Waldon v. State

749 So. 2d 262, 1999 WL 690187
CourtCourt of Appeals of Mississippi
DecidedSeptember 7, 1999
Docket97-KA-00738-COA
StatusPublished
Cited by19 cases

This text of 749 So. 2d 262 (Waldon 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
Waldon v. State, 749 So. 2d 262, 1999 WL 690187 (Mich. Ct. App. 1999).

Opinion

749 So.2d 262 (1999)

Larry D. WALDON, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-00738-COA.

Court of Appeals of Mississippi.

September 7, 1999.

*264 Michael R. Farrow, Columbus, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., DIAZ AND MOORE, JJ.

DIAZ, J., for the Court:

¶ 1. Larry Waldon was convicted of two counts of uttering a forgery by a jury of the Lowndes County Circuit Court on February 16, 1995. He now appeals his sentence and conviction to this Court asserting that his constitutional rights were violated by his attorney's stipulation to the expected testimony of the State's handwriting expert, allegedly entered into without his consent, and the admission into evidence of the testimony of the Deputy Circuit Court Clerk about his failure to appear at his originally scheduled trial. Waldon further asserts that the court's consideration of other indictments pending against him as an aggravating factor in sentencing was a denial of his due process rights. Finally, he contends that counsel was ineffective in presenting his case. Finding no merit to these assignments of error, we affirm the orders of the court below.

FACTS

¶ 2. In May of 1993, James Butler, a deacon at Providence Baptist Church, noticed that three checks were missing from the church's checkbook. Eventually, the National Bank of Commerce returned two of the checks which had been drawn on the church's account. The first check, made payable to Larry Waldon for $250, purportedly was signed by "Reverend James Green" and "James Bolter." Another check was made payable to Larry Waldon for $200. It carried signatures purporting to be those of "Reverend James Greenlaw" and "James Bolter" or "Butter."

¶ 3. Billy Speed, a lieutenant with the criminal investigation division of the Columbus Police Department, was called to the National Bank of Commerce on May 25, 1993, to investigate the missing checks after they were cashed by the bank. He met with one of the bank officers, Reverend James Greenlaw, and James Butler. Because both of the recovered checks were made payable to Larry Waldon, Officer Speed investigated Waldon's record, learning that the driver's license number and social security number listed on the back of one of the checks matched Waldon's. Deacons of the church authorized to sign checks denied Waldon's contention that the checks were given to him as a benevolent gift.

¶ 4. Waldon was indicted on August 9, 1993, for two counts of uttering forgery. After a jury trial, he was found guilty of both counts and sentenced to serve two consecutive twelve-year terms in the custody of the Mississippi Department of Corrections. Waldon agreed to forgo his appeal in exchange for the State's dismissal of four other indictments pending against him. Nevertheless aggrieved, Waldon petitioned the circuit court for permission to file an out of time appeal. His request was granted, and he now urges this Court to reverse his conviction.

DISCUSSION OF THE LAW

I. WHETHER WALDON WAS DENIED HIS RIGHT TO CONFRONTATION BY THE STIPULATION TO TESTIMONY OF THE STATE'S HANDWRITING EXPERT ALLEGEDLY MADE WITHOUT HIS CONSENT

*265 ¶ 5. Waldon first asserts that he was denied his right to confront witnesses against him in violation of both the constitutions of Mississippi and the United States by his attorney's stipulation to the testimony of the State's handwriting expert. At trial, the prosecutor offered the following stipulation to which Waldon's attorney agreed:

If your Honor please, the State—it's [sic] stipulated between the State of Mississippi and counsel for the defendant that if Frank Hicks were called to testify, he would testify thusly: First, that he is a questioned documents examiner for the Mississippi Crime Laboratory and has been accepted as an expert in such on numerous occasions in the courts of this and other states. Second, that he examined the checks which are now in evidence as Exhibits Numbers One and Two and examined the known handwriting samples of the defendant Larry Waldon which are found in Exhibits Number Seven—excuse me—Exhibits Number Five and the known handwriting sample which is found in Exhibit Number Seven of Ron Burgin and compared those known samples with the writing which is found on the checks in Exhibits Numbers One and Exhibits Number Two. Third, that as a result of these comparisons he made the following determinations: first, that the defendant, Larry Waldon, wrote the payor signature of "Jame Bolter" on a check number 3113, that which has been marked State's Exhibit Number One in evidence; that the defendant, Larry Waldon, wrote the endorsements on the back of both checks number 3113 and 3114, that which has been marked State's Exhibits Number One and Two in evidence respectively; second that there was strong reason to believe that the defendant wrote first the payee name Larry Waldon on checks number 3113 and 3114, once again State's Exhibits Numbers One and Two respectively; secondly that the James Bolter, payor signature on 3114, there was likewise strong reason to believe that the defendant wrote that and finally, that there was strong reason to believe that the defendant wrote the Reverend James Greenlaw payor signature on check number 3114 which is State's Exhibit Number One in evidence; fifthly he would testify that there was strong reason to doubt that Ron Burgin wrote the payor signatures on checks numbered 3113 and 3114 which is State's Number One and Two in evidence. Finally, your Honor, he would testify that the phrase reason to believe means that the signature bore the same class or general characteristics, but did not contain enough individual or unique characteristics for him to form any further opinion and that will conclude the stipulation.

The record reflects that Waldon's attorney verbally agreed to the stipulation. Waldon now asserts that his attorney did not discuss the matter with him or obtain his permission to agree to the stipulation.

¶ 6. Waldon first asserted this error in his motion for a new trial. At the hearing, Waldon testified that his attorney had not discussed the stipulation with him and that he would not have agreed to the stipulation had he been consulted. Waldon did admit that he was in the courtroom at the time the stipulation was made but asserted, in essence, that he did not understand the impact of the stipulation. Richard Burdine, Waldon's trial attorney, testified to the contrary that he informed Waldon of the stipulation and his client consented to it.

¶ 7. Waldon now contends that a criminal defendant's right to confrontation cannot be waived by his attorney. He urges this Court to require that trial judges explain the effect of a stipulation to a criminal defendant and inform him that, in the absence of the stipulation, the prosecution would be required to call the witness to testify. Waldon's assignment of error, however, is procedurally barred by his failure to object at the time the stipulation *266 was entered. Further, precedent allows for the waiver of the right to confrontation.

¶ 8. As Waldon correctly points out, a person accused of a crime has the fundamental right to confront the witnesses against him. Hewlett v. State, 607 So.2d 1097, 1100 (Miss.1992). However, this right to confrontation is not unlimited. Id. The Mississippi Supreme Court has held that the failure to object at trial to the introduction of evidence bars the accused from objecting to the introduction of that evidence at a later date. Robinson v. State,

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Bluebook (online)
749 So. 2d 262, 1999 WL 690187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldon-v-state-missctapp-1999.