Veal v. State

585 So. 2d 693, 1991 WL 150380
CourtMississippi Supreme Court
DecidedAugust 7, 1991
Docket07-KA-59427
StatusPublished
Cited by80 cases

This text of 585 So. 2d 693 (Veal v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Veal v. State, 585 So. 2d 693, 1991 WL 150380 (Mich. 1991).

Opinion

585 So.2d 693 (1991)

Dwayne VEAL
v.
STATE of Mississippi.

No. 07-KA-59427.

Supreme Court of Mississippi.

August 7, 1991.

*694 Arnold F. Gwin, Greenwood, for appellant.

Mike C. Moore, Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, for the court:

I.

Dwayne Veal has been convicted of the attempted sexual battery of a seven-year-old female child. Veal appeals, challenging the weight of the evidence against him and charging further that the trial court erred when it denied his motion to suppress his confession. We have reviewed the points with care and, finding no error requiring reversal, we affirm.

II.

A.

On the evening of April 23, 1987, L.E.H. contacted the Leflore County Sheriff's Department and reported that her seven-year-old daughter, B.A.H., had been sexually assaulted by Dwayne (Pee Wee) Veal earlier that afternoon. L.E.H. came into the Sheriff's Office shortly thereafter and made a sworn formal complaint. The time was somewhere between 10:30 and 10:50 p.m. A dispatcher with the Sheriff's Department called Justice Court Judge Johnny Collins, who lives in Itta Bena, and Judge Collins came to the Sheriff's Office in Greenwood. Based upon L.E.H.'s complaint and the other information afforded him, Judge Collins issued a warrant for Veal's arrest.

Deputy Sheriff Alfred King then went to the Rising Sun Community in Leflore *695 County where Veal lived with his father. Deputy King placed Veal under arrest, took him into custody, and transported him to the Sheriff's Office. Veal's father followed behind. Judge Collins was still present at the Sheriff's Office when all arrived.

Chief Deputy Sheriff Jerry Carver supervised interrogation of Veal. Without doubt, Carver advised Veal of his Miranda rights.[1] At approximately 12:50 a.m. on April 24, 1987, Veal acknowledged these rights and signed a waiver thereof. At the suppression hearing, Veal admitted he was advised of his right to remain silent and of his right to have an attorney present during questioning, but that he waived these rights.

They read me my rights. They read me my rights. They didn't get — they ain't hollering at me or nothing like that. They talked to me nice. Then they read me my rights, and they said, "Do you need a lawyer?"

Veal answered, "No."

Sometime between 1:33 a.m. and 1:51 a.m., Veal made and signed a short written statement:

Yesterday at about 4:30 p.m. I called ... [B.A.H.] to come to the utility room for the purpose of having sex with her. I had asked her to bring a pack of potato chips from Mrs. Mary. She did not get the chips. I got her inside the utility room and took her clothes off. I pulled my pants down and tried to put my penis inside her. I couldn't get it in. I told her to put her clothes on and I got dressed. I told her to go on to the house.

The statement was witnessed by Chief Deputy Carver and Deputy Sheriff Charlie Moses.

B.

On May 18, 1987, the grand jury of Leflore County returned an indictment charging Dwayne Veal with the attempted sexual battery of B.A.H., a female person under the age of fourteen years. See Miss. Code Ann. §§ 97-1-7 and 97-3-95 (1972 and Supp. 1987). The Circuit Court transferred the matter to the County Court of Leflore County, where trial was held on January 25, 1988. In the end, the jury found Veal guilty as charged. The Court then sentenced Veal to ten years imprisonment, with the final three years of his sentence suspended. Miss. Code Ann. §§ 97-1-7 and 97-3-101 (1972 and Supp. 1987).

Veal timely moved for a new trial, charging, inter alia, that the jury's verdict "was against the great and overwhelming weight of the evidence." On May 23, 1987, the Court denied the motion. Veal now appeals to this Court.

III.

Veal renews his charge that the verdict was contrary to the overwhelming weight of the evidence and, on this ground, urges that we reverse and remand for a new trial. When he presents such a point, he necessarily argues that the County Court erred when it denied his motion for a new trial. Cantrell v. State, 507 So.2d 325, 331 (Miss. 1987); Malone v. State, 486 So.2d 360, 366 (Miss. 1986). Our standard of review when such a point is presented is as limited as it is familiar. Motions for a new trial challenging the weight of the evidence are committed to the sound discretion of the trial court. On appeal, we do not proceed de novo, nor do we second guess the jury's assessment of the evidence nor its verdict on disputed points of fact. We may not reverse unless we find that court abused its discretion when it denied the motion. Blanks v. State, 542 So.2d 222, 228 (Miss. 1989); May v. State, 524 So.2d 957, 967 (Miss. 1988); Crenshaw v. State, 520 So.2d 131, 135 (Miss. 1988).

We have reviewed the evidence in the record and, having done so, are left with no small disquiet. The case for the prosecution began with the testimony of B.M.H., the victim's eleven-year-old sister. B.M.H. testified that her little sister "went down to Miss Mary's house" and when she *696 came back, "she looked kind of funny." B.M.H. told the jury that, after a while, she was able to get her sister to tell her what had happened, giving blatant but unobjected-to hearsay testimony.[2] B.M.H. said her sister had

said Dwayne Veal called and she didn't come and she said that he came out there and took her by the hand and took her in his room... . She said that he told her to pull down her clothes and he told her to lay in his bed and he got up and he laid on top of her and she said he kissed her in the mouth and he tried to stick his penis in there.

The prosecution then called B.A.H., the seven-year-old victim, who proved disturbingly inarticulate. The witness gave "no response" to no less than twelve out of twenty important questions about Dwayne Veal and what he did, managing to answer only that she went with Veal to his house and inside his room.[3] Unable to elicit further response from B.A.H., the prosecuting attorney, no doubt exasperated, sought to question the prosecutrix from a statement she is said to have given. A chambers hearing followed, and the Court refused to allow this.

The Court then ordered a five-minute recess, at the conclusion of which the prosecuting attorney resumed direct examination of B.A.H. as follows:

Q I am just going to ask you one more, one more question, okay?
A (Inaudible)
Q Is that okay?
A Okay.
Q What did Dwayne try to do?
A (Inaudible)
*697 Q He tried to what?
A Put his penis in my privates.
Q Tried to put his penis in your private?
A Yes.
BY MRS. BOUCHARD: No more questions. Thank you.

Finally, of course, the prosecution offered Dwayne Veal's confession. And that is all!

Having in mind our limited scope of review, we observe first that at trial the Court certainly had discretionary authority to consider the competency of the seven-year-old victim witness. Ryan v.

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Bluebook (online)
585 So. 2d 693, 1991 WL 150380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veal-v-state-miss-1991.