Newberry v. State
| Docket Number: | 2010-KA-01729-COA Linked Case(s): 2010-KA-01729-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-06-2011 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Possession of cocaine - Amendment of indictment - Waiver- URCCC 7.09 Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton and Russell, JJ. Non Participating Judge(s): Myers, 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: Harrison County Circuit Court Judge: Roger T. Clark Disposition: CONVICTED OF POSSESSION OF COCAINE AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: Cono A. Caranna, II Case Number: B-2401-07-289 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Ray Allen Newberry a/k/a Raymond Allen Newberry a/k/a Raymond Allen Wright |
LESLIE S. LEE
MOLLIE MARIE MCMILLIN |
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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: | Possession of cocaine - Amendment of indictment - Waiver- URCCC 7.09 |
| Summary of the Facts: | Ray Newberry was convicted of cocaine possession. The circuit court sentenced him as a habitual offender to life imprisonment without eligibility for parole or probation. Newberry appeals. |
| Summary of Opinion Analysis: | Issue 1: Waiver When the State first moved to amend Newberry’s indictment, he objected to the amendment for a reason unrelated to the notice-based concerns he now raises. After deferring ruling on the matter, when the circuit court revisited the issue at sentencing, Newberry raised no objection to the amendment. His failure to object is a procedural bar to consideration of this issue on appeal. Even assuming his objection had the required specificity, Newberry was precluded from raising the issue for the first time in his motion for new trial. Issue 2: Amendment of indictment An indictment may be amended to charge habitual-offender status only if the offender is given a fair opportunity to present a defense and is not unfairly surprised. While URCCC 7.09 does not speak to the timing of the amendment, it instructs 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. Here, there is no error in the amendment to Newberry’s indictment. The amendment did not affect his defense to the underlying charge of possessing cocaine. Nor does Newberry contend the delayed amendment prejudiced his defense against the habitual offender charge. Not only did Newberry offer no evidence during the sentencing hearing contesting the habitual-offender charge, he makes no argument now that any evidence exists contradicting the State’s proof. The State was diligent in obtaining Newberry’s criminal record. The State filed a motion to amend Newberry’s indictment before trial. And the State’s motion properly detailed the qualifying offenses for habitual offender status. The circuit court heard argument on the amendment before any witnesses testified at Newberry’s trial. Further, when the circuit court ordered the amendment, Newberry failed to object. Newberry’s complaints about unfair surprise are unfounded. |
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