PIERCE, Justice, for the Court:
¶ 1. Dennis Jerome Beal allegedly offered Lieutenant Tommy Jones, a Madison County Sheriff's Department deputy, $10,000 in hopes that Jones could make Beal's pending drug charge disappear. On April 28, 2010, Beal was indicted by a Madison County grand jury for bribery as a habitual offender. On September 15, 2010, a Madison County jury unanimously found Beal guilty of bribing Jones, and the trial court sentenced Beal to ten years in prison as a nonviolent habitual offender. Beal appeals his conviction, and this Court reverses and remands.
¶ 2. The following facts were gleaned from the testimony and evidence presented at trial. Beal sold a confidential informant, who was working for the Madison County Sheriff's Department ("MCSD"), cocaine on March 28, 2009, but Beal was not immediately arrested. The MCSD chose to arrest Beal later when he visited his probation officer. Jones took custody of Beal, and during transit, Jones gave Beal an opportunity to "help his self." At this time, Beal did not offer any information to "help his self," but Jones gave Beal his cell number in case Beal changed his mind.
¶ 3. On October 21, 2009, Beal contacted Jones by phone to "meet up" and talk. Later, they met at the Capitol Body Shop in Ridgeland, Mississippi, to discuss what Beal could do to "help his self." At this meeting, Jones testified that he informed Beal about what needed to be done, but that Beal explained that he had nothing to offer because several people knew Beal had been charged and arrested in Madison County. As the conversation continued, Beal asked Jones if he could give Jones money to "secure his freedom." Beal offered to pay Jones about $5,000, but no money ever changed hands at this meeting. When the conversation was coming to a close, Jones informed Beal that the proposition to secure his freedom was not "out of the question." Once Beal left, Jones contacted his superiors to inform them about the state of the investigation.
¶ 4. As the investigation continued, Beal contacted Jones on November 23, 2009, to meet again and talk. Jones agreed to meet Beal at the Lowe's in Madison, Mississippi, and during this recorded conversation,
¶ 5. On February 5, 2010, Beal and Jones met again at the Lowe's in Madison, Mississippi. But this time, Jones and his superiors had decided to arrest Beal after the meeting, because it seemed apparent from telephone communications between Jones and Beal that money would change hands at this meeting. The meeting took place at about nine o'clock at night, and when Beal arrived, he entered Jones's vehicle. Once the conversation began, Beal handed Jones an envelope containing money. The envelope contained only $4,000, rather than $10,000, but Beal said he would pay another $6,000 later when he had acquired more money from his car-selling business. Once Beal left the scene, MCSD deputies arrested him.
¶ 6. On April 28, 2010, a Madison County grand jury indicted Beal for bribery as a habitual offender under Mississippi Code Section 99-19-83. Beal moved to dismiss the indictment, claiming that there was a problem with the charging language of the indictment as it related to Beal's habitual-offender status. The Madison County District Attorney's office ("MCDA") admitted, pretrial, that the indictment language included a scrivener's error. The trial court denied the motion to dismiss the indictment and permitted the MCDA to amend the indictment to reflect that Beal qualified as a nonviolent habitual offender under Mississippi Code Section 99-19-81, rather than a violent habitual offender under Section 99-19-83. Thus, the trial court denied the motion to dismiss the indictment. The trial court issued an order on September 14, 2010, before trial began, amending the indictment to reflect the appropriate habitual-offender status.
¶ 7. The trial began on September 14, 2010, and with its first witness, the State elicited testimony regarding a videotape that allegedly depicted Beal selling cocaine to a confidential informant. Beal's counsel objected, stating that the videotape was "not relevant here." However, the trial court overruled that objection, finding that the State was only describing "the process of the drug purchase." The State continued with its line of questioning and elicited testimony gleaned from the contents of the videotape. Later, as the trial ensued, Beal's counsel moved to view and publish the videotape to the jury upon the belief that the videotape did not show what the State's witness claimed. However, the State objected, arguing that the videotape was not relevant. The trial court ruled that there was no reason why Beal's counsel could not view the videotape, but found that the videotape would be "substantially prejudicial" to the defense if the jury saw the videotape and, thus, excluded it. At the conclusion of a two-day trial, the jury unanimously found Beal guilty of bribery.
¶ 8. As a result, the trial court sentenced Beal to ten years without early release, probation, or parole. During the sentencing hearing, Beal's counsel moved ore tenus for a judgment notwithstanding the verdict, but the trial court informed Beal's counsel that it was inappropriate for the court to take up such motion until sentencing was concluded, suggesting that a written motion be filed. On October 1, 2010, Beal filed a motion for judgment notwithstanding the verdict or in the alternative, a new trial, and the trial court denied that motion on January 11, 2011. On the same day, Beal's counsel filed a notice of appeal. On appeal, Beal alleges:
¶ 9. When reviewing the grant or denial of a motion to dismiss an indictment, this Court employs a substantial-evidence/manifest-error standard of review,
¶ 10. Beal argues that the charging language of the indictment for the bribery charge was fatally defective because it unduly influenced the grand jury, and the trial court erred in allowing the State to correct the charging language before trial. The State proffers, however, that these issues are procedurally barred since those issues were not presented to the trial court initially. After having reviewed the record in its entirety, we find that the question of whether the court erred with regard to the charging language of the indictment and amendment of that language has been properly preserved for appeal. Beal clearly contested those issues before the trial court by moving to dismiss the indictment pretrial and by making objections regarding the indictment during trial.
¶ 11. Mississippi law is clear— "an indictment should be a plain, concise, and definite written statement of the essential facts constituting the offense
¶ 12. Recently, this Court decided Gowdy v. State, and in that case, the Court found that an amendment to an indictment prior to sentencing but after conviction was improper.
¶ 13. Nathan v. State
The State introduced evidence from the Mississippi Department of Corrections to prove that Nathan had been a habitual offender.
The Nathan Court found that Nathan had been indicted under Section 99-19-83, which was sufficient to apprise Nathan that the State was seeking to impose the habitual-offender status, and thus, the amendment allowed for a lesser sentence.
¶ 14. Here, as in Nathan, Beal originally was indicted as a habitual offender under Section 99-19-83, and Beal's counsel made the trial court aware that the charging language of the indictment contained an error through a motion to dismiss. When Beal's pretrial motion to dismiss was heard by the trial court, the State admitted that the indictment contained a scrivener's error and that Beal met the habitual-offender status under Section 99-19-81 instead of the habitual-offender status under Section 99-19-83. The trial court correctly allowed—a decision made by both rule and law—the State to amend Beal's indictment to properly reflect the appropriate habitual-offender status.
¶ 15. Beal asserts that the trial court committed prejudicial error by denying his request to publish the videotape to the jury, since the State had elicited testimony regarding the videotape in its case in chief. In situations where admissibility and relevancy of evidence are questioned, the trial court possesses a vast amount of
¶ 16. Although Beal couches the error made by the trial court on the issue of the videotape as a discovery violation, this Court cannot find one. An attorney must provide a written request for discovery.
¶ 17. Recently, this Court ruled:
The videotape was not relevant to the underlying charge of bribery, but the State opened the door for the videotape to become relevant when it decided to question Jones about the contents of the videotape. Essentially, the trial court permitted Jones to testify to facts not in evidence, since the State did not admit the videotape into evidence. And later, when Beal decided to show the videotape to the jury, his right to confront the testimony of Jones was violated.
¶ 18. As a result, the trial court committed prejudicial error by allowing the State's witness to testify to the contents of the videotape and by prohibiting the defense from showing the jury the videotape. This Court respects the trial court's caution on this issue in finding the videotape more prejudicial than probative, but suggests that if the defense wishes to err in this regard, then that is its unfortunate choice to do so. The videotape became relevant once the prosecution elicited testimony from the contents of the tape, and therefore, the defense should have been allowed to show the videotape to the jury even if it did show Beal selling drugs.
¶ 19. Beal asserts that the trial court erred by allowing the State to make improper and inflammatory opening and closing statements that were misleading to the jury. Yet, the State contends that this argument is barred because Beal made no objections to these alleged improper and inflammatory statements at trial. And "failure to make a contemporaneous objection constitutes waiver of that issue on appeal."
¶ 20. Beal argues that the trial court should have found that he was entrapped as a matter of law. However, the trial court gave an entrapment instruction and submitted the question to the jury. The State insists that entrapment is a question of fact for the jury to decide. And as this Court has held, entrapment is a jury question.
¶ 21. Entrapment occurs when an individual acts to induce or lead another person to commit a crime not originally envisioned by that person for the purposes of trapping that person for the offense committed.
Consequently, "this Court will only overturn a jury verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice."
¶ 22. Clearly, Mississippi has well-defined standards on what constitutes entrapment. Yet, in Beal's brief, he
¶ 23. The trial court properly permitted the State to amend the indictment before trial. Nevertheless, the trial court committed prejudicial error regarding the videotape, as it became relevant to the case once the State opened the door by eliciting testimony about its contents. However, Beal's arguments regarding opening and closing statements and entrapment are without merit. Therefore, Beal's conviction and sentence are reversed, and this case is remanded to the trial court for a new trial consistent with this opinion.
¶ 24.
WALLER, C.J., CARLSON, P.J., RANDOLPH, KITCHENS, CHANDLER AND KING, JJ., CONCUR. DICKINSON, P.J., AND LAMAR, J., CONCUR IN RESULT ONLY.