Gowdy v. State
| Docket Number: | 2009-KA-00890-SCT Linked Case(s): 2009-KA-00890-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-16-2010 Opinion Author: Kitchens, J. Holding: Affirmed in part, vacated in part and remanded. |
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| Additional Case Information: |
Topic: Felony DUI - Ineffective assistance of counsel - Voir dire - Limiting instruction - Amendment of indictment - URCCC 7.09 - Habitual offender status - Section 99-19-81 - Section 99-19-83 Judge(s) Concurring: Waller, C.J., Graves, P.J., Dickinson, Lamar and Chandler, JJ. Concur in Part, Dissent in Part 1: Pierce, J., Concurs in Part and Dissents in Part With Separate Written Opinion Concur in Part, Dissent in Part Joined By 1: Carlson, P.J., and Randolph, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-21-2009 Appealed from: Lauderdale County Circuit Court Judge: Robert Bailey Disposition: Conviction of Felony Driving Under the Influence, Affirmed. Sentence of Life Imprisonment, as a habitual offender, in the custody of the Mississippi Department of Corrections. District Attorney: BILBO MITCHELL Case Number: 358-08 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Tyrone Gowdy |
RANDALL HARRIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR. |
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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: | Felony DUI - Ineffective assistance of counsel - Voir dire - Limiting instruction - Amendment of indictment - URCCC 7.09 - Habitual offender status - Section 99-19-81 - Section 99-19-83 |
| Summary of the Facts: | Tyrone Gowdy was convicted of felony driving under the influence of alcohol. He was sentenced as a habitual offender to life imprisonment without the possibility of parole. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Gowdy argues that his trial counsel was ineffective for eleven reasons. Gowdy makes cursory arguments on each point of error and often fails to cite to the record or to any relevant authority. His ineffective assistance of counsel claims are best reserved for a petition for possible post-conviction relief. Issue 2: Voir dire Gowdy argues that the trial judge committed plain error in allowing the State to ask the venire members whether they previously had served on juries in criminal cases, and if so, whether those juries had acquitted or convicted the defendants in those cases, because the prosecutor then was able to use peremptory strikes to ensure that no juror impaneled in his case previously had voted not guilty in another criminal case. Such questions often are posed by both sides in criminal and civil cases alike, and are patently legitimate as voir dire questions. Indeed, Gowdy struck two venire members who previously had voted to convict criminal defendants. Issue 3: Limiting instruction Gowdy argues that the trial judge erred by failing to give a cautionary instruction regarding evidence of his prior DUI convictions and evidence that he had been cited for driving with a suspended driver’s license. However, the trial judge did give a limiting instruction; the jury was told by the court that it could consider Gowdy’s prior DUI convictions only as impeachment evidence and as evidence that the case being tried was his third DUI. Issue 4: Amendment of indictment Immediately after Gowdy had been convicted, the State informed the court that it had “just received” information about Gowdy’s prior convictions in Iowa and would seek to amend the indictment to include his habitual offender status. Nearly two months later, on the day for which Gowdy’s sentencing hearing was scheduled, the State filed its motion to amend the indictment to charge Gowdy as a habitual offender under section 99-19-83, which requires a mandatory life sentence. URCCC 7.09 does not speak to the timing of the amendment, only that the defendant must be afforded a fair opportunity to present a defense and not be unfairly surprised. This means that the defendant must be afforded due process of law and be given fair notice of the nature and cause of the accusation. In Akins v. State, 493 So. 2d 1321, 1322 (Miss. 1986), the Court held that an amendment to the indictment which changed the habitual offender charge from the “little” enhancement (Section 99-19-81) to the “big” enhancement (Section 99-19-83) was an impermissible amendment. It logically follows that if the State may not amend the indictment to charge the “big” enhancement after conviction when the original indictment charged only the “little” enhancement, then the State may not amend the indictment to add an enhanced penalty after conviction. In line with Akins, an amendment to the indictment to allege habitual offender status after conviction is an unfair surprise. To the extent that the case of Torrey v. State, 891 So. 2d 188, 195 (Miss. 2004) holds otherwise, it is overruled. Thus, the enhanced penalty is vacated and the case remanded for resentencing. |
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