80 So. 3d 849
Miss. Ct. App.2012Background
- Powell convicted as a habitual offender for burglary after trial in Hancock County Circuit Court.
- Indictment amended on the first day of trial from 99-19-81 to 99-19-83 to reflect habitual-offender status.
- Evidence included surveillance video, witness testimony, and recovered items linking Powell to the burglary.
- Powell gave a statement to Investigator Stepro but asked that the interview stop; a subsequent line of testimony was suppressed.
- Powell argues the indictment amendment, the Fifth Amendment issue, and the denial of a new-trial motion on appeal; the circuit court’s rulings were challenged on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amendment from 99-19-81 to 99-19-83 was proper | Powell argues substance, not form, altering the charge. | Powell contends unfair surprise and inadequate notice | Amendment was proper as form-based; not a substantive change. |
| Whether Investigator Stepro’s testimony violated Fifth Amendment | Stepro’s comments about silence tainted Powell's rights | Any error was harmless; no contemporaneous objection | Harmless error; does not warrant reversal. |
| Whether the denial of Powell's motion for a new trial was proper | Insufficient weight of evidence warrants new trial | Verdict supported by testimony and Presley factors | No abuse of discretion; verdict not against weight of evidence. |
Key Cases Cited
- Smith v. State, 477 So.2d 191 (Miss. 1985) (indictment form vs. substance and notice in habitual-offender context)
- Akins v. State, 493 So.2d 1321 (Miss. 1986) (amendment of indictment improper when inappropriate notice given)
- Griffin v. State, 540 So.2d 17 (Miss. 1989) (amendment after rest of case; substance change improper)
- Gowdy v. State, 56 So.3d 540 (Miss. 2011) (unfair surprise from late habitual-offender amendment after conviction)
- Wells v. State, 57 So.3d 40 (Miss.Ct. App. 2011) (amendment on day of trial proper if not prejudicial or surprising)