Wilson v. State

• Decision Date: 08 June 2006
• Docket Number: No. 2005-KA-00137-SCT.,2005-KA-00137-SCT.
• Parties: Bobby Earl WILSON, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

935 So.2d 945

Bobby Earl WILSON, Jr. v. STATE of Mississippi.

No. 2005-KA-00137-SCT.

Supreme Court of Mississippi.

June 8, 2006.

Rehearing Denied August 17, 2006.

COPYRIGHT MATERIAL OMITTED

Henry C. Clay, III, Ridgeland, for Appellant.

Office of the Attorney General by Scott Stuart, for Appellee.

Before SMITH, C.J., EASLEY and GRAVES, JJ.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Bobby Earl Wilson, Jr., (Wilson) was indicted on July 20, 2004, by the Grand Jury of Warren County, Mississippi, for the armed robbery of Trustmark National Bank on March 30, 2004, feloniously taking $11,286 from the person of or from the presence of Mary Cunningham and Martha Robinson against their will by violence by the use of a knife, or by placing in fear of immediate injury by exhibition of a knife in violation of Miss.Code Ann. § 97-3-79.

¶ 2. Wilson was also indicted on July 20, 2004, as a habitual offender having been convicted twice previously for felonies under Miss.Code Ann. § 99-19-81. On August 25, 2004, the State filed a motion to amend the indictment of July 20, 2004, to a habitual offender under Miss.Code Ann. § 99-19-83. The habitual portion of the indictment was subsequently amended on September 28, 2004, to charge Wilson as a violent habitual offender under Miss.Code. Ann. § 99-19-83.

¶ 3. Wilson was tried before a jury, and the jury returned a verdict finding Wilson guilty of the lesser-included offense of robbery. The trial court conducted a sentencing hearing. Wilson was sentenced as a habitual offender to serve a term of life without parole in the custody of the Mississippi Department of Corrections under Miss.Code Ann. § 99-19-83. Wilson appeals to this Court in forma pauperis.

FACTS

¶ 4. Wilson robbed the Trustmark National Bank located at Mission and Grove Streets in Vicksburg, Mississippi. Robinson testified that she saw Wilson go to the drive-through window operated by Cunningham. She saw Cunningham putting money in a Wal-Mart bag, and she knew the bank was being robbed. Wilson signaled Robinson to come to Cunningham's window where Robinson put money in the Wal-Mart bag. Wilson told Robinson it was not enough money, and he had Cunningham go to the drive-through window to get more money. Robinson identified Wilson from a photographic line-up.

¶ 5. Georgia Knox, the drive-through teller, testified she saw Cunningham putting money in a Wal-Mart bag and heard Wilson say that he wanted the money from her window. Knox put the money from her drawer in the Wal-Mart bag. Knox testified she saw Wilson's knife on the counter. Knox felt threatened and afraid. Wilson left the bank with the money.

¶ 6. Officer Leonce Young of the Vicksburg Police Department received a dispatch call that the bank had been robbed. Officer Young saw Wilson crouched down behind cars and then saw Wilson run. Officer Young followed, caught, and handcuffed Wilson. When Officer Young asked Wilson his name, Wilson responded, "bank robber." Officer Young testified that Wilson had red dye on his hands and shirt and that a steak knife was recovered from Wilson.

¶ 7. After Officer Young radioed for assistance, Captain Mark Culbertson arrived to assist him. Officer Young asked Wilson where the money was. Wilson responded, "It's your job to find the money, I rob banks." Captain Culbertson testified that a steak knife was recovered from Wilson.

¶ 8. Sergeant Virgil Woodall, a crime scene investigator, testified that he collected the steak knife from Wilson's pocket. Sergeant Woodall also collected the money and Wilson's clothes. Debra Kinnebrew, the bank's branch manager, testified that the money recovered was the same money taken from the bank.

DISCUSSION

I. Amended Indictment-Habitual Status

¶ 9. "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." Evans v. State, 813 So.2d 724, 728 (Miss.2002) (quoting Mitchell v. State, 739 So.2d 402, 404 (Miss.Ct.App.1999)). "It is well settled ... 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." Miller v. State, 740 So.2d 858, 862 (Miss.1999).

¶ 10. Wilson argues that the trial court erred in allowing the State to amend the original indictment to charge him as a habitual offender under Miss. Code Ann. § 99-19-83. However, Mississippi law allows an amendment of an indictment to charge a defendant as a habitual offender even after the jury has returned a guilty verdict. Torrey v. State, 891 So.2d 188, 195 (Miss.2004). Here, Wilson was put on notice the State sought to amend the indictment months before trial. Likewise, the trial court allowed the amendment long before trial began. Rule 7.09 of the Uniform Rules of Circuit and County Court Practice allows for the amendment of an indictment in order to charge an offender as a habitual offender. Rule 7.09 reads:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. U.R.C.C.C. 7.09. Thus, an indictment may be amended to charge an offender as a habitual offender only if the offender is given a "fair opportunity to present a defense and is not unfairly surprised." Id.; Adams v. State, 772 So.2d 1010, 1021 (Miss.2000).

¶ 11. The two prior felonies charged in the original July 20, 2004, indictment were: (1) grand larceny in the Circuit Court of Warren County, Mississippi, on or about August 5, 1994, Cause no. 1171V, convicted and sentenced to serve five years, and (2) bank robbery in the United States District Court Southern District of Mississippi Western Division on or about June 21, 1999, in Cause no. 5:98cr12BrS, convicted and sentenced to serve seventy months.¹ The grand larceny was actually burglary of an automobile; however, the cause number, sentence, and the sentencing court information were correct. The revocation order on the burglary of an automobile reflected the charge was for attempted grand larceny. Wilson was provided adequate information to inform him that the State sought habitual status and to put him on notice of the conviction to be used. Here, Wilson was not unfairly surprised by the amendment. The State sought to amend the indictment months before trial. The trial court allowed the amendment months before trial. Likewise, Wilson was originally indicted as a habitual offender under Miss.Code Ann. § 99-19-81.

¶ 12. Furthermore, it was not necessary for Wilson to prepare a defense based on the amended indictment because the habitual offender status did not affect the crimes with which Wilson was charged. See Adams, 772 So.2d at 1021. This Court has held, "prior offenses used to charge the defendant as an [sic] habitual offender are not substantive elements of the offense charged." Swington v. State, 742 So.2d 1106, 1118 (Miss.1999) (emphasis added). In Swington, this Court went on to state:

[T]he 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 [the] 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.

Id.²

¶ 13. We find the trial court did not err in amending the indictment to charge Wilson as a habitual offender under Miss. Code Ann. § 99-19-83.

II. Motion to Suppress

¶ 14. During a suppression hearing, the trial court sits as the finder of fact. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996). "`Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.'" Hunt, 687 So.2d at 1160 (quoting Sills v. State, 634 So.2d 124, 126 (Miss. 1994)). The trial court's decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence. Hunt, 687 So.2d at 1160. "Where the evidence is contradictory, this Court `generally must affirm.'" Id. (quoting Lesley v. State, 606 So.2d 1084, 1091 (Miss.1992)).

¶ 15. Wilson argues on appeal that the trial court erred in denying his motion to suppress the statements he made when he was stopped by Officer Young. Wilson contends that Officer Young lacked probable cause to stop him. However, Officer Young was aware from the dispatch call that the bank had been robbed, and he was in route to the bank. On the way to respond, Officer Young testified that he saw an individual that appeared to be a shoplifter at the County Market. The individual, later identified as Wilson, was crouched behind cars when the police passed. He then ran down the street and behind a school bus.

¶ 16. Officer Young suspected he was a shoplifter based on his conduct of running and going behind the school bus. Officer Young decided to investigate. He ordered the individual to stop and told him to come here. Officer Young asked the individual his name, and he responded, "bank robber." Officer Young testified that Wilson was covered in red dye. Officer Young cuffed Wilson and called for assistance. Captain...