Dewayne K. JONES
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*974 John Richard May, Jr., Rhonda C. Cooper, Jackson, attorneys for appellant.
Office of Attorney General by Deirdre McCrory, attorney for appellee.
Before COBB, P.J., EASLEY and CARLSON, JJ.
COBB, Presiding Justice, for the Court.
¶ 1. Dewayne K. Jones appeals from his conviction in the Rankin County Circuit Court for transferring cocaine in violation of Miss.Code Ann. § 41-29-139 (Supp. 2004). Following a jury trial, Jones was sentenced to 30 years' imprisonment (last 10 years suspended) and five years' probation upon release. Jones raises two issues on appeal: (1) that the trial court erred by allowing the State to amend the indictment against Jones on the morning of trial by replacing the words "confidential informant" with the name of "Grady Shoemaker" and (2) the trial court erred by denying Jones a fundamentally fair trial as guaranteed by the United States and Mississippi Constitutions.
¶ 2. We conclude that the trial court did not err, and we affirm Jones's conviction and sentence.
FACTS
¶ 3. On June 27, 2002, Rankin County Sheriff's deputies Bryan Bailey and Chad Dixon were conducting surveillance on Grady Shoemaker, whom they suspected of being a drug dealer. Bailey and Dixon had set up a drug transaction between Shoemaker and a confidential informant later identified only as "Bill LNU"[1] in order to arrest Shoemaker. Bailey and Dixon provided the confidential informant (CI) with money to buy the cocaine, but when the CI went to Shoemaker's residence to make the transaction, Shoemaker told the CI that he did not have any cocaine at that time and would have to go to a house in Flowood to obtain a supply. Shoemaker and the CI, along with Shoemaker's cousin Justin Fitzhugh, then traveled to the Lake Harbor Trade Depot. Shoemaker drove one car, while Fitzhugh and the CI followed in a separate car. At the Trade Depot, Shoemaker obtained $580 from the CI to buy cocaine from Shoemaker's supplier, and the three then traveled to a Wal-Mart parking lot, where Shoemaker told the CI to wait and that he would return with the cocaine.
¶ 4. Deputy Bailey, having prior information that Shoemaker's supplier lived in a house near the Wal-Mart, ordered a surveillance team to watch that house in the event that Shoemaker went there to obtain cocaine. Shoemaker drove to the house being watched, where he met with Dewayne Jones in the garage area for a *975 few minutes[2] and then left to return to Wal-Mart. At the Wal-Mart, Shoemaker gave the cocaine to the CI and was then arrested.
¶ 5. When the law enforcement officers arrested Shoemaker, deputy Bailey ordered other officers to secure the house where Shoemaker met Jones until the sheriff's department obtained a search warrant for the premises. As the officers approached the house, they saw Jones run, and after a brief chase, apprehended him. Once the officers advised Jones of his Miranda rights, they questioned him and, according to the officers, Jones admitted selling cocaine to Shoemaker. Later, at the close of Jones's trial, the State summarized the events of the cocaine transaction between Shoemaker, Jones, and the CI as getting "two for the price of one" and stated that the Rankin County Sheriff's Department "got lucky."
¶ 6. On the day of Jones's trial, after the jury had been selected but not yet empaneled, the State moved to amend the indictment against Jones. The original indictment alleged Jones "willfully, unlawfully, feloniously, knowingly, and intentionally transfer[ed] a quantity of [c]ocaine ... to a confidential informant, in violation of Miss.Code Ann. Section 41-29-139[3], against the peace and dignity of the State of Mississippi." (emphasis added). The State moved to replace "confidential informant" with "Grady Shoemaker." Shoemaker was then a co-defendant scheduled to be tried separately after Jones's trial. Jones objected, stating that the only CI identified to the defense as "credible and reliable" and given a confidential informant number was Bill LNU and that Jones accordingly prepared his defense based upon the original indictment charging him with transferring cocaine to the identified confidential informant. The trial court allowed the amendment, and Jones then moved to dismiss, or alternatively for a mistrial. Jones argued that since he had prepared his defense upon the original indictment of transferring cocaine to a "confidential informant," the amendment to change "confidential informant" to "Grady Shoemaker" was "solely prejudicial and a miscarriage of justice." The trial court denied Jones's motion, and the trial proceeded.
¶ 7. During the trial, deputies Dixon and Bailey testified for the State regarding the logistics and events of the staged transaction. In addition, Chris Wise of the Mississippi Crime Laboratory testified for the State and identified the substance Shoemaker transferred to the confidential informant as cocaine. Finally, Shoemaker testified for the State identifying Jones as the person from whom he obtained the cocaine and stating that he was not promised anything by the State in exchange for testimony. Jones called no witnesses as part of his defense.
ANALYSIS
I. Amendment of the indictment
¶ 8. It is a well-settled principle that the Supreme Court is the "ultimate expositor of the law of this state." UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc.,
*976 ¶ 9. Jones argues that the trial court committed reversible error by amending the indictment to accuse Jones of transferring cocaine to "Grady Shoemaker" instead of a "confidential informant" as originally alleged in the indictment. According to Jones, the amendment was one of substance, not of form. It is fundamental law that courts may amend indictments only to correct defects of form and that defects of substance must be corrected by the grand jury. Rhymes v. State
¶ 10. The rule set out in Griffin v. State,
¶ 11. Jones argues that prior to the amendment of the indictment he had a defense of mistaken identification to the charge against him. According to Jones, he prepared his defense based upon the original indictment and was prepared to prove that he did not transfer cocaine or any other controlled substance to the confidential informant mentioned in the indictment and later identified as Bill LNU. Moreover, Jones claims that prior to the amendment he was prepared to attack the chain of custody in the transfer of the cocaine by demonstrating that he could not possibly have transferred any controlled substance to Bill LNU since the two never met. Thus, Jones argues, after the amendment to the indictment, these defenses were no longer available to him.
¶ 12. Jones cites Parchman v. State,
¶ 13. Responding to Parchman's argument that the changing of the names in the indictment was substantive, this Court said:
With respect to amendments which seek to change the name or description of a person to which the indictment refers, it has been held that changes which conform the indictment so as to correctly name the person intended by the grand jury are allowable. However, if the amendment results in changing the identity of the person, so as to name a person other than the one intended by the grand jury, it is a substantive change and is not allowable.
*977 Id. at 603. The Court then determined that the grand jury intended to indict Parchman for shooting Grady and that the placing of Harmon's name on the indictment was a mistake. The Court further held that even if the grand jury had not intended to indict Parchman for shooting Grady, Parchman was not prejudiced since a defense available against shooting Harmon was equally available against shooting Grady. Id. at 604. Accordingly, this Court found the amendment was one of form and affirmed Parchman's conviction. Jones's reliance on Parchman is misplaced.
¶ 14. The Mississippi Court of Appeals dealt with a more similar situation in Mitchell v. State,
¶ 15. Jones also argues that the lateness of the amendment to indictment prejudiced him since he relied on the original indictment to prepare his defense. However, Jones knew of the role of Grady Shoemaker in the alleged cocaine transaction which took place at the time of Shoemaker's and Jones's arrest and the importance of Shoemaker's potential testimony to the case. Therefore, Jones could not have been "surprised" by the State's attempt to prove Jones transferred cocaine to Shoemaker.
¶ 16. The two defenses which Jones claims he no longer had after the amendment, would not have changed the outcome of the case, nor even had a substantial effect on it. Jones does not demonstrate how he was prejudiced. Assertions of error without prejudice do not trigger reversal. Nicholson ex rel. Gollott v. State,
II. Denial of fundamentally fair trial
¶ 17. Jones argues that the trial court denied him a fundamentally fair trial under the United States and Mississippi Constitutions by allowing the amendment on the morning of trial and after the jury had been selected. According to Jones, the State not only was obligated to inform him earlier of the indictment's defect, but also it concealed the identity of its material witness, Grady Shoemaker, until the morning of trial. In support of his argument, Jones does not cite any applicable sections of the United States and Mississippi Constitutions or corresponding case law.
¶ 18. Generally, a defendant can be denied a fundamentally fair trial when the aggregate effect of various harmless errors creates such an atmosphere of bias, passion, and prejudice that reversal is required. *978 Manning v. State,
¶ 19. While two of Jones's defenses were impaired, this did not prejudice his case. There are two reasons why. First, neither of the two "lost defenses" relate to any essential element of the offense. They are both related only to the change of names from "Bill LNU" to "Grady Shoemaker". Second, this Court has said that it is not necessary for the indictment to mention the purchaser of the drugs when the defendant is charged with the sale of drugs. Young v. State,
¶ 20. In closing, the defense repackages the same facts and argument, by saying that the State committed prosecutorial misconduct by intentionally and/or negligently misleading the defense by concealing from Jones the identity of the true material witness of the State. That is not borne out by the record before us. Jones's second assertion of error is without merit.
CONCLUSION
¶ 21. Based upon the above analysis, this Court affirms the trial court's judgment.
¶ 22. CONVICTION OF TRANSFER OF COCAINE AND SENTENCE OF THIRTY (30) YEARS, WITH THE LAST TEN (10) YEARS SUSPENDED AND FIVE (5) YEARS ON SUPERVISED PROBATION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $5,000.00, ALL COURT COST, FEES AND ASSESSMENTS, WITH CONDITIONS, AFFIRMED.
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS, WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
NOTES
Notes
[1] "LNU" is an abbreviation for "last name unknown." The true names of confidential informants are not revealed, in order to protect their safety and to make it possible for them to continue working undercover until such time as they must be revealed to complete prosecution of the cases involving them.
[2] Based upon the surveillance tape of Jones's house, Shoemaker was in Jones's house for approximately seven minutes.