Before Thomas, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: King, J.
MICHAEL JEROME SMITH, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 03/06/96
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: HUMPHREYS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: BURGLARY (HABITUAL): SENTENCED TO 7 YRS IN THE CUSTODY OF THE MDOC TO RUN CONSECUTIVE TO TIME PRESENTLY SERVING
DISPOSITION AFFIRMED -3/24/98
MOTION FOR REHEARING FILED:
Michael Jerome Smith was convicted in the Humphreys County Circuit Court of business burglary in violation of Miss. Code Ann. § 97-17-33 Rev.1994) and sentenced as an habitual offender to serve a term of seven years in the custody of the Mississippi Department of Corrections. On appeal, Smith argues three points of error:
(1) The trial court erred in overruling Defendant's motion for directed verdict at the close of the state's case, at the close of the defense's case, refusal to grant Defendant's requested Jury instruction one and in overruling appellant's motion for a new trial or for a judgment notwithstanding the verdict, due to the insufficiency of the evidence presented by the state.
(2) The trial court erred in refusing to grant Defendant's requested jury instruction four, requiring that each element of the crime charged be to the exclusion of every other reasonable hypothesis.
(3) The trial court erred in amending the indictment pursuant to Rule 7.09 of the Uniform Rules of Circuit and County Court Practice, thereby allowing the Defendant to be tried as an habitual criminal without the case having been first presented to a Grand Jury for its consideration on this issue. The trial court's action in this regard, although in reliance on said Rule 7.09 was in violation of § § 27 and 169 of the Miss. Const. of 1890.
Finding no error, we affirm the circuit court's judgment.
On May 16, 1995, Officer Greg Lampkin of the Belzoni Police Department conducted a routine security check of several businesses in the downtown area. Between 1:00 a.m. and 2:00 a.m. that morning, he heard noise in the area of the main post office as he checked the door locks of the businesses. As he walked down the street to the post office, Officer Lampkin noticed Michael Smith walking out of the post office door. Officer Lampkin approached Smith and questioned him regarding a sledge-hammer which Smith held in his hand. Smith responded, "I always carry a hammer". Officer Lampkin allowed Smith to leave at this point but decided to enter into the post office to check things out.
Upon entering the post office, Officer Lampkin noticed that the postmaster's door had a large hole near its doorknob. The steel roll-up door, which enclosed the service center, had been raised and had scratches at the bottom. This indicated to him a possible break in. He then radioed Officer Rosetta Williams inquiring if Smith had been seen in her patrol area.
Officer Williams saw Smith throw an item on the ground. She retrieved the item which turned out to be the hammer. Later that morning she saw Smith again and suggested that he go to the police department with her. At that time, Smith stated that he did not break into the post office and only went there to mail a letter to his brother. Officer Williams allowed Smith to leave at this point.
On May 25, 1995, Officer Lampkin arrested Smith for business burglary. Smith gave a voluntary statement at the police department which indicated that he had been drinking and getting high all day. Smith admitted to going to the post office with a hammer and hitting a door and "some of the little doors what the mail go into".
Smith was subsequently indicted for business burglary. He was convicted by a jury in the Humphreys County Circuit Court and sentenced as an habitual offender to serve a term of seven years. His motions for a new trial or a judgment notwithstanding the ...