269 So. 3d 368
Miss. Ct. App.2018Background
- In August 2016 Bernice Freelon returned home and discovered Torey Hubbard in her house; she recognized him, saw him holding a t-shirt and another item, and later found a white t-shirt and her flashlight in the yard.
- Freelon testified she had not invited Hubbard in, was afraid, and that Hubbard fled out the back door when she ran outside.
- A Grenada County grand jury indicted Hubbard for burglary of a dwelling, originally alleging the offense occurred "on or about August 14, 2016."
- After voir dire the State moved to amend the indictment date to "on or about August 13, 2016;" the circuit court allowed the amendment over Hubbard’s objection that it was a substantive change that prejudiced his defense.
- Hubbard testified in his own defense and offered an alibi (staying at his aunt’s house Aug. 12–14), but his corroborating witnesses did not testify; the jury convicted him and the court sentenced him to fifteen years, consecutively.
- On appeal Hubbard argued the court erred in permitting the date amendment and that the amendment unfairly surprised and prejudiced his defense; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in permitting the State to amend the indictment date from Aug. 14 to Aug. 13, 2016 | The State: date amendment is permissible because time is not an essential element and the amendment is one of form | Hubbard: the date change was a substantive amendment that unfairly surprised and prejudiced his defense | Amendment was one of form, not substance; no prejudice shown; amendment properly allowed and conviction affirmed |
Key Cases Cited
- Travelstead v. State, 232 So. 3d 752 (Miss. Ct. App. 2017) (discussing review standard for indictment defects and the purpose of an indictment)
- Conley v. State, 790 So. 2d 773 (Miss. 2001) (holding date changes are of form unless time is an essential element)
- Jones v. State, 993 So. 2d 386 (Miss. Ct. App. 2008) (holding amendment harmless where same defense and witnesses apply to original and amended dates)
- Givens v. State, 730 So. 2d 81 (Miss. Ct. App. 1998) (same-defense rule for date amendments)
- Heisser v. State, 213 So. 3d 544 (Miss. Ct. App. 2016) (elements of burglary of a dwelling)
- Johnson v. State, 191 So. 3d 732 (Miss. Ct. App. 2015) (observing ineffective-assistance claims may be raised in postconviction relief)