Burrell v. State, 97-KP-00404 COA.

• Decision Date: 30 December 1998
• Docket Number: No. 97-KP-00404 COA.,97-KP-00404 COA.
• Citation: 727 So.2d 761
• Parties: Freddie Doug BURRELL a/k/a Freddie Douglas Burrell, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

727 So.2d 761

Freddie Doug BURRELL a/k/a Freddie Douglas Burrell, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KP-00404 COA.

Court of Appeals of Mississippi.

December 30, 1998.

Pro Se, Appellant.

Morris Sweatt, Sr. (Withdrawn), Columbia, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., Attorney for Appellee.

Before BRIDGES, C.J., and HERRING, HINKEBEIN and KING, JJ.

HERRING, J., for the Court:

¶ 1. Freddie Doug Burrell appeals to this court pro se from his conviction and sentence in the Marion County Circuit Court of sale or transfer of a controlled substance and adjudication as an habitual offender, in violation of Mississippi Code Annotated §§ 41-29-139 (Rev.1993) and 99-19-83 (Rev.1994). He was sentenced to serve a term of life imprisonment without the possibility of reduction or suspension and without the possibility of parole. Finding error, we reverse and remand.

A. THE FACTS

¶ 2. On February 22, 1996, James Kitchens, Captain of the Collins, Mississippi Police Department, was working as an undercover agent in the City of Columbia, which is located in Marion County. In his undercover capacity, he arranged a meeting with Freddie D. Burrell, during which he purchased an amount of crack cocaine, a controlled substance. Captain Kitchens went with Bobby Coleman, a confidential informant, to Burrell's home where the meeting was to take place. Upon arrival, Kitchens met Burrell outside of his home, and they proceeded to go inside the house to exchange the cocaine for the money. Unbeknownst to Burrell, the funds were provided to Kitchens by the Mississippi Bureau of Narcotics for the purpose of conducting a controlled buy with Burrell. Primarily for his own protection and prior to the meeting with Burrell, Captain Kitchens was equipped by an officer of the Mississippi Bureau of Narcotics with a body wire which recorded the conversation between Kitchens and Burrell during the entire transaction.

¶ 3. On September 19, 1996, Burrell was indicted by the Grand Jury of Marion County on the charge of sale or transfer of a controlled substance. Subsequently, on January 22, 1997 (the day of Burrell's trial), the Circuit Court of Marion County allowed the district attorney to amend the indictment to include Burrell's prior convictions, thereby classifying Burrell as an habitual criminal pursuant to Miss.Code Ann. § 99-19-83 (Rev.1994). The jury returned a verdict finding Burrell guilty as charged of the sale or transfer of a controlled substance. Thereafter, the jury was dismissed, and the trial court conducted a sentencing hearing, as required by Uniform Circuit and County Court Rule 10.04. At the request of the appellant, the court recessed the sentencing hearing, and the hearing was later resumed and concluded on January 31, 1997.

¶ 4. At the sentencing hearing, the court found that the State of Mississippi did prove beyond a reasonable doubt that the appellant was an habitual offender as defined in Mississippi Code Annotated § 99-19-83 (Rev. 1994) and had been convicted previously of the felony charges of perjury and armed robbery. The court sentenced Burrell to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections, without the possibility of reduction or suspension of his sentence and without the possibility of parole.

B. THE ISSUES

¶ 5. The appellant, Burrell, raises the following issues on appeal which are taken verbatim from his brief:

I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHERE THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE IN FAVOR OF ACQUITTAL AND WAS THE RESULT OF BIAS AND PREJUDICE AGAINST APPELLANT, DELIBERATELY MANUFACTURED BY THE PROSECUTION, RATHER THAN A VERDICT BASED UPON THE EVIDENCE PRESENTED AT TRIAL.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR OF CONSTITUTIONAL DIMENSION WHERE IT DISREGARDED APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHEN THE COURT REFUSED TO GRANT APPELLANT'S MOTION FOR DIRECTED VERDICT AT THE CONCLUSION OF THE STATE'S CASE-IN-CHIEF AND AGAIN AT THE CONCLUSION OF THE TRIAL WHERE THE COURT REFUSED TO GRANT INSTRUCTION D-1 WHEN IT WAS CLEAR THAT THE STATE FAILED TO PROVE THE CHARGES CONTAINED IN THE INDICTMENT.

III. THE TRIAL COURT DISREGARDED APPELLANT'S CONSTITUTIONAL RIGHTS, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHEN THE COURT ALLOWED A WITNESS TO TESTIFY AT TRIAL WHO HAD REMAINED IN THE COURTROOM THROUGHOUT THE TRIAL AND WHILE OTHER WITNESSES TESTIFIED, WHERE SUCH TESTIMONY WAS IN VIOLATION OF THE SEQUESTRATION RULE.

IV. THE TRIAL COURT COMMITTED CONSTITUTIONAL AND PLAIN ERROR WHERE IT ALLOWED THE STATE TO AMEND THE INDICTMENT TO ADD HABITUAL OFFENDER ENHANCED PUNISHMENT PROCEEDINGS TO THIS CAUSE WHERE APPELLANT HAD NOT BEEN ACTUALLY INDICTED AS A HABITUAL OFFENDER BY THE GRAND JURY WHICH RETURNED THE INDICTMENT.

V. THE TRIAL COURT COMMITTED FUNDAMENTAL PLAIN CONSTITUTIONAL ERROR WHERE IT REFUSED TO GRANT APPELLANT'S MOTION FOR DISCOVERY AS TO THE PERSONAL FILE AND RESUME OF THE STATE'S CHIEF WITNESS, WHO WAS THE NARCOTICS AGENT WHO ALLEGED THAT APPELLANT HAD SOLD HIM THE DRUGS, SINCE SUCH DISCOVERY WAS NECESSARY IN ORDER TO ALLOW APPELLANT TO PROPERLY PREPARE HIS DEFENSE AND CROSS EXAMINATION.

VI. THE TRIAL COURT COMMITTED FUNDAMENTAL AND PLAIN CONSTITUTIONAL ERROR WHERE IT PERMITTED THE PROSECUTION'S WITNESSES TO TESTIFY, BEFORE THE JURY, ABOUT CERTAIN ALLEGED "BAD ACTS" COMMITTED BY APPELLANT.

VII. THE TRIAL COURT COMMITTED PLAIN FUNDAMENTAL CONSTITUTIONAL ERROR IN IMPOSING A LIFE SENTENCE, WITHOUT PAROLE, WHERE STATE FAILED TO PROVE SUCH HABITUAL STATUS AND WHERE SUCH SENTENCE IS NOT PROPORTIONAL TO THE OFFENSE FOR WHICH THE DEFENDANT WAS CONVICTED.

VIII. APPELLANT WOULD ASSERT THAT MISS. URCCC 7.09 CONSTITUTES AN UNCONSTITUTIONAL RULE WHERE IT PERMITS AN INDICTMENT TO BE AMENDED, TO ENHANCED PUNISHMENT STATUS, WITHOUT BEING SUBMITTED TO THE GRAND JURY WHICH RETURNED SUCH INDICTMENT. APPELLANT'S ENHANCED SENTENCE, IMPOSED UNDER SUCH PRACTICE,

IS THEREFORE UNCONSTITUTIONAL.

IX. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT, UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, TO EFFECTIVE ASSISTANCE OF COUNSEL IN HIS DEFENSE.

X. THE CUMULATIVE EFFECT OF ERRORS, ASSIGNED IN THIS BRIEF, DEPRIVED APPELLANT OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

C. ANALYSIS

¶ 6. We will discuss each assignment of error in sequence. The first three issues will be addressed together.

I. WAS THE VERDICT OF THE JURY AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE OR THE RESULT OF BIAS OR PREJUDICE ON THE PART OF THE PROSECUTION?

II. DID THE COURT ERR IN REFUSING APPELLANT'S MOTION FOR DIRECTED VERDICT?

III. DID THE TRIAL COURT ERR IN ALLOWING JOSEPH TURNAGE TO TESTIFY AT TRIAL WHEN HE WAS PRESENT IN THE COURT ROOM THROUGHOUT THE TRIAL?

¶ 7. Because Burrell's sixth assignment of error requires us to reverse and remand this case for further proceedings, we will not address the merits of the these assignments of error because discussion of these issues will aide neither in the disposition of this case nor in the re-trial of this case on remand.

IV. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INDICTMENT TO CHARGE BURRELL AS A HABITUAL OFFENDER?

¶ 8. In the appellant's fourth assertion of error, he contends that allowing the State to amend the indictment on a charge of "sale or transfer of a controlled substance" to classify Burrell as an habitual offender was unconstitutional. Burrell concedes that the indictment was amended in conformance with Uniform Rule 7.09 of the Uniform Rules of Circuit and County Court Practice. Rule 7.09 specifically states that "[i]ndictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement." However, he claims that the action taken in accordance with the rule or the rule itself as it pertains to amending an indictment to impose habitual offender status upon a defendant is unconstitutional. In making this argument, the appellant quotes McNeal v. State in saying "the Mississippi Constitution cannot be amended by either case law or rules of court." McNeal v. State, 658 So.2d 1345, 1350 (Miss.1995). He also cites to Quick v. State, 569 So.2d 1197, 1199 (Miss. 1990), which held that the Mississippi Constitution requires an indictment before a person may be prosecuted for a felony, and further that "the court has no power to amend an indictment as to the matter of substance without the concurrence of the grand jury by whom it was found, although amendments as to mere informalities may be made by the court."

¶ 9. In Quick, the defendant was indicted by the grand jury for the offense of aggravated assault pursuant to Miss.Code Ann. 97-3-7(2)(b). The original indictment charged that Quick "did willfully, unlawfully, feloniously, purposely and knowingly commit an aggravated assault upon one Gene Baker, a human being, with a deadly weapon...." However, on the morning of trial the State moved to amend the indictment to include language from subsection (a) of Miss.Code Ann. § 97-3-7(2) which allowed the jury to convict if they found Quick "recklessly caus[ed] serious bodily injury under circumstances manifesting extreme indifference to the value of human life." Id. at 1199. In reversing the conviction, our supreme court concluded that the amendment "proposed a change of substance and not of form." Id. at 1200. The case sub judice may be distinguished from Quick because the amendment in the present case does not alter the substance of the offense. As the State points out, the statutes dealing with the sentencing of habitual criminals, ...