Forkner v. State
| Docket Number: | 2001-CT-00754-COA Linked Case(s): 2001-CT-00754-SCT ; 2001-CT-00754-SCT ; 2001-CT-00754-SCT ; 2001-CT-00754-SCT ; 2001-CT-00754-SCT ; 2001-KA-00754-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-30-2004 Opinion Author: Myers, J. |
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| Additional Case Information: |
Topic: Burglary of storehouse - Defective indictment - Recess - Sufficiency of evidence - Jury instruction - Opening statement - Amendment of indictment Judge(s) Concurring: King, C.J., Bridges and Lee, P.JJ., Irving, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-28-2001 Appealed from: Wilkinson County Circuit Court Judge: Lillie Blackmon Sanders Disposition: BURGLARY OF A STOREHOUSE- SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: Ronnie Lee Harper Case Number: 00-KR-044-S |
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| Party Name: | Attorney Name: | |||
| Appellant: | Winfred "Wimp" Forkner |
PAMELA A. FERRINGTON |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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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: | Burglary of storehouse - Defective indictment - Recess - Sufficiency of evidence - Jury instruction - Opening statement - Amendment of indictment |
| Summary of the Facts: | Winfred Forkner was convicted of burglary of a storehouse, and sentenced as a habitual offender to life without parole. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Defective indictment Forkner argues that the indictment is fatally flawed for the misspelling of his last name, as well as the failure to specify an exact date as to when the crimes charged took place. An indictment, to be effective as such, must set forth the constituent elements of a criminal offense. When the formal defect is curable by amendment the failure to demur to the indictment in accordance with our statute will waive the issue from consideration on appeal. Forkner did not object to the indictment at the trial level, thus waiving this issue for appeal. In addition, a misspelled name in the indictment is a matter which may be corrected by the court on motion by the prosecutor. With regard to his argument concerning the date, an allegation as to the time of the offense is not an essential element of the offense charged in the indictment and, within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient. Issue 2: Recess Forkner argues that his trial was prejudiced by the court’s decision to recess the proceedings over the weekend. Denial of a continuance is not reversible unless manifest injustice appears to have resulted from the denial. Here, the reasons set forth by the judge clearly state her reasoning in granting the recess, and there is no indication that the judge abused her discretion. Issue 3: Sufficiency of evidence Forkner argues that the testimony of the State’s witness was improbable, self contradictory, and substantially impeached. Although some contradictions were present in the witness’s testimony, it is within the province of the jury to determine the credibility of witnesses. Issue 4: Jury instruction Forkner argues that one of the State’s instruction was improper. The failure of an offended party to properly object to a jury instruction bars the issue on appeal. Forkner’s counsel raised no objection to the instruction. Issue 5: Opening statement Forkner argues that the prosecutor’s remarks during his opening statement concerning what he expected and anticipated from a witness was improper. A contemporaneous objection is necessary to preserve the right to raise an error on appeal. Rather than objecting during the opening statement, Forkner’s counsel objected when the State attempted to call the witness to testify. Therefore, the issue is not properly preserved. Issue 6: Amendment of indictment Forkner argues that the court erred by granting the State’s motion to amend the indictment on the date of trial so that Forkner would be tried as a habitual offender. It is permissible to amend the indictment on the date of trial and to charge the defendant as a habitual criminal when defense counsel is aware of the State’s intentions and the defendant is fully aware of the State’s intentions. A review of the record indicates that the State has met these requirements. Forkner was clearly aware of the State’s intention to amend the indictment and the penalty which the amendment would carry. |
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