Powell v. State


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Docket Number: 2010-KA-01064-COA

Court of Appeals: Opinion Link
Opinion Date: 02-14-2012
Opinion Author: Roberts, J.
Holding: Affirmed

Additional Case Information: Topic: Burglary - Amendment of indictment - Section 99-19-81 - Section 99-19-83 - URCCC 7.09 - Right to remain silent - Sufficiency of evidence
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton, Maxwell, Russell and Fair, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-03-2010
Appealed from: Hancock County Circuit Court
Judge: John C. Gargiulo
District Attorney: Cono A. Caranna, II
Case Number: B2301-09-0131

  Party Name: Attorney Name:  
Appellant: Danny Ray Powell, Sr.




LESLIE S. LEE BENJAMIN ALLEN SUBER BRIAN BIENVENU ALEXANDER



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT  

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Topic: Burglary - Amendment of indictment - Section 99-19-81 - Section 99-19-83 - URCCC 7.09 - Right to remain silent - Sufficiency of evidence

Summary of the Facts: Danny Powell Sr. was convicted of burglary and sentenced, as a habitual offender, to life without eligibility for parole or probation. He appeals.

Summary of Opinion Analysis: Issue 1: Amendment of indictment Powell argues that the circuit judge committed error when he permitted the State to amend his indictment from being a habitual offender under section 99-19-81 to being a habitual offender under section 99-19-83. He argues that this amendment was one of substance and was, therefore, impermissible. In accordance with URCCC 7.09, an amendment requested on the day of the trial to add an enhanced penalty is proper where the defendant was apprised of the charge pending against him, was not unfairly surprised, and was afforded a fair opportunity to present his defense. Here, the State sought to amend the indictment after voir dire had been completed. Additionally, the State’s amendment was not one of substance but one of form. The substance of Powell’s indictment did not change. Powell was aware that he was being indicted as a habitual offender by his original indictment. Further, the State did not attempt to add an additional crime to elevate Powell’s indictment because the original indictment contained, with specificity, all of Powell’s past convictions. Issue 2: Right to remain silent Powell argues it was improper and reversible error for the State to comment on his silence after he invoked his right to remain silent as it may deprive him of his right to due process. Powell argues that an investigator’s comments made in front of the jury regarding whether or not he was going to admit any wrongdoing could be deemed as a protest to any allegation of wrongdoing. He also argues that although the circuit judge subsequently suppressed this line of testimony, the jury still heard that Powell “was not going to tell [the police] the truth about something he did wrong[,]” and this statement was highly prejudicial to him as it could be considered incriminating or proof of his guilt. While it is not proper to comment on the post-Miranda silence of an accused, there are instances in which such violation could be deemed harmless error. First, Powell made no contemporaneous objection to the investigator’s comments. Issues not presented to the trial court for lack of contemporaneous objection are procedurally barred, and error, if any, is waived. Further, Powell neither requested the circuit judge give the jury a curative instruction on that line of testimony nor moved for a mistrial. Also, the evidence presented at trial beyond the comments about Powell’s refusal to give a statement was more than sufficient for a jury to find him guilty of burglary. Issue 3: Sufficiency of evidence Powell argues that there were other inferences that could be drawn from the evidence and that the evidence was primarily testimony of non-credible witnesses, evidence from a shed on someone else’s property that others had access to, and a fuzzy surveillance camera video. The evidence presented at trial was that Powell’s home was where a majority of the stolen items were found and that testimony from other witnesses linked Powell to possession of several other stolen items. There was testimony at trial that no one hung around the shed after Powell moved in; and only Powell and his landlord had a key to the shed. The evidence presented at trial showed that Powell possessed clothing and the bicycle matching the ones in the surveillance video and that he tried to hide behind some bushes when a person walked by the following morning. Lastly, Powell provided no explanation of how the stolen property was in his possession and in his home. Based on these facts, the jury’s verdict is not against the overwhelming weight of the evidence so as to cause an unconscionable injustice.


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