Tubby v. State
| Docket Number: | 2009-KA-00596-COA Linked Case(s): 2009-KA-00596-COA ; 2009-CT-00596-SCT ; 2009-CT-00596-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-26-2010 Opinion Author: Myers, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Burglary of dwelling - Amendment of indictment - Section 99-17-13 - Prosecutorial misconduct - Weight of evidence Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Carlton and Maxwell, JJ. Concurs in Result Only: Roberts, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-19-2009 Appealed from: NESHOBA COUNTY CIRCUIT COURT Judge: Marcus D. Gordon Disposition: CONVICTED OF BURGLARY OF A DWELLING AND SENTENCED TO ELEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Mark Sheldon Duncan Case Number: 09-CR-0016-NS-G |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Gary Tubby, II |
JULIE ANN EPPS |
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| Appellee: | State of Mississippi | OFFICE OF ATTORNEY GENERAL: JEFFREY A. KLINGFUSS | ||
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: | Burglary of dwelling - Amendment of indictment - Section 99-17-13 - Prosecutorial misconduct - Weight of evidence |
| Summary of the Facts: | Gary Tubby II was convicted for burglary of a dwelling with intent to steal and was sentenced to eleven years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment of indictment Through the victim’s testimony at trial, the State learned it had incorrectly spelled his last name in the indictment. At the close of its case, the State made a motion to amend the indictment to reflect the true spelling of the property owner’s name, which the circuit court granted over Tubby’s objection. Tubby argues that this was reversible error, as the circuit court impermissibly allowed the State to make a substantive change to his indictment during the course of trial. He argues that this factor prejudiced his defense because it required his counsel to comb the countryside for a non-existent owner of the dwelling. Section 99-17-13 explicitly permits the amendment of an indictment where the change is to an immaterial matter and the defendant will not be prejudiced in his defense. Whether or not 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 the accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance. Here, the amendment to Tubby’s indictment was a matter of simple form. The amendment effected no material change in the offense Tubby was accused of committing. The indictment put Tubby on sufficient notice that he was being charged with the burglary of someone else’s dwelling. Issue 2: Prosecutorial misconduct Tubby argues that the principal issue with regard to the jury’s determination in this matter was witness credibility. Specifically, the jury had to decide if Tubby was telling the truth when he stated that he did not enter the mobile home or if an eyewitness was telling the truth when he said he saw Tubby inside the mobile home. Tubby argues that the prosecutor interfered with that determination by vouching for the eyewitness’s credibility as a witness and attacking Tubby’s credibility, and also by making arguments based on facts not in evidence. Tubby acknowledges that his trial counsel did not object to any of the complained of errors. Issues not presented to the trial court for lack of contemporaneous objection are procedurally barred, and error, if any, is waived. Issue 3: Weight of evidence Tubby argues that the eyewitness’s testimony is contrary to the physical facts and is too unworthy of belief to sustain a burglary conviction. The credibility of the eyewitness’s testimony was solely for the jury to weigh and consider. |
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