Reed v. State, 56679

• Decision Date: 22 April 1987
• Docket Number: No. 56679,56679
• Citation: 506 So.2d 277
• Parties: Willie REED v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 277

506 So.2d 277

Willie REED v. STATE of Mississippi.

No. 56679.

Supreme Court of Mississippi.

April 22, 1987.

William B. Jacob, Daniel P. Self, Jr., Meridian, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, C.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

Willie Reed was indicted and tried for the armed robberies of Pearl Pope, William T. Boyd and Toby Clark. At trial, the prosecution was allowed to reopen its case and delete the name of Toby Clark from the indictment. All references to Clark were also deleted from the jury instructions. Thereafter, the jury returned a verdict finding Reed guilty of the crime charged and he was sentenced to life imprisonment by the Circuit Court of Lauderdale County. For the reasons set forth below, we affirm the conviction of armed robbery as to victims Pope and Boyd. However, with regard to the charges alleging armed robbery of Clark, we hold that the deletion from the indictment and subsequent jury instructions were tantamount to an acquittal on this charge and thereby dismiss this charge with prejudice.

FACTS

On March 26, 1981, two assailants broke into a private boarding home in Meridian, Mississippi, which was owned by Mrs. Pearl Pope. Mrs. Pope and her two boarders, William T. Boyd and Toby Clark, were attacked and robbed. Subsequent investigations revealed that the two assailants were really Willie Reed and Robert Turner.

Reed and Turner were indicted together under a multi-count indictment. Count I of the indictment charged them with armed robbery against all three victims in violation of Sec. 97-3-79 of the Mississippi Code Annotated (1972). ¹ Thereafter, Reed and Turner each entered into plea bargaining with the State. Turner ultimately pled guilty and received a five year suspended sentence. He also agreed to testify on behalf of the State. Reed continued to negotiate until February 25, 1985. At that point, negotiations collapsed and a trial date was immediately set for February 28, 1985. The State was ordered to proceed under one count of the indictment and chose Count I.

At trial, Evita Reed testified that Willie Reed, her uncle, had been living with her next door to Mrs. Pope. She further stated that on the day of the robbery, Reed had asked her if she had a gun and if Mrs. Pope had any money in her home.

Robert Turner, Evita Reed's fiance, testified that he was staying at Evita's home on the night in question and that Reed awakened him around 11:30 p.m. The two men then went next door and gained entrance to Mrs. Pope's home through the kitchen door. Turner next testified that when Mrs. Pope came into the kitchen, Reed jumped her, tied her up, and began beating her and demanding money. ² Reed then ransacked the house, found a pistol, and again attacked the victims. The two men then left the house leaving Mrs. Pope bound and gagged in the kitchen and ran back next door to Evita Reed's home.

Both Mrs. Pope and Mr. Boyd related similar descriptions of the events. Mrs. Pope also testified that her jewelry, money box and .22 calibre pistol were stolen. Mr. Boyd stated that money was taken from his person as well.

Officer Steve Thomas testified that when police arrived they found the house in disarray and also found a change box on the front porch. The police then went next door to Evita Reed's home and found loose change scattered on the front porch. Robert Turner was arrested that morning at Evita Reed's home and Reed was subsequently detained in Jacksonville, Florida, and returned to the State.

Thereafter, the State rested their case. Defense counsel moved for a directed verdict arguing a material variance between the proof and the indictment because the State failed to offer any proof as to the robbery of Toby Clark. The motion was overruled but the trial court allowed the State to reopen its case and delete Toby Clark from both the indictment and the jury instructions. The jury then returned a general verdict finding Reed guilty and sentenced him to life imprisonment.

LAW

I. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INDICTMENT TO DELETE THE NAME OF TOBY CLARK?

Under this assignment of error, Reed contends the court erroneously allowed the State to amend the indictment deleting the name of victim Clark because such an amendment goes to the substance rather than the form of the indictment and because the trial judge failed to enter the appropriate order in the record as required by Sec. 99-17-15 of the Mississippi Code Annotated (1972).

Section 99-17-13 of the Miss.Code Ann. (1972), provides for amendments to criminal indictments during the course of a trial in limited situations. See Miss.Code Ann., Sec. 99-17-13 (1972). However, any amendment, to be permissible, must be in form and not substance. Atkins v. State, 493 So.2d 1321, 1322 (Miss.1986). We have adopted the following test to determine whether an amendment to an indictment results in prejudice to the defendant:

The test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance. * * *

Bingham v. State, 434 So.2d 220, 223 (Miss.1983), citing Byrd v. State, 228 So.2d 874 (Miss.1969).

The test followed in Bingham addresses the potential prejudice of any amendment to a criminal indictment. The State in this case was allowed to delete an essential element of the crime which they consciously chose to prosecute. As such, we cannot say that this amendment went to form rather than substance and hold that it was impermissible.

Additionally, we note that no valid order was entered on the record authorizing the alleged amendment as required by Sec. 99-17-15 of the Mississippi Code Annotated (1972). The State is required to make sure that such an order appears in the record and the defense is required to object to the absence of such order if it wishes to preserve this point for appeal. See Sturgis v. State, 379 So.2d 534 (Miss.1980). In the present case, the defense attempted to object but was cut short by the trial judge. The State at no point either asked the trial court nor added to the record any order authorizing the amendment. Thus, the attempted amendment would be ineffective for this reason also.

The question to be resolved now is whether the ineffective amendment of the indictment requires reversal of Reed's conviction.

In Phillips v. State, 493 So.2d 350 (Miss.1986), we addressed a similar issue and held:

Where multiple charges are submitted to a jury and where the jury returns a verdict of guilty to a single offense, i.e., as here, kidnapping, and where the evidence in the record and the instructions under which the matter was submitted to the jury are such that one of the charges must fall, the judgment of conviction may be affirmed only if we may conclude beyond a reasonable doubt that the infected charge was separable and that there was an adequate factual and legal basis for the conviction of the defendant on another severable charge.

Phillips, 493 So.2d at 356.

Applying these general principles to this case, we hold that the charges against Reed as to the armed robberies of victims Boyd and Pope were separable from the charge of armed robbery against Clark and that there was an adequate factual and legal basis to support the conviction of Reed on these charges. While the jury did return a general verdict in this case, we nevertheless are of the opinion that the jury did not consider the charge against Clark during its deliberations since juries are presumed to follow the instructions given by the trial judge. See Johnson v. State, 475 So.2d 1136, 1142 (Miss.1981). Accordingly, we affirm the conviction of Reed as to victims Boyd and Pope.

However, one final issue remains to be resolved. Reed contends that now he may be subjected to double jeopardy by being tried twice for the armed robbery of Toby Clark. The State urges us to treat the trial judge's action as nolle prosequi. However, nolle prosequi, by its very definition, contemplates a formal entry on the record by the prosecuting official which declares that the case will not be prosecuted further. See Black's Law Dictionary, 945 (5th Ed.1979). No such entry appears in the record. Further, it is clear from our reading of the record that the State attempted in vain to establish the armed robbery of Clark by eliciting testimony from his accomplice and the other two victims regarding the activities that occurred in Mrs. Pope's home that night. The State simply failed to prove an armed robbery perpetrated against Clark and may not now claim that the charge is nolle prosequi.

We reject the State's claim that their inability to produce Clark at trial was the result of "manifest necessity" in light of his intervening illness. The State was well aware of Mr. Clark's age and health problems. The State could have at any point sought a continuance until Mr. Clark was able to appear at trial. Instead, they elected to proceed with the proof available until defense counsel made his motion for directed verdict. We cannot say that the State's inability to produce such a key witness at trial was the product of a "manifest necessity" under the circumstances.

As to the charge of armed robbery of Clark, we hold that the trial judge's actions were tantamount to an acquittal on this charge. In United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the United States Supreme Court recognized "the trial judge's characterization of his own action cannot control the classification of this action."...