Stewart v. State

879 So. 2d 1089, 2004 Miss. App. LEXIS 763, 2004 WL 1729487
Court of Appeals of Mississippi·Decided August 3, 2004·No. No. 2002-KA-02143-COA·Published·Cited by 3 cases

Opinion

IRVING, J.,

for the Court.

¶ 1. Stanley E. Stewart, Jr. was convicted in the Circuit Court of Copiah County of three counts of automobile burglary and sentenced to three consecutive three-year terms in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment below, Stewart has appealed and presents three issues: (1) whether the circuit court erred in not granting him funds to hire an expert witness in the forensic science of handwriting, (2) whether the circuit court erred when it overruled his motion to suppress concerning a statement he made which was taken by Investigator Milton Twiner, and (3) whether the circuit court erred in not granting his motions for directed verdict and new trial?

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. During the morning of June 14, 2002, an automobile burglary transpired at the residence of Jan Purvis. The Purvis residence is located on Extension Street, across from a library, in Hazlehurst, Mississippi. Purvis, the owner of the vehicle, reported that a cellular telephone was taken from the automobile.

¶ 4. During the early morning hours of June 26, 2002, a series of automobile burglaries occurred on Extension Street. A white Ford Escort owned by Donna Lewis was burglarized, but nothing was taken. A blue Ford Expedition owned by Robert and Renee Harrison was also burglarized and a cellular telephone charger, an umbrella, and a briefcase were removed from the automobile. Finally, a 2000 F250 pickup truck owned by Jim Uselton was burglarized. A cellular telephone was taken in-this burglary.

¶ 5. Meanwhile, the Hazlehurst Police Department was assisting with a federal investigation of a telephone fraud seam involving the illegal activation of stolen cellular telephones in the area. This investigation led the police to the appellaht, Charles E. Stewart, Jr., who was suspected of having possession of one of these stolen telephones but was not, at that time, a suspect in the telephone fraud investigation. On June 27, 2002, police officers went to Stewart’s place of employment to talk to him about their investigation. After talking to the police officers about a cellular telephone in his possession and being informed that the telephone was possibly stolen, Stewart relinquished to police possession of the telephone and a cellular telephone charger which was in his car and voluntarily accompanied the officers to the police station. ■

¶ 6. At the station, police officers had in custody a primary suspect in the federal investigation. This suspect implicated Stewart as being involved in the telephone scam. Thereafter, the police officers called Stewart into the room with the suspect. The officers then read Stewart his rights, and Stewart signed both a rights and waiver form. While in the presence of several officers, Stewart made statements claiming responsibility for the automobile burglaries that occurred on Extension Street in June of 2002, gave descriptions of those vehicles, and described what items he took from the automobiles. Officers [1092]*1092then attempted to obtain a recorded statement from Stewart reflecting his earlier statements; however, Stewart declined to give a recorded statement.

¶ 7. Stewart was arrested, indicted, and tried on three counts of automobile burglary. A jury found him guilty of all three counts.

¶ 8. Other pertinent facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Motion for Forensic Expert

¶ 9. Stewart first contends that the trial court committed reversible error in denying his motion for funds to hire a handwriting expert. He explains that his indigence prevented him from hiring an expert and that, to ensure that he was not deprived of state and federal due process of law, the circuit court should have granted his request. Stewart cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) as authority for his position that experts of all kinds should be made available to indigent defendants when they are unable to afford such experts themselves.

¶ 10. We first review Ake as authority for Stewart’s position. In Ake, the defendant was charged with two counts of murder in the first degree and two counts of shooting with intent to kill. Id. at 72, 105 S.Ct. 1087. The defendant, an indigent, raised an insanity defense and later moved at the pretrial conference for the State to either arrange for a psychiatrist to perform an evaluation on him or to provide funds so he could hire a psychiatrist. Id. The circuit court denied his motion for a psychiatric evaluation at state expense and proceeded with his trial. Id. During trial, no evidence was presented as to what the defendant’s state of mind was at the time of the offense. The defendant was subsequently convicted on all counts. Id. After his conviction, the defendant filed an appeal, arguing that, when an indigent defendant’s sanity, at the time of the commission of the offense, is seriously in question, the constitution requires that he has access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition. Id. at 70, 105 S.Ct. 1087.

¶ 11. The court held that “when a defendant demonstrates to the trial judge that [the defendant’s] sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087.

¶ 12. Clearly Ake applies in situations where the sanity of the defendant is at issue. However, the Constitution does not require a state to furnish an indigent defendant with expert or investigative assistance upon demand. Weatherspoon v. State, 732 So.2d 158, 160(¶6) (Miss.1999) (citing Johnson v. State, 476 So.2d 1195, 1202 (Miss.1985)). Our supreme court has further analyzed an indigent defendant’s right to expenses to hire experts: “An indigent’s right to defense expenses is ‘conditioned upon a showing that such expenses are needed to prepare and present an adequate defense.’ Concrete reasons for requiring an expert must be provided by the accused.” Howell v. State, 860 So.2d 704, 721(¶ 42) (Miss.2003). “There is no single test for determining whether the services of an investigator or an expert are necessary; that decision will depend on the facts and circumstances of the particular case and must be committed to the sound discretion of the court to which the request for expenses is directed.” Weath[1093]*1093erspoon, 732 So.2d at 160(¶ 7) (citing Johnson, 529 So.2d at 590 (Miss.1988)).

¶ 13. Stewart filed a motion for funds to hire experts and investigative assistance. In his motion, he contended that he was in need of an expert “to show that he did not sign a waiver of his rights prior to giving a statement.” The circuit judge heard Stewart’s motion during the pretrial hearing. The State brought forth Officers Les Tan-nehill, Ellis Stuart, and Milton Twiner, each of whom affirmed that they personally witnessed Stewart sign the waiver of rights form. Stewart testified that he did not sign the form. After hearing all of the evidence, the following exchange occurred:

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Stewart v. State, 879 So. 2d 1089, 2004 Miss. App. LEXIS 763, 2004 WL 1729487 (Mich. Ct. App. 2004).

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