Edgar Lee Commodore, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01268-COA
EDGAR LEE COMMODORE, JR.
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
12/22/2005
HON. ROBERT P. CHAMBERLIN
DESOTO COUNTY CIRCUIT COURT
TONY L. AXAM
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF COUNT I, CONSPIRACY,
AND SENTENCED TO FIVE YEARS AS A
HABITUAL OFFENDER; COUNT II,
BURGLARY OF A BUILDING OTHER
THAN A DWELLING, AND SENTENCED
TO SEVEN YEARS AS A HABITUAL
OFFENDER; COUNT III, ATTEMPTED
GRAND LARCENY, AND SENTENCED TO
TEN YEARS AS A HABITUAL OFFENDER;
AND COUNT V, ATTEMPTED
AGGRAVATED ASSAULT, AND
SENTENCED TO TWENTY YEARS AS A
HABITUAL OFFENDER, ALL TO RUN
CONCURRENTLY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY
FOR PAROLE OR PROBATION, AND TO
PAY RESTITUTION IN THE AMOUNT OF
$100 TO THE CRIME VICTIMS’
COMPENSATION FUND
AFFIRMED - 10/28/2008
BEFORE KING, C.J., IRVING AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Edgar Lee Commodore, Jr., was tried for and convicted of the crimes of Count I,
conspiracy; Count II, burglary of a building other than a dwelling; Count III, attempted
grand larceny; and Count V, attempted aggravated assault.1 For the crime of conspiracy, the
Circuit Court of DeSoto County sentenced Commodore to serve five years. For the crime
of burglary of a building other than a dwelling, the trial court sentenced Commodore to serve
seven years. For the crime of attempted grand larceny, the trial court sentenced Commodore
to serve ten years. For the crime of attempted aggravated assault, the trial court imposed a
sentence of twenty years. All sentences were to be served in the custody of the Mississippi
Department of Corrections and to run concurrently to one another. Commodore was
sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81
(Rev. 2007). The trial court also ordered Commodore to pay restitution in the amount of
$100 to the Crime Victims’ Compensation Fund and to pay all court costs.
¶2.
Commodore appeals, arguing that: (1) the trial court erred in denying his motion for
a new trial; (2) a rational trier of fact could not have found his guilty of attempted aggravated
assault beyond a reasonable doubt; (3) his Sixth Amendment rights were violated when he
received ineffective assistance of counsel; (4) the trial court erred when it allowed the State
to amend the indictment to include habitual-offender language; (5) the trial court erred in
allowing the amended indictment to stand for sentencing when the State failed to timely file
1
Counts IV, VI, and VII of the indictment charged Commodore’s co-defendant,
Roosevelt Hill, with crimes arising out of these events. He does not join in this appeal.
2
the amended indictment; (6) the trial court erred in allowing testimony as to his intent.
¶3.
We find that Commodore’s issues are without merit. Therefore, we affirm his
convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶4.
Commodore was convicted of conspiracy, burglary, attempted grand larceny, and
attempted aggravated assault. On October 19, 2004, Deborah Hill (Deborah) alerted her
husband, Brian Hill (Brian), to suspicious activity occurring at a neighboring house that was
under construction at the time. Brian testified that he observed two vehicles backed into the
driveway around 11:00 p.m. that evening, but he did not see any people. He instructed his
wife to call the police, retrieved his personal gun, and drove his vehicle around to the
neighboring house. He then parked his vehicle across the end of the neighboring driveway
so as to prevent the other vehicles from exiting. Brian also testified that he pulled his gun
on a man later identified as Commodore when Commodore got into the white Yukon and
drove directly toward Brian. Brian stated at trial that he “had to push [him]self off of the
vehicle to prevent [him]self from being hit and run over.”
¶5.
Roosevelt Hill (Roosevelt) testified at trial that Commodore said he knew how to
make some money, and Roosevelt was supposed to act as a lookout while Commodore stole
the dishwasher. When Brian arrived on the scene, Roosevelt quickly got into in his gray van
and drove away. Roosevelt also stated that when he looked in his rearview mirror he saw
Brian trying to dodge Commodore’s Yukon.
¶6.
Brian then got into his vehicle and followed Commodore until he was successfully
stopped by Officer Danielle Beith. Beith testified at trial that after placing Commodore in
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the back of her patrol car, he stated that he had been acting as the lookout for another male,
later determined to be Roosevelt. Commodore told Officer Todd Pierce that he and
Roosevelt had been planning on stealing a dishwasher from the unoccupied house at which
Brian found them. Pierce went to the unoccupied house later than night with Steve Cannon,
the owner of the burglarized home. Cannon confirmed that the appliances had been installed
in the house, and some were now missing. The dishwasher had been pulled out from the
wall and damaged, but it had not been taken from the house.
¶7.
Commodore maintained at trial that he had been contacted by Roosevelt to visit a
house that his aunt was about to buy. Commodore also testified that he had not been acting
as a lookout. Instead, he had only just arrived and was walking toward the house when
Brian pulled a gun on him. He stated that he was not trying to run Brian over with his
vehicle, but only trying to get away quickly because he did not want to be shot. Both
Roosevelt and Commodore were arrested and taken into custody.
¶8.
Commodore was indicted on March 22, 2005, and tried on November 25, 2005. On
the morning of trial, the State made a motion to amend the indictment to include habitualoffender language. The trial judge allowed the amendment and entered an order amending
the indictment. The jury found Commodore guilty on all counts. On February 21, 2006,
Commodore filed a motion for leave to file an out-of-time appeal and an extension to file an
appeal. New defense counsel was retained, and a motion for a new trial was filed. The trial
court granted Commodore’s motion for an out-of-time appeal, denied the motion for a new
trial, and reopened the period for appeal. Commodore timely filed his notice of appeal.
LAW AND ANALYSIS
4
I. WHETHER THE TRIAL COURT ERRED
COMMODORE’S MOTION FOR A NEW TRIAL.
¶9.
IN
DENYING
A trial court’s denial of a motion for a new trial should only be reversed when the
reviewing court finds that there was an abuse of discretion. Sheffield v. State, 749 So. 2d
123, 127 (¶16) (Miss. 1999). A motion for a new trial challenges the weight of the evidence,
and the appellate court should only “disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). The
evidence should be viewed in the light most favorable to the prosecution, and the court must
ask whether any rational trier of fact could have found the essential elements of the charged
crimes beyond a reasonable doubt. Id. at 843 (¶16).
¶10.
Commodore contends that the weight of the evidence did not support the jury’s
finding of guilt in the alleged charges. The State presented evidence from both eyewitnesses
and police officers detailing the incidents leading up to Commodore’s arrest. Brian,
Deborah, and Roosevelt all testified that they observed Commodore leaving the house that
night and attempting to run over Brian with a vehicle. Roosevelt testified that he and
Commodore discussed ways to get additional money, and Commodore suggested they steal
something out of a house to sell. Roosevelt then detailed essentially the same scenario that
had been testified to earlier by Brian. Officer Beith and Officer Pierce testified that
Commodore admitted to his involvement in the scheme when he was stopped and
questioned.
¶11.
The weight of the evidence presented at trial, when viewed in the light most favorable
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to the prosecution, could have led a reasonable trier of fact to find Commodore guilty of
conspiracy, burglary, attempted grand larceny, and attempted aggravated assault. Therefore,
we find that the verdict was not so contrary to the overwhelming weight of the evidence so
as to cause an unconscionable injustice. This issue is without merit.
II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT A
RATIONAL TRIER OF FACT COULD HAVE FOUND COMMODORE
GUILTY OF ATTEMPTED AGGRAVATED ASSAULT BEYOND A
REASONABLE DOUBT.
¶12.
The standard of review for overturning the “denial of a motion for judgment
notwithstanding the verdict (JNOV) is de novo as to the law applied by the trial court judge
as well as the evidence presented during trial.” Johnson v. St. Dominics-Jackson Mem’l
Hosp., 967 So. 2d 20, 22 (¶3) (Miss. 2007). A motion for JNOV challenges the sufficiency
of the evidence as opposed to a motion for a new trial which challenges the weight of the
evidence. Bush, 895 So. 2d at 843-44 (¶¶16, 18). The supreme court has stated:
in considering whether the evidence is sufficient to sustain a conviction in the
face of a motion for . . . judgment notwithstanding the verdict, the critical
inquiry is whether the evidence shows “beyond a reasonable doubt that
accused committed the act charged, and that he did so under such
circumstances that every element of the offense existed; and where the
evidence fails to meet this test it is insufficient to support a conviction.”
Id. at 843 (¶16) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). Each element
must be tested for legal sufficiency to ensure that the State has proven it beyond a reasonable
doubt. Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985). The evidence must be taken in the
light most favorable to the State. Id. at 70. If the evidence is of such a nature that
“reasonable fair-minded men in the exercise of impartial judgment might reach different
conclusions,” the motion for JNOV should be denied. Id.
6
¶13.
According to Mississippi Code Annotated section 97-3-7(2) (Supp. 2007):
A person is guilty of aggravated assault if he (a) attempts to cause serious
bodily injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life; or (b) attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon or other means likely to
produce death or serious bodily harm[.]
The State presented evidence relevant to each of these elements through the testimony of
various eyewitnesses that Commodore drove straight toward Brian, despite there being
nothing to obstruct Commodore’s view. The State also elicited testimony about the
existence of an alternate path that Commodore could have taken to avoid coming into such
close contact with Brian. While Commodore disputes this testimony and claims that he was
trying to escape gunshots fired by Brian, precedent mandates that we consider all evidence
presented at trial in favor of the State. Thus, a reasonable juror could find that Commodore
had, in fact, intended to cause serious bodily harm to Brian.
¶14.
Intent must usually be deduced from the actions of the parties and the circumstances
surrounding those actions. Harris v. State, 642 So. 2d 1325, 1327 (Miss. 1994) (quoting
Thames v. State, 221 Miss. 573, 577, 73 So. 2d 134, 136 (1954)). Just because there was no
direct proof that Commodore intended to cause serious bodily injury to Brian, the existence
of such intent can be logically deduced from Brian’s testimony that he feared for his own
safety, along with the testimony of Brian, Deborah, and Roosevelt that Commodore appeared
to have come straight at Brian with his Yukon. In light of this testimony, we find that a
rational juror could have found beyond a reasonable doubt that all of the elements had been
met by the State in proving attempted aggravated assault. This issue is without merit.
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III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT
COMMODORE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN
ACCORDANCE WITH HIS SIXTH AMENDMENT RIGHT.
¶15.
Strickland v. Washington, 466 U.S. 668, 687 (1984) states the test for an ineffective
assistance of counsel claim. This two-prong inquiry looks at whether the counsel’s
performance was deficient and, if so, whether this deficiency prejudiced the defendant. Id.
As to the first prong, the errors committed by counsel must have been “so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. Counsel must only be “reasonably effective.” Id. Plus, counsel enjoys
a “strong presumption of competence.” Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991).
¶16.
The second prong of the Strickland test requires a showing of prejudice to the
defendant. It must be determined that the errors committed by counsel were “so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S.
at 687. Even if defense counsel’s conduct is deemed to be professionally unreasonable, the
“defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
¶17.
Commodore has alleged five specific errors made by his trial attorney. The first is
that his defense counsel failed to adequately prepare him for cross-examination at trial.
Attorney Sidney F. Beck testified at Commodore’s hearing on his motion for a new trial that
he had met with Commodore at least twice to discuss his testimony and the potential risks
associated with him taking the stand. Beck stated that he had been aware of Commodore’s
past convictions and had instructed him “not to volunteer any information at all.” Beck
further testified that he advised Commodore on the possibilities of being sentenced as a
8
habitual offender and being impeached with testimony regarding his prior convictions. Beck
also indicated that he had difficulties getting Commodore to cooperate with his own defense,
and Commodore frequently failed to show up for scheduled meetings with his attorney.
¶18.
Commodore testified at the second hearing on his motion for a new trial that Beck did
not prepare him for cross-examination or direct examination before his trial. He stated that
Beck instructed him to say that he did not steal, and Beck had indicated that he should testify
despite Commodore not wanting to take the stand. However, the record indicates that the
trial judge explicitly asked Commodore if he understood that the decision to testify was his,
and his alone, and Commodore affirmatively answered that he did understand that he had the
right to remain silent. Commodore also stated at trial that he had been given the opportunity
to thoroughly discuss the decision to testify with his lawyer.
¶19.
The trial record indicates the Commodore was prepared for direct and cross-
examination at his trial. He was given a full explanation by the trial judge and questioned
as to his knowledge regarding his right to testify or to remain silent. Commodore admitted
to the judge at his trial that he had discussed these issues with his defense counsel.
Therefore, this issue does not constitute ineffective assistance of counsel because there was
no unreasonable error on the part of Commodore’s defense counsel.
¶20.
The second error alleged by Commodore is that his defense counsel failed to
adequately investigate his case. Defense counsel has to make many complex decisions
regarding the presentation of a criminal case to a jury. There is a presumption that many of
the decisions that are made by counsel are strategic in nature. Leatherwood v. State, 473 So.
2d 964, 969 (Miss. 1985) (citing Murray v. Maggio, 736 F.2d 279, 281 (5th Cir. 1984)). In
9
order to adequately assess an attorney’s performance, “every effort [must] be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at the time.”
Strickland, 466 U.S. at 689.
¶21.
Commodore alleges that Beck failed to investigate: his prior convictions, Roosevelt
for impeachment purposes, relevant phone records between Commodore and Roosevelt, and
the State’s witnesses for impeachment purposes. Commodore also claims that Beck failed
to call witnesses on Commodore’s behalf. Beck testified at the hearing on the motion for a
new trial that he was aware of the prior offenses and discussed a possible plea agreement that
would have kept Commodore from being sentenced as a habitual offender. Beck also
claimed that he had spoken with Roosevelt on the phone prior to trial. Beck could not
remember if Roosevelt’s connection with the unoccupied house had been a part of his crossexamination strategy. Beck did not examine phone records between Commodore and
Roosevelt because he did not see the need to do so. Finally, Beck testified that he believed
he did a thorough job in representing Commodore. All of the above alleged errors can be
considered trial strategy and fall within the wide range of reasonable professional conduct
sanctioned by Strickland as effective assistance of counsel.
¶22.
Even if some of the above actions by Beck did constitute unreasonable error, which
we venture to say they do not, Commodore cannot show how this has prejudiced him to the
extent that the result at his trial would have been different. Thus, if he did, in fact, meet the
first prong of the Strickland test for these challenges, he would fail to pass the second prong.
¶23.
Commodore also alleges that Beck failed to cross-examine witnesses in order to fully
10
develop the theory of the defense. However, the trial record indicates that Beck crossexamined almost every witness that was called by the State. He made timely objections
throughout the State’s examination of witnesses. The exact nature of what questions Beck
asked, how long he cross-examined each witness, or what objections he made during the
State’s case-in-chief are all strategic considerations. Strickland warns against secondguessing defense counsel’s decisions after an adverse decision. The reasonableness of
defense counsel’s actions must be “viewed as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690. The above allegations were strategic in nature and none so unreasonable
as to overcome the strong presumption that counsel rendered adequate assistance.
¶24.
Commodore additionally alleges that Beck erred by failing to request a curative
instruction following improper testimony that was timely objected to and properly sustained
by the trial court. This decision must be viewed as strategic in nature. The jury is presumed
to follow the directions of the trial judge. King v. State, 857 So. 2d 702, 723-24 (¶62) (Miss.
2003). Beck timely objected to the hearsay testimony by Officer Beith, and the trial judge
sustained the objection. Beck then made the strategic decision not to ask for curative
instructions. It cannot be questioned why defense counsel made specific trial motions and
not others. See Strickland, 466 U.S. at 690.
¶25.
Commodore alleges that Beck did not adequately protect his rights by failing to
confer with him regarding the fact that the robbery conviction was the only conviction that
would be used for impeachment purposes. Beck testified at the hearing for a new trial that
he did in fact discuss the possibility of Commodore testifying and advised him against
volunteering any information. Commodore also testified that he understood his rights
11
regarding his choice as to whether he should testify. Commodore claims in his brief that
Beck should have conferred with his client when Commodore himself began testifying about
his prior aggravated assault and statutory rape charges. However, the Supreme Court has
stated that:
when a defendant becomes a witness, he has no constitutional right to consult
with his lawyer while he is testifying. He has an absolute right to such
consultation before he begins to testify, but neither he nor his lawyer has a
right to have the testimony interrupted in order to give him the benefit of
counsel’s advice.
Perry v. Leeke, 488 U.S. 272, 281 (1989). In Perry, the Supreme Court discussed why it
would be wrong for defense counsel to meet with the defendant between the defendant’s
direct-examination and cross-examination. This would give the defendant the “opportunity
to regroup and regain a poise and sense of strategy.” Id. at 282. “Cross-examination often
depends for its effectiveness on the ability of counsel to punch holes in a witness’[s]
testimony at just the right time, in just the right way.” Id. When defendants take the stand,
they must be treated as other witnesses. Id. at 281. “Once the defendant places himself at
the very heart of the trial process, it only comports with basic fairness that the story
presented on direct is measured for its accuracy and completeness by uninfluenced testimony
on cross-examination.” Perry, 488 U.S. at 283 (quoting United States v. DiLapi, 651 F.2d
140, 151 (2d Cir. N.Y. 1981) (Mishler, J., concurring)). “[O]nce cross-examination has
begun . . . the defendant and his counsel [are] aware of the direction the cross-examination
has taken.” Puckett v. State, 879 So. 2d 920, 956 (¶142) (Miss. 2004).
¶26.
The Perry decision involved a fifteen-minute break between a defendant’s direct-
examination and the cross-examination. The current case’s alleged error came during
12
Commodore’s actual cross-examination. Commodore argues that because his attorney did
not stop the cross-examination by the State, he was ineffective. However, case law states
that a defendant does not have a right to confer with counsel during cross-examination. Case
law also holds that if an attorney did try and consult with his client while his client was on
the stand, it could be deemed unethical. Therefore, the contention that Beck was ineffective
because he did not stop his client from testifying to past crimes while Commodore was on
the stand has no basis in the law.
¶27.
Finally, Commodore claims that the cumulation of the many errors he feels were
made by his attorney violated his Sixth Amendment right to receive effective assistance of
counsel. It is true that “multiple, individual errors, not reversible in themselves, may have
the cumulative effect of denying the defendant a fair and impartial trial, thus warranting a
reversal.” Hall v. State, 906 So. 2d 34, 39 (¶19) (Miss. Ct. App. 2004). However, this is not
the situation in Commodore’s case. Careful review of the alleged errors show that they are
either not factually substantiated through the trial record or were strategic decisions made
by defense counsel. Any errors that were made were reasonable, and if any unreasonable
errors were made, they were not sufficient enough to change the outcome of the trial. Thus,
Commodore does not satisfy either prong of the Strickland test. This issue is without merit.
IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE
TO AMEND THE INDICTMENT IN ORDER TO SENTENCE
COMMODORE AS A HABITUAL OFFENDER.
¶28.
Indictments can only be amended if the proposed additions will change the form of
the indictment and not the substance. Reed v. State, 506 So. 2d 277, 279 (Miss. 1987) (citing
Atkins v. State, 493 So. 2d 1321, 1322 (Miss. 1986)). The amendment must not prejudice
13
the defendant. To determine if the amendment is prejudicial, we look at whether a “defense
under the indictment or information as it originally stood would be equally available after
the amendment is made and whether or not any evidence accused might have would be
equally applicable to the indictment or information in the one form as in the other.” Id.
(quoting Bingham v. State, 434 So. 2d 220, 223 (Miss. 1983)). If the answer is in the
affirmative to both the above inquiries, the amendment is one of form and not of substance.
Id.
¶29.
Uniform Rule of Circuit and County Court 7.09 states that an indictment “may also
be amended to charge the defendant as [a] habitual offender . . . only if the defendant is
afforded a fair opportunity to present a defense and is not unfairly surprised.” It is proper
for the trial court to allow the amendment of the indictment in order to charge a defendant
as a habitual offender because it does not affect the substance of the charged crime, but only
the subsequent sentencing. Adams v. State, 772 So. 2d 1010, 1020 (¶49) (Miss. 2000)
(quoting Burrell v. State, 727 So. 2d 761, 766 (¶9) (Miss. Ct. App. 1998)).
¶30.
The State made an oral motion the morning of trial to amend the indictment to charge
Commodore as a habitual offender. “[I]t is permissible to amend the indictment on the date
of trial and to charge the defendant as a habitual criminal under Mississippi Code Annotated
§ 99-19-83, when defense counsel is aware of the State's intentions and the defendant is fully
aware of the State's intentions during plea negotiations.” Forkner v. State, 902 So. 2d 615,
624 (¶28) (Miss. Ct. App. 2004) (citing Ellis v. State, 469 So. 2d 1256, 1258 (Miss. 1985)).
During the hearing on the State’s oral motion to amend the indictment, it was established that
a plea offer had been made by the State which included Commodore not being sentenced as
14
a habitual offender. When Commodore rejected the plea offer the day before trial, it should
have been clear to him and his defense counsel that there was a strong possibility the State
would move to amend the indictment in order to charge Commodore as a habitual offender.
¶31.
Commodore was not unfairly surprised by the State’s intention to add the habitual
offender status to his indictment as the assistant district attorney handling his case indicated
that would be the consequence of rejecting the offered plea agreement. Also, the trial judge
noted to Commodore’s defense counsel that they were “entitled to some time to prepare
because the habitual offender was amended – the indictment was amended to include that
only yesterday.” Thus, defense counsel was allowed extra time to confer with his client
before having to present the issue at Commodore’s sentencing.
¶32.
The trial court correctly held that a motion to amend the indictment to include
habitual-offender language is one of form and not substance, and an indictment can be
amended on the morning of trial to make this type of change. Therefore, this issue has no
merit.
V. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE
AMENDED INDICTMENT TO STAND DESPITE THE STATE HAVING
NEVER FILED A NEW, FORMAL INDICTMENT.
¶33.
The trial court ruled to allow the State to pursue prosecution of Commodore as a
habitual offender, and the court entered an order amending the indictment to reflect that
change. The order stated that “[i]n Counts 1, 2, 3, and 5, subsequent to the elements of the
offense and preceding the ‘against the peace and dignity’ language, each Count shall have
the following language inserted . . . .” The order then details the required information
relating to Commodore’s past felony convictions for statutory rape, aggravated assault, and
15
possession of marijuana with the intent to sell.
¶34.
An indictment is proper if it gives notice to the defendant as to which crime or crimes
he is being charged with and comports with the formal requirements of Uniform Rule of
Circuit and County Court 7.06. Turner v. State, 864 So. 2d 288, 293 (¶22) (Miss. Ct. App.
2003) (citing McNeal v. State, 658 So. 2d 1345, 1350 (Miss. 1995)). The original indictment
in Commodore’s case was proper. The order amending the indictment clearly stated that the
amended indictment would include the habitual-offender language in Counts 1, 2, 3, and 5
after the elements of the offense but before the “against the peace and dignity of the State”
language.
Thus, the amendment was procedurally proper and comported with the
requirements of Uniform Circuit and County Court Rule 7.06. There was no ambiguity as
to where this language would be inserted or if its insertion would create a fatal flaw in the
original indictment. A new, formal indictment would have provided no additional notice to
Commodore or his counsel as to any possible charges or defenses that they were not aware
of after the order amending the indictment was filed. Therefore, this issue has no merit.
VI. WHETHER THE TRIAL COURT ERRED WHEN IT ALLOWED
TESTIMONY AS TO COMMODORE’S INTENT.
¶35.
Commodore claims that the trial judge erred by allowing certain testimony at trial that
Commodore claimed went to his intent. The standard of review for the admission of
testimony at trial is abuse of discretion. Stringer v. State, 862 So. 2d 566, 568 (¶8) (Miss.
Ct. App. 2004). A lay witness may testify to matters which are: “(a) rationally based on the
perception of the witness, (b) helpful to the clear understanding of the testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
16
knowledge.” M.R.E. 701. It is true that “Rule 701 does not open the door to any and all
opinion testimony.” McGowen v. State, 859 So. 2d 320, 345 (¶86) (Miss. 2003) (quoting
Jackson v. State, 551 So. 2d 132, 144-45 (Miss. 1989)). A lay witness is not permitted to
give opinion testimony as to the ultimate issue being determined in the case. Id.
¶36.
The trial court did not abuse its discretion in ruling that the testimony of both Brian
and Roosevelt was proper testimony at Commodore’s trial. The statement by Brian that he
“was worried the vehicle was going to come back and try to run over me again” was
rationally based upon what Brian had observed that night. Brian had personal knowledge
as to what he felt – that Commodore had attempted to run him over and might try again.
This statement is allowable under Mississippi Rule of Evidence 701. See Stringer, 862 So.
2d at 568 (¶9).
¶37.
The second statement challenged by Commodore was also made by Brian. Defense
counsel objected to Brian stating that he “wouldn’t be sitting here today if [he] wouldn’t
have moved” out of the way of Commodore’s Yukon. The trial court correctly stated that
while Brian did not know what would have been the exact nature of his injury, he did have
personal knowledge of his feelings on that night. His opinion that he would have been
struck and sustained some type of serious injury was rationally based upon his perceptions
from that night and central to the determination of whether Commodore had attempted to
inflict serious bodily harm with his vehicle.
¶38.
Commodore’s final challenge to lay witness opinion testimony relates to the statement
by Roosevelt that he “guessed [Commodore] was trying to run [Brian] over or something.”
The trial court correctly held that it was a personal observation that did not require any
17
specialized knowledge. The trial court did not abuse its discretion in the admission of any
of the above challenged statements by lay witnesses in Commodore’s trial. Thus, this issue
has no merit.
CONCLUSION
¶39.
For the foregoing reasons, we affirm the judgment of the DeSoto County Circuit
Court.
¶40. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF COUNT I, CONSPIRACY, AND SENTENCE OF FIVE YEARS
AS A HABITUAL OFFENDER; COUNT II, BURGLARY OF A BUILDING OTHER
THAN A DWELLING, AND SENTENCE OF SEVEN YEARS AS A HABITUAL
OFFENDER; COUNT III, ATTEMPTED GRAND LARCENY, AND SENTENCE OF
TEN YEARS AS A HABITUAL OFFENDER; AND COUNT V, ATTEMPTED
AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS AS A
HABITUAL OFFENDER, ALL TO RUN CONCURRENTLY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY
FOR PAROLE OR PROBATION, AND TO PAY RESTITUTION IN THE AMOUNT
OF $100 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
18
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