Steen v. State

873 So. 2d 155, 2004 WL 1049241
Court of Appeals of Mississippi·Decided May 11, 2004·No. 2002-KA-01955-COA·Published·Cited by 13 cases

Opinion

873 So.2d 155 (2004)

Tommy STEEN a/k/a Kalin Steen a/k/a Tommie Steen, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-01955-COA.

Court of Appeals of Mississippi.

May 11, 2004.

*157 Tommy Steen, appellant, pro se.

Thomas C. Levidiotis, Oxford, Attorneys for Appellant.

Office of the Attorney General by John R. Henry, Attorney for Appellee.

EN BANC.

MYERS, J., for the Court.

¶ 1. On August 8, 2002, a trial was held in the Circuit Court of Calhoun County. The jury found Tommy Steen, a/k/a Kalin Steen, guilty of the sale of cocaine. Steen was sentenced to a term of fifteen years with five years suspended and five years on post-release supervision. After the denial of his post-trial motion, Steen filed the present appeal and requests our review of the following issues:

I. WAS THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE?
II. DID THE TRIAL COURT ERR IN REFUSING JURY INSTRUCTION D-2?
III. DID THE TRIAL COURT ERR IN AMENDING THE INDICTMENT?
IV. DID THE TRIAL COURT ERR IN FAILING TO INSTRUCT THE JURY ON ALL OF THE ELEMENTS UPON THE FACE OF THE INDICTMENT? *158 V. WAS THE APPELLANT DENIED THE RIGHT TO A FAIR TRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT?
VI. WAS THE APPELLANT DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY?
VII. DOES THE CUMULATIVE EFFECT OF THESE ERRORS WARRANT REMAND OR REVERSAL?

STATEMENT OF FACTS

¶ 2. On July 21, 1999, Deputies Bubba Willard and Dewayne Winters, of the Calhoun County Sheriff's Department, attended a pre-buy meeting with a confidential informant named Robert Kimble. The purpose of this meeting was to plan a controlled buy. The deputies searched Kimble and the car he would be using. In addition, the deputies equipped Kimble and the car with audio/video equipment. Finally, the deputies gave Kimble twenty dollars to be used in the transaction.

¶ 3. Kimble then proceeded to Steen's house. The two deputies parked four to five blocks away closely monitoring the conversation via audio between Kimble and the person alleged to have been Steen. The majority of the transaction is captured on video. However, the video equipment did not perform properly, and as a result, there is no identifiable footage of the cocaine and money actually exchanging hands. The audio footage reveals that the person alleged to be Steen stated that he would sell Kimble cocaine despite the fact that the two men had some previous dispute.

¶ 4. Steen allegedly gave Kimble twenty dollars worth of cocaine. Kimble then drove to the location where he met the two deputies beforehand in order to conduct a post-buy meeting. Deputy Winters arrived first and Kimble gave the cocaine to him. Moments later, Deputy Willard arrived. Kimble was searched a second time and the audio/video equipment was removed from his body and the car.

¶ 5. The grand jury of Calhoun County returned a one count indictment charging Steen with the sale of cocaine pursuant to Mississippi Code Annotated Section 41-29-139(a). Steen waived arraignment in open court and proceeded to trial. Kimble and Deputy Willard testified on behalf of the State. In addition, Teresia Hickmon of the Mississippi Crime Lab testified as an expert on behalf of the State. At the close of the State's evidence, Steen moved for a directed verdict. The trial judge denied this motion and Steen rested without presenting any witnesses. The jury returned a verdict of guilty and the Honorable Andrew K. Howorth sentenced Steen to a term of fifteen years in the custody of the Mississippi Department of Corrections with five years suspended and five years on post-release supervision.

¶ 6. Steen filed a motion for judgment notwithstanding the verdict, or in the alternative, a motion for a new trial. After a hearing, the trial court denied Steen's post-trial motion. As a result, Steen's counsel filed a timely notice of appeal and brief on his client's behalf. Since that time, however, Steen has requested and been granted permission to proceed pro se in this matter. As a result, Steen has also filed a pro se brief.

LEGAL ANALYSIS

I. WAS THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE?

¶ 7. Steen argues that the verdict was against the overwhelming weight of evidence for three reasons. First, crucial portions of the video were "blacked-out." Second, the State failed to establish a chain of custody with regard to the cocaine. Finally, the State failed to produce *159 in evidence the twenty dollars used in the transaction. It does not appear that Steen is challenging the sufficiency of the evidence despite the fact that his "post-trial motion" contained a motion for judgment notwithstanding the verdict.

¶ 8. When one challenges the weight of evidence, we must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. McDowell v. State, 813 So.2d 694, 699 (¶ 20) (Miss. 2002). "A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of evidence that to allow it to stand would sanction an unconscionable injustice." Id. In addition, the credibility of a witness is a question for the jury. Jackson v. State, 614 So.2d 965, 972 (Miss.1993).

¶ 9. Steen directs our attention to deficiencies in the videotape. Specifically, Steen argues that the tape does not depict the exchange of cocaine and money. We agree with Steen's assertion that there is no video footage of the actual transaction of drugs and money. However, this fact alone does not lessen the effect of Kimble's testimony explicitly describing the illicit transaction. In Wilks v. State, 811 So.2d 440, 445 (¶ 17) (Miss.Ct.App.2001), this Court declined to accept a similar argument. As in this case, Wilks involved a controlled buy where audio and video equipment were used. Like Steen, Wilkes also challenged the weight of evidence because the videotape "[did] not show the two exchanging money or crack cocaine." We held that "[w]hile the videotape may not be conclusive proof as to what transaction took place, it certainly is not contrary to the State's case, which was corroborated by [the confidential informant's] testimony." Id. at (¶ 19). We find no error.

¶ 10. Steen also argues that the State did not establish a proper chain of custody with regard to the cocaine because Deputy Winter did not testify. As a result, Steen argues that the evidence should not have been admitted.

¶ 11. Admission of evidence is within the discretion of the trial judge. Thomas v. State, 828 So.2d 1270, 1272(¶ 7) (Miss.Ct.App.2001). "Furthermore, matters regarding the chain of custody of evidence are largely within the discretion of the trial court, and absent an abuse of discretion, reversal will not be granted." Id. We have "recognized that any indication of tampering or substitution of evidence is the proper test for assessing the sufficiency of the chain of custody." Id. If there is a reasonable inference of tampering or substitution, then the proof is insufficient to support a finding that the matter in question is what it purports to be. Butler v. State, 592 So.2d 983, 985 (Miss.1991). However, the court has never required a production of

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