Moss v. State, 97-KA-00331 COA.

• Decision Date: 28 July 1998
• Docket Number: No. 97-KA-00331 COA.,97-KA-00331 COA.
• Citation: 727 So.2d 720
• Parties: Charlie MOSS a/k/a Charlie Mac Moss a/k/a Charles M. Moss, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

727 So.2d 720

Charlie MOSS a/k/a Charlie Mac Moss a/k/a Charles M. Moss, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-00331 COA.

Court of Appeals of Mississippi.

July 28, 1998.

Rehearing Denied September 29, 1998.

Anthony J. Buckley, David Lee Sullivan, Laurel, Attorneys for Appellant.

Michael C. Moore, Attorney General by Pat S. Flynn, Special Asst. Atty. Gen., Jackson, Attorneys for Appellee.

Before THOMAS, P.J., and DIAZ and HERRING, JJ.

THOMAS, Presiding Judge, for the Court:

¶ 1. Charles M. Moss appeals his conviction of murder raising the following issues as error:

I. THE COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT BY MOTION AS THE CHANGE WAS ONE OF SUBSTANCE AND NOT ONE OF FORM.

II. THE AMENDED MURDER INDICTMENT IS WHOLLY VOID FOR NOT INCLUDING THE NECESSARY LANGUAGE "DID."

III. THE TRIAL COURT ERRONEOUSLY ALLOWED THE ADMISSION AND PREJUDICIAL USE BY THE PROSECUTOR OF EVIDENCE OF OTHER BAD ACTS, MISCONDUCT, AND CRIMES, WHOSE PREJUDICIAL EFFECT OUTWEIGHED ANY PROBATIVE VALUE. FURTHER, THE TRIAL COURT ERRED IN NOT GIVING, SUA SPONTE, A LIMITING INSTRUCTION ON THE MRE 404(B) EVIDENCE.

IV. IT WAS ERROR FOR THE PROSECUTOR IN FINAL SUMMATION TO ARGUE TO THE JURY THAT MANSLAUGHTER WAS NOT AN EXCUSE UNDER MISSISSIPPI LAW.

V. IT WAS PLAIN ERROR FOR THE PROSECUTOR TO EGREGIOUSLY COMMENT ON THE DEFENDANT'S RIGHT NOT TO TESTIFY.

Finding no error, we affirm.

FACTS

¶ 2. Charles and Sabrina Moss had been married about one and a half years when Sabrina decided to end the marriage. Sabrina moved out of her mother-in-law's house, where she and Charles had been living, taking their three-month-old daughter with her. On February 24, 1996, Sabrina returned to her mother-in-law's home to get clothing and personal items belonging to her and her daughter. Her father and an officer from the Ellisville Police Department accompanied her. Her father and the officer waited outside while Sabrina went inside. A few minutes later, they heard shots. The officer called for back up, and when help arrived, officers entered the house to find Sabrina dead from a single gun shot wound. Charles Moss had also shot himself in the face, but he survived.

¶ 3. Christine Moss, Charles Moss's mother, was in the home when the shooting occurred. She testified that she asked Charles to keep the door open to the bedroom where he and Sabrina were talking. Christine stated that she went back to the room another time to open the door because she did not want any trouble. She testified that she was going back to the bedroom another time and saw Charles walking down a hallway toward the bedroom door and realized the Charles had a shotgun in his hand. Christine stated that Charles had closed the door by the time she reached the bedroom, but she struggled and was able to get into the bedroom. Christine grabbed Charles's arm, but he was able to push her back and shoot Sabrina with the shotgun. Christine ran from the room.

¶ 4. Charles chose not to testify on his own behalf. After deliberation the jury returned a verdict of guilty of murder.

ANALYSIS

I.

THE COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT BY MOTION AS THE CHANGE WAS ONE OF SUBSTANCE AND NOT ONE OF FORM.

¶ 5. Shortly before trial, the district attorney moved the trial court for an amendment to the indictment to add the words "Jones County," which had been inadvertently left out due to clerical error. Over objections from the defense, the judge allowed the amendment. Moss argues that the amendment was one of substance, not form, and could be made only by the grand jury.

¶ 6. "It is fundamental that courts may amend indictments only to correct defects of form, however, defects of substance must be corrected by the grand jury." Lester v. State, 692 So.2d 755, 774-75 (Miss.1997) (quoting Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994)).

It is well settled in this state, as was noted by the learned circuit judge, that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case.

Lester, 692 So.2d at 775 (quoting Shelby v. State, 246 So.2d 543, 545 (Miss.1971)). "An indictment may only be amended at trial if the amendment is immaterial to the merits of the case and the defense will not be prejudiced by the amendment.... The test ... is whether the defense as it originally stood would be equally available after the amendment is made." Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995) (citations omitted).

¶ 7. The State cites the case of Brooks v. State, 573 So.2d 1350 (Miss.1990), as dispositive of this issue. In Brooks, the Court held that amending an indictment to show that it was returned by the grand jury of Lowndes County was procedural, not substantive. Id. at 1353. The Court held that such an error was technical and non-jurisdictional. Id. at 1354 (citing Stewart v. State, 377 So.2d 1067 (Miss.1979); Jones v. State, 356 So.2d 1182 (Miss.1978)). "[The indictment was] signed by the foreman of the grand jury and marked filed by the circuit clerk of Lowndes County. This provided sufficient `legal evidence....'" Brooks, 573 So.2d at 1354.

¶ 8. The indictment in the present case, like that of Brooks, was signed by the foreman of the grand jury, clearly designated as "State of Mississippi, Jones County," and marked filed by the Circuit Clerk of Jones County. There was no error in allowing the State to amend the indictment to show Jones County on the face of the instrument when Jones County was on the page containing the grand jury foremen's signature and was marked "filed" by the Circuit Clerk of Jones County. Moss had sufficient notice that he was being brought to trial in Jones County and suffered no prejudice because of the amendment to the indictment.

II.

THE AMENDED MURDER INDICTMENT IS WHOLLY VOID FOR NOT INCLUDING THE NECESSARY LANGUAGE "DID."

¶ 9. Moss argues that when the district attorney's office amended the indictment to add "Jones County," the word "did" before "kill and murder" was omitted. He states that the amended indictment is wholly void because it omitted the word "did."

¶ 10. Moss cites the case of Kelly v. State, 204 Miss. 79, 36 So.2d 925 (Miss.1948), where the Court considered an indictment worded as the one in this case and ruled that the indictment was void. The State counters that although Kelly has not been expressly overruled, it is among the cases decided before the adoption of Uniform Criminal and Circuit Court Rules. The Mississippi Supreme Court has stated before that pre-rule cases were decided in an era when indictments were scrutinized more strictly than they are today because of the new rules. Harden v. State, 465 So.2d 321, 324 (Miss. 1985). Uniform Circuit and County Court Rule 7.06 states:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting offense charges and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them.

Id. See also Hennington v. State, 702 So.2d 403, 408 (Miss.1997) (citing Rule 7.06 finding that formal words are not necessary, if the offense is sufficiently described without them).

¶ 11. In Harbin v. State, 478 So.2d 796 (Miss.1985), the Court upheld a conviction under an indictment for aggravated assault that did not include the words "under circumstances manifesting extreme indifference to the value of human life." Harbin claimed that the indictment fell short of effecting a viable charge. Id. at 798. The Court disagreed and stated, "[w]hatever may have been the law in former days, our starting point today for consideration of a question such as this is Rule 2.05, Uniform Criminal Rules of Circuit Court Practice [now Rule 7.06 URCCC]." Id.

¶ 12. We note that the original indictment, as handed down by the grand jury, said that Charles "did ... kill and murder one Sabrina Moss...." Thus, Charles cannot claim that he was unduly surprised by the oversight or that his trial was in any way affected by this omission.

¶ 13. We find that following post-rule precedent, the omission of the word "did" was merely a formal or technical word which was not necessary in an indictment because the offense was substantially described without that word. Moss does not make a showing that the omission in the amended indictment in any way prejudiced him. There is no merit to Moss's second assignment of error.

III.

THE TRIAL COURT ERRONEOUSLY ALLOWED THE ADMISSION AND PREJUDICIAL USE BY THE PROSECUTOR OF EVIDENCE OF OTHER BAD ACTS, MISCONDUCT, AND CRIMES, WHOSE PREJUDICIAL EFFECT OUTWEIGHED ANY PROBATIVE VALUE. FURTHER, THE TRIAL COURT ERRED IN NOT GIVING, SUA SPONTE, A LIMITING INSTRUCTION ON THE MRE 404(B) EVIDENCE.

¶ 14. During trial, the State offered evidence of prior bad acts committed by Moss claiming that each was admissible to prove intent and motive under Mississippi Rule of Evidence 404(b). There were three such instances where the State introduced evidence of other bad acts on direct examination of witnesses over a timely objection by the defense. Moss argues that each act was erroneously admitted and requires reversal.

¶ 15. The first such exchange was on direct examination of Douglas Blakeney, the father of Sabrina. The prosecutor asked Blakeney about a conversation he had with Moss after Sabrina had left him and returned to her father's home. The question was, "Would you tell the Court and the jury what that conversation was?" After Blakeney related the conversation, he added, "and about that time he plowed into me with his fists. He started hitting me and he—" The prosecutor tried to get Blakeney's testimony back on...