Lee v. State
| Docket Number: | 2004-CT-00542-SCT Linked Case(s): 2004-KA-00542-COA ; 2004-CT-00542-SCT ; 2004-KA-00542-COA ; 2004-KA-00542-COA |
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| Supreme Court: | Opinion Link Opinion Date: 12-07-2006 Opinion Author: Dickinson, J Holding: Affirmed |
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| Additional Case Information: |
Topic: Statutory rape, Sexual battery & Gratification of lust - Amendment of indictment - Impeachment of witness Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson and Randolph, JJ Judge(s) Concurring Separately: Easley, J., Specially Concurs With Separate Written Opinion Joined by Waller, P.J., Carlson, Dickinson and Randolph, JJ. Concur in Part, Dissent in Part 1: Diaz, J., Concur in Part, Dissent in Part Joined By 1: Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 03-24-2003 Appealed from: Madison County Circuit Court Judge: William E. Chapman, III Disposition: After a five-day trial, a jury found Lee guilty and convicted him on all counts.1 The trial court fixed Lee’s punishment at two life sentences, four thirty-year sentences, and three fifteen-year sentences. District Attorney: RICHARD D. MITCHELL Case Number: 2002-0292 |
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| Note: | The judgment of the Court of Appeals is affirmed. See the original COA opinion at http://www.mssc.state.ms.us/Images/OPINIONS/CO30763.PDF | |
| Party Name: | Attorney Name: | |||
| Appellant: | Vessie Lynn Lee |
MATTHEW WARREN KITCHENS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE McCRORY |
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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: | Statutory rape, Sexual battery & Gratification of lust - Amendment of indictment - Impeachment of witness |
| Summary of the Facts: | Vessie Lee was convicted of statutory rape (two counts), sexual battery (four counts), and gratification of lust (four counts). He appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Lee argues that the court erroneously allowed the State to amend the indictment on the morning of trial. Counts III through VI of the original indictment alleged four separate instances of sexual battery with a child in violation of subsection (1)(d) of section 97-3-95. However, each of these counts included the phrase “without her consent,” an element of subsection (1)(a). Four days before trial, Lee filed a motion to quash counts III through VI of the indictment, claiming they tracked the language of both subsections (1)(a) and (1)(d), and thus did not provide him sufficient notice of the charged crime. The Court of Appeals held that the trial court did not commit error by allowing the State to amend the indictment and remove the phrase “without her consent.” In many instances, mere surplusage may be stricken from an indictment without any prejudice to the defendant. The test for analyzing an amendment to an indictment for the purpose of removing surplusage is that the removal of the surplusage must not change the substance of the offense charged; the defendant must be afforded a fair opportunity to present a defense and must not be unfairly surprised; the removal of the surplusage must not materially alter the essential facts of the offense; and the removal of the surplusage must not alter a defense under the original indictment. The surplusage in the indictment in this case was the inclusion of an additional alternative act which, if proven, would constitute a separate and additional violation of the same statute. Lee was fully on notice of both claims. The fact that the trial court allowed the State to amend the indictment and remove one of the claims is no more prejudicial to Lee than if the two claims of violation had been charged under two separate counts in the indictment, with the trial court later dismissing one of the counts. Likewise, Lee’s defense to this charge did not change. There is no allegation, suggestion, or evidence in this case that Lee was not afforded the opportunity to defend the claim. The essential facts of the offense, that is, that Lee engaged in sexual penetration with a child under the age of fourteen at a time when Lee was twenty-four or more months older than the child, were the same at the time of conviction as at the time of indictment. Thus, the trial court did not abuse its discretion in allowing the amendment to remove the surplusage from the indictment. Lee also argues that the trial court erred when it refused to allow a defense witness to impeach a prosecution witness. The record shows that the testimony Lee sought to impeach was a collateral matter, and the trial court was well within its discretion to refuse to allow Lee to call the impeachment witness. |
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