Kevin Dale McCain v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01865-COA
KEVIN DALE MCCAIN
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/30/2009
HON. ISADORE W. PATRICK JR.
WARREN COUNTY CIRCUIT COURT
HUNTER NOLAN AIKENS
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
RICHARD EARL SMITH JR.
CRIMINAL - FELONY
CONVICTED OF ROBBERY AND
SENTENCED, AS A HABITUAL
OFFENDER, WITHOUT ELIGIBILITY FOR
PAROLE OR PROBATION, TO LIFE IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS,
WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION
AFFIRMED – 03/29/2011
BEFORE IRVING, P.J., MYERS AND MAXWELL, JJ.
IRVING, P.J., FOR THE COURT:
¶1.
Kevin Dale McCain was convicted in the Warren County Circuit Court of robbery and
sentenced to life in the custody of the Mississippi Department of Corrections, as a habitual
offender, without eligibility for parole or probation. Feeling aggrieved, McCain appeals and
asserts that: (1) the State failed to prove his habitual-offender status; (2) his case should have
been dismissed due to speedy-trial violations; (3) the circuit court erred in allowing a cap into
evidence; and (4) the circuit court should have quashed his indictment.
¶2.
Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶3.
Cheryl Jinkins was working as a teller at a Trustmark Bank in Vicksburg, Mississippi,
on January 30, 2008, when she was approached by a man who handed her a note. The note
stated: “I want 20’000 [sic] in 100’s, 50’s, & 20’s[,] or all die.” Jinkins attempted to comply
with the note’s demand. When she opened her drawer to retrieve money for the man, the
bank’s silent alarm was triggered. Jinkins handed the man approximately $2,100 in cash.
After the robber had received the money, he left the bank. The police officers who
investigated the robbery retrieved the bank’s surveillance footage. The footage contains
images of the robber, who appeared to be wearing a grey or blue jacket, blue jeans, boots,
and an orange Texas Longhorns hat. Images from the surveillance footage were released to
the local news media in an effort to identify the robber.
¶4.
Approximately two hours after the robbery, Officer Rita McNair of the Mendenhall
Police Department was conducting a road block on Highway 13 in Mendenhall, Mississippi,
due to construction. While Officer McNair had vehicles stopped, one automobile driver
drove around the road block and attempted to proceed past Officer McNair. Officer McNair
stopped the vehicle, which was driven by McCain. Officer McNair arrested McCain for
driving with a suspended license, failing to yield to blue lights, improper passing, and
reckless driving. Officer McNair testified that she and other officers noticed that McCain
2
“had a lot of money on him.” McCain paid almost fifteen hundred dollars in cash to bond
out from the arrest and was released. The vehicle that he had driven remained impounded
near Mendenhall.
¶5.
Officer McNair was watching the evening news on January 30, 2008, when she saw
a segment on the robbery. Officer McNair testified that she recognized McCain from his
arrest; Officer McNair “also recognized . . . the cap that he was wearing.” Investigator
Robert Stewart with the Vicksburg Police Department was ultimately contacted as a result
of Officer McNair’s identification.
¶6.
The day after the robbery, McCain went to retrieve his vehicle and was arrested by
Officer McNair; Officer McNair testified that McCain was wearing an orange Texas
Longhorns cap at the time of his arrest. Investigator Stewart obtained a search warrant for
McCain’s vehicle, and then he proceeded to search the vehicle with other officers. On the
front passenger seat of the vehicle was a note that read: I want 20’000 [sic] in 100’s, 50’s,
& 20’s[,] or all die.” Another note reading “100’s & 50’s & 20’s” was also found in the
vehicle. McCain’s home was later searched pursuant to a search warrant. Inside, officers
found clothing similar to that worn by the bank robber.
¶7.
Investigator Troy Kimble with the Vicksburg Police Department went to the Simpson
County Jail to transport McCain to Vicksburg and obtained an orange Texas Longhorns cap
from the Simpson County Jail at that time. At trial, the State admitted the cap into evidence,
despite an objection that the cap had not been properly authenticated and that the chain of
custody had not been proven.
¶8.
On February 7, 2008, Jinkins identified McCain from a photographic lineup that was
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shown to her at the Vicksburg Police Department. At trial, Jinkins identified McCain as the
man who had robbed her. At trial, Jinkins also identified the note that was handed to her
during the robbery. The note had been recovered from McCain’s vehicle.
¶9.
At the conclusion of the trial, McCain was found guilty. During the sentencing
hearing, the State introduced a variety of documents in an effort to prove McCain’s status as
a habitual offender. The documents included certified copies of McCain’s prior convictions
and a report from the Federal Bureau of Prisons. O’Neal Brown, a federal probation officer,
testified at the sentencing hearing that, based on the report, McCain had served more than
a year and a day for his prior convictions. The circuit court declined to make a ruling as to
McCain’s habitual-offender status at the conclusion of the hearing; instead, the court gave
the State a week to produce additional records proving McCain’s habitual-offender status.
One week later, the State filed a report from Vincent Shaw, an employee of the Federal
Bureau of Prisons, regarding McCain’s prior convictions. Three weeks later, the sentencing
hearing was resumed. At its conclusion, the circuit court found that it had sufficient evidence
showing McCain’s status as a habitual offender. McCain was accordingly sentenced to life
imprisonment as a habitual offender, without eligibility for parole or probation.
¶10.
Additional facts, as necessary, will be related during our analysis and discussion of
the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Habitual-Offender Status
¶11.
The document that was filed by the State after the initial sentencing hearing was
sufficient to prove McCain’s habitual-offender status. That document, which was produced
4
by the Federal Bureau of Prisons, was attached to a letter of certification. The document
showed that McCain had two prior convictions for which he had served at least a year and
a day for each conviction.
¶12.
McCain complains that the State failed to introduce the newer document as an exhibit
during the continued sentencing hearing. While this is true, the document, with an attached
letter of certification, was filed in the circuit court. Furthermore, the circuit court took notice
of the document at the second sentencing hearing.
¶13.
Under these circumstances, we find that there is sufficient evidence to support the
circuit court’s finding of McCain’s habitual-offender status. This contention of error is
consequently without merit.
2. Speedy-Trial Violations
¶14.
McCain alleges that both his constitutional and statutory rights to a speedy trial were
violated. McCain was arrested on January 30, 2008, indicted on May 8, 2008, and arraigned
on May 9, 2008. On July 25, 2008, the circuit court held an omnibus hearing, wherein the
State indicated that the charge against McCain might be dropped in favor of federal
prosecution of the robbery; the case was continued to allow the district attorney’s office time
to decide whether it would continue its prosecution of McCain. On July 26, 2008, McCain
sent a letter to the circuit court, which the court interpreted as a demand for a speedy trial.
McCain was set for trial on September 10, 2008, but his trial was reset due to the circuit
court’s docket. On February 13, 2009, McCain filed a motion to dismiss because of the
alleged violation of his right to a speedy trial. The State requested that McCain’s trial be set
for March 2009, which was the first court setting available. On March 10, 2009, two weeks
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before McCain was set to go to trial, McCain’s attorney filed a motion to withdraw, stating
that irreconcilable differences had arisen between him and McCain. McCain retained a new
attorney, and his case was continued for reasons that are not stated in the record. Due to the
nearness in time to the date of trial, it is likely that McCain’s attorney needed more time to
prepare for trial. A joint motion for continuance was filed and granted in June 2009, and
McCain was finally tried on September 14, 2009.
¶15.
For clarity’s sake, we discuss McCain’s statutory and constitutional rights separately.
a. Constitutional Right
¶16.
The Sixth Amendment to the United States Constitution guarantees defendants “the
right to a speedy and public trial . . . .” U.S. Const. amend. VI. Mississippi courts utilize the
factors found in Barker v. Wingo, 407 U.S. 514, 530 (1972) when determining whether a
defendant’s constitutional right to a speedy trial has been violated. Murray v. State, 967 So.
2d 1222, 1229 (¶22) (Miss. 2007). The factors are: “length of delay, the reason for the delay,
the defendant’s assertion of his right, and prejudice to the defendant.” Id. (quoting Barker,
407 U.S. at 530). In determining whether a defendant’s constitutional right to a speedy trial
has been violated, the right attaches “at the time of arrest.” Id. at 1230 (¶23) (quoting
Atterberry v. State, 667 So. 2d 622, 626 (Miss. 1995)).
¶17.
As to the factor of delay, “any delay of eight (8) months or longer is presumptively
prejudicial.” Id. (quoting Noe v. State, 616 So. 2d 298, 300 (Miss. 1993)). Here, McCain
was arrested on January 30, 2008, and he proceeded to trial on September 14, 2009.
Therefore, more than eight months passed between the time of McCain’s arrest and his trial.
Therefore, the delay in bringing him to trial is presumptively prejudicial.
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¶18.
When looking at the reasons for any delays, “[a]ny delay caused by a particular party
will be assessed against that party.” Thomas v. State, 48 So. 3d 460, 476 (¶45) (Miss. 2010)
(citing Poole v. State, 826 So. 2d 1222, 1229 (¶20) (Miss. 2002)). Additionally, “[b]ecause
the State bears the burden of providing a speedy trial, it must show either a delay caused by
the defendant or good cause for the delay.” Id. (citing Hersick v. State, 904 So. 2d 116, 121
(¶7) (Miss. 2004)). In Thomas, the Mississippi Supreme Court stated that delays over which
the State has no control do not weigh against the State. See id. at 476 (¶¶45-46) (citing
Fleming v. State, 604 So. 2d 280, 299 (Miss. 1992)). However, there are numerous cases
from both the Mississippi Supreme Court and this Court stating that congested court dockets
will be held against the State, but only slightly. See, e.g., Murray, 967 So. 2d at 1230 (¶26);
Houser v. State, 29 So. 3d 813, 821-22 (¶21) (Miss. Ct. App. 2009). One of the delays in
this case occurred because McCain and the State had agreed to continue his trial, and we will
not count those three months against the State. The delay in July 2008 apparently occurred
because the State was unsure whether it was going to continue its prosecution of McCain.
Therefore, we count the months between July 2008 and September 2008 against the State.
The record shows no particular explanation for any other delays except the circuit court’s
crowded docket. Therefore, we find that all of those delays weigh only slightly against the
State. After having examined all of the delays that occurred, we find that this factor weighs
only slightly toward a finding of a violation of McCain’s right to a speedy trial, as only two
months out of the time that it took to bring McCain to trial can be shown to weigh
significantly against the State.
¶19.
In the July 2008 letter that McCain sent to the circuit court, McCain wrote:
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I am writing concerning my incarceration here at Warren Co. Jail. If you
recall[,] I appeared before you on Fri. July 25 for my ominous [sic] hearing,
and I am represented by Louis Field. There was [sic] some issues I wanted to
address but was unable to do so.
I have been here since Jan. 28 [sic], and approximately two months ago I was
informed by my attorney that the State was not going to prosecute my case due
to the fact that the Feds were also charging me in the same matter, since no
motions were filed on my behalf yesterday or any new date set[,] I now sit here
with no court date and the State has no intention in [sic] prosecuting my case.
I got the impression that my attorney and the DA were avoiding the issue. I
think a reminder to Mr. Smith, from you, would set things in motion,
respectfully requested of course!
Like you said, “There is no sense in me eating up the county’s food.”
We find no fault with the circuit court’s decision to view this letter as a demand for a speedy
trial, as McCain requested that the court “set things in motion.” Therefore, we find that
McCain asserted his right to a speedy trial. This factor weighs in favor of a finding that
McCain’s right to a speedy trial was violated.
¶20.
Finally, we find that the factor of whether prejudice occurred weighs heavily in favor
of the State. As stated in Thomas:
When analyzing the prejudice prong under Barker, [an appellate court]
considers: (1) the “actual prejudice to the accused in defending his case, and
(2) interference with the defendant’s liberty.” Brengettcy [v. State], 794 So.
2d [987,] 994 [(¶20) (Miss. 2001)] (quoting Perry v. State, 637 So. 2d 871, 876
(Miss. 1994)). [An appellate court] considers three interests when analyzing
whether a defendant has suffered prejudice for a lengthy delay in the
speedy-trial context: “(1) preventing ‘oppressive pretrial incarceration’[;] (2)
minimizing anxiety and concern of the accused; and (3) limiting the possibility
that the defense will be impaired.” Id. (citing Barker, 407 U.S. at 532).
Thomas, 48 So. 3d at 476 (¶49). McCain provides no explicit examples of how the delay in
bringing him to trial prejudiced his defense, other than to state that his incarceration caused
him anxiety and “inherently prejudiced” his defense. Having reviewed the record, we can
8
find no evidence to show that McCain was prejudiced by the delay in bringing him to trial.
¶21.
Although three of the four Barker factors weigh somewhat in McCain’s favor, we
nonetheless find that his constitutional right to a speedy trial was not violated since there is
no evidence that his case was prejudiced in any way by the delay in bringing him to trial, a
factor that weighs heavily in the State’s favor.
b. Statutory Right
¶22.
McCain also asserts that his statutory right to a speedy trial was violated. Section 99-
17-1 of the Mississippi Code Annotated (Rev. 2007), states that criminal cases should be
tried within 270 days after a defendant has been arraigned. “When the accused is not tried
within 270 days of his arraignment, the State has the burden of establishing good cause for
the delay since the accused is under no duty to bring himself to trial.” Jenkins v. State, 947
So. 2d 270, 275 (¶9) (Miss. 2006) (citing Herring v. State, 691 So. 2d 948, 953 (Miss. 1997);
Perry v. State, 419 So. 2d 194, 199 (Miss. 1982)).
¶23.
McCain was arraigned on May 9, 2008, and tried on September 14, 2009. Therefore,
more than 270 days had passed between the time of his arraignment and trial. However,
good cause exists for all but two months of the delay. One delay was caused by McCain’s
agreement to a continuance, and the rest of the delays were apparently caused by the circuit
court’s congested docket.
Delays caused by factors such as a crowded court docket
constitute good cause. Id. at 275-76 (¶10) (citing Herring, 691 So. 2d at 953). Therefore,
McCain’s statutory right to a speedy trial was not violated.
¶24.
This contention of error is without merit.
3. Admission of Cap into Evidence
9
¶25.
In his third contention of error, McCain complains about the entry into evidence of
a Texas Longhorns cap, which was admitted as exhibit S-24. McCain contends that the cap
was not properly authenticated in accordance with Rule 901 of the Mississippi Rules of
Evidence because the chain of custody was not established. We review the circuit court’s
decision to admit the cap into evidence under an abuse-of-discretion standard. Williams v.
State, 35 So. 3d 480, 488 (¶25) (Miss. 2010).
¶26.
The relevant portion of Rule 901 states: “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” The Mississippi
Supreme Court has stated the following standard related to authentication of evidence and
chain of custody:
Our precedent is clear that “Mississippi law has never required a proponent of
evidence to produce every handler of evidence.” Ellis v. State, 934 So. 2d
1000, 1005 [(¶21)] (Miss. 2006). In order for the defendant to show a break
in the chain of custody, there must be an “indication or reasonable inference
of probable tampering with the evidence or substitution of the evidence.”
Spann v. State, 771 So. 2d 883, 894 [(¶26)] (Miss. 2000). The defendant has
the burden of proving tampering or substitution of the evidence, and “a mere
suggestion that substitution could possibly have occurred does not meet the
burden of showing probable substitution.” Ellis, 934 So. 2d at 100[6 (¶21)].
Deeds v. State, 27 So. 3d 1135, 1142 (¶20) (Miss. 2009).
¶27.
To be thorough, we quote at length from Investigator Kimble’s testimony when the
State introduced the cap into evidence:
Q.
I hand you this and ask if you can identify that?
A.
Yes, sir. This is my evidentiary item No. 8 which is a bag that was
taken of the [sic] Texas Longhorn[s] hat, baseball[-]type cap that was
worn by the suspect.
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Q.
And whose handwriting is on that bag?
A.
That’s my handwriting on the bag.
Q.
Who recovered that item?
A.
I recovered this item. Well, this item was actually recovered by the
Simpson County jailer and the item was transferred over to my
possession from there.
Q.
Did you receive that from the Simpson County jailer?
A.
Yes, sir, I did.
Q.
Can you open that bag for us, please?
[DEFENSE ATTORNEY]:
[COURT]:
Your Honor, I would like to object. May
we approach the bench?
Yes, sir.
(THE FOLLOWING PROCEEDINGS WERE HAD AND HEARD AT THE
BENCH OUTSIDE THE HEARING OF THE JURY PANEL).
[DEFENSE ATTORNEY]:
[COURT]:
He’s testified that he received that out of
the regular chain of custody. And he has
nothing else to tie this to the Defendant.
They need to explain to the jury how they
received this.
Tell me a little bit more on how he got this and where he got it
from.
[PROSECUTOR]: Once he searched the home he went back to the Sharkey
[sic] County Sheriff[’s] Department where Mr. Kevin
McCain -[COURT]:
Mendenhall?
[PROSECUTOR]: I mean, yeah, I’m sorry, Simpson County Sheriff[’s]
Department. Mr. McCain had been arrested earlier at the
time he had attempted to come and get his vehicle back.
11
Ms. McNair testified yesterday that he was still wearing
that same baseball cap on the morning that he came back
to get his vehicle. So we have that officer saying that
when he appeared he had the -[COURT]:
I’m trying to get how Mendenhall got it.
[PROSECUTOR]: He was arrested.
[COURT]:
He was under arrest at that time?
[PROSECUTOR]: Yeah, they arrested him when he came back to pick the
vehicle up. So he was arrested based upon -[COURT]:
Well, I need a little bit more. I need some predicate from him
on how he got it and where did he get it from.
(THE FOLLOWING PROCEEDINGS WERE HAD AND HEARD IN OPEN
COURT WITHIN THE HEARING OF THE JURY PANEL).
Q.
Lets [sic] go back for a second. How did you become aware that the
suspect of the Trustmark National Bank had been found in Simpson
County?
A.
A call was made to Lieutenant Robert Stewart as Chief of
Investigations by Mr. Barlow[,] the Chief of Simpson County,
Mendenhall PD. Officer McNair, Rita McNair, made a traffic stop for
a traffic violation of Mr. McCain and once she called back and made
contact with Lieutenant Stewart[,] it was advised that the suspect that
was listed by the media as being the bank robber was wearing the same
items --
[DEFENSE ATTORNEY]:
[COURT]:
A.
Objections [sic], Your Honor, it sounds
like hearsay.
Overruled.
[--] Was wearing the same items that [sic] when I arrested him that the
photo was shown from the media.
****
Q.
Were you aware of where the Defendant was when you arrived in
12
Simpson County the next morning?
A.
Not his exact location. My understanding was that he had been
released and hew as [sic] to come back to pick up the vehicle once the
towing service was open.
Q.
Based upon your investigation[,] were you aware of what happened
when he came back to pick up the vehicle?
A.
Yes, sir, he was placed in custody by Chief Barlow and Rita McNair.
Q.
And were you aware of where he remained until he was brought back
to Vicksburg?
A.
Yes, sir, he was incarcerated in Simpson County.
Q.
Now, who, if anyone, did you talk with about the personal items that
Mr. McCain had on him at the time of his arrest when you arrived at
Simpson County, Mississippi?
[DEFENSE ATTORNEY]:
[COURT]:
Objection, Your Honor, hearsay.
Overruled.
A.
That would have been the officer that made the initial arrest, Rita
McNair, as well as Lieutenant Robert Stewart. We were all there
together.
Q.
And after you searched the home of Mr. McCain, what did you do
next?
A.
After obtaining items of evidence[,] which were the boots and the
actual windbreaker[-]type jacket[,] we returned back to Simpson
County Jail from Pedal [sic] to interview Mr. McCain or to pick him up
and take him back to Vicksburg.
Q.
Did you acquire any items that were being held of Mr. McCain’s at the
time that you acquired Mr. McCain to take him back to Vicksburg?
A.
Yes, sir, I did. And those were his personal possessions[,] which
included a Texas Longhorn, orange in color, baseball[-]type cap. I
think a black wallet and all of his personal possessions that he had
turned into the --
13
Q.
And from where did you receive those?
A.
From the Simpson County [J]ail.
Q.
And I’ll ask you again can you identify those --
[DEFENSE ATTORNEY]:
[COURT]:
Well, let me see what he says is in that bag first.
[DEFENSE ATTORNEY]:
[COURT]:
Well, Your Honor, I object to have [sic]
anything put before the jury at this point
and time until the chain of custody has
been established.
Well, I don’t know what he said he retrieved. I don’t know what
is in that bag, that is what I’m saying.
[DEFENSE ATTORNEY]:
[COURT]:
Your Honor[,] I’m going to renew by [sic]
objection.
Then I would ask for a hearing outside the
presence of the jury then to have that
brought forth.
Well, I think you made your motion[,] and I ruled that your
objection is overruled as to the chain of custody at this point.
Q.
And can you identify what is in that bag?
A.
Yes, sir. It is an orange in color Texas Longhorn[s] logo baseball cap.
Q.
And where did you obtain that?
A.
From the Simpson County Jail.
[DEFENSE ATTORNEY]:
[COURT]:
Your Honor, I object. It did not come
from the Defendant.
Well, I understand your objection[,] and I have ruled that -come from who?
[DEFENSE ATTORNEY]:
The Defendant.
14
[COURT]:
Q.
Overruled.
Can you open that, please, sir?
(WITNESS OPENS BAG).
Q.
Can you identify what was in that package?
A.
Yes, sir. It’s a [sic] orange in color Texas Longhorn[s] logo baseball
cap.
Q.
And did you personally recover that from the Simpson County lockup?
A.
Yes, sir.
Q.
And what other items did you recover at the time you recovered that
hat?
A.
I think it was a black wallet[,] and I have to look at my notes.
(WITNESS CHECKS HIS NOTES).
A.
I stand corrected. This was the only item that actually I recovered. The
wallet was actually recovered from the passenger seat. I stand
corrected on that.
Q.
All right.
[PROSECUTOR]: Your Honor, we would ask that this be marked as an
exhibit to the witness’[s] testimony.
[COURT]:
The same objection?
[DEFENSE ATTORNEY]:
[COURT]:
¶28.
Yes, Your Honor.
It will be marked as Exhibit No. 24.
Under the deference with which we treat the circuit court’s decision, we find that there
was a sufficient basis for the admission of the cap into evidence. Officer Kimble testified
that he retrieved the cap directly from the Simpson County Jail at the same time he took
15
McCain from the jail. Officer McNair testified that McCain was wearing the cap when he
was arrested at the impound lot. The circuit court did not abuse its discretion in admitting
the cap into evidence.
¶29.
Furthermore, even if the circuit court had erred in admitting the cap into evidence, that
error would be harmless at worst, as there is overwhelming evidence of McCain’s guilt. See
Clark v. State, 891 So. 2d 136, 142 (¶30) (Miss. 2004).
That evidence includes an
eyewitness identification and the discovery of the demand note in McCain’s vehicle. The
jury also viewed video footage of the bank robbery and had the opportunity to observe
McCain in court.
4. Indictment
¶30.
In his final contention of error, McCain argues that the circuit court erred when it
declined to quash his indictment. McCain’s specific contention is that his indictment “was
not stamped ‘filed’ as required by Section 99-7-9.”
¶31.
Although McCain filed a pro se motion challenging his indictment, that motion did
not explicitly raise the issue of whether “filed” was stamped on his indictment. Rather, the
motion stated, among other things:
That this Court entered an order on Dec[.] 12, 2008[,] to reflect the date of the
indictment to Jan[.] 30, 2008. . . . That the indictment prior to amendment was
invalid in that it was not properly filed by the circuit clerk of Warren Co. and
that this Court was not within its jurisdiction to amend said indictment.
However, the circuit court and the State interpreted this motion as an attack on the indictment
for failing to contain the word “filed.” McCain did not file his motion prior to trial; rather,
the motion was filed on September 15, 2009, after his trial had begun on September 14, 2009.
16
¶32.
The placement, or lack thereof, of “filed” on the indictment is undoubtedly an error
of form, not substance. See Jones v. State, 356 So. 2d 1182, 1184 (Miss. 1978). And
because that error occurred on the face of the indictment, McCain was required to lodge an
objection to the indictment prior to the commencement of his trial. Miss. Code Ann. § 99-721 (Rev. 2007). Therefore, McCain did not raise the issue timely, and this contention of
error is procedurally barred.
¶33.
Procedural bar notwithstanding, the presence of “filed” on the indictment was a matter
of form. As the circuit court noted, the indictment was presented to a grand jury and later
provided to McCain. There is no doubt that McCain was informed of the nature of the
charges against him. Therefore, a procedural error on the indictment is an insufficient reason
to reverse his conviction, which is in accord with the overwhelming weight of the evidence
at trial.
¶34.
This contention of error is also without merit.
¶35. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF
CONVICTION OF ROBBERY AND SENTENCE, AS A HABITUAL OFFENDER, OF
LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN
COUNTY.
LEE, C.J., GRIFFIS, P.J., MYERS, ISHEE, ROBERTS, CARLTON AND
MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
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