Nicolaou killed a fellow inmate while in prison for two counts of murder, one count of armed robbery, and two counts of kidnapping. Nicolaou v. State,
¶ 44. The Court was then asked to reexamine Burt in determining how much time must elapse before two prior burglary convictions may qualify as “separate incidents” in order to sentence the defendant as a habitual offender for his present charge of another burglary. Pittman v. State,
All we are told is that the prior offenses must have arisen out of “separate incidents at different times,” and we must take the legislative language as we have been given it, not as we wish it were. It is well to reflect that, subject only to constitutional limitations, the legislative branch of government holds the exclusive power to provide punishments for crimes.
Id. (emphasis added). Pittman ’s language quoted in the Majority Opinion, Part One, paragraph eleven, (that Riddle’s prior offenses “arose out of a common temporal nucleus of operative fact and did not qualify as separate incidents at different times”) applies only in a Riddle-type situation, as thoroughly discussed in paragraph thirty-seven, supra.
¶ 45. The Court of Appeals then applied Pittman when it was asked to decide if prior convictions of aggravated assault and burglary that occurred within minutes of each other were sufficiently separate incidents to sentence the defendant as a habitual offender for his present robbery charge. Davis v. State,
¶ 46. This Court’s most recent case interpreting Section 99-19-81 is Garrison v. State,
¶ 47. More recently, the Court of Appeals decided a case on facts substantially similar to Riddle. A defendant was presently charged with manslaughter
¶ 48. Every case focuses on an analysis of the prior convictions. At the time of Drummer’s present charge and conviction of grand larceny, he had two prior felony convictions: felony flight in 2009 and unlawful taking of a motor vehicle in 2005. No one suggests that these two convictions are related to each other, but analyzing them under the statutory requirements reveals they are not. They were separately brought felonies. They occurred at different times and in different locations: the flight in Webster County and the felony taking in DeSoto County. They occurred prior to Drummer’s felony conviction, and each resulted in a prison term of at least one year. As the Burt court found, “It was not necessary for the state to prove anything more.” Burt,
¶ 49. Thus, as Justice Coleman, I cannot join Part I of today’s majority opinion. “This Court must be vigilant in its duty to strictly comply with the recidivism statutes enacted by the Legislature.” Garrison,
. When engaging in statutory interpretation, this Court’s duty is “to neither broaden nor restrict the legislative act.” Miss. Dep't of Transp. v. Allred,
. See White Cypress Lakes Dev. Corp. v. Hertz,
. The defendant initially was charged with murder, but he was found guilty of the lesser-included offense of manslaughter. He was being sentenced (the "present charge”) on the manslaughter .conviction as a habitual offender. Bergeron v. State,
Concurrence Opinion
concurring with part I and dissenting from part II:
¶ 50. Because I believe that the flight instruction should be abolished, I respectfully dissent from the Randolph majority’s conclusion that the flight instruction in this case was properly given to the jury.
¶ 51. The philosophical justification for a flight instruction is a belief that fleeing from a crime scene is proof of a guilty conscience. Pannell v. State,
[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that “the wicked flee when no man pursueth, but the righteous are bold as a lion.” Innocent men sometimes hesitate to confront a jury, not necessarily because they fear the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not*1197 wish to be put to the annoyance or expense of defending themselves.
Alberty v. United States,
¶ 52. Over time, this Court has narrowed the circumstances under which the State may be given a flight instruction. For more than two decades, we have held that prosecutors could obtain a flight instruction only if “that flight is unexplained and somehow probative of guilt or guilty knowledge.” Reynolds v. State,
¶ 53. But, even under these restrictions, the instruction has foundered. This Court rarely has held that a flight instruction properly was presented to the jury. See Fuselier v. State,
¶ 54. In Ervin v. State,
[W]ith the prosecutors having been duly warned on multiple occasions about the danger of submitting flight instructions, there can be no legitimate hue and cry from the State in the future if this Court ... reverses a criminal conviction based*1198 on the trial court’s improper grant of a flight instruction, which had been improvidently submitted by the prosecutor.
Id. (quoting States,
¶ 55. Even when properly administered, many discerning judges of this Court have been malcontented with prosecutors’ continued reliance on this instruction:
While I agree with the majority that the giving of the “flight instruction” was proper, based on the facts and circumstances of this particular case, and the applicable case law, the use of the flight instruction in this state can be described in one word — “dangerous.” In my years of experience as a trial judge, the flight instruction was very seldom requested by the prosecution and almost never given. It simply is not needed. While evidence of flight might be relevant, no legitimate purpose is served by the jury receiving an instruction from the trial court (which heightens the importance of the evidence in the eyes of the jury) highlighting for the jury the fact that the jury can consider evidence of flight as “a circumstance of guilt or guilty knowledge” when “that flight is unexplained and somehow probative of guilt or guilty knowledge.” The term “unexplained flight” is somewhat nebulous, anyway, and a trial court, by giving a flight instruction, simply puts itself in a position of possibly placing reversible error in an otherwise clean record. If a trial court persists in giving a flight instruction, I suggest that it do so with great caution.
Randolph,
¶ 56. But the greatest injustice rendered by the flight instruction is not the impact that it has on trials of the guilty but the fact that it can be used to impute guilt to the innocent. The United States Supreme Court in Alberty and this Court in Howard v. State,
¶ 57. The majority opinion on this issue, authored by Presiding Justice Randolph, does not assert that such instructions offer any redeeming benefit to our system of justice. Anecdotal examples of justices of this Court having approved these instructions in the past, or that prosecutors have not abused these instructions in every case
¶ 58. Instead, without supporting authority, the Randolph majority avers that “[a] properly drafted flight instruction can serve to protect innocents from jurors who might assign disproportionate weight to flight evidence by instructing jurors that they must consider all other evidence and may not rely solely on flight evidence.” (Maj. Part Two ¶ 28). In effect, the Randolph majority argues that innocent criminal defendants derive benefit from the jury’s being able to “infer guilt” from their flight. With utmost respect, this logic is far fetched and palpably speculative, and its only apparent virtue is to be found in its originality.
¶ 59. Ultimately, flight instructions are antithetical to a trustworthy and efficient justice system. In the best light, the prosecutor’s ability to obtain an instruction allowing for a jury to “infer guilt” from a guilty criminal defendant’s fleeing is cumulative to the State’s obligation to prove every element of an indicted offense beyond a reasonable doubt. This is to say that prosecutors obtain no benefit from a properly given flight instruction. Yet some continue to request flight instructions in cases in which they are not supported by the evidence, resulting in endangerment of otherwise valid convictions. Thus, those prosecutors who persist in asking for flight instructions impose a huge burden on the judicial system in exchange for no reciprocal benefit whatsoever. Most offensively, flight instructions can be used to impute guilt on innocent defendants, a fact which is intolerable to prevailing concepts of fairness and justice. Accordingly, because I would abolish the flight instruction and hold that its use amounts to manifest error, I respectfully dissent from the Randolph majority’s conclusion that the flight instruction in this case was appropriate.
Concurrence Opinion
concurring with part II and dissenting from part I:
¶ 60. The Circuit Court of Lowndes County did not err in sentencing Drummer as a habitual offender pursuant to Mississippi Code Section 99-19-81. The Court has never before held, as we do today, that the primary conviction for which a defendant is being sentenced must arise from a felony separate from one of the predicate felonies. In doing so today, we are using our judicial power to amend the statute to add a requirement the Legislature did not include. Accordingly and with respect, I dissent from Part I of the majority opinion, authored by Justice Kitchens. I concur with Part II of the majority, finding no error in the giving of the flight instruction and authored by Presiding Justice Randolph.
, ¶ 61. Section 99-19-81 requires only that the two predicate felonies be separate. The statute contains no requirement that either predicate felony arise “out of separate incidents at different times” from the primary felony, and in so holding today the majority writes into the statute a require
¶ 62. Mississippi Code Section 99-19-81 provides as follows:
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall hot be reduced or suspended nor shall such person be eligible for parole or probation.
Miss.Code Ann. § 99-19-81 (Rev.2007) (emphasis added). Accordingly, each sentence enhanced pursuant to Section 99-19-81 involves three felony convictions. First; there is the latest conviction, what I call the primary conviction, which is the conviction for which the sentence is being enhanced. In the instant case, the primary conviction is Drummer’s conviction for grand larceny. The other two convictions involved in every Section 99-19-81 conviction are what are commonly referred to as the predicate felonies, or the two convictions used as the basis under the statute for enhancing the sentence imparted for the primary conviction. In the instant case, the predicate convictions are the felony flight conviction from Webster County and a 2005 conviction in DeSoto County for Unlawful Taking of a Motor Vehicle. In the instant case, no party or member of the Court suggests the latter two are related.
¶ 63. The statute requires that the two previous convictions be for “any felony or federal crime upon charges separately brought and arising out of separate incidents at different times,” but contains no requirement that each predicate felony be separate from the primary. The only statutory, relational requirement attaching to the primary and predicate convictions is that the predicate convictions occur “previously.” Otherwise, each predicate felony may be “any felony or federal crime,” as long as they are separate from one another.
¶ 64. In prior cases before the Court in which the “separate incidents” requirement has been at issue, the question presented has been whether the two predicate convictions arise from separate incidents, not whether one of the predicate convictions arises from a separate incident than the primary conviction. In Pittman v. State,
¶ 65. In Riddle v. State,
¶ 66. On October 27, 1984, Allen Nico-laou murdered a fellow inmate in the Hancock County Jail, and the Circuit Court of Hancock County convicted him as a habitual offender of capital murder in Nicolaou v. State,
¶ 67. Only one case I found, Crawley v. State,
¶68. In response to my opinion, the majority quotes Buckley v. State,
¶ 69. As shown, not one of the above-discussed cases addressed whether — or contains a holding from the Mississippi Supreme Court that — the primary conviction must arise from a separate charge than either of the predicate convictions, and with all respect, the majority’s assertion that “this Court long has held that the predicate felonies must be separate from each other and from the felony for which the defendant currently is being sentenced” is inaccurate.
¶ 70. As the Pittman Court bemoaned, Section 99-19-81’s language implies a common sense premise, if only it had been tightly tailored to fit only that premise.... Three separate criminal acts suggest a likely-to-be-repeated habit of behavior such that the community ought intervene. But before such behavior should be labeled habitual, it would seem that the events should be sufficiently separate that the offender’s criminal passions may have cooled so that he has time to reflect, and if after such an interval the individual forms and actualizes a new criminal design, and then does so a third time, he should be met with all of the power of the public force.
Pittman,
[A]ll we are told is that the prior offenses must have arisen out of “separate incidents at different times,” and we must take the legislative language as we have been given it, not as we wish it were. It is well to reflect that, subject only to constitutional limitations, the legislative branch of government holds the exclusive power to provide punishments for crimes.
Id. at 1207 (citing Winters v. State,
¶ 71. Perhaps one could argue that the Legislature intended but overlooked requiring the same degree of separation for the primary and predicate felonies as required for the predicate felonies alone, but the Court should not shelter its decision to make judicial additions to a political statute by speculating that the language it would add was omitted by the Legislature due to oversight. “Unless it is unavoidable and clearly manifest, courts must not impute inadvertence to the Legislature, and especially in cases where such inadvertence would have to be inferred in the face of repeated enactments of the same statute.” Seward v. Dogan,
¶ 72. Whether it makes more sense or not for the majority to add to the statute a requirement omitted by the Legislature— that the primary and predicate convictions be for separate crimes — we stray beyond the borders of our constitutional authority in doing so.
¶ 73. Even if, as the majority assumes, the underlying conviction must be for a crime arising out of separate incidents at separate times than the primary conviction, I agree with the Court of Appeals’ excellent analysis leading to the conclusion that Drummer’s felony flight conviction is sufficiently separate from his grand larceny conviction for habitual offender purposes. Drummer v. State,
As in Garrison and Davis [v. State,850 So.2d 176 , 179-180 (¶¶ 13-15) (Miss.Ct.App.2003) ], the circuit court determined in the present case that Drummer’s predicate offense of felony flight arose from a distinct set of facts from his earlier larceny offenses, thereby constituting a completely separate offense from the larceny offenses. Our review also reflects that, although Drummer’s felony-flight and larceny offenses occurred on the same date, the offenses failed to arise from a common nucleus of operative fact. As reflected in the record, the crimes occurred at different times of day, occurred in different cities and counties, required different criminal intents, involved different victims, and required different elements of proof.
Our review of the record first shows that Drummer’s crimes occurred at different times of the day and in different cities and counties. As previously noted, Drummer’s larceny offenses occurred in Columbus, located in Lowndes County, and his conduct constituting the offense of felony flight did not begin until he ran a four-way stop sign in Mathiston, located in Webster County. Moreover, Officer Anderson only began pursuing Drummer after Drummer ran the stop sign. Instead of stopping in response to Officer Anderson’s police lights and si*1204 ren, Drummer led Officer Anderson on a high-speed chase. He then continued to flee from Officer Anderson until reaching the police blockade at the county line of Leflore County, where he finally crashed into a light pole and tried to hide inside a shed.
Drummer,167 So.3d at 1236-37 (¶ 45-46),2014 WL 3409099 , at *12 (¶ 45-46). The Court of Appeals also correctly held that, for purposes of proving guilt, Drummer had completed committing the crime of larceny before he committed the crime of felony fleeing.
Applying our precedent, we find that the evidence in the record shows that Drummer completed the offense of grand larceny upon his taking of Agri-Turfs property with the specific intent to wholly and permanently deprive the company of its property. See Catling v. State,45 So.3d 295 , 298 (¶ 10) (Miss.Ct.App.2010). Mississippi case law establishes that, to constitute the asportation of someone else’s property, the “carrying away” movement need not be substantial to be sufficient. Mapp [v. State], 248 Miss. [898, 904], 162 So.2d [642, 645 (Miss.1964) ]. “To remove [the goods] with the requisite felonious intent from one part of the premises to another, or from the spot or house where they were found, or even from one place to another in the same room, is a sufficient asportation.” Id. For example, in Harbin the supreme court found the evidence showing that the defendants hooked a chain to the victim’s car and towed the vehicle a mere three feet before abandoning the attempt to be sufficient to support their grand-larceny conviction. Harbin [v. State], 402 So.2d [360,] 361-62 [(Miss.1981) ].
As explained in Harbin:
There is a caption when the defendant takes possession; he takes possession when he exercises dominion and control over the property. There is an asportation when he carries away the property; any carrying away movement, however slight, even though it takes but a moment, is sufficient. Given an asportation, a larceny is committed even if the defendant for whatever reason abandons the property, or even if, because he is detected, his purpose in carrying away the property is frustrated.
Harbin,402 So.2d at 361 (quoting 3 Wharton’s Criminal Law, Larceny § 378 (1990)).
In further applying our precedent to the present case, we find that a “caption” and “possession” occurred when Drummer exercised dominion and control over Agri-Turfs trailer and lawnmower. An “asportation” occurred upon any movement of the stolen property by Drummer. This element was satisfied upon even the slightest movement of the property by Drummer, and as the record reflects, Drummer not only removed the property from Agri-Turfs premises but also from Lowndes County completely. Thus, Drummer successfully completed all the requisite elements of his grand-larceny offense before engaging in the criminal conduct of felony flight later that day in another city and county.
Drummer’s argument that his felony flight grew out of the asportation element of his larceny offenses overlooks the applicable case law establishing that even slight movement is sufficient for the completion of asportation. His argument also fails to acknowledge the continuing nature of a larceny offense even though commission of the crime is complete. “Our supreme court has long held that ‘larceny is a continuous offense and is being committed at all times dur*1205 ing which the thief deprives the owner of the stolen property of its possession.’ ” Walker v. State,96 So.3d 43 , 46 (¶ 12) (Miss.Ct.App.2012) (citing Walker v. State,188 Miss. 177 , 183,189 So. 804 , 806 (1939)).
Drummer,
¶ 74. The Court lacks the power under our constitutional framework to write into a statute language that the Legislature did not. Little v. Miss. Dep’t of Transp.,
. The two schools were connected by a corn-mon walkway. Pittman,