Colenburg v. State

735 So. 2d 1099, 1999 WL 153732
CourtCourt of Appeals of Mississippi
DecidedMarch 23, 1999
Docket97-KA-00532-COA
StatusPublished
Cited by131 cases

This text of 735 So. 2d 1099 (Colenburg v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colenburg v. State, 735 So. 2d 1099, 1999 WL 153732 (Mich. Ct. App. 1999).

Opinion

735 So.2d 1099 (1999)

Roy COLENBURG, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-00532-COA.

Court of Appeals of Mississippi.

March 23, 1999.

*1100 M.A. Bass, Jr., Hazlehust, Joyce W.C. Ngarariga Funches, Jackson, Attorneys for Appellant.

Office of the Attorney General by Jolene M. Lowry, Attorneys for Appellee.

BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.

LEE, J., for the Court:

¶ 1. On August 29, 1996, Roy Colenburg was indicted for the unlawful sale of crack cocaine. After a trial by jury on October 14, 1996, the jury returned a verdict of guilty and sentenced Colenburg to serve a term of thirty years in the custody of the Mississippi Department of Corrections. Aggrieved by this judgment, Colenburg now files this appeal assigning as error that: (1) the trial court overruled the defendant's motion for a directed verdict at the close of the State's case; and that (2) the trial court failed to grant a mistrial on the basis that the defendant did not receive effective assistance of counsel. Finding no error to these assignments, we affirm the judgment of the Circuit Court of Jefferson County.

FACTS

¶ 2. On May 22, 1996, Mason Trunell, a confidential informant working under cover in Fayette, Mississippi, met with Sargent Cotton of the Mississippi Bureau of Narcotics. At this meeting, Cotton wired Trunell, gave him $60 of official state funds, and placed a hidden camera in his car. Trunell then drove alone to an area of Fayette called "the ghetto." When Trunell got there he stopped his car and blew the horn. The, appellant, Roy Colenburg, then approached the vehicle, and Trunell asked him if he had anything. Colenburg asked Trunell what he wanted and asked if he wanted a twenty. Colenburg turned around, said something to an unidentified person, and then got into the car with Trunell. The unidentified person then came to the car, gave cocaine to Trunell, and Trunell paid him $60 in return. Colenburg was arrested, tried, and found guilty of aiding and abetting the sale of cocaine.

ISSUES

I. THE TRIAL COURT DID NOT ERR IN OVERRULING THE DEFENDANT'S MOTION FOR JNOV/ NEW TRIAL.

¶ 3. The Mississippi Supreme Court has stated its standard of review for testing the sufficiency of the evidence of motions for directed verdict, peremptory instruction, and JNOV as follows:

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidence ... in the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have *1101 found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict is thus placed beyond our authority to disturb.

Garrett v. State, 549 So.2d 1325, 1331 (Miss.1989) (quoting McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)). If there is sufficient evidence to support a verdict, the motion for a directed verdict must be overruled. Roberson v. State, 595 So.2d 1310 (Miss.1992); Barnwell v. State, 567 So.2d 215 (Miss.1990).

¶ 4. In reviewing the State's evidence in its entirety, it is clear that the State provided sufficient evidence at trial to allow the jury to determine that Colenburg was guilty of the sale of cocaine on the theory of aiding and abetting. Evidence presented by the confidential informant and law enforcement showed that Colenburg approached the informant's vehicle and asked him if he wanted a "twenty." Colenburg turned and yelled out to someone else to bring a "twenty", and Colenburg then told the informant that the other person would "hook him up." There was testimony by experienced law enforcement officers familiar with the drug trade that this language was that used by drug dealers and that Colenburg was facilitating the sale. There was also sufficient evidence in the record to permit the jury to draw the inference that Colenburg was aiding and abetting the sale of cocaine. Considering all of the evidence presented at trial in the light most consistent with the verdict, and giving the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence, applying the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have found Colenburg guilty of the sale of cocaine on the theory of aiding and abetting. This Court finds that the trial court was thus not in error in denying Colenburg's motion for JNOV/new trial on this basis.

II. THE TRIAL COURT WAS NOT IN ERROR IN FAILING TO SUA SPONTE GRANT A MISTRIAL ON THE BASIS THAT THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 5. The procedure that is followed in this state that gives this Court the authority to reach the merits on an ineffective assistance of counsel issue on direct appeal, even though the matter was not first presented to the trial court, is enunciated in Read v. State, 430 So.2d 832, 841 (Miss.1983). This requires that: (1) the record affirmatively show ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. The prescribed procedural rules are as follows:

Assuming that the Court is unable to conclude from the record on appeal that defendant's trial counsel was constitutionally ineffective, the Court should then proceed to decide the other issues in the case. Should the case be reversed on other grounds, the ineffectiveness issue ... would become moot. On the other hand, if the Court should otherwise affirm, it should do so without prejudice to the defendant's right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.
* * *
If, after affirmance ..., the defendant wishes to do so, he may then file an appropriate post-conviction proceeding raising the ineffective assistance of counsel issue. See Berry v. State, 345 So.2d 613 (Miss.1977); Callahan v. State, [426 So.2d 801 (Miss.1983)]. Assuming that his application states a claim, prima facie, *1102 he will then be entitled to an evidentiary hearing on the merits of that issue in the Circuit Court of the county wherein he was originally convicted. Once the issue has been formally adjudicated by the Circuit Court ... the defendant will have the right to appeal to this Court as in other cases.
* * *
Only in those cases where the Court cannot decide the ineffective assistance of counsel issue on the record presented on direct appeal and in those cases where the judgment of conviction is otherwise affirmed will it be necessary actually to hold evidentiary hearings.

Read, 430 So.2d at 841-42.

¶ 6. Read

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Cite This Page — Counsel Stack

Bluebook (online)
735 So. 2d 1099, 1999 WL 153732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colenburg-v-state-missctapp-1999.