Tony Harper v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-KA-00758-COA

TONY HARPER APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/11/2022
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY: JODY EDWARD OWENS II
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; REMANDED -
03/11/2025
MOTION FOR REHEARING FILED:

EN BANC.

EMFINGER, J., FOR THE COURT:

¶1. Tony Harper was indicted in Hinds County, Mississippi, and charged with three

counts of culpable negligence manslaughter and one count of felony fleeing from law

enforcement. He was tried and convicted of all four counts in the indictment. Harper appeals

only his conviction for felony fleeing law enforcement.1

FACTS AND PROCEDURAL HISTORY

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Harper does not challenge his convictions of culpable negligence manslaughter, and
we do not disturb them.
¶2. On January 13, 2017, the Hinds County Sheriff’s Department set up an administrative

checkpoint in an area where people reported drag racing. Sheriff’s Deputy Jonathan Smith,

who later became a Mississippi Highway Patrol trooper, testified that a blue truck

approached the checkpoint and did not obey the deputies’ orders to stop. Smith shined his

flashlight into the truck as it passed by and was able to identify the driver. Instead of stopping

at the checkpoint, the driver accelerated past the deputies manning the checkpoint, almost

striking one of them. Smith got into his vehicle, turned on his blue lights and siren, and began

a nearly four-mile pursuit. Smith estimated that during this time, the blue truck reached

speeds of more than eighty miles per hour (mph) in a thirty-five mph zone. Smith also

witnessed the truck driving on the wrong side of the road and driving erratically. After seeing

the truck become airborne, Smith immediately used his radio and called off the pursuit. Smith

also testified that he turned off his blue lights and sirens at this time. Smith, along with

several other deputies who had been assisting with the pursuit, met in a nearby Walgreens

parking lot. The deputies talked for several minutes about the incident, and then they all got

back into their vehicles to return to the original checkpoint area. On their way back, the

deputies came upon blue lights and a traffic accident involving a blue Chevrolet Silverado

and a silver Pontiac Grand Prix. Smith identified one of the wrecked vehicles as the blue

truck involved in the earlier pursuit.

¶3. Mississippi Highway Patrol Officer Vincent Hughes testified that on the date of the

accident, he was employed by the Jackson Police Department as a patrolman. He was

patrolling the area of a funeral home when he was flagged down by the funeral director and

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others. They told Hughes a big wreck had just occurred down the road. Hughes was the first

person to arrive at the accident scene where a truck and car had collided. He identified the

vehicles as a Chevrolet Silverado and a Pontiac Grand Prix. The male driver of the Grand

Prix was hanging out of the passenger side door, unresponsive. Two female occupants from

the Grand Prix were lying unresponsive outside of the vehicle. The driver of the blue truck

was hanging out of the driver’s side door, and a passenger from the truck took off running.

At that point, Hughes called for an ambulance and extra police units. Hughes testified that

the passenger who ran from the truck was later apprehended near the scene of the accident.

The passenger told officers that Harper drove through the checkpoint, took off, and would

not stop. Hughes also identified Harper as the driver of the truck.

¶4. Jackson Police Officer Michael X. Outland Sr., testified at trial as an expert in the

field of accident reconstruction. Outland was called to the scene of the accident, and he

gathered the evidence needed to determine how the accident occurred. Outland testified that

based upon his investigation, Harper was traveling at a speed of ninety-four mph with his

lights off when he struck the Grand Prix driven by Virgil Kyles. The Grand Prix was hit at

the junction of the driver’s side front and back doors while Kyles was making a left turn

across Harper’s lane of travel.

¶5. Dr. Mark LeVaughn with the State Medical Examiner’s Office testified as an expert

in the field of forensic pathology. He conducted post-mortem examinations on the bodies of

Kyles and his passengers, Rose Coleman and Carolyn Conerly. Dr. LeVaughn testified that

all three people died from the injuries they suffered as a result of the motor vehicle accident.

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¶6. Harper was initially arrested on January 17, 2017, and charged with three counts of

second-degree murder. A Hinds County grand jury returned an indictment on April 17, 2017,

which charged Harper with three counts of culpable negligence manslaughter. Harper was

later re-indicted by a Hinds County grand jury and charged with three counts of culpable

negligence manslaughter and one count of felony fleeing law enforcement by an indictment

filed on October 25, 2019.

¶7. On May 13, 2020, Harper moved to dismiss the felony fleeing charge, arguing that the

prosecution for that offense was not commenced within two years of the crime and that the

prosecution was barred by the two-year statute of limitations.2 The record is unclear, but at

some point prior to trial, the motion was denied. However, a written order was never entered.

Harper’s trial began on March 28, 2022. Because no written order was entered, his new

defense counsel brought the motion back before the court for a ruling. A discussion between

the State, the defense, and the trial judge appears in the record showing the State argued that

the motion had already been denied. The case proceeded to trial. At the close of the State’s

case-in-chief, the defense moved for a directed verdict as to felony fleeing again because the

prosecution did not start within two years of the date of the offense. The trial court denied

the motion, and Harper was convicted of all four counts in the indictment. For each of the

three convictions of culpable negligence manslaughter, Harper was sentenced to three

concurrent terms of twenty years in the custody of the Mississippi Department of Corrections

(MDOC), with five years suspended and fifteen years to serve. For his conviction of felony

2
See Miss. Code Ann. § 99-1-5 (Rev. 2020).

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fleeing law enforcement, he was sentenced to serve five years in MDOC’s custody

consecutively to the other three sentences. Harper filed a motion for judgment

notwithstanding the verdict (JNOV) alleging once again that the prosecution for felony

fleeing was barred by the two-year statute of limitations. The trial court denied the motion

by an order entered on June 30, 2022. Harper appeals with the sole argument that his

prosecution for felony fleeing law enforcement was not commenced within two years of the

date of the offense and is therefore barred by the statute of limitations.

STANDARD OF REVIEW

¶8. In Murshid v. State, So. 3d 489, 498 (¶26) (Miss. Ct. App. 2021), this Court stated:

“Because ‘statutes of limitations are questions of law, we employ a de novo
standard of review with this issue.’” Stevens v. State, 294 So. 3d 699, 704
(¶16) (Miss. Ct. App. 2020) (quoting Smoot v. State, 780 So. 2d 660, 662 (¶6)
(Miss. Ct. App. 2001)).

ANALYSIS

¶9. The Legislature provided in Mississippi Code Annotated section 99-1-5 that the

“passage of time shall never bar prosecution against any person” for a number of criminal

offenses specifically set forth in that section. Felony fleeing law enforcement under

Mississippi Code Annotated section 97-9-72(2) (Rev. 2020) is not one of the specifically

enumerated offenses. Further, in section 99-1-5, the statute commands:

A person shall not be prosecuted for any other offense not listed in this
section unless the prosecution for the offense is commenced within two (2)
years after the commission thereof.

(Emphasis added). In Mississippi Code Annotated section 99-1-7 (Rev. 2020), the law states:

A prosecution may be commenced, within the meaning of Section 99-1-5 by

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the issuance of a warrant, or by binding over or recognizing the offender to
compel his appearance to answer the offense, as well as by indictment or
affidavit.

This procedure is in line with Mississippi Rule of Criminal Procedure Rule 2.1, which

provides in part:

(a) Commencement. All criminal proceedings shall be commenced either by
charging affidavit, indictment, or bill of information.

(b) Docketing the Case.

(1) Charging affidavit. Anyone bringing a criminal charge in
municipal court or justice court shall lodge a charging affidavit
with the judge or clerk of the court. The clerk of the court shall
record all charging affidavits on the docket.

¶10. The State contends that the prosecution for felony fleeing was commenced by

affidavits filed in Jackson Municipal Court on January 17, 2017. The three criminal affidavits

included language that Harper:

did . . . in commission of an act eminently dangerous to others and evincing a
depraved heart, regardless of human life, although without any premeditated
design to effect the death of any individual, kill and murder Rose Coleman, a
human being, by engaging in a vehicle pursuit with law enforcement officials
that ended in a vehicle collision which resulted in the death of Rose Coleman,
in violation of Mississippi Code Section 97-3-19(1)[(b)].

Clearly, this affidavit sought to charge Harper with second-degree murder. The other two

criminal affidavits included identical language and sought to charge Harper with second-

degree murder for the deaths of Virgil Kyles and Carolyn Conerly. The affidavits did not

seek to charge Harper with felony fleeing law enforcement in violation of section 97-9-72(2).

¶11. An “Underlying Facts and Circumstances Sheet for Arrest Warrant” was filed with

the criminal affidavits to support the officer’s request for the issuance of an arrest warrant

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for second-degree murder. This underlying facts sheet included statements that Harper

was the operator of a motor vehicle that attempted to flee and elude Law
Enforcement Officials . . . did willingly operate his motor vehicle in a manner
to show extreme indifference to human life and property in an attempt to
feloniously flee and elude Law Enforcement Officials. . . .

However, the underlying facts sheet concluded with the following statement:

Based upon the above, this Investigator believes that probable cause exists to
charge the suspect, Tony Harper, with three (3) counts of Second Degree
Murder for the deaths of Virgil Kyles, Rose Coleman, and Carolyn Conerly,
and requests that a warrant for the arrest of Tony Harper be issued for Second
Degree Murder.

Once again, the underlying facts sheet did not request that Harper be charged with felony

fleeing law enforcement.

¶12. Apparently, Harper was arrested and charged with three counts of second-degree

murder and had an initial appearance on those charges. However, as noted above, the Hinds

County grand jury returned an indictment that was entered on April 17, 2017, charging

Harper with three counts of culpable negligence manslaughter, rather than second-degree

murder. Harper was not charged with felony fleeing in this indictment.

¶13. The Hinds County grand jury returned a second indictment, entered on October 25,

2019, charging Harper with the same three counts of culpable negligence manslaughter, but,

for the first time, charged Harper with felony fleeing. A capias was issued for Harper’s arrest

on this new indictment on October 28, 2019, and was served on Harper on November 1,

2019.

¶14. The crime of felony fleeing law enforcement occurred on January 13, 2017. The

State’s first effort to charge Harper with felony fleeing was the indictment filed on October

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25, 2019. We find that Harper’s prosecution for the offense of felony fleeing was not

commenced within two years of the date of the offense as required by section 99-1-5 and is

therefore barred by the statute of limitations. Accordingly, we reverse and render Harper’s

conviction as to felony fleeing law enforcement as charged in Count IV.

¶15. At trial, as noted above, Harper was also convicted of culpable negligence

manslaughter in Counts I, II, and III of the indictment. See supra, note 1. He was sentenced

to three concurrent terms of twenty years in the custody of the MDOC, with five years

suspended and fifteen years to serve. Regarding the sentencing in cases where a defendant

is sentenced on more than one count of a multi-count indictment and one of the convictions

is reversed and rendered on appeal, this Court held in O’Kelly v. State, 267 So. 3d 282, 296-

97 (¶57) (Miss. Ct. App. 2018):

“[W]hen a defendant is convicted of more than one count of a multicount
indictment, the [circuit] court is likely to fashion a sentencing package in
which sentences on individual counts are interdependent.” Sallie v. State, 237
So. 3d 749, 756-57 (¶29) (Miss. 2018) (quoting United States v. Shue, 825
F.2d 1111, 1114 (7th Cir. 1987)). “[B]ecause the sentences are interdependent,
reversal of convictions underlying some, but not all, of the sentences renders
the sentencing package ineffective in carrying out the [circuit] court’s
sentencing intent as to any one of the sentences on the affirmed convictions.”
Id. at 757 (¶29) (quoting Shue, 825 F. 2d at 1114).” “‘[A]fter an appellate
court unwraps’ the original sentencing package by removing ‘one or more
charges from its confines, . . . common sense dictates that the judge should be
free to review the efficacy of what remains in light of the original plan,’ and
be allowed ‘to reconstruct the sentencing architecture upon remand, within
applicable constitutional and statutory limits, if that appears necessary in order
to ensure that the punishment still fits both crime and criminal.’” Id. at 756
(¶28) (quoting United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1989)).

Based on the above, we also remand this cause to the circuit court for consideration of

resentencing on the convictions of culpable negligence manslaughter in Counts I, II, and III

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of the indictment.

¶16. AFFIRMED IN PART; REVERSED AND RENDERED IN PART;
REMANDED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., McCARTY, WEDDLE AND
ST. PÉ, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY McDONALD AND LAWRENCE, JJ.

WESTBROOKS, J., DISSENTING:

¶17. Because I find that the affidavits and the accompanying underlying-facts-and

circumstances sheet effectively commenced the prosecution for the felony fleeing charge, I

respectfully dissent. The majority seems to focus on the fact that the affidavit and the

underlying facts-and-circumstances sheet did not specifically request that Harper be charged

with felony fleeing. However, the crime of felony fleeing was plainly articulated in all the

charging documents that were filed before the two-year statute of limitations. To find that

the prosecution had not commenced simply because felony fleeing was not specifically listed

ignores the plain language of Mississippi Code Annotated section 99-1-7 (Rev. 2020), and

our rules of law. Accordingly, I respectfully dissent.

¶18. Section 99-1-7 provides: “A prosecution may be commenced . . . by the issuance of

a warrant, or by binding over or recognizing the offender to compel his appearance to answer

the offense, as well as by indictment or affidavit.” Miss. Code Ann. § 99-1-7; see also

MRCrP 2.1(a) (“All criminal proceedings shall be commenced either by charging affidavit,

indictment, or bill of information.”). It is important to note the statute does not require that

each charge be specifically listed, and the majority provides no authority to support this

notion. Furthermore, I find that the phrase “binding over or recognizing the offender to

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compel his appearance to answer the offense” applies to the circumstances of this case.

Although the indictment was not filed until two years after the offense, all the charging

instruments filed prior to the two-year statutory limitations period effectively put Harper on

notice and compelled him to answer to every offense that he committed on the day in

question.

¶19. Three criminal affidavits and an accompanying underlying facts-and-circumstances

sheet detailed the crimes Harper committed. In the underlying facts-and-circumstances sheet,

Investigator Williams confirmed that “Tony Harper . . . was the operator of a motor vehicle

that attempted to flee and elude Law Enforcement Officials.” (Emphasis added). She further

explained that “the suspect did knowingly and willingly operate his motor vehicle in a

manner as to show extreme indifference to human life and property in an attempt to

feloniously flee and elude Law Enforcement Officials.” (Emphasis added). In all three

affidavits, Investigator Williams charged that Harper was engaged in a “vehicle pursuit with

law enforcement officials that ended in a vehicle collision which ended in the death of” Virgil

Kyles, Rose Coleman, and Carolyn Conerly. (Emphasis added).

¶20. Additionally, Harper was fully aware that he had to “answer to the offense” because

he admitted under oath that he committed the crime of felony fleeing. After Harper was

released from the hospital, he was interviewed about the day in question. He admitted to

driving through the checkpoint because he was intoxicated and had drugs in his vehicle. He

admitted to leading the police on a high-speed chase that spanned several streets. He also

testified at trial and admitted to fleeing the police:

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Q. Now let’s go back to the beginning when you evaded the checkpoint
initially, okay, and you said you drove off. How fast were you going?

A. I was going about 65 or 70.

Q. Why were you going so fast?

A. I was trying to get away from the law enforcement.

Q. Did you know[] what [the] speed limit was in that area?

A. Like 35 – I mean about 45.

Q. Okay. So your main goal no matter what was just to evade the officers
at that point?

A. Yes, but they were steady pursuing me[.]

Harper knew that he would be subject to prosecution for felony fleeing. He admitted to the

offense before the prosecution commenced and maintained his culpability at all stages after

it was commenced. It is inequitable to allow Harper to now escape accountability for a crime

for which he knew he would have to answer.

¶21. I find that the affidavits and underlying facts-and-circumstances sheet clearly

recognized Harper “to compel his appearance to answer the offense.” These documents

described all the charges that Harper committed, thereby commencing the prosecution and

tolling the statute of limitations. Allowing Harper to escape conviction for an admitted

offense simply because the words “Felony Fleeing Law Enforcement” were not specifically

listed does not comport with our statute and rules of law. The trial court properly denied

Harper’s motion for judgment notwithstanding the verdict. Therefore, I respectfully dissent.

McDONALD AND LAWRENCE, JJ., JOIN THIS OPINION.

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