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CURTIS LEE DOBY v. STATE OF MISSISSIPPI

OCTOBER 12, 1988

CURTIS LEE DOBY
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

In this criminal appeal from the Circuit Court of Clarke County, the appellant, Curtis Lee Doby, was convicted of selling approximately three grams of cocaine to Donna Conner, an undercover agent with the Mississippi Bureau of Narcotics. The trial court sentenced Doby to a term of sixteen years with the Mississippi Department of Corrections.

Feeling aggrieved over the verdict returned in the lower

 court, Doby perfected an appeal to this Court. He assigns as error the following:

 (1) The trial court erred in allowing an amendment to the indictment after the jury was impaneled and before testimony and proof was presented.

 (2) The trial court erred in granting the State's motion to amend the date of the offense in the indictment after the jury was empaneled and before proof without making a finding that such variance was not material to the merits of the case, and that there would be no prejudice to the appellant in his defense on the merits and where no order making the amendment was placed on the court minutes and no authorization was given district attorney to change the indictment on its face, and then the court refusing appellant's motion for directed verdict.

 (3) The trial court erred in allowing the alleged cocaine into evidence where sufficient chain of custody was not established by the prosecution.

 (4) The trial court erred in allowing testimony of a witness in violation of sequestration rule and misconduct of prosecuting attorney in telling witness what was said by the appellant prior to recalling State's witness to testify in rebuttal.

 (5) The trial court erred in not granting directed verdict of not guilty or peremptory instruction of not guilty in view of the overwhelming weight of the evidence.

 (6) The trial court erred in giving the State's only requested instruction which dealt with the elements of the charged offense which was combined with the forms of the verdict which was objected to by the defense and then the court denying appellant his requested instruction for a neutral form of verdicts.

 I.

 STATEMENT OF THE FACTS

 On September 11, 1985, at approximately 1:30 p.m., Donna Conner, an undercover narcotic's agent for the Mississippi Bureau of Narcotics, and a confidential informer left Meridian, Mississippi, enroute to Stonewall, Clarke County, Mississippi, to attempt to purchase cocaine. They parked in the driveway of the residence; the confidential informant got out of the car, went to the door and talked

 with a black male identified as Curtis Lee Doby. As the confidential informant was standing in the door talking with Doby, she turned to Conner, the undercover agent, and told Conner to get out of the car. Doby advised the agent that she did not have to come inside the house. Officer Conner observed the defendant in order to make a positive identification.

 After a short period of time, the defendant came to the car. He entered the back passenger area of the vehicle. When he was inside, Officer Conner proceeded to discuss the quality and price of the cocaine. She paid $350.00 for an eighth of an ounce with official state funds.

 In direct contradiction to these foregoing facts, Doby testified in his own behalf and asserted an alibi as his defense. Four witnesses also offered testimony in support of the alibi. These witnesses were the defendant's mother, the defendant's two brothers, and Frank Scott, a friend and former resident of Evanston, Illinois.

 According to Doby and his alibi witnesses, appellant came to Mississippi on September 2, 1985 to celebrate his birthday. He returned to Evanston, Illinois on September 4th and came back to Mississippi on September 17th. Assuming this to be true, Doby asserts that he could not have possibly sold cocaine to Agent Conner on September 11th as alleged in the amended indictment.

 PROPOSITION NO. 1

 DID THE TRIAL COURT ERR IN PERMITTING THE STATE TO AMEND THE INDICTMENT BY ALTERING ON THE FACE THEREOF THE DATE OF THE OFFENSE FROM THE 16TH DAY OF SEPTEMBER, 1985, TO THE 11TH DAY OF SEPTEMBER, 1985?

 After a jury was selected and empaneled and was retired from the courtroom, the State moved the court to amend the indictment to change the date of the alleged sale of cocaine to the 11th day of September, 1985, rather than the 16th day of September, 1985, which appeared on the face of the indictment. Doby objected by stating that the defendant had notified the State of his defense of alibi prior to trial and that his witnesses would account for his whereabouts on the date of the original indictment. The defense claimed prejudice to change the alleged sale to another date by five days.

 To support the foregoing argument, counsel for Doby cites 99-7-21 Miss. Code Ann. 1972. This code section reads

 as follows:

 All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward. The court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.

 The defendant urges that penal statutes are interpreted strictly against the State and are construed liberally in favor of the accused. See McLamb v. State, 456 So.2d 743 (Miss. 1984).

 In Byrd v. State, 228 So.2d 874, 875-6 (Miss. 1969), this Court opined in interpreting the above code section the following standard:

 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.

 In Deaton v. State, 242 So.2d 452, 453 (Miss. 1970), this Court wrote:

 Time may or may not be of the essence of an offense when an alibi defense is presented, depending upon the circumstances of the particular case. . . . In the instant proceedings the record reflects that appellant was not surprised or prejudiced by testimony that the offense occurred on August 16, rather than the date charged in the indictment. Appellant offered testimony of an alibi for both dates.

 Obviously, Doby provides a viable defense for a sale committed on September 11th as well as a sale committed on September 16th. The same defense and supporting witnesses were available for both dates.

 Therefore, this Court holds that the trial court was not in error in allowing the change in the indictment under the facts of this case.

 PROPOSITION NO. 2

 DID THE TRIAL COURT ERR IN GRANTING THE STATE'S MOTION TO AMEND WHERE NO ORDER MAKING THE AMENDMENT WAS PLACED ON THE COURT MINUTES AND NO AUTHORIZATION WAS GIVEN THE DISTRICT ATTORNEY TO CHANGE THE INDICTMENT ON ITS FACE?

 Keeping in mind the argument in Proposition 1, Doby cites Miss. Code Ann. 99-17-13 and 99-17-15 (1972). Section 99-17-13 expressly allows a party to amend an indictment during trial to correct a variance between the proof and the indictment where the amendment is to be an immaterial matter and the defendant cannot be prejudiced thereby in his defense.

 Miss. Code Ann. 99-17-15 is as follows:

 The order of the court for amendment of the indictment, record or proceedings provided in 99-17-13 shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, . . . .

 In support of the foregoing argument, counsel for Doby cites Hitt v. State, 63 So.2d 665 (Miss. 1953). In Hitt, there was a variance between the indictment and the proof relative to the ownership of stolen property. The trial judge agreed with the contention and sustained a motion for amendment of the indictment. However, there was no written order for the amendment on the minutes. This Court held that the variance, if any, was not ...


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