Brooks v. State

Decision Date12 November 2008
Docket NumberNo. 2007-KA-00828-COA.,2007-KA-00828-COA.
Citation18 So.3d 859
PartiesDavid BROOKS, Appellant, v. STATE of Mississippi, Appellee.
CourtMississippi Court of Appeals

Stephanie L. Mallette, Phillip Broadhead, Oxford, attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

Before KING, C.J., CHANDLER and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. David Brooks was indicted on five counts of aggravated assault of law enforcement officers arising out of events that occurred during a multi-vehicle police chase. He was convicted in the Circuit Court of Oktibbeha County of two counts of aggravated assault of law enforcement officers and sentenced to two consecutive sentences of twenty years each. He now appeals his convictions and sentences.

¶ 2. On appeal, Brooks raises the following four issues:

1. Whether the trial court erred when it granted the State's motion to amend the indictment on the day of trial where the amendment constituted a substantive change in the indictment, the amendment was prejudicial to his defense, and the amendment was material to the merits of the case.

2. Whether the trial court committed error when it denied the defense-requested jury instructions as to the lesser non-included offense of reckless driving and the lesser-included offense of simple assault because both instructions were grounded in the evidence, supported the theory of the case, and were correct statements of the law.

3. Whether the trial court erred when it failed to sustain Brooks's motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for failing to grant the motion for a new trial as the jury's verdict was contrary to the overwhelming weight of the evidence.

4. Whether the trial court erred when it sentenced Brooks to two consecutive twenty-year prison terms because under the factors of the Solem test and the specific facts of this case, the sentence was grossly disproportionate to the conviction of aggravated assault on a law enforcement officer.

¶ 3. Finding that the amendments to the indictments were in error, and that the trial court should have granted Brooks's proposed jury instruction as to the lesser non-included offense of reckless driving, this Court reverses the judgment of the trial court and remands the case for a new trial.

FACTS

¶ 4. On the afternoon of February 11, 2003, Brooks, a twenty-two-year-old male, was driving a gray Hyundai in Starkville, Mississippi, when he made a right turn onto Highway 82 from a left-turn lane on Jackson Street. This maneuver was observed by Starkville Police Officer Andy Fultz, who attempted to pull Brooks over to give him a warning, but Brooks did not stop. Deputy Sheriff Dennis Daniels was also a witness to the illegal turn and joined the pursuit. Brooks was observed cutting off other cars and running red lights, although it was noted by Officer Fultz that he was not driving at an excessive rate of speed. What resulted was a multi-car police chase that continued for several miles.

¶ 5. Officer Fultz pulled in front of Brooks's car in an attempt to stop him, while Deputy Daniels remained behind Brooks. Brooks turned left onto Tally Ho Street, an extremely narrow, dead-end street. At the end of the street, Brooks began to turn around in a circular driveway with Officer Fultz behind him, but Deputy Daniels attempted to block him in at the other entrance with his patrol car. Brooks cut through a yard evading Deputy Daniels's blockade. During this maneuvering, Brooks almost hit Deputy Daniels, who had exited his vehicle. Deputy Daniels stated that he had to "almost dive back into the patrol car and pull [the] door shut to avoid getting hit by him." Officer Fultz testified that Brooks "did take the ditch to avoid hitting the car."

¶ 6. Brooks then pulled onto Highway 82. Deputy Daniels called 911 to alert other officers to the pursuit. It was approximately at this point that Officer Shanks Phelps joined in the chase, videotaping the pursuit. Brooks drove through two more roadblocks, nearly striking Officer Shane Knight's car at the second roadblock. Brooks avoided Officer Knight by passing him on the shoulder of the road. Highway Patrol Trooper Steve Gladney joined the chase near Mississippi State University. Brooks was driving on the wrong side of the road and almost hit Trooper Gladney's vehicle. Trooper Gladney pulled off onto the shoulder of the road to avoid Brooks. Officer Tommy Coleman had also joined the chase and attempted several times to stop or slow down Brooks by getting in front of him and decelerating. Officer Coleman stated that Brooks bumped the rear of his police car more than once, but Brooks refuted this testimony. The chase ended when Brooks lost control of his car near the airport exit and crashed into an embankment. Officer Coleman immediately brandished his weapon and ordered Brooks to get down, but Brooks did not comply. Other officers then apprehended Brooks by force. Brooks was arrested and taken to jail.

¶ 7. Brooks was indicted on five counts of aggravated assault on a law enforcement officer. Brooks testified at trial that he panicked due to a recent bad encounter with the police in Memphis, Tennessee; he stated that he was looking for a safe place to pull over that had witnesses present. Brooks attested that he never intended to hit any of the law enforcement officers. In fact, he testified that Deputy Daniels was inside his police car when Brooks went off the road to avoid hitting Deputy Daniels's police car. The jury convicted Brooks of two counts of aggravated assault—the counts involving Deputy Daniels and Trooper Gladney. The trial court sentenced Brooks to two twenty-year terms to be served consecutively.

DISCUSSION

1. WHETHER THE COURT PROPERLY GRANTED THE AMENDMENT TO THE INDICTMENT.

¶ 8. On the morning of trial, the State moved to amend the indictments in counts one through five to delete "the excess wording." The trial court granted the State's motion to amend the indictments. In its order granting the State's motion, the trial court stated that there was no objection to the amendments to the indictments, but upon review of the record, we find this to be a misstatement. Defense counsel for Brooks did object to the amendments, stating to the trial judge: "I think intent is an element that should be proven, and I don't—do not think that those clauses should be taken out."

¶ 9. Deleted from count two was the language "by attempting to hit and/or run over the said Trooper Steven Gladney with his vehicle." From count four was deleted "by attempting to hit and/or run over Deputy Dennis Daniels with his vehicle."1

¶ 10. Whether an indictment is so flawed as to require reversal is a question of law. Brown v. State, 934 So.2d 1039, 1043 (¶ 16) (Miss.Ct.App.2006). This Court on appeal reviews a question of law de novo. Id. The standard of review of an amendment to an indictment is also de novo. See Spears v. State, 942 So.2d 772, 773 (¶ 5) (Miss.2006).

¶ 11. The general rule is that: "All indictments may be amended as to form but not as to the substance of the offense charged." Lee v. State, 944 So.2d 35, 40 (¶ 16) (Miss.2006) (quoting URCCC 7.09). An amendment as to form rather than substance is one where the defense under the original indictment is equally available after the amendment and the evidence which the defendant must use is the same in the pre- and post-indictment. Griffin v. State, 540 So.2d 17, 21 (Miss. 1989). If an offense is "fully and clearly defined in the statute," an indictment which tracks the language of that criminal statute is sufficient to inform the accused of the charge against him. Joshua v. State, 445 So.2d 221, 223 (Miss.1984). "[O]therwise, the indictment should charge the offense by the use of additional words that clearly set forth every element necessary to constitute the crime." Id. (quoting Jackson v. State, 420 So.2d 1045, 1046 (Miss.1982)).

¶ 12. In Joshua, the Mississippi Supreme Court reversed and remanded a case where the indictment charged the defendant with aggravated assault on a law enforcement officer, but it did not allege any overt act "whatsoever regarding [the] appellant's attempt to cause bodily harm to the Trooper." Joshua, 445 So.2d at 223. Evidence was presented at trial that the defendant struck the officer with his fists and pointed a gun at the officer, but the indictment failed to state these or any acts committed by the defendant in the course of the alleged assault. Id. Noting that "our statutory law requires proof of an overt act in order to sustain a conviction of an attempt to commit a crime," the Joshua court determined that the indictment was "substantially defective in that it did not set out any alleged overt act whatsoever regarding [the] appellant's attempt to cause bodily harm to the patrolman." Id. at 222-23.

¶ 13. Neither the State, nor the dissent, makes an attempt to distinguish Joshua but, rather, argues that the cases relied on by the supreme court in Joshua do not support its result.2 Assuming, without deciding, the State's survey of the decisions cited in Joshua to be correct, this does not alter the Mississippi Supreme Court's holding in Joshua or this Court's duty to follow its precedent. Therefore, we find that the amendments to the indictments resulted in error as they eliminated the language alleging any overt act regarding Brooks's attempt to cause bodily harm to the officer(s). While we do not find that the amendments materially altered the facts of the case or affected Brooks's theory of defense as he had been aware of the specific allegations prior to the amendments, pursuant to Joshua, the amendments resulted in "substantially defective" indictments. Accordingly, we reverse, and on remand, the deleted language should be restored.

2. WHETHER THE COURT PROPERLY DENIED THE PROPOSED JURY INSTRUCTIONS.

¶ 14. Defense counsel submitted jury instructions...

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