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[T] Kraft v. State5/12/1998
BR>
All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence , § Miss. Code Ann. 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.
(emphasis added).
Clearly the trial court had the authority to amended the indictment to include the enhanced punishment. Kraft, however, maintains that this rule is unconstitutional in that it deprives a defendant the right to be indicted by the grand jury. We see nothing that would indicate this rule is unconstitutional. The original indictment against Kraft was filed on September 27, 1995. It was amended on April 19, 1996, and Kraft was not tried until July 10, 1996. Kraft had ample opportunity to prepare a defense and was not unfairly surprised by the amendment because it did not change the fact that he was being charged with selling a controlled substance. This assignment of error is without merit.
VI.
IT WAS REVERSIBLE ERROR FOR THE COURT TO READ AN INSTRUCTION TO THE JURY SUA SPONTE WITHOUT ALLOWING THE DEFENDANT TO REVIEW SAME BEFORE IT WAS READ.
The jury in this case was deadlocked after one hour and thirty-five minutes of deliberations. The trial court called the jury out, and read an instruction to them without first allowing Kraft to read and study the instruction. Our supreme court has instructed state trial courts to use the approved "Sharplin Charge" when a jury has become deadlocked. Bolton v. State , 643 So. 2d 942, 944-45 (Miss. 1994). In the case at bar the trial judge did in fact use the "Sharplin Charge" and read it verbatim to the jury. Kraft does not argue that this instruction was improper but that it was reversible error to read the instruction before first allowing him to screen the instruction and to register his objections. Kraft bases this argument on the right to an attorney under the Sixth Amendment to the United States Constitution and similar provisions under the Mississippi Constitution of 1890, and the due process provisions of both constitutions.
The "Sharplin Charge" is an approved instruction, and there is nothing indicating that had Kraft been able to review it that this would have made any difference in how the jury was instructed. In fact, to deviate from the exact words of the charge would be to court error. Kraft indicates that there is nothing wrong or improper about this charge, so what difference it would have made if he would have been able to review it we cannot fathom? Furthermore, Kraft did not object to the reading of the charge until two days later at the sentencing hearing. The failure to make a contemporaneous objection waives the right to raise this issue on appeal. Ballenger v. State , 667 So. 2d 1242, 1259 (Miss. 1995) (citing Chase v. State , 645 So. 2d 829, 835 (Miss. 1994); Cole v. State , 525 So. 2d 365, 369 (Miss. 1987); Irving v. State , 498 So. 2d 305 (Miss. 1986); Cannaday v. State , 455 So. 2d 713, 718-19 (Miss. 1984)). This assignment of error is without merit.
THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE, SECOND AND SUBSEQUENT OFFENDER, AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE ELIGIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.
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