Wess v. State

926 So. 2d 930, 2005 WL 2431260
CourtCourt of Appeals of Mississippi
DecidedOctober 4, 2005
Docket2004-KA-00180-COA
StatusPublished
Cited by7 cases

This text of 926 So. 2d 930 (Wess 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
Wess v. State, 926 So. 2d 930, 2005 WL 2431260 (Mich. Ct. App. 2005).

Opinion

926 So.2d 930 (2005)

Stanley D. WESS a/k/a Stanley Dale Wess, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-KA-00180-COA.

Court of Appeals of Mississippi.

October 4, 2005.
Rehearing Denied January 3, 2006.

*931 Edmund J. Phillips, attorney for appellant.

Office of Attorney General by W. Glenn Watts, attorney for appellee.

Before KING, C.J., IRVING and BARNES, JJ.

IRVING, J., for the Court.

¶ 1. A Leake County jury convicted Stanley D. Wess of burglary of a building, and the trial court sentenced him to seven years in the custody of the Mississippi Department of Corrections. Following his conviction, Wess filed a motion for a new trial or other relief which was summarily overruled by the trial court.

¶ 2. Feeling aggrieved, Wess appeals and asserts the following issues which we recite verbatim: (1) the trial court erred in refusing one of Appellant's proposed jury instructions, (2) the trial court erred in overruling Appellant's objection to the prosecutor's comments during closing arguments, and (3) the trial court erred in admitting Appellant's first confession.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. George Ellis was the owner of Ellis Auto Repair. The auto repair shop was located behind Ellis's home in Carthage, Mississippi. The shop was an enclosed building with closed windows and locked *932 doors. Ellis kept a wide variety of tools in the building.

¶ 5. Ellis testified that on April 15, 2002, he was awakened around midnight by what sounded like glass breaking. Ellis also testified that he heard the door to his shop being opened. Ellis then got out of bed, peeped out his bedroom window, and saw that the door to his shop was indeed open. After observing the open door, Ellis told his wife to call 911 because he believed that they were being robbed. Ellis then looked out his bedroom window a second time and saw someone coming out of his shop carrying some of Ellis's belongings.

¶ 6. Ellis quickly grabbed his pants, shoes, and a gun. Ellis went out the front of his house and quickly came upon an individual carrying some items that Ellis later identified as items that were stored in his auto repair shop. When the individual saw Ellis, he dropped the items and ran. Ellis chased after the man and got him to stop running by threatening to shoot him. After the man stopped running, Ellis escorted him back to his driveway, where they remained until the police arrived. Ellis identified the man that he ran down and captured as the same man that he saw attempting to carry away items from his shop. Upon the arrival of the police, this man was identified as Stanley D. Wess, the Appellant herein.

¶ 7. A suppression hearing was held on an alleged inculpatory statement made by Wess while in police custody. Mike Williams, deputy for the Leake County Sheriff's Office, testified that after he read Wess his Miranda rights, Wess blurted out, "I was suppose to be catching chickens, but I saw this business and decided I'd take some things." Johnny Nealy, a deputy for the Leake County Sheriff's Office, corroborated Williams's testimony. Deputy Nealy testified that Wess said in a laughing manner that Wess "was supposed to be catching chickens that night, but [Wess] saw the business and decided he would take some things." A third deputy, Deputy Tommy Russell, was present on the scene but was off duty on the day of the trial and could not be located to testify. Deputy Nealy testified that he did not know if Russell was standing there and heard Wess being given the Miranda rights or if Russell was out investigating the scene at that time.

¶ 8. Wess testified that he was not given his Miranda rights. Wess also denied having said anything about catching chickens or taking anything from the shop.

¶ 9. After hearing testimony, the trial court denied the motion to suppress and ruled that the statement was admissible. The judge determined that it was not prejudicial to Wess to allow the matter to go forward without the testimony of Deputy Russell. The judge found Deputy Williams's testimony to be credible and corroborated by the testimony of Deputy Nealy. The judge also found that Wess's statement to the police was unsolicited.

¶ 10. A suppression hearing was also held on a Miranda waiver of rights form signed by Wess and on a written statement given by Wess. Mark Welcher, a criminal investigator for the Leake County Sheriff's Office, testified that he interviewed Wess at the Leake County Correctional Facility and advised Wess of his Miranda rights before the interview. Welcher testified that Wess signed a Miranda waiver of rights form, which Welcher witnessed. Welcher further testified that after signing the waiver, Wess then gave a voluntary statement which Welcher wrote down and Wess initialed. In that statement, Wess said that he quit work catching chickens and was walking home when he saw a business on the road and decided to enter the business through a window. Wess also said that he took a *933 weed eater and some other things from the business. Finally, Wess said that he was caught by "some man" who made him stop and held him until the police arrived.

¶ 11. Investigator Welcher testified that Wess was not promised anything or coerced in any way into making the statement. Welcher also testified that when Wess gave the statement, Wess did not appear to be under the influence of drugs or alcohol, that Wess appeared to know what he was doing, and that Wess indicated that Wess understood his rights. Welcher also testified that Wess never requested an attorney while he was being interviewed.

¶ 12. Wess testified that Welcher read him his Miranda rights after taking the statement. Wess also testified that he told Welcher that he wanted a lawyer present at the time of questioning, but Welcher told him that the statement was off the record. Wess further testified that Welcher sprayed him with mace and by the time he regained his eyesight, Welcher had written the entire statement. Wess said that he never held a conversation with Welcher and that he only initialed the statement because Welcher threatened to mace him a second time. Wess also claimed that Welcher tried to bribe him to help prosecute some drug dealers. Wess also testified that Welcher made claims that he could tamper with evidence. In rebuttal, Welcher denied that any of Wess's allegations were true.

¶ 13. The trial court ruled that Wess's waiver and voluntary statement were admissible. The judge found that Wess was competent to make the statement, that there was no coercion, duress, or promise of reward made in connection with the statement, and that the statement was freely, voluntarily, and intelligently made after Wess waived his Miranda rights.

¶ 14. At trial, Wess took the stand and testified in his own defense. Wess testified that he was riding home with a friend when the friend's car started having transmission problems. Wess stated that he went to Ellis's house looking for help. Wess alleged that the pressure washer, weed eater, and chain saw were already sitting in Ellis's driveway when he arrived at the house. Wess stated that after he knocked on the door of the house, Ellis came out the back door with a gun and shot at him. Wess stated that he was frightened, so he took off running and only stopped running because Ellis threatened to shoot him. Finally, Wess stated that Ellis held him at gunpoint until the police arrived and arrested him. Throughout his testimony, Wess reiterated that witnesses for the prosecution were lying.

¶ 15.

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Cite This Page — Counsel Stack

Bluebook (online)
926 So. 2d 930, 2005 WL 2431260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wess-v-state-missctapp-2005.