Brooks v. State
| Docket Number: | 2007-KA-00828-COA Linked Case(s): 2007-KA-00828-COA ; 2007-CT-00828-SCT ; 2007-CT-00828-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-12-2008 Opinion Author: BARNES, J. Holding: Reversed and Remanded for a new trial |
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| Additional Case Information: |
Topic: Aggravated assault of law enforcement officers - Amendment of indictment - Lesser included offense instructions - Lesser non-included offense instruction - Sufficiency of evidence - Disproportionate sentence Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Chandler and Ishee, JJ. Dissenting Author : Carlton, J., with separate written opinion. Dissent Joined By : Myers, P.J., Griffis, and Roberts, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-05-2006 Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: CONVICTED OF TWO COUNTS OF AGGRAVATED ASSAULT OF LAW ENFORCEMENT OFFICERS AND SENTENCED TO TWENTY-YEARS FOR EACH COUNT TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Forrest Allgood Case Number: 2003-0095-CR |
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| Note: | The SCT affirmed the Court of Appeals' judgment in part and reversed in part, and reversed the circuit court's judgment and remanded for a new trial. See the SCT decision at: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO58306.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | DAVID BROOKS |
STEPHANIE L. MALLETTE,
PHILLIP BROADHEAD |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Aggravated assault of law enforcement officers - Amendment of indictment - Lesser included offense instructions - Lesser non-included offense instruction - Sufficiency of evidence - Disproportionate sentence |
| Summary of the Facts: | David Brooks was convicted of two counts of aggravated assault of law enforcement officers and sentenced to two consecutive sentences of twenty years each. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment to indictment On the morning of trial, the State moved to amend the indictments in counts one through five to delete “the excess wording.” In its order granting the State’s motion, the trial court stated that there was no objection to the amendments to the indictments. However, this was a misstatement. Deleted from count two was the language “by attempting to hit and/or run over the said Trooper Steven Gladney with his vehicle.” From count four was deleted “by attempting to hit and/or run over Deputy Dennis Daniels with his vehicle.” The general rule is that all indictments may be amended as to form but not as to the substance of the offense charged. If an offense is fully and clearly defined in the statute, an indictment which tracks the language of that criminal statute is sufficient to inform the accused of the charge against him. Otherwise, the indictment should charge the offense by the use of additional words that clearly set forth every element necessary to constitute the crime. Here, the amendments to the indictments resulted in error as they eliminated the language alleging any overt act regarding Brooks’ attempt to cause bodily harm to the officer(s). Thus, the amendments resulted in substantially defective indictments. Issue 2: Lesser-included offense instructions Defense counsel submitted jury instructions for each of the five counts for the lesser-included offense of simple assault upon a law enforcement officer and for the lesser non-included offense of reckless driving. Brooks argues that the refusal of both lesser offense instructions was an abuse of discretion by the trial judge. A criminal defendant is entitled to a lesser offense instruction where there is an evidentiary basis for it in the record. A great disparity in maximum punishments between the offenses is a factor in favor of giving the lesser included offense instruction. Simple assault on a law enforcement officer only carries a maximum five-year sentence; reckless driving carries a fine and a maximum of ten days’ imprisonment upon the second offense. It is evident that the significant disparity in these sentences versus the twenty-year sentence on each of the two counts that Brooks received could have warranted the granting of a lesser offense instruction. However, the language in the submitted simple assault jury instruction was not sufficient to support a charge of simple assault under section 97-3-7(1)(a). Specifically, the instruction charged the jury to find Brooks guilty of simple assault if it was proven that Brooks “purposefully or knowingly or recklessly attempted to cause bodily injury.” Brooks testified he never intended to harm anyone. There was no testimony or circumstantial evidence presented that Brooks might have been attempting to place the officers in fear of bodily injury rather than attempting the bodily injury itself. Brooks also argues that, under the facts of the case, reckless driving constituted a lesser non-included offense of aggravated assault and, accordingly, an instruction should have been given to the jury as it supported Brooks’ contention that he never had any intent to harm anyone involved in the chase. A jury instruction for a lesser non-included offense should be granted where there is evidentiary support that a defendant is guilty of a lesser charge arising from the same nucleus of operative facts. Taking the evidence in light most favorable to Brooks, the jury could well have found that, rather than attempting to hit Deputy Daniels with his car, Brooks was merely attempting to avoid running into Deputy Daniels’s vehicle, which was blocking the road. Further, the jury might have concluded, from reviewing the video evidence, that Brooks went into Trooper Gladney’s lane to allow more room for a car which had pulled over to the right side of the road, and that he did not attempt to hit Trooper Gladney or run him off the road. Therefore, the trial court erred in not giving the jury the alternative instruction of reckless driving as the question of Brooks’ intent was one for the jury under proper instruction. Issue 3: Sufficiency of evidence In order to meet its burden of proof, the State had to prove beyond a reasonable doubt that Brooks purposefully or knowingly attempted to cause bodily injury to the officers with a deadly weapon. There is no dispute that Brooks drove his car in a reckless manner. The issue was whether he intended to hit the officers with his vehicle. Although Brooks avers that he had no such intent, the officers testified that he intentionally headed toward them. When there is conflicting testimony presented at trial, it is the province of the jury to decide which witnesses are credible. There was sufficient evidence presented to prove the elements of attempted aggravated assault beyond a reasonable doubt. Issue 4: Disproportionate sentence Since Brooks is entitled to a new trial, discussion of this issue is not appropriate at this time. |
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