Willie Rushing v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-KA-01463-SCT
WILLIE RUSHING
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
12/03/2003
HON. JAMES T. KITCHENS, JR.
LOWNDES COUNTY CIRCUIT COURT
CARRIE A. JOURDAN
OFFICE OF THE ATTORNEY GENERAL
BY: JOSE BENJAMIN SIMO
FORREST ALLGOOD
CRIMINAL - FELONY
AFFIRMED - 09/22/2005
BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.
CARLSON, JUSTICE, FOR THE COURT:
¶1.
Willie Rushing went to trial in Lowndes County Circuit Court on a multi-count
indictment charging him with several acts of prescription forgery.
Following a jury verdict
finding Rushing guilty as to three counts of prescription forgery, the trial court entered
judgments consistent with the verdicts, subsequently sentenced Rushing as a drug recidivist to
three 10-year sentences to be served consecutively, and denied post-trial motions.
Rushing
now appeals to us from the trial court’s denial of his motion for a judgment notwithstanding
the verdicts, or in the alternative, for a new trial. Finding no reversible error, we affirm.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2.
On September 23, 2002, a man walked into Family Pharmacy in Columbus and
presented the on-duty pharmacist, Billy Bailey, with a purported prescription from Dr. Jim
Smith for Larry Somes for OxyContin, 40 milligrams.1
Bailey would later identify Willie
Rushing as the man who presented this prescription to him. Bailey recognized Rushing’s face
because Rushing had previously been in the pharmacy to have valid prescriptions filled. Bailey
filled this prescription.
Approximately two months later, on November 25, 2002, Rushing
again went to Family Pharmacy in Columbus and presented Bailey with a purported
prescription from Dr. Jim Smith for Larry Somes for OxyContin, 40 milligrams.
Once again,
the prescription was filled.
¶3.
On February 18, 2003,2 Rushing appeared at the Wal-Mart Pharmacy in Columbus and
presented to the on-duty pharmacist, Van Miles, a purported prescription from Dr. Jim Smith3
for Susan Rushing for Lortab, 7.5 milligrams.4
Rushing had likewise had valid prescriptions
previously filled at Wal-Mart; however, on this date, Miles became suspicious.
There were at
1
OxyContin is a very strong narcotic pain reliever similar to morphine. OxyContin contains oxycodone,
thus making it a Schedule II drug. Miss. Code Ann. § 41-29-115(A)(a)(1)(xiv) (Rev. 2001).
2
Although the record reveals confusing testimony as to whether the date was February 12, 2003, or
February 18, 2003, the later-to-be proven forged prescription, which was entered into evidence as Exhibit 1,
contains the date February 18, 2003.
3
This prescription, like the two prescriptions presented to Billy Bailey, had a heading of “Kemper
Family Medical Clinic” in DeKalb. Miles did not know at the time the identity of the doctor since he could
not read the signature on the prescription, but he later learned that day that the doctor in question was indeed
Dr. Jim Smith of DeKalb.
4
Lortab is a pain reliever which contains hydrocodone, thus making it a Schedule II drug. Miss. Code
Ann. § 41-29-115(A)(a)(1)(x) (Rev. 2001).
2
least two concerns Miles had about this prescription.
As Miles stated at trial, “[t]he refill
looks like it’s been wrote (sic) over and looks like it’s a photocopy underneath it.” Also, when
Miles keyed the doctor’s DEA number into the computer, the DEA number was not valid.
The
DEA number on the prescription was AS 3465902. Therefore, Miles telephoned the Kemper
Family Medical Clinic in DeKalb; however, the facility was closed.5
Miles knew a pharmacist
in DeKalb and thus telephoned this pharmacist who confirmed that Dr. Jim Smith of DeKalb
would be the doctor associated with Kemper Family Medical Clinic.
Upon obtaining Dr.
Smith’s telephone number from the DeKalb pharmacist, Miles telephoned Dr. Smith at his
home. Dr. Smith stated that his DEA number was AS 3465982. Miles then pulled from the
file a valid prescription which Rushing had previously brought in to be filled, and it indeed
contained DEA number AS 3465982, but, according to Miles, the “8" could have easily been
mistaken for a “0.” After conducting this inquiry, Miles informed Rushing that he would not
fill the prescription. Rushing then requested Miles to return this prescription he had attempted
to have filled, and Miles refused. When this seemed to not satisfy Rushing, Miles told Rushing
that “I can keep the prescription or we can call the law right here right now and y’all can talk
it out.” Rushing left.
¶4.
Unbeknownst to Rushing, after he left Miles and the Wal-Mart Pharmacy that day,
Miles telephoned the Narcotics Division of the Columbus Police Department to alert law
enforcement
as to Rushing’s suspicious activities.
5
The Columbus P.D. immediately
Although Miles testified that this event occurred on a Saturday; neither February 12, 2003, nor
February 18, 2003, fell on a Saturday. However, Miles firmly believed that the first occurrence about which
he testified was on a Saturday, thus the reason for the Kemper Family Medical Clinic being closed.
3
commenced an investigation of Rushing. Not lacking in persistence, Rushing returned to the
Wal-Mart Pharmacy on March 17, 2003, to get a prescription refilled.
Unfortunately for
Rushing, the ever-vigilant Van Miles was once again the on-duty pharmacist. Miles telephoned
the police and before the police arrived, Rushing left the store and Miles followed him out.
When Miles spotted a police officer, he hollered “there he goes,” pointing to Rushing,
whereupon Rushing was arrested and immediately Mirandized by Sergeant Larry Taylor, a
narcotics officer with the Columbus Police Department.
After being advised of his Miranda
rights,6 Lt. Peavey, who was also there on the scene, then inquired of Rushing as to what mode
of transportation he had used to get to Wal-Mart. Rushing, who was approaching a black vehicle
parked in the handicap zone with the engine running and the windshield wipers on, replied that
a man had driven him to Wal-Mart in a while Monte Carlo. Not being overly impressed with
Rushing’s response, Lt. Peavey ran a tag check on the black vehicle, which resulted in their
learning on the scene that the black car was registered to Susan Rushing, Willie Rushing’s wife,
who was in the car at the time, and who had just herself been released from prison.
Upon
conducting a search incident to Rushing’s arrest, the police found $5,886 in cash and various
pills on Rushing’s person, and upon conducting a search of the black vehicle, the police also
found six blank prescription forms on the back seat. One of the prescription forms contained
hand-writing and was covered with correction fluid to cover the writing. The other five blank
prescription forms appeared to be photocopies of the first.
6
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Manix v. State, 895
So.2d 167, 180 (Miss. 2005).
4
¶5.
After Rushing’s arrest, further investigation by law enforcement led Corporal Spence
Wallingford, a Columbus P.D. Narcotics Division officer, to the Family Pharmacy where he
learned from pharmacist Billy Bailey of the prescriptions which were filled for Rushing on
September 23, 2002, and November 25, 2002.
These two prescriptions were retrieved from
Bailey by Corporal Wallingford.
¶6.
On August 11, 2003, the Lowndes County Grand Jury handed down a four-count
indictment against Willie Rushing. The indictment alleged, inter alia, that Rushing, in Lowndes
County, Mississippi, did unlawfully, wilfully, and feloniously, knowingly and intentionally
transfer and deliver a forged prescription to (1) Van Miles on February 18, 2003 – Count 1;
(2) Van Miles on March 17, 2003 – Count 2; Bill Bailey on September 23, 2002 – Count 3;
and, Bill Bailey on November 25, 2002 – Count 4. On the day of trial, November 20, 2003,
Rushing, through counsel, filed a motion to sever counts.
Prior to commencement of voir
dire, the trial judge conferred with counsel regarding pre-trial matters, at which time Rushing’s
counsel informed the trial court of the just-filed motion to sever.
In response, the State,
through the assistant district attorney, informed the trial court and defense counsel, that the
State would not call up Count 2 for trial, but the State did oppose the motion to sever as to
Counts 1, 3 and 4, which the State argued could appropriately be tried together in accordance
with statute, uniform rule and case law.
The trial court denied Rushing’s motion to sever
counts, and also, over Rushing’s objection, the trial court granted the State’s motion to amend
the indictment to charge Rushing as a drug recidivist under Miss. Code Ann. § 41-29-147 (Rev.
2001).
5
¶7.
The case proceeded to trial as to Counts 1, 3 and 4.
In addition to pharmacists Van
Miles and Billy Bailey, and police officers Larry Taylor and Spence Wallingford, the State also
called Dr. Jim Smith, who confirmed that Rushing had been his patient for several years. Dr.
Smith recalled prescribing Lorcet 10/650, a pain pill, for Rushing, and possibly also Lortab
7.5. However when presented with Exhibit No. 1 (the February 18, 2003 prescription), Exhibit
No. 2 (the September 23, 2002 prescription), and Exhibit No. 3 (the November 19, 2002
prescription passed on November 25, 2002), Dr. Smith unequivocally stated that his signature
did not appear on these prescriptions, his DEA number did not appear on these prescriptions,
and he did not write or authorize these prescriptions.
¶8.
In Rushing’s case-in-chief, Wallingford, Taylor, and Miles were called to testify and
Rushing testified in his own behalf.
Rushing basically testified that the pharmacist, Billy
Bailey, simply misidentified him as the person who passed these forged prescriptions to him
because Larry Somes (the “patient” listed on the two prescriptions) was about the same age and
build as Rushing. As to the prescription for Susan Rushing which was presented to Van Miles
on February 18, 2003, Rushing stated that Susan was outside in the car at the time and it was
not unusual for he and Susan to have each other’s prescriptions filled. Rushing stated that if,
on February 18, 2003, he presented a forged prescription to Bailey, it was because he did not
have his reading glasses with him.
Specifically, as to all three prescriptions, Rushing testified:
Q. Did you knowingly pass a forged prescription for anyone?
A. Knowingly, I never took one. As you see, I wear glasses, and if I was handed
one to take in, it could have been a possibility because I wouldn’t know Dr.
6
Smith’s wasn’t the same handwriting if I had done that, but I don’t recall doing
that.
Rushing also admitted, however, that he could not dispute Dr. Smith’s testimony that he (Dr.
Smith) did not write the three prescriptions in question because, in Rushing’s opinion, Dr.
Smith was “a good man.” Rushing explained the large amount of cash found on his person at
the time of his arrest by stating that he bought and sold cars, and he dealt in cash, thus it was
not unusual for him to carry around as much as $25,000 in cash. Rushing also testified that he
did not know anything about the blank prescription forms found in Susan Rushing’s vehicle at
the time of his arrest.
Although Rushing lived in Savannah, Tennessee, he found nothing
unusual in having a physician in DeKalb, Mississippi, and filling prescriptions in Columbus,
Mississippi. In fact, Rushing admitted that on the day he was arrested, he and Susan had driven
from Savannah, Tennessee, to the Wal-Mart Pharmacy in Columbus, Mississippi, to have the
prescription filled.
¶9.
After the State’s rebuttal, the trial judge’s reading of the instructions to the jury, and
closing arguments from counsel, the jury retired to deliberate and in due course returned
verdicts of guilty as to all three counts of prescription forgery.
Although the maximum term
of imprisonment for prescription forgery is five years, since Rushing was charged as a drug
recidivist pursuant to statute, the trial court doubled the term of imprisonment and sentenced
Rushing, inter alia, to serve three 10-year sentences to run consecutively.
Ann. § 41-29-147 (Rev. 2001).
See Miss. Code
After the denial of post-trial motions, Rushing perfected his
appeal.
7
DISCUSSION
¶10.
Rushing, through counsel, assigns as error the trial court’s denial of his motion to sever
counts, and the trial court’s rulings on certain jury instructions. However, during the pendency
of this appeal, Rushing filed with us a pro se application to proceed in the trial court on a postconviction relief (PCR) motion. See Miss. Code Ann. §§ 99-39-1 et seq. (Rev. 2000). In his
PCR motion, Rushing claims that his convictions and sentences are illegal and that he received
ineffective assistance of counsel. Rushing subsequently filed a motion for voluntary dismissal,
without prejudice, correctly acknowledging that his application to proceed in the trial court on
a PCR motion was premature since his case was still pending on direct appeal. See Miss. Code
Ann. §§ 99-39-7, -27 (Rev. 2000). See also Connell v. State, 691 So.2d 1004, 1006 (Miss.
1997).
Thus, by an order previously entered by this Court, Rushing’s motion to dismiss his
PCR motion has been granted. Accordingly, we need not discuss Rushing’s pro se assertions
contained in his PCR motion. Likewise, we note that approximately four months after filing
his application to proceed in the trial court on a PCR motion, Rushing filed with us a document
entitled “Application for Leave to File Pro Se Supplemental Appellant Brief;” however, by
prior order, this application was denied.
I. WHETHER THE TRIAL COURT ERRED IN
DENYING RUSHING’S MOTION TO SEVER COUNTS IN THE MULTI-COUNT
INDICTMENT.
¶11.
Rushing asserts that the trial judge improperly denied his motion to sever the counts
in his indictment which had the practical effect of disallowing a separate trial before a different
jury as to each count. Rushing also asserts that this Court should apply a different standard of
8
review because of a procedural error committed by the trial court in conducting the pre-trial
hearing on the motion to sever.
¶12.
For issues of severance, this Court applies an abuse of discretion standard of review.
Brawner v. State, 872 So.2d 1, 6-7 (Miss. 2004). However, Rushing argues that in his case
today, this Court should apply a de novo standard of review because the trial court improperly
placed the burden on him to go forward at the pre-trial hearing on the motion to sever counts,
even though the State is required at such a hearing to present a prima facie case that the multicount indictment meets the requirements of the applicable statute and our case law.
¶13.
Mississippi law allows for both multi-count indictments and multi-offense trials under
certain circumstances.
In trials concerning multi-count indictments, severance is unnecessary
in Mississippi if the acts or transactions are connected together as part of a common scheme
or plan and if the indictment was otherwise proper.
Miss. Code Ann. § 99-7-2 (Rev. 2000)
states in pertinent part:
(1) Two (2) or more offenses which are triable in the same court may be
charged in the same indictment with a separate count for each offense if: (a) the
offenses are based on the same act or transaction; or (b) the offenses are based
on two (2) or more acts or transactions connected together or constituting parts
of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of
a single indictment, all such charges may be tried in a single proceeding.
The Mississippi Uniform Rules of Circuit and County Court Practice (URCCC) likewise
address multi-count indictments. The provisions of URCCC 7.07 (A.) & (B.) are identical to
the above statutory language. It is no surprise that the State and Rushing disagree as to whether
9
the multiple counts in the indictment were proper, or whether the circumstances of the
offenses warranted severance of the counts, thus necessitating a separate jury trial for each
count.
¶14.
Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), offers guidance to our trial courts
concerning the appropriate pre-trial procedure to follow when confronted with a motion to
sever offenses in a multi-count indictment.
In a Corley hearing, the State carries the burden
to make out a prima facie case showing the offenses charged are within the language of the
statute. Id. at 772. If the State meets its initial burden, the defendant may thereafter rebut the
State’s case by showing the “offenses were separate and distinct acts or transactions.” Id. In
Corley, this Court laid out three cornerstone considerations for the trial court: “whether the
time period between the occurrences is insignificant, whether the evidence proving each count
would be admissible to prove each of the other counts, and whether the crimes are interwoven.”
Id. By way of a footnote, we also stated that the issue of whether these offenses might be
admissible pursuant to Miss. R. Evid. 404(b) was totally irrelevant to the trial court’s
consideration of a motion to sever offenses in a multi-count indictment.
Id. n.1.
We will
review the trial court’s decision under an abuse of discretion standard if the trial court did in
fact follow this procedure. Id. Turning to today’s case, in relying on Miss. Code Ann. § 99-72(2), the State argued at the pre-trial motion hearing that all three counts could appropriately
be tried together.
While not exactly following the procedural guidelines suggested in Corley,
the trial court nonetheless heard from counsel for the State and Rushing, and in due course
10
denied Rushing’s motion to sever offenses and allowed the trial to proceed to trial on all three
counts.
¶15.
We stated in Corley: “If a trial court follows [the correct] procedure, this Court will
review the trial court’s decision under the abuse of discretion standard giving due deference
to the trial court’s findings.” Id. at 772 (citing McCarty v. State, 554 So.2d 909, 916 (Miss.
1989)). To fully address this issue, we refer to the record of the proceedings when this
outstanding motion to sever counts was brought to the trial court’s attention shortly before
commencement of voir dire on the morning of trial.
The following occurred outside the
presence of the jury venire:
BY THE COURT: All right. Since we do have a copy of the defendant’s motion
to sever, we can argue that one first and hear on that one first. Are you ready to
proceed on your motion, Ms. Jourdan [defense counsel]?
BY [DEFENSE COUNSEL]: Thank you, your Honor. Your Honor, I want to be
sure that I’m understanding the State’s position correctly so that I don’t misstate
anything. I think Ms. Hayes-Ellis [prosecutor] advised me that she would not be
proceeding on Count 2; is that correct?
BY [PROSECUTOR]: That’s correct.
prosecute on Counts 1, 3, and 4.
Your Honor, today the State intends to
BY THE COURT: All right.
BY [DEFENSE COUNSEL]: Your Honor, let me begin by saying that I filed a
fairly brief motion to sever, so I’m going to spend a little bit of time expounding
on it for the Court. First of all, your Honor....
Rushing asserts that the trial judge placed the burden on him to show why the offenses in the
multi-count indictment should be severed when the trial judge commenced the hearing by
inquiring of defense counsel as to “her position on severance.”
11
This assertion is incorrect.
A fair reading of the record reveals that all the trial judge did was to ask defense counsel if she
was “ready to proceed” on the motion to sever. The trial judge did not place upon Rushing the
burden of proving why the offenses should be severed.
Rushing, through counsel, chose to
take the lead and argue the motion first to the trial judge. There was no objection lodged by
Rushing’s counsel at the time, and in fact, Rushing’s counsel unhesitatingly commenced her
presentation of the motion when asked by the trial court if she was ready to proceed on the
motion.
A close reading of the record also reveals that the trial judge asked questions of
counsel for both the State and Rushing, and in fact, Rushing got two chances to argue to the
trial judge, with the prosecutor’s argument being sandwiched in between Rushing’s two
arguments. After the presentation by counsel for the State and Rushing, the trial judge issued
a detailed bench ruling on Rushing’s motion to sever, wherein he stated, inter alia:
The factors the Court must look at when confronted with a severance issue is the
time period between the offenses, whether the evidence proving each offense
would be admissible to prove the other counts, and whether the offenses are
interwoven. Here the State seeks to try Count 1 of an indictment that the
allegation is this occurred on or about the 18th day of February, 2003; Count 3
that the allegation is that this occurred on or about the 23rd day of September,
2002; and Count 4 that it occurred on or about the 25th day of November, 2002.
You’re talking from the 23rd day of September of 2002 until the 18th of
February, 2003, essentially about five months. All of these are alleged to have
occurred within about a five-month time period, the three that the State is
seeking to try. That is not an overly long time period. It’s not as if this has
occurred over the course of years. Five months is a relatively short period of
time.
The second factor the Court may consider or must consider is whether evidence
proving each offense would be admissible to prove the other counts. While the
Court does not know this case, but what I’ve heard from both and what I can tell
from the indictment is the same doctor is apparently going to be a witness in all
three counts. One pharmacist is a witness in at least two of the three counts and
12
then there is yet another pharmacist who is in Count 1, but the allegation was in
Count 2 that he was also in that. The State has indicated they are not going to
proceed on Count 2. It seems to be a fairly small universe of witnesses that will
be called in this case to try this case.
Finally, the last factor that the Court looks at is whether the offenses are
interwoven.
They are the same offense.
They are obtaining controlled
substances apparently by fraud and it does seem that this would militate, quite
frankly, in favor of trying these together because it’s not like he’s charged with
murder that occurred February of 2003 and in 2002 of September he’s charged
with child abuse or child molestation or rape or something totally different. The
State has alleged that there is a common scheme or plan. That is something that
the Court is supposed to look at and that’s what the Mississippi Supreme Court
has said in Ott versus State, 722 So2d 576. That’s a 1998 Mississippi case. The
allegation here is that there is some kind of scheme or plan that Mr. Rushing had
adopted to be able to cash or to distribute these prescriptions. The defendant
argues that he has separate offenses – some that he was allowed to pass; some
he did not pass. The Court does not see how trying these together will deprive
him of those defenses.
The trial court again observed that these three offenses occurred within a five-month period,
and the trial court likewise observed that the evidence concerning each of these three offenses
would involve basically the same witnesses, and that all three offenses were alleged to have
occurred within the city limits of Columbus. In the end, the trial court denied Rushing’s motion
to sever. From our review of the record, we can thus conclude with confidence that the trial
court did not misapply our recommended procedures as discussed in Corley.
Therefore, we
will review the trial court’s decision on Rushing’s motion to sever under an abuse of discretion
standard, affording due deference to the trial court’s findings. Corley, 584 So.2d at 772.
¶16.
In discussing the propriety of the trial court’s denial of Rushing’s motion to sever, we
find that the trial court properly allowed the single trial based on the merits of the arguments
after weighing the three Corley considerations.
13
First, for a multi-count trial to be proper, the
trial judge must determine that the time period between the occurrences is insignificant.
The
time period involved here is five months. The trial judge found that five months was “not an
overly long time period.”
Rushing argues otherwise, citing numerous cases where this Court
dealt with shorter time periods involving different offenses in multi-count indictments.
See,
e.g., Patrick v. State, 754 So. 2d 1194 (Miss. 2000) (separate counts of burglary, armed
robbery, aggravated assault, and grand larceny occurring within seven hours of each other were
properly tried together); Ott v. State, 722 So. 2d 576 (Miss. 1998) (multi-counts of drug
offenses occurring in one day were properly tried together); McCarty v. State, 554 So. 2d 909
(Miss. 1989) (trial judge abused his discretion by refusing to sever two counts of burglary
committed two days apart and on two different homes); Gray v. State, 549 So. 2d 1316 (Miss.
1989) (eight counts of making harassing phone calls committed on different victims with
different subject matter and occurring two weeks apart were not part of a common scheme or
plan).
Rushing even cites two cases with comparable or longer time periods than the one
involved here. In Eakes v. State, 665 So. 2d 852, 861-62 (Miss. 1995), we found five months
between the first and last counts of sexual crimes insignificant where only one victim was
involved, but also considered that the crimes were the “same type of act.” In Allman v. State,
571 So. 2d 244, 248-49 (Miss. 1990), this Court found a nine-month time span did not justify
severance when the acts of child rape were committed by the same defendant upon the same
victim.
14
¶17.
Rushing attempts to distinguish these cases from the facts in his case by pointing out
that there were common victims in the above-mentioned cases, whereas, in his case, there was
no common victim and thus the five-month time frame becomes more significant. Whether the
victim is common to all crimes has never alone been a factor to determine questions of trials
involving multi-count indictments.
Additionally, the fact that the pharmacy or manufacturer
of the prescription drugs lost no money when these prescriptions were obtained through
forgery is an immaterial consideration here.
Though five months may be too long a period of
time for certain crimes to retain their character as being part of a common scheme or plan, this
is not so in this case. The five-month time frame does not alone warrant severance in this case
when the first two offenses are almost identical and the third offense bears such a strong
resemblance to the first two.
Combined with the evidence of blank prescriptions forms found
at the scene, the five-month span is insufficient to say the offenses were separate and distinct
actions or transactions. While we agree with Rushing that “there is no bright line test as to the
amount of time that is significant or insignificant” when considering motions to sever
counts/offenses, we refuse to attempt to create a bright line test where the law clearly views
the time together with the other factors.
Rushing
also concedes, “The time factor has to be
looked at with regard to the totality of the events.” When reading the Corley factors together
with regard to the totality of the events, the trial judge did not abuse his discretion in finding
that five months was not such a significant amount of time so as to require severance. The first
Corley consideration is met.
15
¶18.
Second, the trial judge must determine if the evidence proving each count would be
admissible to prove each of the other counts. As the State correctly points out, the source of
evidence in this case is limited.
The witnesses consisted of the arresting officer, the
investigating officer, the two pharmacists, and Dr. Smith.
All the witnesses except the two
pharmacists were witnesses for all three counts of the indictment. One pharmacist testified
concerning Count 1, while the other pharmacist testified as to Counts 3 and 4. The total
physical evidence at trial consisted of the blank prescription forms, one valid prescription, the
forged prescriptions given to Miles and Bailey, and various pills found on Rushing at the time
of the arrest.
All of this physical evidence would have been admissible in any single trial of
one of these counts if the offenses had been severed. As this Court pointed out in Ott, the
Mississippi Rules of Evidence allow the admissibility of evidence of other offenses to prove
intent, preparation, and plan. 722 So. 2d at 581. “Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show that he acted in
conformity therewith.
It may, however, be admissible for other purposes such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Miss. R. Evid. 404(b). Without question, the total evidence in this case would have
been admissible in separate trials of each count. The second Corley consideration is met.
¶19.
Finally, the trial judge must find that the crimes are interwoven.
Succinctly stated,
these counts involve too many similar factors when viewed together, to be anything but clearly
linked and part of the same common scheme or plan. The crimes here are clearly interwoven.
16
See Neal v. State, 451 So.2d 743, 758-59 (Miss. 1984).
The third Corley consideration is
thus met.
¶20.
In Corley, this Court was clear concerning its policy against trying unrelated counts in
a single trial.
We have been, and remain, unwilling to allow separate and distinct offenses to
be tried in the same criminal proceeding. We do so in order to avoid potential
problems of a jury finding a defendant guilty on one unproven count due to proof
of guilt on another, or convicting a defendant based upon the weight of the
charged offenses, or upon the cumulative effect of the evidence.
584 So. 2d at 772. This Court remains faithful to the principle that a jury should not find the
defendant guilty of at least one offense, simply because he is charged with so many. However,
this strong policy consideration is not in danger here. The evidence offered at trial by the State
was not to establish that guilt of one offense automatically equals guilt of all of the offenses,
but rather to show a common scheme or plan on Rushing’s part.
Simply put, these offenses
were separate and distinct acts or transactions in this case.
¶21.
For these reasons, we find that the trial court did not abuse its discretion in refusing to
sever the three counts of forged prescription as alleged in Rushing’s indictment.
Therefore,
we find this issue to be without merit.
II.
¶22.
WHETHER THE TRIAL COURT ERRED IN ITS
INSTRUCTIONS TO THE JURY SO AS TO PREJUDICE
RUSHING’S RIGHTS TO A FAIR TRIAL.
Rushing asserts that the trial court erred in granting Instruction S-5 as submitted by the
State, and that the trial court further erred in failing to sua sponte give a limiting (cautionary)
instruction informing the jury as to the limited purpose for which the jury could consider the
17
evidence concerning the two prescription drugs found on Rushing’s person at the time of his
arrest.
A. Trial court’s granting of Instruction No. S-5.
¶23.
Rushing complains of an aiding and abetting instruction (No. S-5) which was submitted
by the State and granted by the trial court. Instruction No. S-5 stated:
The Court instructs the Jury that under the laws of Mississippi anyone who aids,
assists, or encourages in the commission of a crime is deemed a principal to
that crime, and is just as guilty as if he committed the crime himself. Therefore,
if you find from the evidence in this case beyond a reasonable doubt that the
defendant, WILLIE RUSHING, aided, assisted and encouraged another or others
in the forgery of the prescriptions by carrying those prescriptions to the various
pharmacists and presenting them to be filled, then the defendant is a principal
to those offenses under the laws of the State of Mississippi.
¶24.
In reviewing a trial court’s grant or denial of jury instructions, our standard of review
is that we do not read the jury instructions in isolation, but instead we read them as a whole.
No one instruction is to be read alone or taken out of context. Young v. State, 891 So.2d 813,
819 (Miss. 2005); Hawthorne v. State, 835 So.2d 14, 20 (Miss. 2003); Woodham v. State,
800 So.2d 1148, 1156 (Miss. 2001). “A defendant is entitled to have jury instructions given
which present his theory of the case.
However the trial judge may also properly refuse the
instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered
in another instruction or to be without proper foundation in the evidence of the case.” Young,
891 So.2d at 819-20 (quoting Howell v. State, 860 So.2d 704, 761 (Miss. 2003) (quoting
Thomas v. State, 818 So.2d 335, 349 (Miss. 2002) and Humphrey v. State, 759 So.2d 368,
380 (Miss. 2000)).
When reading the instructions as a whole, we must determine whether the
18
jury was properly instructed. Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.
1993). This proposition stands even when one specific instruction is arguably faulty.
“Defects
in specific instructions do not require reversal ‘where all instructions taken as a whole fairly
– although not perfectly – announce the applicable primary rules of law.’”
Id. (citations
omitted).
¶25.
In reading not only Instruction No. S-5, but all the jury instructions, as a whole, it is
clear that Rushing’s jury was not unfairly or erroneously instructed.
The record of the jury
instruction conference reveals that when the trial judge called up Instruction No. S-5 for
discussion, the following occurred:
BY [DEFENSE COUNSEL]: Um, your Honor, I believe I would object to this
because I don’t think there’s evidence in the case to support this jury instruction.
BY THE COURT: State?
BY [PROSECUTOR]: In response your Honor, the defendant, if I understand his
defense in this case to Count 1 is that I didn’t do it, but if I did do it, I did it
because my wife gave it to me and I took it in there.
BY [DEFENSE COUNSEL]: Your Honor, he was asked that question point blank
and he said no.
BY THE COURT: The Court recalls the testimony being that he did not pass
these scrips, but then he indicated on cross-examination that if he did take them
in there and if they had been forged, someone else would have been done it (sic)
but he got these scrips from his wife; and he also unsolicited indicated to the
jury that his wife had just gotten out of the penitentiary for doing this same
thing. That was unsolicited when you asked him on direct examination.
BY [DEFENSE COUNSEL]: Your Honor, but the burden of proof is on the State
and the State is seeking a jury instruction on something that they didn’t produce
any evidence or any witnesses of any conspiracy at all.
19
BY THE COURT: I know, but the evidence seemed to have come from your
client. Whether it comes on direct examination by the State’s witnesses or by
the defense witnesses, at the end of the case I’ve got to look at all the evidence
that’s before the jury and the jury – now, he was very careful to say, I’m not
accusing her of doing this, but he said she’s the one that took me to the store to
get these drugs and she’s the one that handed me these prescriptions, and oh, by
the way, she just got out of prison for doing this same thing. Not in that
particular order, but that was the gist of his testimony. I find that there is
sufficient evidence that a jury could find this and I will give this instruction.
¶26.
The trial court correctly recalled the gist of Rushing’s testimony.
At least as to Count
1, regarding the passing of the prescription to pharmacist Van Miles on February 18, 2003,
without Instruction No. S-5, the jury could have been left confused as to the legal culpability
of Rushing under our state law since the jury knew that Susan was outside in the car and
Rushing was at least inferentially trying to leave the impression with the jury that he was acting
on behalf of Susan. Instruction No. S-5 was not peremptory in nature, and it did not mandate
the jury’s finding of guilt if the jury found Rushing to have aided and assisted others (such as
Susan). This instruction only explained to the jury that an aider and abetter was deemed under
our law to be a principal to the offense. The instruction informed the jury that if the jury found
from the evidence beyond a reasonable doubt that Rushing “aided, assisted and encouraged
another or others in the forgery of prescriptions by carrying those prescriptions to the various
pharmacists and presenting them to be filled,” then Rushing was a principal to the offenses
under Mississippi law.
¶27.
Instruction Nos. S-2, S-3 and S-4 were the elements instructions for the three indicted
crimes, and these three instructions were identical in their language, except for the date of the
offense and the name of the pharmacist. Instruction No. S-2 was the elements instruction for
20
the February 18, 2003, encounter with Van Miles at Wal-Mart. Via this instruction, the jury
was informed that in order to find Rushing guilty of passing a forged prescription on this
occasion, the jury had to find from the evidence beyond a reasonable doubt that Rushing did
“unlawfully, wilfully, feloniously, knowingly and intentionally transfer and deliver to Van
Miles, a pharmacist, a prescription upon which the name of Dr. Jim Smith, a licensed medical
practitioner, had been forged.”
¶28.
The jury was informed, inter alia, by way of Instruction No. C.01, that the jury was “not
to single out one instruction alone as stating the law, but you must consider these instructions
as a whole.” The jury was also informed via Instruction No. S-1 (the form of the verdict), that
as to each of the three counts, the jury must consider each count separately, that each count
was a separate case, and that separate verdicts of either guilty or not guilty (or unable to reach
a verdict) should be rendered in each count.
¶29.
All of the instructions, when read together and considered as a whole, make it clear that
Rushing was to be found “guilty as charged” only if the jury found beyond a reasonable doubt
that Rushing committed all of the elements of the crime of prescription forgery, namely that
he “knowingly or intentionally” passed a “forged prescription of a practitioner” to the
pharmacists involved in this case. See Miss. Code Ann. § 41-29-144(2) (Rev. 2001). We find,
without question, that the jury instructions in this case, when read together, appropriately
informed the jury of the applicable law.
Even if we were to find by some stretch of the
imagination any error in Instruction No. S-5, which we do not, this Court has held that failure
of one instruction to set out properly a necessary element of a crime is not error when the
21
element is correctly included in other instructions.
Gray v. State, 487 So. 2d 1304, 1308
(Miss. 1986).
¶30.
For the foregoing reasons, we find that the trial court appropriately granted Instruction
No. S-5; therefore this issue is without merit.
B. Trial court’s failure to sua sponte give a limiting (cautionary) instruction.
¶31.
In the final two paragraphs of his brief, Rushing raises an issue of the trial judge’s being
required to submit limiting instructions sua sponte to the jury regarding the evidence of the
prescription drugs found on his person at the time of the arrest. In making his assertion that
the trial judge should have sua sponte given a limiting instruction to the jury, Rushing relies
on Smith v. State, 656 So. 2d 95, 99 (Miss. 1995), where this Court held that admission of
evidence of prior acts allowed pursuant to Miss. R. Evid. 404(b) required the trial judge in
certain circumstances to sua sponte instruct the jury as to the limited consideration that the
jury may give to such evidence. However, Rushing acknowledges our recent decision in Brown
v. State, 890 So.2d 901, 913 (Miss. 2004), overruling Smith as to the requirement of the trial
judge to sua sponte give a limiting instruction after receiving Miss. R. Evid. 404(b) evidence.
¶32.
In Smith, we see the culmination of this Court’s long struggle with convictions secured
under our “possession (of drugs) with intent (to sale/distribute) laws.” See Miss. Code Ann.
§ 41-29-139(a) (Supp. 2004). How does the State reach into a defendant’s mind and prove
intent? In Smith, we stated:
22
Nevertheless, we must be mindful of our rules. We have promulgated M.R.E.
105 which clearly contemplates that restrictive instructions be given upon
request and as the Comment acknowledges, that in the absence of a request,
there is no error. M.R.E. 105 and Comment. We are loath to reverse for plain
error in the face of a rule so clear. We say for the future, however, that
wherever 404(b) evidence is offered and there is an objection which is
overruled, the objection shall be deemed an invocation of the right to MRE 403
balancing analysis and a limiting instruction. The court shall conduct an MRE
analysis and, if the evidence passes that hurdle, give a limiting instruction unless
the party objecting to the evidence objects to giving the limiting instruction.
656 So.2d at 100.
While there is no doubt that this Court in Smith was focusing on cases
involving evidence of prior drug sales of a defendant to prove the “intent” element of
“possession of drugs with intent to sale/distribute,” the language in Smith is admittedly
unqualified as to its applicability in all cases involving Rule 404(b) evidence.
However, in
Brown, we once and for all laid this issue to rest when we stated:
Today we abandon Smith’s requirement that a judge issue a sua sponte limiting
instruction and return to the clear language of Rule 105. The rule clearly places
the burden of requesting a Rule 404(b) limiting instruction upon counsel. The
rule is controlling, and to the extent that Smith and its progeny contradict that
plain language they are overruled.
890 So.2d at 913.
¶33.
Rushing reads Brown correctly to note that it changed the rule pronounced in Smith,
but argues that Smith was still in effect at the time of his trial and thus required the trial court
in today’s case to sua sponte give a limiting instruction to the jury regarding the 404(b)
evidence found on his person at the time of the arrest, namely the actual prescription drugs.
However, there is one problem with Rushing’s request.
argument on this issue:
23
Here is the sum total of Rushing’s
The trial court did not give a limiting instruction related to this evidence. This
trial was conducted November 20th and 21st, 2003. At that time, the opinion in
Brown v. State, 890 So.2d 901 (Miss. 2004), had not been issued. Therefore,
the law that required the trial court to sua sponte give a limiting instruction,
regardless of whether the Defendant requested such an instruction, mandated by
Smith v. State, 656 So.2d 95 (Miss. 1995), was still the law applicable to the
trial court. The Supreme Court, until the Brown decision, had reversed some
convictions based on the absence of the limiting instruction relying on the
mandate in Smith. Brown, in plain language, overrules Smith and its progeny,
and re-established the rule that the burden of seeking a Rule 404(b) limiting
instruction was on defense counsel. As this area of the law has proven unsettled,
the Defendant seeks to preserve this error in case this Court re-establishes the
Smith or similar rule.
In essence, Rushing requests that we now engage in a “retroactive/prospective” discussion to
determine whether Brown or Smith applies to his case; however, while we know what Rushing
requests of us, he offers no citation to any authority, much less any relevant authority to
undergird his position. We have repeatedly held that when a party on appeal raises an issue for
us to consider but nonetheless fails to cite any authority to support his or her argument on this
issue, we need not consider it. Byrom v. State, 863 So.2d 836, 880 (Miss. 2003) (quoting
Simmons v. State, 805 So.2d 452, 487 (Miss. 2001) (citing Williams v. State, 708 So.2d
1358, 1362-63 (Miss. 1998)). See also Brown v. State, 798 So.2d 481, 494 (Miss. 2001);
Evans v. State, 725 So.2d 613, 691-92 (Miss. 1997).
Accordingly, we decline Rushing’s
invitation to engage in a retroactive/prospective analysis to ascertain the applicability or
inapplicability of Smith or Brown to his case. This issue is thus without merit.
24
CONCLUSION
¶34.
For the foregoing reasons, the Lowndes County Circuit Court’s judgment is affirmed.
¶35. CONVICTION OF THREE COUNTS OF PRESCRIPTION FORGERY AND
SENTENCE OF TEN (10) YEARS FOR EACH COUNT IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY A FINE OF $1,000 FOR EACH
COUNT AND ALL COSTS OF COURT FOR EACH COUNT,
AFFIRMED.
SENTENCES SHALL RUN CONSECUTIVELY.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND
RANDOLPH, JJ., CONCUR.
GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
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