Notice Requirements

In order to inflict this enhanced penalty on you, the prosecutor must provide you with written notice that he or she intends to seek the penalty, by actually including this notice of intent as a separate part of your Indictment paperwork.  Because this is a sentencing enhancement, the fact that these additional penalties are being sought cannot even be mentioned in the guilt or innocence phase of the trial in front of the jury, to prevent the “hate crime” issue from influencing the jury’s consideration of the facts of whether you did it or not.

The Required Proceedings

If you are found guilty of the underlying offense, and the state has provided the proper notice of its intent to enhance (increase) your sentence under the hate crimes laws, the court must have a separate hearing to determine your sentence.  Unless you have pleaded guilty and waived your right to a jury, a jury (either the same one from your trial or a new one) must hear evidence from the state and be convinced beyond a reasonable doubt that:

1. the defendant perceived, knew, or reasonably should have known that the victim was within the class delineated; (race, color, ancestry, ethnicity, religion, national origin or gender)
2. the defendant maliciously and with specific intent committed the offense because the victim was within the class.

By statute, both you (your lawyer) and the state are allowed to present arguments for or against the enhancement.

Hate Crimes Penalties

If the state proves the above elements beyond a reasonable doubt, then the penalty for any given offense may be doubled.  Double jail.  Double fine.  Double stinks.

As a practical matter, the hate crime enhancement is used very rarely.  Obviously, even the connotation of a “hate crime” evokes emotion, passion, and politics, and usually both sides of a criminal matter want to avoid these factors if possible.  If you get caught up in a prosecution and receive notice of a sentencing enhancement under these laws, make sure your lawyer knows what to do.

There are SO many exceptions to this law.  First, the statute of limitations for conspiracy and falsely receiving aid from the government is five years.  And each of the following crimes is exempt from any limitation at all, because they have been determined by the state of Mississippi to be “so serious and the implications to public safety so great that prosecution should not be barred merely by the passage of time”: 

• murder
• manslaughter
• aggravated assault
• kidnapping
• arson
• burglary
• forgery
• counterfeiting
• robbery
• larceny
• rape
• embezzlement
• obtaining money or property under false pretenses or by fraud
• felonious abuse or battery of a child
• touching or handling a child for lustful purposes
• sexual battery of a child
• exploitation of children

Also, the statute is “tolled” (put on hold) where a person absconds or flees from justice or absents himself or herself from the state or jurisdiction or conducts himself or herself in such a way that he or she cannot be found by officers.  In other words, the two years stops running if you disappear, and starts again when you are found.  You can’t hide from it. 

The law changes frequently, so it is best that you contact a criminal defense lawyer if you believe you have a statute of limitations issue with your case.  Give me a call at 601-991-1099, or fill out my contact form at www.guthriefirm.com.  I will help you if I can.

For example:  You decide one day to go down the street breaking into houses and stealing whatever you can find.  You get caught, and are charged with three different counts of burglary of a dwelling, under § 91-17-23 of the Mississippi Code Annotated.  Each of those different counts carries a punishment of between 3 and 25 years in the penitentiary.  For this example, let’s pretend that you didn’t hire a good lawyer, and you are convicted of all three counts, and the judge sentences you to the maximum 25 years for each count.  At this point, the judge can order that the sentences run consecutively, in which case you will be sentenced to a total of 75 years, or the judge can order the sentences to run concurrently, in which case they will all run at the same time, and you will serve 25 years. 

Concurrently is better, yes?  Your lawyer must make sure that the judge puts this in the sentencing order specifically, because Mississippi courts have held that the absence of language in a sentencing order affirmatively indicating that sentences will run concurrently means that sentences will run consecutively.

The laws of sentencing in Mississippi require that if you are sentenced for a felony committed while on parole, probation, earned-release supervision, post-release supervision, or a suspended sentence, then there is no discretion by the Court, and any imprisonment you receive for the new felony will commence after you serve any revocation time for the preceding felony.

The sentencing laws are different in federal court, and all of this becomes incredibly complex if you have both federal and state charges at the same time.  It pays to have an experienced criminal lawyer work through these scenarios with you and keep you aware of all the possibilities.  If you need help with a sentencing issue give me a call at 601-991-1099 or email me at clarence@guthriefirm.com.

This is called an “alibi defense.”  Although an “alibi defense” is sometimes referred to as an affirmative defense, it is really just a denial that you committed the crime.  But Mississippi courts have said that it must be more than just a simple denial.  In order for it to be considered an alibi, the facts must be such that it would be physically impossible for you to be at the crime scene.  In other words, being in the next room at the time of the crime is probably not an alibi, but being in the next county is.  Even so, raising an alibi defense does not shift the burden of proof away from the prosecution having to prove every element of the crime against you.  In other words, you don’t have to prove that you were somewhere else; you simply can just raise the issue.  The prosecution will then have to disprove the alibi beyond a reasonable doubt.  

For this reason, Uniform Rule of Circuit and County Court Practice 9.05 requires the defense, upon written demand from the prosecution, to provide the places where the defendant was at the time of the crime, and the names and contact information of any witness that can confirm it.

I have used alibi defenses in some cases, with varying degrees of success.  For example, the defense of “I was with my battalion in Iraq at the time they say the crime was committed” is a very good alibi defense, whereas “I was at my Mom’s house in Flowood, and my Mom will come testify for me” is not as good, as you can imagine. 

But if you’ve been accused of a crime, you are going to want your lawyer to explore every possible defense you may have, and to exploit every weakness in the prosecution’s case.  If you need help with a criminal issue, give me a call at 601-991-1099.

Today, after deliberating for only ten minutes, the jury sent out a question to the Judge, asking “Could the state have called the defendant to testify?”  The answer is absolutely not, but the question itself is very interesting.

The Fifth Amendment to the U.S. Constitution says, plain as day, that “No person . . . shall be compelled in any criminal case to be a witness against himself.”  The Mississippi Constitution says “In all criminal prosecutions the accused . . . shall not be compelled to give evidence against himself.”  I have no doubt the jury was instructed along these lines before they were dimissed to begin deliberating, but as the jury was probably read pages and pages of instructions by the judge, they can be forgiven for missing this one, which was probably buried somewhere in the middle.

All that a question like that does for me is to confirm my belief in the jury trial as the best process for resolving conflict in this country.  Apparently the facts in the Hughes case are so close that the jury felt a compelling need to hear from the Defendant before reaching a verdict.  They needed to either hear the Defendant confidently and sincerely state that she didn’t do it, or they needed to witness her screwing up so bad on the witness stand that their decision to convict would be easier.  Unfortunately they are going to have to make their decision without Ms. Hughes’s testimony, or fail to reach a verdict.  It has been my experience that, even in cases where the evidence seems overwhelming, a jury of twelve people can find any number of things to think about before deciding someone’s fate.

The Hughes trial is a capital murder trial.  Ms. Hughes could be sentenced to death based on the outcome of this trial.  Now that we know that the Defendant’s testimony is obviously of great concern to this jury, imagine how important the decision was on whether or not she should take the stand.  Lots of drama in a criminal trial, and lots of important decisions to make.  In the end all we can hope for is that justice will be done.

But too bad, Mississippi has rejected the diminished capacity defense.  Mississippi courts have held time and again that only a true “insanity” defense offers any “mental defense” to a crime.  This is from the Mississippi Supreme Court: “[I]f a person, when sober, is capable of distinguishing between right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible and he may be convicted and sentenced for the crime.” Smith v. State, 445 So.2d 227, 231 (Miss.1984).

Mental issues are frequently a part of criminal cases.  Although diminished capacity is not recognized as a defense in Mississippi, there may be other ways that mental issues may be utilized in your defense.  To ensure that these issues are explored and used to their maximum effect in your case, give me a call and we’ll discuss.

If you or a family member have been arrested, or are under investigation  in the state of Mississippi and you need help,  give me a call at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

The general rule is that the police may search an arrested person and the area within their immediate control.  For safety reasons, when you are arrested, the police may search you, and your wallet, purse, or anything you have with you.  If you are in your kitchen, the police can probably search the kitchen, but not your whole house.  If you are arrested in your car, the police do not need a warrant to search the passenger compartment of the car (back seat, glove box, etc.), but they may need one to search the trunk.

But if the police pull you out of a club, or arrest you in your driveway, the area is limited as to where they can search without a warrant.

If you are arrested in your front yard, the police cannot go in your house at all.  But they are very good at getting what they want.  They may try to expand the scope of a permissible search by telling you that you can “go on back in your house and get your driver’s license, or leave some food for your dog.”  At that point they can escort you into the house, and can search and seize whatever may be in plain view.  They have just vastly expanded their ability to collect evidence on you, and you thought they were doing you a favor.

Search and seizure issues are a large part of criminal law.  But did you notice how I hedged this discussion with “probably,” “may,” and “In most cases”?  As with most everything, the law is going to be dependent on the facts of your specific case, so if you have  a potential search and seizure issue in Mississippi call me at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

You may be familiar with the term “statute of limitations.”  The statute of limitations sets forth the period of time, after certain events occur, that legal proceedings based on those events must be started.  If someone hits you with their car, you have a certain amount of time to either work it out with them, or file your lawsuit.  If you wait too long, your claim can be dismissed.  The same is true in criminal law.

In Mississippi, Section 99-1-5 of the Mississippi Code Annotated (Rev. 2001) states that most, but not all, crimes must be prosecuted within two years after the crime is alleged to have been committed.  DUI falls into this group.  A misdemeanor charge of DUI must be commenced within two years of the date of offense, or the charges can be dismissed outright.

As with most laws, there are exceptions that could apply depending on the facts of your case.  If you were charged with a DUI, and some time has passed, you should discuss this fact with a lawyer to see if the statute of limitations may be a possible defense.

See Part 4 of How to beat a DUI in Mississippi.

If you or a family member have been arrested for DUI in Mississippi and you need help, give me a call at 601-991-1099. If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

If, after seeing and hearing the available evidence, the judge finds enough to suspect you of committing the crime, then you will be ”bound over” to await the action of the grand jury.  What does that mean?  It means that you will have to wait a little while.  If you are in custody, and can’t get a bond, then you are stuck until the next time the grand jury meets.  In some counties the grand jury meets frequently.  In other counties you may have to wait several months.

People get confused and assume that the preliminary hearing is their trial, because sometimes it looks like a trial.  But it is important to remember that a preliminary hearing is not a determination of guilt or innocence.  It is merely a procedural right that you have, and most of the time you and your lawyer should take advantage of the opportunity to find out certain things about your case.

Six things to expect at your preliminary hearing:

1. Preliminary hearings are shorter than trials.
2. There will not be a jury at your preliminary hearing, only a judge.
3. The prosecution’s goal is to show “probable cause” at this hearing, not to get a conviction.
4. You probably won’t testify at this hearing.  Try to resist the urge to tell your side.  There will be a better chance to do that later.
5. The preliminary hearing is not a finding of fact.  It is very rare that a case is over at the conclusion of a preliminary hearing.
6. The ultimate goal of you and your attorney at your preliminary hearing is to find out as much about your case as you can.

If you or a family member have been arrested, or are under investigation in the state of Mississippi and you need help, give me a call at 601-991-1099. If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.