Qualls v. State, 2005-KA-00525-COA.

• Decision Date: 23 January 2007
• Docket Number: No. 2005-KA-00525-COA.,2005-KA-00525-COA.
• Citation: 947 So.2d 365
• Parties: Willie Jene QUALLS, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

947 So.2d 365

Willie Jene QUALLS, Appellant v. STATE of Mississippi, Appellee.

No. 2005-KA-00525-COA.

Court of Appeals of Mississippi.

January 23, 2007.

James L. Penley, Vicksburg, attorney for appellant.

Office of the Attorney General by Jacob Ray, attorney for appellee.

Before MYERS, P.J., GRIFFIS, and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Willie Qualls was tried and convicted of one count of burglary and one count of attempted grand larceny in the Circuit Court of Claiborne County. He was sentenced to seven years in the custody of the Department of Corrections as a habitual offender. Qualls appeals to this Court. We find no error below and affirm his conviction.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. At about 3:30 a.m. on the morning of October 20, 2003, Nancy Wilson awoke to see her husband's 1993 GMC truck going down the driveway of their home in Port Gibson. She woke her husband, Don, who instructed her to call the Port Gibson police. Don Wilson then ran out into his yard to stop his truck. He saw the truck's brake lights go on and a young, slim African-American male wearing a white tank-top T-shirt jump out of the truck and run away. Three police officers arrived minutes later and began searching the area. Shortly thereafter, one police officer saw two African-American men running between houses a few blocks away. One of these men was wearing a white tank-top T-shirt.

¶ 3. A few blocks from the crime scene, the other two police officers saw a white car with a Warren County license plate and tinted windows partially pulled into the driveway of an elderly couple's home. While looking in the front window of the automobile, one police officer noticed that someone was in the front seat. He knocked on the window, identified himself as a police officer, and asked the person twice to exit the vehicle, without receiving a response. He then broke the driver's side window of the car with his baton and, upon opening the car door, found two men in the car — one lying on the front seat and one lying on the back seat. The men were observed to be breathing heavily and sweating. The man in the back seat — Willie Qualls — was wearing a white tank-top shirt, and resisted the police officer's attempts to remove him from the car.

¶ 4. The two men were taken into custody and returned to the Wilson's house for possible identification. Although Don Wilson could not definitively identify Qualls as the person who jumped from his truck, Qualls's appearance was consistent with the general description of that person: slim, African-American, and wearing a white tank-top T-shirt. At the police station, Freddie Harris, the other man in the parked automobile, told the police that he and Qualls had attempted to steal Don Wilson's truck that evening.

¶ 5. Two different indictments were brought against Qualls. The first indictment charged him and co-defendant Harris with attempted larceny of a vehicle. The second indictment charged Qualls alone with auto burglary and attempted grand larceny, in addition to noting his habitual offender status.¹

¶ 6. At a hearing on September 27, 2004, Qualls requested and received a new court-appointed attorney, because Qualls claimed his original court-appointed attorney wanted him to plead guilty. Also, Qualls requested his second indictment be dismissed because it was improperly served. The circuit judge informed Qualls that he must file a motion to this effect.

¶ 7. At a hearing on November 8, 2004, Qualls's new court-appointed attorney moved to dismiss the second indictment for lack of proper service. The State noted that Qualls had been presented with the second indictment at the September 27, 2004 hearing. Further, the circuit judge had Qualls again served with the indictment at the hearing. Qualls also moved to suppress evidence based on an allegedly illegal arrest. The judge continued this motion until the date of the trial.

¶ 8. At trial on January 6, 2005, the jury found Qualls guilty of one count of auto burglary and one count of attempted grand larceny. The judge merged these two counts as a matter of law, and Qualls's sentence was based on the auto burglary charge. The defendant's motion to suppress evidence related to an illegal arrest was denied, as were the defendant's motion for a judgment notwithstanding the verdict ("JNOV") and motion for a new trial. Qualls received a seven year prison sentence as a habitual offender. Qualls now appeals to this Court.

ISSUES AND ANALYSIS

I. WHETHER QUALLS'S INDICTMENT WAS DEFECTIVE.

¶ 9. The issue of whether an indictment is fatally defective is a question of law and warrants a broad standard of review by this Court. Nguyen v. State, 761 So.2d 873, 874(¶ 3) (Miss.2000). Since this issue is a question of law, the standard of review is de novo. Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (citations omitted). The purpose of an indictment is "to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense." Moses v. State, 795 So.2d 569, 571(¶ 13) (Miss.2001). The indictment shall contain "the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation." URCCC 7.06.

¶ 10. Qualls argues that he was not fully informed of the charges he would face in the Claiborne County Circuit Court because there were two separate indictments, and he claims this fact created difficulties in knowing which charges he was to defend. Yet, both indictments, as admitted in Qualls's brief, "had similar charges and proof." Qualls was specifically informed by both his own defense attorney at that time² and an assistant district attorney, at his November 8, 2004 hearing, which indictment the State was planning to pursue. The judge then reiterated to Qualls that "[y]our attorney will advise you." Obviously, Qualls was put on notice that his defense attorney would know which indictment would go forward. Moreover, there were no claims of error below regarding which indictment to defend against. We cannot see how these circumstances would create difficulties in Qualls's defense when his trial attorney had knowledge of the charges pursued by the State and did not complain of the situation at that time.

¶ 11. Qualls also argues that there were several defects with his first indictment. His first indictment charged him with attempted "taking possession of or taking away a motor vehicle" under Mississippi Code Annotated section 97-17-42 (Rev. 2006). Qualls argues the language of the statute precludes this charge against him. He also points out the indictment lacks a date or seal and contains an inaccurate vehicle description.

¶ 12. While this indictment may contain the structural defects of which Qualls complains, and apparently, the first indictment was never formally dismissed by the trial court, these errors cannot be examined by this Court. The State is correct in noting that the validity of the first indictment was not properly preserved for appeal, because the indictment is not contained in the record. Further, Qualls's defense counsel made no motion to supplement the record. Merely including the initial indictment in the "record excerpts" filed with Qualls's brief is insufficient. The Mississippi Supreme Court has held repeatedly that it is the appellant's duty to have the proper record to support his or her assignments of error. Peterson v. State, 518 So.2d 632, 638 (Miss.1987). This Court cannot assign error to actions not made a part of the record. Thus, this issue, as it pertains to the first indictment, is procedurally barred. Furthermore, even if we considered that this first indictment was properly before this Court, it is not the indictment the State proceeded with. Thus, this issue is without merit regarding the first indictment.

¶ 13. Qualls argues that the second indictment, under which he was tried and convicted, should be dismissed because of lack of service, date, seal, and an improper vehicle description. Regarding proper service for the second indictment, Qualls states that, because he was faxed the indictment while incarcerated, he was not properly served. However, the State claims it attempted to serve him the new indictment at the September 27, 2004 hearing, but Qualls refused to accept it. During the November 8, 2004 hearing, Qualls's new lawyer moved to dismiss the second indictment for improper service, even though Qualls was already in possession of a copy of the indictment at that time. At this hearing, the circuit court judge stated he wanted the lack of proper service to be cured, and informed the defendant that "the failure to serve an indictment does not warrant dismissal of the indictment." At this point in the proceeding, Qualls was re-served with the second indictment by the assistant district attorney, in the presence of the trial judge and his defense counsel, so we find there can be no question of personal, proper service.

¶ 14. Further, in Qualls's brief, he argues for the first time that the second indictment is faulty because there is not a date of filing and an official court seal. Upon review of the copy of the indictment in the record, the reverse image of a "filed" stamp with a date was faintly visible in the bottom right corner, as if the original indictment had been stamped on the back of the paper. To further investigate, we requested a certified copy of the second indictment from the circuit court clerk, which did in fact show the document had the date of filing of August 18, 2004, and court clerk stamp on the reverse side of the original document. Additionally while the date of filing is required, there is no rule stating an indictment must have a court seal to be valid. See URCCC 7.06; Miss.Code Ann. § 99-7-9 (Rev.2000). We find that the second indictment was properly filed with the circuit clerk, and had...