Mixon v. State
| Docket Number: | 2004-KA-01576-SCT Linked Case(s): 2004-KA-01576-SCT ; 2004-KA-01576-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-08-2005 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Motor vehicle theft - Double hearsay - M.R.E. 805 - M.R.E. 801(d)(1)(c) - Amendment of indictment - Closing argument Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-12-2004 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Conviction of Motor Vehicle Theft and Sentence of Life Imprisonment, as an Habitual Offender, in the Custody of the Mississippi Department of Corrections District Attorney: Eleanor Faye Peterson Case Number: 03-0-0650 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Darryl Mixon a/k/a Darrell Mixon a/k/a Daryl Mixon a/k/a Larry Williams a/k/a Reginald Wells |
GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOSE BENJAMIN SIMO |
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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: | Motor vehicle theft - Double hearsay - M.R.E. 805 - M.R.E. 801(d)(1)(c) - Amendment of indictment - Closing argument |
| Summary of the Facts: | Darryl Mixon was convicted of motor vehicle theft. Since he had two prior convictions in which he actually served one year or more, one of which was a violent offense, Mixon was sentenced to life imprisonment as a habitual offender. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay Mixon argues that, over his objection, a detective was improperly permitted to testify that an officer had told him that the owner of the vehicle identified Mixon as the perpetrator. Under M.R.E. 805, hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule. The owner of the vehicle, the first declarant, was available for cross-examination, and also made an in-court identification of Mixon as the individual who stole his truck. Moreover, the second declarant, the officer, likewise testified at trial and was also available for and subject to cross-examination. Therefore, the statements regarding the owner’s identification were not hearsay under M.R.E. 801(d)(1)(c). These declarations were statements of identification made after perceiving Mixon. Issue 2: Amendment of indictment Mixon’s indictment for motor vehicle theft initially included the word “feloniously,” in spite of the fact that the term is absent from the motor vehicle theft statute. Mixon argues that while the State’s second motion to amend the indictment to remove the word “feloniously” was granted by the trial judge over Mixon’s objection, no actual order allowing this amendment was entered as required by section 99-17-15. The amendment complained of is of no consequence here because it merely amounted to a permissible change of form. The purpose of an indictment is to inform the accused of the charges against him. The indictment explicitly stated that Mixon was being charged with motor vehicle theft under section 97-17-42. Additionally, there was no evidence presented that Mixon was surprised or that he did not know, to his prejudice, that he was being prosecuted under that statute for motor vehicle theft. Therefore, the judge did not abuse his discretion in permitting an on-the-record amendment of the indictment. Issue 3: Closing argument Mixon argues that the State’s closing argument prejudicially referred to Mixon’s prior conviction for false pretenses and inflammatorily alluded to Mixon’s guilt. If the evidence was admissible, the State had the right to comment on the evidence in closing. In addition, the trial judge’s decision to overrule the defendant’s motion for a mistrial was an appropriate exercise of his discretionary power under the circumstances. The judge sustained the objection and informed the jury of the necessity of disregarding the putative prejudicial statements, thus avoiding any potential prejudice. |
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