Quick v. State

• Decision Date: 24 October 1990
• Docket Number: No. 07-KA-59182,07-KA-59182
• Citation: 569 So.2d 1197
• Parties: James E. QUICK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1197

569 So.2d 1197

James E. QUICK v. STATE of Mississippi.

No. 07-KA-59182.

Supreme Court of Mississippi.

Oct. 24, 1990.

Michael W. Crosby, George F. Bloss, III, P.A., Gulfport, for appellant.

Mike C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ANDERSON and BLASS, JJ.

BLASS, Justice, for the Court:

In this case, the appellant, James E. Quick, was indicted in Pearl River County, Mississippi, in August of 1987, for aggravated assault, specifically charging the violation of Miss.Code Ann. Sec. 97-3-7(2)(b) in that he

did willfully, unlawfully, feloniously, purposely and knowingly commit an aggravated assault upon one Gene Baker, a human being, with a deadly weapon, to-wit: a handgun, and did then and there wilfully, unlawfully, feloniously and knowingly cause bodily injury to the said Gene Baker, with the deadly weapon aforesaid, by then and there shooting and injuring the said Gene Baker with the said handgun, contrary to and in violation of Sec. 97-3-7(2)(b) of Mississippi Code of 1972, as amended.

On the morning of the trial, the state moved to amend the indictment to charge, after the word "knowingly" the following:

intentionally or recklessly under circumstances manifesting extreme indifference to the value of human life contrary to Sec. 97-3-7(2)(a) and (b) of Mississippi Code of 1972, as amended.

The record discloses no order allowing the amendment, but the jury instructions were changed by interlineation to reflect the language of the requested instruction. Having been convicted of aggravated assault, the defendant has appealed to this Court complaining, among other things, that he was convicted for an offense for which he had not been indicted. He phrases his complaint slightly differently, but that is its effect. We agree and reverse for that reason.

He complains, also, that his right to remain silent, after the Miranda warnings were given, was violated in that the prosecutor was allowed to ask him, during the trial, whether he made certain complaints or explanations to the officer who had arrested and brought him to the courthouse. The record does not disclose what was said at the bench conference at which this matter was discussed following the objection made by defense counsel, and we will not address the matter further than to say that an accused person who has been given the Miranda warnings is not obliged to answer any questions or to make any explanation. The accused need not invoke the presence of counsel in order to obtain the benefits of these rights. It is improper and, ordinarily, reversible error to comment on the accused's post-Miranda silence. The accused's right to be silent then is equally as strong as the right not to testify and it is error to comment on either. Certainly it is improper to inquire of the defendant as to whether he made any protest or explanation to the arresting officers. See e.g., Austin v. State, 384 So.2d 600, 601 (Miss.1980) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)).

The appellant's third point is that the verdict was against the overwhelming weight of the evidence. We will not go into that point in any detail except to say that it is certainly and clearly true that the evidence of any guilt on the part of the defendant was not overwhelming.

The facts in this case disclose a tragic, involved, and dramatic situation in the lives of the unfortunate families here involved. Inasmuch as the case must be reversed on purely legal grounds and inasmuch as the legal issues can be clearly understood without a recitation of the facts, we shall not record them here, but will proceed immediately to the decisive issues of the case.

Art. 3, sec. 27 of the Mississippi Constitution requires an indictment before the prosecution for felonies, except in cases arising in the land or Naval forces, or the military when in actual service. State v. Sansome, 133 Miss. 428, 97 So. 753 (1923). This provision has been in each of the constitutions which the people of the State of Mississippi have established. It is very clear that, from the beginning, the people of Mississippi have ordained that they not be prosecuted for felonies except upon the indictment by a grand jury. It has been the law since 1858 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. McGuire v. State, 35 Miss. 366 (1858). See also Miller v. State, 53 Miss. 403 (1876); Peebles v. State, 55 Miss. 434 (1877); Blumenberg v. State, 55 Miss. 528 (1878)....