Jamison v. State

• Decision Date: 01 November 2011
• Docket Number: No. 2010–KA–01209–COA.,2010–KA–01209–COA.
• Citation: 73 So.3d 567
• Parties: Cedric JAMISON, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

73 So.3d 567

Cedric JAMISON, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–KA–01209–COA.

Court of Appeals of Mississippi.

Nov. 1, 2011.

W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.

Office of the Attorney General by Stephanie Breland Wood, Scott Stuart, attorneys for appellee.

EN BANC.

MAXWELL, J., for the Court:

¶ 1. A Tunica County grand jury returned a two-count indictment against Cedric Jamison. Count I charged sexual battery, and Count II charged possession of .1 gram or less of cocaine. Based on Jamison's trial testimony that he possessed “about two or three grams of cocaine,” the circuit court allowed the State to amend Count II of Jamison's indictment to increase the charged quantity to “between 2 and 10 grams.” The amendment occurred after the close of the evidence. Its effect was to increase the statutory minimum and maximum penalties Jamison faced from one to four years' imprisonment to four to sixteen years. The jury acquitted Jamison of sexual battery but convicted him of cocaine possession. The circuit court sentenced Jamison to ten years (six to serve and four suspended).

¶ 2. We hold that an amendment to the charged quantity in a drug-possession offense that increases the statutory maximum penalty is an amendment of substance, requiring submission to a grand jury. Because the amendment to Jamison's indictment resulted in a sentence above the statutory maximum of the original charge, and was made without grand-jury approval, we must vacate his sentence. We affirm Jamison's conviction on the lesser cocaine-possession offense and remand for resentencing under the statutory penalties for Count II as it existed prior to the amendment.

FACTS

¶ 3. On August 30, 2008, the Tunica County Sheriff's Office received a call from Jane Smith ¹ reporting that Jamison had sexually assaulted her. Officers were dispatched to the home of Latony Burk, where the assault had allegedly occurred. Smith was taken to the Memphis Rape Crisis Center in Memphis, Tennessee, while officers began searching for Jamison. They soon found Jamison at his sister's home, hiding inside a storage bin in the closet of the master bedroom. Jamison was arrested and taken into custody. A grand jury later charged him with sexual battery and possession of .1 gram or less of cocaine.

¶ 4. According to Smith's testimony, she was alone inside Burk's home and asleep on the couch when Jamison arrived. Smith testified Jamison forced her to perform oral sex on him and to “do cocaine off of his body.” Smith recounted: “As he was making me have oral sex on him, he was pouring [cocaine] all over his body and on his penis, and he was making me—telling me to suck here and lick there—lick that off.” Smith explained that she was familiar with cocaine and could identify the substance.

¶ 5. The circuit court admitted into evidence a report from a “sexual-assault nurse” at the Tennessee crisis center who recorded Smith's account on August 30. According to the report, Jamison had “put some cocaine on his penis, and ... made [Smith] suck it off.” A forensic toxicologist from the Mississippi Crime Laboratory testified that blood samples taken from Smith on August 30 contained cocaine metabolites. He conceded, however, that he could not ascertain how long the cocaine metabolites had been in Smith's bloodstream.

¶ 6. Jamison testified in his own defense. He denied he had sexually assaulted Smith, but admitted possessing cocaine. Jamison claimed Smith had performed consensual oral sex on him in exchange for cocaine. Jamison admitted during trial that he had possessed “about two to three grams of cocaine” when he was with Smith on August 30. He also testified he had provided Smith “maybe a gram” of the drug for herself.

¶ 7. Based on Jamison's testimony, after the close of the evidence, the State moved to amend Jamison's indictment to increase the quantity of cocaine charged from .1 gram or less to between two and ten grams. The circuit court permitted the amendment over Jamison's objection, finding it concerned “a matter of form as opposed to substance.” The jury acquitted Jamison of sexual battery but found him guilty of possessing two to ten grams of cocaine.² The circuit court sentenced him—above the statutory maximum of the original charge—to ten years, with six years to serve and four years suspended. Jamison filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied.

DISCUSSION

I. Amendment to the Indictment

¶ 8. The grand jury originally charged Jamison with possessing .1 gram or less of cocaine under section 41–29–139(c)(1)(A) (Rev.2009).³ If convicted, Jamison faced a minimum of one year but not more than four years' imprisonment and up to a $10,000 fine. Miss.Code Ann. § 41–29–139(c)(1)(A). Based on Jamison's testimony that he possessed “about two to three grams of cocaine,” at the close of the evidence, the circuit court—over Jamison's objection—allowed the State to amend his indictment. The amended indictment charged Jamison with possessing a larger quantity of cocaine—between two and ten grams. See Miss.Code Ann. § 41–29–139(c)(1)(C) (Rev.2009). This amendment resulted in a significant increase in the severity of Jamison's potential sentence. After the amendment, he faced a mandatory minimum sentence of not less than four years but not more than sixteen years' imprisonment and up to a $250,000 fine. Id.

A. Right to Indictment by Grand Jury

¶ 9. Uniform Rule of Circuit and County Court 7.09 sets forth the applicable requirements for amending an indictment. Rule 7.09 provides in pertinent part: “All indictments may be amended as to form but not as to the substance of the offense charged.” It further emphasizes that an “[a]mendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” (Emphasis added). While Rule 7.09 “does not speak to the timing of the amendment,” it mandates that “the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not be unfairly surprised.’ ” Gowdy v. State, 56 So.3d 540, 545 (¶ 16) (Miss.2010). “This means that the defendant must be afforded due process of law and be given fair notice of ‘the nature and cause of the accusation.’ ” Id. (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, §§ 14, 26).

¶ 10. The United States Supreme Court has not found the federal right to indictment by grand jury applicable to the states through the Fourteenth Amendment to the United States Constitution. See Ring v. Arizona, 536 U.S. 584, 597 n. 4, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (citing Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Rather, “[t]he Supreme Court has continued to follow the position that indictment issues in federal courts are governed by the Fifth Amendment, while indictment issues in state courts are instead governed by state law.” Bennett v. State, 933 So.2d 930, 952 (¶ 83) (Miss.2006).

¶ 11. Article 3, section 27 of the Mississippi Constitution requires an indictment by a grand jury for the prosecution of felonies, “except in cases arising in the land or Naval forces, or the military when in actual service.” Quick v. State, 569 So.2d 1197, 1199 (Miss.1990) (interpreting Miss. Const. art. 3, § 27). “This provision has been in each of the constitutions which the people of the State of Mississippi have established.” Id. Since 1858, our courts have had “no power to amend an indictment as to the matter of substance without the concurrence of the grand jury ..., although amendments as to mere informalities may be made by the court.” ⁴ An amendment is considered to be one of substance if it alters the essence of the charge. Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994). According to the Mississippi Supreme Court, if the amendment either (1) “materially alter[s] facts which are the essence of the offense on the face of the indictment as it originally stood or” (2) “materially alter[s] a defense to the indictment as it originally stood so as to prejudice the defendant's case,” then the amendment is substantive, and approval by the grand jury is required. Spears v. State, 942 So.2d 772, 774 (¶ 6) (Miss.2006).

B. Apprendi v. New Jersey

¶ 12. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The State contends the quantity involved in a drug-possession charge only relates to the sentence and is never an element of the crime itself. It also suggests that amending the charged quantity in a case involving possession of a controlled substance always concerns merely a matter of form, not substance. We disagree with both notions.

¶ 13. The Mississippi Supreme Court has not confronted Apprendi's application to the specific issue before us. And we find none of the cases relied on by the State are dispositive here. Both Kittler v. State, 830 So.2d 1258, 1259–60 (¶¶ 4–6) (Miss.Ct.App.2002) and Oby v. State, 827 So.2d 731, 735–36 (¶¶ 13–17) (Miss.Ct.App.2002) are distinguishable because the amendment to the indictment in both cases decreased the quantity of narcotics allegedly possessed. Though Apprendi was not discussed in either case, we find its dictates were not offended because the defendants in Kittler and Oby were not exposed to increased maximum sentences and more severe punishments if convicted. We also find Harris v. State, 5 So.3d 1127 (Miss.Ct.App.2008) distinguishable because the defendant in Harris voluntarily pled guilty to the increased drug-possession charge in the amended indictment—a result we have absolutely no qualms with due to the voluntarily negotiated outcome.

¶ 14. Because Mississippi...