320 So.3d 1246
Miss. Ct. App.2021Background
- Dex H. Stone (born 1998) was indicted for sexual battery under Miss. Code Ann. § 97-3-95(1)(d) for performing oral sex on Nick Turner (born 2006), alleged to have occurred within an identified date range.
- At trial the six-year-old victim testified about the assault; a neighbor, Hailey Spears, testified Stone admitted to “suck[ing] on [Nick’s] private areas” and said he wouldn’t get in trouble if no one told.
- Investigator Gypsi Ward arranged a forensic interview of the child and, when asked if law enforcement tried to speak with Stone, volunteered that Stone “requested an attorney.” Defense objected, moved for a mistrial, and the court sustained the objection and instructed the jury to disregard the comment but denied the mistrial.
- After the State rested, it moved to amend the indictment to extend the charged date range from Dec. 31, 2012 to Jan. 30, 2013 to conform to Hailey’s testimony; the trial court allowed the amendment over defense objection.
- The jury convicted Stone of sexual battery; the court sentenced him to 30 years. Stone appealed, arguing the post-Miranda comment required a mistrial and that the mid-trial amendment to the indictment prejudiced his defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a witness’s unsolicited statement that Stone “requested an attorney” required a mistrial for commenting on post-Miranda silence | The State’s witness comment prejudiced Stone by suggesting he was silent out of guilt; a mistrial was required | Statement was an unsolicited, isolated reference; trial court’s instruction to disregard cured any prejudice | No abuse of discretion; single unsolicited mention, jury admonition, and strong evidence of guilt meant no reversible error |
| Whether amending the indictment mid-trial to extend the date range prejudiced Stone | Amendment surprised Stone and impaired his ability to investigate or prepare a possible alibi for January 2013 | Time is not an essential element of sexual battery; amendment was one of form to conform to proof and did not prejudice defense | Amendment permissible as change of form; defendant not prejudiced because defense (denial of abuse) unaffected and time is not essential |
Key Cases Cited
- Martin v. State, 266 So. 3d 652 (Miss. Ct. App. 2018) (addresses review of comments on post-Miranda silence and whether they create unjust prejudice)
- Gilbert v. State, 48 So. 3d 516 (Miss. 2010) (single mention of Miranda rights with prompt judicial admonition may not require reversal)
- Swinney v. State, 241 So. 3d 599 (Miss. 2018) (isolated testimony that defendant declined interview did not amount to plain reference to post-Miranda silence when unsolicited)
- Eakes v. State, 665 So. 2d 852 (Miss. 1995) (test for whether amendment prejudices defense is whether original defense remains equally available)
- Jordan v. State, 80 So. 3d 817 (Miss. Ct. App. 2010) (time is not an essential element of sexual battery; expanding date range not prejudicial where defense unchanged)
- Spears v. State, 294 So. 3d 637 (Miss. Ct. App. 2019) (date changes in indictments generally changes of form, not substance, unless time is essential)
- Odom v. State, 73 So. 3d 550 (Miss. Ct. App. 2011) (indictment may be amended to conform to evidence if amendment is form and not prejudicial)
- Baine v. State, 604 So. 2d 258 (Miss. 1992) (changes in date are ordinarily changes in form unless time is essential)