Rule 19.1 Proceedings at Trial

Comment Section (a) provides a presumptive method of proceeding at trial. Under section (a)(7), the court retains discretion to allow surrebuttal upon a showing of good cause. See Moody v. State, 841 So. 2d 1067, 1090 (Miss. 2003) (surrebuttal “is discretionary with the trial judge, who controls the manner and mode of examination of witnesses”). Pursuant to sections (a)(8) and (a)(9), the court will generally give final instructions to the jury before closing arguments of counsel in order to enhance jurors’ ability to apply the applicable law to the facts; the court may wish, however, to withhold giving necessary procedural and housekeeping instructions until after closing arguments. See Rules 22(f), 23.1(a), and 23.3(a).

Section (b)(1) continues the practice under former Rule 11.03 of the Uniform Rules of Circuit and County Court in cases involving enhanced punishment based upon prior conviction(s). A jury resolves the principal charge, then the court determines whether the defendant satisfies the requirements for enhanced sentencing. See, e.g., Nathan v. State, 552 So. 2d 99, 106 (Miss. 1989); Seely v. State, 451 So. 2d 213, 214-15 (Miss. 1984).

Section (b)(2)(A) is consistent with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in that facts which increase the penalty beyond the statutory maximum, other than prior convictions, must be found by a jury. See, e.g., Miss. Code Ann. § 41-29-142 (enhanced penalty based upon proximity to school, church, etc.); Miss. Code Ann. § 97-37-37(1) (general firearms enhancement); Taylor v. State, 137 So. 3d 283, 287 (Miss. 2014) (“Apprendi requires the jury to find not the sentence enhancement itself, but every fact required for the sentence enhancement to be imposed”) (emphasis in original); Brown v. State, 995 So. 2d 698, 703 (Miss. 2008) (“The existence of a church within 1,500 feet of Brown’s crime . . . is a fact that he was entitled to have determined by a jury”).

Section (b)(2)(B) addresses instances in which a prior conviction is an element of the principal charge. See, e.g., Miss. Code Ann. §§ 63-11-30(2)(c) (third and subsequent offense DUI), 97-37-5 (possession of firearm, etc., by a convicted felon), 97-37-37(2) (firearms enhancement applicable to “any convicted felon who uses or displays a firearm during the commission of any felony”). A criminal defendant is “indisputably entitle[d]” to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi, 530 U.S. at 477 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444

(1995) ). See also Smith v. State, 950 So. 2d 1056, 1060 (Miss. Ct. App. 2007). Therefore, when a prior conviction is an element of the principal charge, that fact must be determined by a jury. See Sallie v. State, 155 So. 3d 760, 762 (Miss. 2015) (“the jury must find the elements of the firearm enhancement beyond a reasonable doubt under Apprendi before a trial court may apply the enhancement”); Rogers v. State, 130 So. 3d 544, 550 (Miss. Ct. App. 2013); Rigby v. State, 826 So. 2d 694, 700 (Miss. 2002) (“This Court has repeatedly

held that prior DUI convictions are necessary elements of a felony DUI charge. Thus, they must be proven beyond a reasonable doubt to the jury”). That said, the defendant may stipulate to the prior conviction(s), and such a stipulation “should be submitted to the jury with a proper limiting instruction.” Rigby, 826 So. 2d at 702. In Rigby, the limiting instruction was addressed as follows:

[t]he instruction should explain to the jury that the prior DUI convictions should be considered for the sole purpose of determining whether the defendant is guilty of felony DUI and that such evidence should not be considered in determining whether the defendant acted in conformity with such convictions in the presently charged offense.

Id. Additionally:

[w]here evidence of a prior conviction is a necessary element of the crime for which the defendant is on trial (i.e., possession of firearm by a convicted felon), but evidence of the specific nature of the crime for which the defendant was previously convicted . . . , is not an essential element of the crime for which the defendant is on trial, as it is in DUI cases, the trial court should accept a defendant’s offer to stipulate and grant a limiting instruction.

Williams v. State, 991 So. 2d 593, 605-06 (Miss. 2008) (emphasis in original). See also Herrington v. State, 102 So. 3d 1241, 1248 (Miss. Ct. App. 2012) (“The jury did not need to know the details of Herrington’s prior convictions to reach a verdict on the charge of felon in possession of a weapon; it needed only to know that there was one prior felony conviction. The type of prior conviction has no probative value regarding whether Herrington was a felon in possession of a weapon”).