Tucker v. State

47 So. 3d 135, 2010 Miss. LEXIS 573, 2010 WL 4347219
Mississippi Supreme Court·Decided November 4, 2010·No. 2008-CT-00762-SCT·Published·Cited by 12 cases

Opinions

GRAVES, Presiding Justice,

for the Court:

¶ 1. This appeal arises from the conviction of Anthony Lee Tucker for possession of stolen property arising from a burglary of Foot Gear in West Point, Mississippi. After Tucker’s conviction, the trial court amended Tucker’s indictment to add habitual-offender status.1 Tucker was sentenced to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) and to pay a fine of $10,000 upon his release. The initial appeal was decided by the Court of Appeals, which affirmed Tucker’s conviction and sentence. Tucker v. State, 47 So.3d 164, 168-69 (Miss.Ct.App.2009). We find that the Court of Appeals erred when it found Tucker’s indictment sufficient to charge the crime for which he was convicted, and we reverse as to this issue.

FACTS AND PROCEEDINGS BELOW2

¶ 2. Because our disposition of this case rests solely upon the sufficiency of Anthony Tucker’s indictment, our recitation of the substantive facts will be brief, and we [137]*137shall focus primarily on the language of the indictment and the relevant law.

¶ 3. Anthony Lee Tucker was indicted for receiving stolen property in violation of Mississippi Code Section 97-17-70 (Rev. 2006). Tucker argues that the Court of Appeals erred in finding that Tucker’s indictment was sufficient, even though the stolen property allegedly possessed by Tucker was not set forth with sufficient particularity. Tucker’s indictment stated:

On or about the 18th day of October, 2005, in the County aforesaid, [Anthony Tucker] did unlawfully, willfully and fe-loniously, receive or possess the personal property of Haresh Khiantani d.b.a. Foot Gear, to-wit: athletic apparel, said property having a total value in excess of $500.00, and having been feloniously taken away from the said Haresh Khian-tani d.b.a. Foot Gear, and further that the said ANTHONY TUCKER knew or should have know at the time of the receiving or possessing of said property that said property had been so felo-niously taken, in violation of MCA § 91-17-70; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 4. Specifically, Tucker asserts that “athletic apparel, said property having a total value in excess of $500.00” does not describe the stolen property allegedly in his possession with sufficient particularity as required by law. Tucker urges that, because of this insufficiency in the indictment, he was unable adequately to prepare his defense and that he would not be able to defend himself by pleading double jeopardy in the event of some subsequent prosecution. Tucker claims that this insufficiency in the indictment infringes upon his fundamental right to due process, which renders the indictment insufficient as a matter of law.

¶ 5. The State argues that because Tucker’s indictment listed the owner, the class or item, and the value of the “athletic apparel” that his indictment was legally sufficient. The State further argues that the indictment was legally sufficient to put Tucker on notice of the charges against him.

¶ 6. The Court of Appeals found Nguyen v. State, 761 So.2d 873 (Miss.2000), to be controlling on the issue. Tucker, 47 So.3d at 180-81. However, the Court of Appeals distinguished Nguyen from this case by finding that the property in Nguyen’s indictment was described by six different classes, while the property in Tucker’s indictment was described by only one class — “athletic apparel.” Id. at 175-76. The Court of Appeals found this to be a factor supporting the sufficiency of the indictment; and therefore, Tucker was sufficiently informed of the charge against him to allow him the opportunity to prepare his defense. Id. at 176.

¶ 7. Tucker moved for rehearing, which the Court of Appeals denied. Id. at 167. Tucker then filed a petition for writ of certiorari, which we granted.

STANDARD OF REVIEW

¶ 8. Although Tucker did not object to the indictment at trial, he did argue on appeal that the indictment insufficiently described the property at issue, such that he was unable to prepare a defense to a charge of receiving stolen “athletic apparel.” Such objections to the sufficiency of the indictment may be raised for the first time on appeal. Havard v. State, 928 So.2d 771, 801 (¶ 59) (Miss.2006). “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by the Court.” Nguyen, 761 So.2d at 874 (¶ 3). Therefore, as a matter of law, the standard of review is de novo. Jones v. [138]*138State, 993 So.2d 386, 394 (¶ 19) (Miss.Ct.App.2008) (citation omitted).

STATEMENT OF THE LAW

¶ 9. On writ of certiorari, we also find Nguyen to be controlling. But the Court of Appeals found Nguyen to be distinguishable from this case in that Tucker’s indictment was sufficient to inform him of the nature of the charge against him. We disagree.

¶ 10. In Nguyen, this Court identified the issue as whether the indictment described the stolen property with sufficient particularity to inform the defendants of the nature of the charges against them, to afford them the opportunity adequately to prepare their defense, and to allow them to protect themselves against future jeopardy by some subsequent prosecution. Nguyen, 761 So.2d at 876.

¶ 11. In Nguyen, the indictment stated: That in Jackson County, Mississippi, on or about December 12, 1997, [Nguyen and Le] did unlawfully, willfully and fe-loniously receive 114 items, including televisions, C.D. players, VCR’s, cameras, tools and microwaves, of the value of two hundred and fifty dollars ($250.00) or more, the personal property of multiple owners, knowing the said property to have been stolen feloniously, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

Nguyen, 761 So.2d at 874 (¶ 2). This Court found that the description of the stolen goods — “114 items, including televisions, C.D. players, VCR’s, cameras, tools and microwaves, of the value of two hundred fifty dollars ($250.00), or more .... ” — was insufficient because it did not state the essential facts constituting the offenses charged and did not inform the appellants of the nature of the charges against them. Id. at 877 (¶ 12). This Court reasoned that “the indictment ... contained] six classes of items, none of which contain any limiting modifiers.... The indictment [also] does not describe how many TV’s, VCR’s, cameras, tools and microwaves were received.” Id. at 877 (¶ 12) (emphasis added). Therefore, this Court reversed the conviction and sentence and quashed the indictment.

¶ 12. In the present case, the Court of Appeals found Nguyen to be distinguishable in that the property in Nguyen was composed of six different classes, while the property in Tucker was composed of one class, “athletic apparel.” Tucker, 47 So.3d at 175-76 (¶ 31). The Court of Appeals also found that the stolen property Tucker allegedly constructively possessed — caps, shirts, tennis shoes and jeans — can be and is classified as “athletic apparel.” Id. at 175-76 (¶ 31).

Free access — add to your briefcase to read the full text and ask questions with AI

Tucker v. State, 47 So. 3d 135, 2010 Miss. LEXIS 573, 2010 WL 4347219 (Mich. 2010).

47 So. 3d 135 (Tucker v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Ashley Bryant v. State of Mississippi
238 So. 3d 1213 (Court of Appeals of Mississippi, 2018)
Derrick Stokes v. State of Mississippi
199 So. 3d 745 (Court of Appeals of Mississippi, 2016)
Maurice Townsend v. State of Mississippi
188 So. 3d 616 (Court of Appeals of Mississippi, 2016)
Dexter Fulton v. State of Mississippi
146 So. 3d 975 (Mississippi Supreme Court, 2014)
Williams v. State
169 So. 3d 932 (Court of Appeals of Mississippi, 2014)
Vinzant v. State
99 So. 3d 767 (Court of Appeals of Mississippi, 2012)
Tucker v. State
47 So. 3d 135 (Mississippi Supreme Court, 2010)