CASTON v. STATE

ROBERTS, J., concurring:

¶ 18. While I agree with the majority, I feel it necessary to write separately to express my opinion why Caston waived any technical deficiency of the language in the indictment by not objecting prior to acceptance of his guilty plea.

¶ 19. A review of the record and applicable law evinces that Caston's indictment was well within the requirements of Rule 7.06 of the Uniform Rules of Circuit and County Court and in line with the most recent decisions of this Court and the supreme court on the matter. However, I argue that not only was Caston's indictment entirely sufficient, but that he waived his right to challenge its sufficiency by failing to object before he entered his guilty plea. The supreme court has held that challenges to the substantive sufficiency of an indictment are not waivable, and may be first raised at anytime, including on appeal. Hodges v. State, 912 So.2d 730 (1196) (Miss. 2005). Furthermore, the supreme court has held "in order for an indictment to be sufficient, it must contain the essential elements of the crime charged." Peterson v. State, 671 So.2d 647, 652-53 (Miss. 1996). However, this practice, especially in the case of a knowingly and intelligently made guilty plea to an indictment that fully notifies the defendant of the nature and cause of the accusation against him, deserves review.

¶ 20. "Whatever may have been the law in former days, our starting point today for consideration of a question such as this, [whether an indictment is substantively insufficient] is Rule 2.05, Uniform Criminal Rules of Circuit Court Practice [now 7.06]." Harbin v. State, 478 So.2d 796, 798 (Miss. 1985). This sentiment was recently echoed in Spears v. State, 942 So.2d 772 (¶ 6) (Miss. 2006). In Spears, the supreme court reversed an opinion of this Court with regard to the classification of an amendment to an indictment. Spears, 942 So.2d at (¶ 14). Spears was indicted for burglariously attempting to break and enter a dwelling house, but during the trial the State moved to amend the indictment to change the language from "attempt to break and enter" to "break and enter." Spears v. State, 942 So.2d 812 (¶ 4) (Miss Ct.App. 2005), rev'd, 942 So.2d 772 (Miss. 2006). On appeal to this Court, Spears argued that by allowing the amendment he was prejudiced as his defense was that he was innocent of the crime charged, attempted breaking and entering, because he actually completed the underlying crime. Id. at (¶ 8). We reasoned that by allowing the amendment the State was permitted to make a substantive change to the indictment by changing the crime under which Spears was indicted which denied him a defense under the original indicted crime of attempt. Id. at (¶¶ 7-9). In reversing this Court, the supreme court stated that Rule 7.06 "provides what is required to be provided in an indictment" and reading Spears's indictment as a whole it was apparent that he was "fully notified by the indictment of the nature and cause of the accusation as required pursuant to Rule 7.06. . . . " Spears, 942 So.2d at (¶¶ 7, 9). While a small majority of the supreme court has rejected the notion that compliance with Rule 7.06 does not require a listing of all essential elements within an indictment, see Peterson, 671 So.2d at 653, a plain reading of the rule indicates otherwise. However, in consideration of the appropriate standard when judging the sufficiency of an indictment, the Peterson court stated,

the appropriate inquiry has not changed, rather it remains whether the indictment alleges the essential elements of the crime for which the defendant is charged by containing "a plain, concise and definite written statement of the essential facts constituting the offense charged and . . . fully (notifying) the defendant of the nature and cause of the accusation against him."

Id. at 654 (quoting Hines v. State, 472 so 2d. 386, 390 (Miss. 1985)). This statement is more in line with the requirements of Rule 7.06 as the rule does not require, explicitly or implicitly, a specific listing of the statutory elements of the specific crime charged. All that is necessary, in addition to the seven enumerated requirements, is "a plain, concise and definite written statement of the essential facts constituting the offense charged [that] . . . shall fully notify the defendant of the nature and cause of the accusation." URCCC 7.06 (emphasis added). As such, the word "serious" should not be viewed as a lack of substantive sufficiency in Caston's indictment, but rather a "formal or technical word . . . not necessary in an indictment" and without which Caston's alleged crime could still be "substantially described." Id. Therefore, as the lack of the word "serious" in Caston's indictment is not required by any reasonable reading of Rule 7.06, such a defect is not substantive, and, as such, Caston waived his right to challenge the sufficiency of his indictment on appeal by failing to object at the trial level. This is particularly so, and on point with Spears, when the indictment contained in its heading in all capital letters "AGGRAVATED ASSAULT (TWO COUNTS)"; the words "in violation of Section 97-3-7(2)(a)" — the aggravated assault statute, and language found only in the aggravated assault statute — "recklessly under circumstances manifesting extreme indifference to the value of human life."

¶ 21. The changes to our state's constitution over the last two centuries also show a growing intention to allow prosecution without indictment under certain circumstances. With the enactment of the Mississippi Constitution of 1817 what was then article 1, section 12 read as follows, "No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military, when in actual service, or by leave of the court for misdemeanor in office." Miss. Const. art. 1, § 12 (1817). As times changed, this language was amended to read,

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the militia, when in actual service, or by leave of the Court, for misdemeanor in office; Prodded, That the Legislature, in cases of petit larceny, assaults, assault and battery, affray, riot, unlawful assembly, drunkenness, vagrancy, and other misdemeanors of like character, may dispense with an inquest of a Grand Jury, and may authorize prosecutions before Justices of the Peace, or such other inferior Court or Courts as may be established by the Legislature; and the proceedings in such cases shall be regulated by law.

Miss. Const. art. 1, § 31 (1868). The language and placement of this section was again changed to read,

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military, when in actual service, or by leave of the court for misdemeanor in office; but the legislature, in cases not punishable by death or by imprisonment in the penitentiary, may dispense with the inquest of the grand jury, and may authorize prosecutions before justices of the peace, or such other inferior court or courts as may be established, and the proceedings in such cases shall be regulated by law.

Miss. Const. art. 3, § 27 (1942). Finally, effective December 22, 1978, the people spoke and altered section 27 to read "No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military when in actual service, or by leave of the court for misdemeanor in office or where a defendant represented by counsel by sworn statement waives indictment. . . ." Miss. Const. art. 3, § 27 (Rev. 2005) (emphasis added). It seems quite logical to me that if an indictment may be waived in its entirety by a defendant, a defendant's right to challenge a defect in an indictment of a type not specifically required by Rule 7.06 is also waived. Furthermore, the requirement in common law that a legally sufficient indictment contain every "essential element" of the felony predates the 1977 amendment. See Watson v. State, 291 So.2d 741, 743 (Miss. 1974); Everett v. State, 248 So.2d 439, 441 (Miss. 1971); Love v. State, 211 Miss. 606, 611, 52 So.2d 470, 472 (1951); May v. State, 209 Miss. 579, 584, 47 So.2d 887 (1950). What may have been the law prior to the 1977 amendment and adoption of Rule 7.06 is, quite simply, not the law today. The consequences of deciding otherwise are quite profound. For instance, if no waiver applies the trial judge has the affirmative solemn duty in every felony plea or felony trial, without prompting by either the State or defense counsel, to meticulously review the language in the indictment, many of which may be several pages in length and contain multiple counts, for the lack of a single word that the appellate courts of this state have deemed vital as an "essential element." I submit the supreme court got it right when it said, "[T]he ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Medina v. State, 688 So.2d 727, 730 (Miss. 1996). In situations such as Caston's, it cannot, with a straight face, be legitimately argued that the lack of the word "serious" in his indictment prejudiced his ability to prepare a defense.

¶ 22. That the absence of "serious" from an indictment should not be an unwaivable defect is especially so under the case sub judice as Caston arguably: knowingly and intelligently pled guilty. At every plea hearing the defendant is questioned regarding his understanding of the charges against him, the elements of the criminal offense he is pleading to, the underlying facts justifying acceptance of the plea as well as advised of the consequences of such a plea. Almost without exception, each defendant has already received discovery from the State and generally knows what evidence supporting conviction the State has against him. To say, after the defendant had been so questioned and advised, that he may then challenge his conviction, without properly preserving such a challenge at the trial court, based upon the lack of a single, technical term in the charging instrument is, in my humble opinion, quite ridiculous. It is a `gotcha game' in which appellate courts should not participate.

While the record shows that Caston designated a copy of the plea colloquy as part of the record on this appeal, such was not provided to this Court.

¶ 23. Taken to its extreme, a conniving defense attorney, no doubt with his client's best interests at heart, may notice a defect in an indictment such as the failure to contain the word "serious" but refrain from objecting. Hoping for an acquittal but after his client is found guilty by a jury and the trial court denies his motion for a new trial, the defendant can then raise, for the first time on appeal, that his indictment is fatally defective. Since jeopardy attaches in a jury trial once the jury has been empaneled and sworn in, see Wheeler v. State, 826 So.2d 731 (¶ 26) (Miss. 2002), the defendant, who voiced no objection to the sufficiency of his indictment to the trial court and was found guilty by the jury, will be discharged.

¶ 24. As long as the indictment can be seen as objectively providing the defendant full notice of the nature and cause of the accusation against him with sufficient facts stating the offense, waiver should follow. As stated by Justice Pittman, "This Court should realistically deal with real problems, not create technical questions to peruse. We should note the obvious and not play `I gotcha games' with the trial court." Peterson, 671 So.2d at 661 (Pittman, J., dissenting, joined by Roberts, Smith and Mills, JJ.).

¶ 25. The dissent authored by Judge Lee argues that we are bound by the precedent established in Hawthorne v. State, 751 So.2d 1090 (Miss.Ct.App. 1999). While the doctrine of stare decisis is of the utmost importance to the efficiency and integrity of the judicial system, our conclusions of law cannot be immune from review. We, as an appellate court, must be willing to examine our historical jurisprudence for those rules of law that have changed with the times, that no longer makes sense or were wrongly decided. As indicated in the majority's analysis of those cases relied on in Hawthorne, our decision in that case that the trial judge erred by allowing an amendment to the indictment to include the word "serious" is but one example. As such, and in complete agreement with the majority, I must concur.

GRIFFIS AND BARNES, JJ., JOIN THIS OPINION.

LEE, P.J., dissenting:

¶ 26. With respect to the majority, I must dissent. The law is clear that upon entering a guilty plea two matters are not waived for appellate purposes: (1) failure to charge a necessary element of the crime and (2) lack of subject matter jurisdiction. Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989). In Hawthorne v. State, 751 So.2d 1090, 1094 (¶ 19) (Miss.Ct.App. 1999), this Court found that the absence of the word "serious" from the indictment omitted an essential element of aggravated assault. I did not participate in the Hawthorne decision; however, had I done so, I would have joined the dissent. Regardless, Hawthorne is now the law.

¶ 27. Notwithstanding, the majority and concurring opinion would have us disregard Hawthorne and focus instead on Uniform Circuit and County Court Rule 7.06 which states that "formal and technical words are not necessary in an indictment, if the offense can be substantially described without them." The concurring opinion also cites to Hawthorne as a correct statement of the law but chooses to ignore its dictates, instead urging this Court to condone what amounts to inept work by prosecutors. The majority relies heavily on the dissent in Peterson v. State, 671 So.2d 647, 653 (Miss. 1996), to support its position that a looser standard should be used when reviewing sufficiency of indictments, namely Rule 7.06. However, this Court should not be in the habit of relying upon dissents, however fervent they may be, to bolster a position that may have no other legal support. Furthermore, the majority also appeals to our conscience by urging that a reversal would create a miscarriage of justice and raise doubts about the judicial system in the minds of the citizens over what it deems a "technicality." More doubts would be raised about the judicial system if courts regularly disregarded the law in order to garner public affection. While oft heard the cry of politicians and the general public for judges who follow the law, instead of those who create their own version of the law, and otherwise labeling those who do not follow the law as "activist" judges, though not armed with any statistics on the matter, I rather suspect they really mean just the opposite.

¶ 28. Our legislature and supreme court create laws in Mississippi. We, as an intermediate appellate court, follow those laws. Until the legislature or the supreme court rules differently, we must follow Hawthorne, like it or not. It is not our prerogative to do otherwise. Therefore, I dissent.

KING, C.J., joins this opinion.

IRVING, J., dissenting:

¶ 29. I cannot agree with the majority that counts two and three of the indictment were sufficient to charge Caston with aggravated assault, and I agree with Judge Lee that the majority's decision is diametrical to our holding in Hawthorne v. State, 751 So.2d 1090 (Miss.Ct.App. 1999). But more importantly, today's decision conflicts with the pronouncement of our supreme court in Peterson v. State, 671 So.2d 647 (Miss. 1996) that the indictment must state the essential elements of the crime. Therefore, I dissent. However, I write separately rather than join Judge Lee's dissent, because I cannot assert as he did that had I participated in Hawthorne, I would have joined the dissent. In my judgment, joining the dissent in Hawthorne is the equivalent of joining the majority here. In both instances Mississippi Supreme Court precedent is not followed, as we are duty bound to do. I also write because I think it is important to address a matter that is not discussed in either the majority opinion, concurring opinion, or the dissent: the fact that the omission of the word "serious" in the indictment transforms the charge from aggravated assault to simple assault. I discuss these matters in turn, beginning first with the Peterson precedent.

This principle was affirmed in Hennington v. State, 702 So.2d 403, 407 (¶ 14) (Miss. 1997).

¶ 30. Peterson makes clear that Rule 7.06 of the Uniform Rules of Circuit and County Court, formerly Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice, does not supplant the body of case law which existed prior to its promulgation: "Rule 2.05 cannot be considered apart from the fundamental principle preceding it, that the essential elements of the offense must be alleged in order for an indictment to be sufficient." Peterson, 671 So.2d at 655.

¶ 31. At another point in Peterson, the court said:

"This Court adopted the Uniform Criminal Rules of Circuit Court Practice (hereinafter `the Uniform Criminal Rules') in 1979. A relevant inquiry exists as to whether the adoption of the Uniform Criminal Rules has in any way attenuated the requirements for the sufficiency of an indictment. We hold that it has not."

Id. at 653.

The court then quoted rule 2.05 which is identical to Rule 7.06 of the Uniform Rules of Circuit and County Court. In discussing the requirement of the rule that the indictment provide "a plain, concise and definite written statement of the essential facts constituting the offense," the court noted that "lack of consent," which is an element of the crime of sexual battery, is also "an essential fact necessary to constitute the crime of sexual battery." Id. at 655. It seems to me that equating an "essential element of a crime" with "an essential fact necessary to constitute the crime" compels the conclusion that an indictment cannot state sufficient facts to constitute a crime without, at the same time, stating all of the essential elements of the crime.

¶ 32. Peterson also contains this pertinent illumination of the issue before us:

Subsequent to the adoption of the Uniform Criminal Rules, this Court has referenced Rule 2.05 in determining the sufficiency of indictments. See Holloman v. State, 656 So.2d 1134, 1139 (Miss. 1995); Roberson v. State, 595 So.2d 1310, 1318 (Miss. 1992); Armstead v. State of Mississippi, 503 So.2d 281, 283 (Miss. 1987); Hines v. State, 472 So.2d at 390; Harden v. State of Mississippi, 465 So.2d 321, 324 (Miss. 1985). Following these cases, the appropriate inquiry has not changed, rather it remains whether the indictment alleges the essential elements of the crime for which the defendant is charged by containing "a plain, concise and definite written statement of the essential facts constituting the offense charged and . . . fully (notifying) the defendant of the nature and cause of the accusation against him." Hines v. State, 472 So.2d at 390 (quoting Unif.Crim. R. Cir. Ct. Prac. 2.05) (Emphasis added).

Peterson, 671 So.2d at 654 (first emphasis added).

¶ 33. A careful review of counts one and two of the indictment reveals the absence of any language remotely informing Caston that he caused serious bodily injury to his victims. The gravamen of counts one and two of the indictment is that Caston "wilfully, unlawfully and recklessly under circumstances manifesting extreme indifference to the value of human life, cause[d] bodily injury to" an individual. Caston was indicted under Mississippi Code Annotated section 97-3-7(2)(a) which provides that "[a] person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." With the omission of the word "serious," the indictment cannot, and does not, describe any crime greater than simple assault. Mississippi Code Annotated section 97-3-7(1)(a) provides that "[a] person is guilty of simple assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another. . . ." It does not matter that Caston caused the injury while driving an automobile while under the influence of a drug or controlled substance. That does not necessarily make the injury serious. There have been many automobile accidents in which the occupants have been injured only slightly, and in some instances, not at all.

¶ 34. The majority finds that the title of the indictment: "Indictment for the offense of Vehicular Homicide and Aggravated Assault (Two Counts)," "provided Caston with reasonable notice of the charges he was facing." I find this conclusion interesting inasmuch as Rule 7.06, upon which the majority also relies to find that the indictment was sufficient, prescribes what must be in the body, not the title, of an indictment. If the body of the indictment had described a serious bodily injury to the victims without actually employing the word "serious," then perhaps the title of the indictment, coupled with the reference to the code section under which Caston was indicted, would have been sufficient. See Peterson, 671 So.2d at 654 (construing Hines v. State, 472 So.2d 386 (Miss. 1985)). However, this is not the case. The indictment does not describe the nature or the extent of the injury in any respect. The indictment as written did not inform Caston as to whether he was to defend against a slight scratch to the victim's finger or a more serious life-threatening injury. Clearly this failure to describe the injury could affect how he might defend against the charge. For example, if the injury was a slight scratch on the finger, no expert would have been needed to prove that the injury was not serious, and therefore insufficient to support the charge of aggravated assault. On the other hand, if the indictment had charged a laceration to the forehead or puncture wounds to the body, Caston may have chosen to hire an expert to try and prove that the wounds, while appearing to be serious, in fact were not.

¶ 35. In conclusion, since Peterson has not been overruled by our supreme court, we are duty bound to follow it. Peterson clearly holds that an indictment must state the essential elements of the crime. Therefore, the phrase "serious bodily injury" is required to be in Caston's indictment to make the charge of aggravated assault. "Serious" is more than a technical word, because without it the charge is nothing more than simple assault. I would reverse and remand Caston's conviction in counts two and three. I do not think it matters that Caston pleaded guilty to these two counts. He did not waive his right to challenge his conviction, because "[a] plea of guilty does not waive (1) the failure of an indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, and a plea of guilty does not waive (2) subject matter jurisdiction." Kincaid v. State, 711 So.2d 873, 877 (¶ 20) (Miss. 1998) (quoting Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989)).