                        IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2004-KA-01576-SCT

DARRYL MIXON a/k/a DARRELL MIXON a/k/a
DARYL MIXON a/k/a LARRY WILLIAMS a/k/a
REGINALD WELLS

v.

STATE OF MISSISSIPPI




DATE OF JUDGMENT:                          03/12/2004
TRIAL JUDGE:                               HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOSE BENJAMIN SIMO
DISTRICT ATTORNEY:                         FAYE PETERSON
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 12/08/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE SMITH, C.J., DICKINSON AND RANDOLPH, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Darryl Mixon was tried and convicted by a jury of motor vehicle theft under Miss. Code

Ann. § 97-17-42 in the Circuit Court of the First Judicial District of Hinds County. 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 under Miss.

Code Ann. § 99-19-83.
                                               FACTS

¶2.     At approximately 6:15 a.m. on December 9, 2002, Theodis Smith entered a Spur service

station to pay for gasoline. While entering he passed a man leaving the store who, moments

later, jumped into Smith’s truck and began driving away. The clerk alerted Smith that someone

was driving his truck away from the station. Smith ran outside and saw that the driver was the

same man he had passed while entering the store. At the same time, a co-worker of Smith was

driving by and picked Smith up. The two followed Smith’s truck behind a white Honda Accord

which was also following Smith’s truck.        Subsequently, Smith’s truck came to a stop.     The

driver of the Accord also stopped, jumped out, and aided in unloading tools from Smith’s truck.

Smith called the police, giving them the address of a nearby home, and remained there awaiting

their arrival.   Both the drivers, in Smith’s truck and the Accord, fled the scene before Officer

Catchings arrived.      The officer obtained a report of the incident and descriptions of the

perpetrators from Smith.     At approximately 8:45 a.m., Smith was notified by the police that

two individuals fitting the descriptions had been captured. Smith went to the scene and, in the

presence of Officers Catchings and Williams, identified Mixon as the person who had stolen

his truck. At trial, Smith stated that he did not know Mixon before the theft and had never given

Mixon permission to use or borrow the truck.

¶3.     On March 12, 2004, the jury found Mixon guilty of motor vehicle theft under Miss.

Code Ann. § 97-17-42. From that verdict, Mixon appeals seeking a new trial.

                                            ANALYSIS

¶4.     Mixon raises three issues on appeal.       First, he alleges that the State was erroneously

allowed to bolster its case through the hearsay testimony of Detective Steven Wansley.


                                                  2
Second, he argues that the State’s second amendment to the indictment during trial was flawed.

Third, he asserts that the State’s summation was inflammatory.

¶5.    This Court “will not order a new trial unless convinced that the verdict is so contrary

to the overwhelming weight of evidence that, to allow it to stand, would be to sanction an

unconscionable injustice.” Pearson v. State, 428 So. 2d 1361, 1364 (Miss. 1983). To hold

otherwise would “denigrate the constitutional power and responsibility of the jury in our

criminal justice system.” Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). Since “jury

verdicts will not be disturbed except under the most dire of circumstances,” the review of

criminal convictions is “in the light most favorable to the conviction.” King v. State, 798 So.

2d 1258, 1261 (Miss. 2001).

¶6.    The admission of evidence is within the sound discretion of the trial judge. That

discretion must be exercised in conformity with the Mississippi Rules of Evidence.      Reversal

is only appropriate when an abuse of discretion has “result[ed] in prejudice to the accused.”

Parker v. State, 606 So. 2d 1132, 1137-38 (Miss. 1992); See also Sewell v. State, 721 So.

2d 129, 138 (Miss. 1998).


       I.      Was the State erroneously allowed to bolster its case with hearsay
               testimony?


¶7.    In the presence of Officers Catchings and Williams, Smith identified Mixon as the

individual who had taken his truck.     Officer Catchings later advised Detective Steven Wansley

of Smith’s identification of Mixon.           Following Officer Catchings’s testimony at trial,




                                                  3
Detective Wansley testified that Officer Catchings advised him of Smith’s identification of

Mixon.

¶8.      Mixon argues that, over his objection, Detective Wansley was improperly permitted to

testify that Officer Catchings had told him that Smith identified Mixon as the perpetrator. On

redirect, the same alleged hearsay was permitted as the circuit judge concluded that such

“investigative work” was not incompetent hearsay and/or because the “door had been opened”

to the hearsay on cross-examination. 1

¶9.      Citing Murphy v. State, 453 So. 2d 1290, 1294 (Miss. 1984), Mixon maintains that

“you simply cannot ‘open the door’ to hearsay.” In Murphy, this Court found that “[h]earsay

is incompetent evidence.       You may open the door for collateral, irrelevant, and otherwise

damaging evidence to come in on cross-examination . . . but Mississippi recognizes no rule of

law that allows double hearsay to be brought in through this open door.”                      Id. (citations

omitted). We reaffirm the holding of this Court in Murphy. See also Kolberg v. State, 829

So. 2d 29, 77 (Miss. 2002). However, the inquiry regarding admissibility does not end there.

The Mississippi Rules of Evidence control the admissibility vel non of the alleged double

hearsay or, more accurately stated, hearsay included within hearsay.           “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 provided in these rules.” M.R.E. 805.




         1
          As to Mixon’s allegations of “bolstering,” the trial court properly exercised its
discretion in overruling the objection of Mixon’s counsel. The trial court found that
“[Mixon’s counsel] went into identification [by Wansley]. [State’s counsel] may go into
identification.”

                                                     4
¶10.     Mississippi Rule of Evidence 801(d)(1)(C) provides “[a] statement is not hearsay if:

[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning

the statement, and the statement is . . . one of identification of a person made after perceiving

him . . . .” (emphasis added).       Here, Smith, 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, Officer Catchings, likewise testified at trial and was

also available for and subject to cross-examination.          Therefore, the statements regarding

Smith’s identification were not hearsay.       M.R.E. 801(d)(1)(C).         These declarations were

statements of identification made after perceiving Mixon.             Therefore, this Court finds

Detective Wansley’s testimony that Officer Catchings informed him of Smith’s identification

of Mixon as the perpetrator was not hearsay and therefore was admissible.

¶11.     Mixon further argues that such a statement is inadmissible hearsay citing Ratcliff v.

State, 308 So. 2d 225, 227 (Miss. 1975). Ratcliff did hold that the statements of an informant

to investigators were inadmissible hearsay.      However, that decision is clearly distinguishable

from the case at bar.     The linchpin of the Ratcliff decision was that “an accused person is

entitled to be confronted with and have opportunity to cross-examine witnesses against him.”

Id. In Ratcliff, the defendant was not given the opportunity to confront or cross-examine the

informant-declarant.   Conversely, Mixon had the opportunity to cross-examine both Smith and

Officer Catchings. See also Stubbs v. State, 878 So. 2d 130, 134 (Miss. Ct. App. 2004)

(distinguishing Ratcliff where the informant-declarant was available for cross-examination).

As such, this Court finds that Mixon’s reliance on Ratcliff is without merit.          Although the



                                                 5
circuit judge articulated an improper basis to admit this testimony, the testimony was

nonetheless admissible. Therefore, Mixon’s right to a fair trial was not prejudiced by the trial

court’s ruling. This issue is without merit.


        II.      Was the second attempted amendment of the indictment during trial
                 flawed?


¶12.    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.2             Mixon

contends that while the State’s second motion to amend the indictment3 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 Miss. Code Ann. § 99-17-15.4

¶13.    The “purpose of an indictment is to furnish the accused [with] such a description of the

charges against him as will enable him to adequately prepare his defense.” King v. State, 580

So. 2d 1182, 1185 (Miss. 1991) (quoting Williams v. State, 445 So. 2d 798, 804 (Miss.


        2
       § 97-17-42(1) states:
      Any person who shall, willfully and without authority, take possession of or
      take away a motor vehicle belonging to another, and any person who
      knowingly shall aid and abet in such taking possession or taking away, shall be
      guilty of a felony and shall be punished by commitment to the Department of
      Corrections for not more than five (5) years.
(Emphasis added).
        3
        The State’s first motion to amend the indictment pertained to “a scrivener’s error in
the enhancement portion of the indictment” and is not disputed on appeal.
        4
         § 99-17-15 provides in part:
        The order of the court for amendment of the indictment, record or
        proceedings provided in section 99-17-13 shall be entered on the minutes,
        and shall specify precisely the amendment, and shall be a part of the record
        of said case, and shall have the same effect as if the indictment or other
        proceeding were actually changed to conform to the amendment . . . .

                                                   6
1984)). Rule 7.06 of the Uniform Circuit and County Court Rules,5 comports with the notice

requirements of the Sixth and Fourteenth Amendments of the United States Constitution and

Article 3, Sections 14 and 26 of the Mississippi Constitution, and thus provides the starting

point for consideration of the sufficiency of an indictment.       See Richmond v. State, 751 So.

2d 1038, 1045 (Miss. 1999).        Essentially, nothing more than a “concise and clear statement

of the elements of the crime charged” is required.          King, 580 So. 2d at 1185 (quoting

Williams, 445 So. 2d at 804).


¶14.   Here there was an oral motion to amend the indictment during trial because the word

“feloniously” was included in the indictment due to a “scrivener’s error.”          Mixon was clearly

charged with motor vehicle theft under § 97-17-42.               The trial court overruled Mixon’s

challenge to this alleged “amendment of substance” as this was clearly a motor vehicle theft




       5
        Rule 7.06 states:
       The indictment upon which the defendant is to be tried shall be a plain,
       concise and definite written statement of the essential facts constituting the
       offense charged and shall fully notify the defendant of the nature and cause of
       the accusation. Formal and technical words are not necessary in an
       indictment, if the offense can be substantially described without them. An
       indictment shall also include the following:
       1. The name of the accused;
       2. The date on which the indictment was filed in court;
       3. A statement that the prosecution is brought in the name and by the
       authority of the State of Mississippi;
       4. The county and judicial district in which the indictment is brought;
       5. The date and, if applicable, the time at which the offense was alleged to
       have been committed. Failure to state the correct date shall not render the
       indictment insufficient;
       6. The signature of the foreman of the grand jury issuing it; and
       7. The words “against the peace and dignity of the state.”

                                                   7
case, not a grand larceny case (which requires the State to establish “feloniously”).6               The

heading on the original indictment stated “motor vehicle theft,” cited code section “97-17-42,”

and, but for the word “feloniously,” tracked the language of Miss. Code Ann. § 97-17-42(1)

for “motor vehicle theft.”     “[M]erely formal or technical words, shall not be necessary in an

indictment if, without them, the offense be certainly and substantially described.”            Miss. Code

Ann. § 99-7-3.      This Court has held that an indictment containing the word “feloniously” when

it did not appear in the statute still properly charged the defendant with simple assault.            See

Reining v. State, 606 So. 2d 1098, 1103 (Miss. 1992).                  As the indictment provided the

accused with actual notice and complied with then-existing Rule 2.05 of the Uniform Criminal

Rules of Circuit Court Practice, 7 it was found “sufficient to charge the defendant with the

crime.” Id.


¶15.    “The court for any formal defect, may, if it be thought necessary, cause the indictment

to be forthwith amended, and thereupon the trial shall proceed as if such defect had not

appeared.” Miss. Code Ann. § 99-7-21. Such amendments, however, may pertain to matters

of form only, not matters of substance. See Shive v. State, 507 So. 2d 898, 900 (Miss. 1987)

(citing Copeland v. State, 423 So. 2d 1333, 1336 (Miss. 1982)). Amendments of substance

include those which “change the charge made in the indictment to another crime.” Shive, 507

So. 2d at 900.      Fundamentally, “[e]very material fact and essential ingredient of the offense –



        6
          Although the trial court noted that, “even if the felonious word were left in the case
that there has been a prima facie case proven by the State against this particular defendant.”
        7
        Now Rule 7.06 of the Uniform Circuit and County Court Rules. See Ishee v. State,
799 So. 2d 70, 76 (Miss. 2001).

                                                     8
every essential element of the offense – must be alleged with precision and certainty, or, as

has been stated, every fact which is an element in a prima facie case of guilt must be stated in

the indictment.” Copeland, 423 So. 2d at 1336 (quoting Love v. State, 211 Miss. 606, 611,

52 So. 2d 470, 472 (1951); Brewer v. State, 351 So. 2d 535, 536 (Miss. 1977)).               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. See King, 580 So. 2d at 1185. Here, the indictment explicitly stated that

Mixon was being charged with motor vehicle theft under Miss. Code Ann. § 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 Miss. Code Ann. § 97-17-42 for

motor vehicle theft. There being no prejudice or surprise, this Court finds the trial judge did

not abuse his discretion in permitting an on-the-record amendment of the indictment.         This

issue is without merit.

        III.     Was the State’s summation inflammatory?

¶16.    Lastly, Mixon asserts that the State’s closing argument prejudicially referred to

Mixon’s prior conviction for false pretenses and inflammatorily alluded to Mixon’s guilt.8    As

one may note by the style of this case, Mixon has a penchant to use more than one name or


        8
         In closing argument, the prosecutor stated:
        Darryl Mixon wants you to believe that even though he is a convicted liar,
        he’s telling the truth today. That’s what this is. This is an abstract for false
        pretenses. He admitted it. He knew we had it. He admitted to it. But he also
        said one very important thing. Why did you lie? I lied because I didn’t want
        to go to jail. Do you think he wants to go to jail today? No, he doesn’t want
        to go to jail today. If he did, he would have pled guilty a long time ago, and he
        would be in jail.

                                                    9
alias, including at the time of his arrest for this crime.        The trial court found that Mixon’s

testimony, including an explanation for furnishing an alias to the arresting officer during direct

examination, opened the door for the State to cross-examine Mixon regarding both a prior

false pretenses conviction and his use of aliases. 9        Therefore, the trial court overruled the

objection of Mixon’s counsel to questions on cross-examination about a prior conviction and

prior use of alias names.

¶17.    The Mississippi Rules of Evidence support the trial judge’s determination.          See M.R.E.

404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show that he acted in conformity therewith.                  It may, however, be

admissible for other purposes such as proof of motive, . . . intent, . . . identity, or absence of

mistake or accident.”); M.R.E. 608(b)(1) (“Specific instances of the conduct of a witness, for

the purpose of attacking or supporting his credibility, other than conviction of crime as

provided in rule 609, may not be proved by extrinsic evidence.               They may, however, in the

discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning his character for truthfulness or untruthfulness . .

. .”); M.R.E. 609(a)(2) (“For the purpose of attacking the credibility of a witness, . . . (2)

evidence that any witness has been convicted of a crime shall be admitted if it involved

dishonesty or false statement, regardless of punishment.”).         For certain, if the evidence was

admissible, the State had the right to comment on the evidence in closing.



        9
           On direct examination, Mixon explained that at the time of his arrest on December
9, 2002, “I gave them a false name because it was around Christmas, and I had old fines, and
I didn’t want to go to jail.” On cross-examination, he added that, “I wanted to be out for my
kids . . . .”

                                                   10
¶18.    “[T]he test to determine if an improper argument by a prosecutor requires reversal is

whether the natural and probable effect of the prosecuting attorney’s improper argument

created unjust prejudice against the accused resulting in a decision influenced by prejudice.”

Dunaway v. State, 551 So. 2d 162, 163 (Miss. 1989).                 The evaluation of prejudice is a

“question of severity” in which “the trial court has discretion in determining whether the

inflammatory or prejudicial nature of the prosecutor’s statement is significant enough to

warrant granting the defendant’s motion for a mistrial.” Sullivan v. State, 749 So. 2d 983, 991

(Miss. 1999) (citing Hoops v. State, 681 So. 2d 521, 528 (Miss. 1996)). While prosecutors

“must exercise caution and discretion in making extreme statements in their arguments to the

jury,” Johnson v. State, 596 So. 2d 865, 869 (Miss. 1992), “[t]here is no precedent supporting

the [idea] that a single inappropriate statement by a prosecutor is grounds for a new trial.”

Sullivan, 749 So. 2d at 991.


¶19.    In Ramseur v. State, 368 So. 2d 842 (Miss. 1979), this Court held that the trial judge

properly sustained an objection to a prosecutor’s argument that the jurors were representatives

of “the people of the State of Mississippi and this community.”            Id. at 845.   Since the trial

court sustained the objection, this Court found that no prejudice resulted. See id.


¶20.    In the present case, the trial judge sustained the defendant’s objection to the State’s

closing argument that “[Mixon] doesn’t want to go to jail today. If he did, he would have pled

guilty a long time ago, and he would be in jail.” The trial judge then told the jury to disregard

the statements of the prosecutor.      Thereafter, the trial judge overruled the defendant’s motion

for a mistrial. In so doing, the trial judge did not abuse his discretion. Under Ramseur, by


                                                   11
sustaining the objection and informing the jury of the necessity of disregarding the putative

prejudicial statements, any potential prejudice was avoided.           Accordingly, this Court finds that

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.

                                             CONCLUSION

¶21.    Finding no prejudice to Mixon because of the trial court’s rulings, and further finding

no other basis to disturb the verdict of the jury, we affirm the judgment of the trial court.

¶22. CONVICTION OF MOTOR VEHICLE THEFT AND SENTENCE OF LIFE
IMPRISONMENT, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




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