text:
    The ESTATE OF Charles H. DeLOACH, et al., Appellants, v. Wayne H. DeLOACH and Wife Elizabeth Ann DeLoach, Appellees.
    No. 2002-CA-01034-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.

      Mark Kevin Horan, attorney for appellants.
    William R. Sanders, attorney for appel-lees.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Two brothers were involved in litigation to define a boundary description that they had used a few years earlier when they divided their commonly owned tract in two. During the progress of the suit, the parties agreed as to the location of an obscure road that had been set out in the deeds as the dividing line. That created two unequal sized tracts. One of the parties continued to argue that the intent of the brothers had been to divide the land equally. The chancellor found that since the ambiguity in the deed description had been resolved by agreement, there was no longer justification for reformation. We find no error on this record and these pleadings, and affirm.

¶ 2. This suit began as a complaint to remove clouds from title and establish a boundary line. Wayne DeLoach and his wife were the plaintiffs, while Charles L. DeLoach was the only named defendant. Charles DeLoach has since died and his heirs have been substituted in the litigation. The land at issue is about half of the 800-acre tract conveyed to members of the DeLoach family in 1949. Whether it should be exactly half is the central issue before us. Sidney W. DeLoach was the father of the original parties in this suit. He became the owner of all 800 acres in November 1962. On the same day, he used the following description to convey part of the land to his two sons:

The N/£ of the following described land and being that part of said land lying north of a gravel road running over an old abandoned railroad dummy line and running east and west through the entire tract of land:
Lot 16 in Section 23; Lots 8 and 14 in Section 24; Lots 1, 2, 4, 5, 6, 7, 8, 9, and 10 in section 25; Lots 2, 4, 10 and 11 in Section 26, all in Township 22 North, Range 1 East, 800 acres more or less, Tallahatchie County, Mississippi.

¶ 3. Based on what is in the record, this 1962 deed was the first to refer to an old railroad line or gravel road as lying within the 800 acre tract. In 1966, Sidney W. DeLoach conveyed to all four of his children the remainder of the 800 acres. This time, he even more explicitly stated that the conveyance was of one half of the total tract. The description was identical to the one used in 1962, except it twice substituted “south” for “north” in the initial phrase. After the description concluded, this language appeared: “Intending to describe and convey the S/& of said tract or 400 acres more or less lying south of said gravel road.” That kind of intent statement does not appear in later deeds.

¶ 4. Various subsequent conveyances were made within the family using these same descriptions. In 1994, the 800 acres became owned just by the two brothers, Wayne and Charles DeLoach, as tenants in common. That same year, the brothers divided the land in two. The deeds used these mirror descriptions: “The Souths [or the North/é] of the following described land and being that part of said land lying South [or North] of a gravel road running over an old abandoned railroad dummy line and running East and West through the entire tract of land”; each deed then described the total 800 acres by proper description.

¶ 5. Not long after the brothers executed the 1994 deeds to each other, a dispute arose about the location of the boundary dividing their two tracts. Wayne DeLoach filed suit claiming that the boundary was an old railroad dummy line that a surveyor allegedly could identify. Charles De-Loach answered contending that the boundary line was a gravel road.

¶ 6. A hearing was held in September 2000. Surveyors were called by each side to testify as to the location of the railroad dummy line and gravel road. Wayne De-Loach’s surveyor testified that the present gravel road appeared to be about in the same location as a road that appeared on U.S. Geological Survey maps from the 1930’s. This surveyor also found pilings remaining from an old bridge over a creek. “If that’s the railroad bridge,” the survey- or stated, then the old railroad lined up at the creek with the present road. No evidence of a railroad dummy line was found anywhere else along the road. It has been Wayne DeLoach’s position throughout the litigation that the boundary used in the deed was clear and ascertainable.

¶ 7. The surveyor for the Charles De-Loach heirs had no opinion on whether the present gravel road was the same road that was built over an old railroad line. These DeLoaches claim that the boundary used in the deed referred to no currently verifiable location.

¶8. Neither surveyor gave an answer initially satisfactory to the chancellor that the present road on the property was the road referenced in the deed description, especially because there was almost no evidence of the old railroad line on top of which the road was supposed to run. At the first hearing, the chancellor stated that when a deed purporting to describe half of a tract of land uses unclear landmarks, perhaps the proper approach was to survey the entirety and divide the land precisely in two equal portions. Considering each side’s evidence, the judge was not confident that he could make a decision. Responding to these concerns, the parties indicated that they might be able to resolve some of the confusion. The September 2000 hearing was continued for ten days.

¶ 9. We have no record of a hearing a few days later. A motion was filed in January 2001, stating that “no progress had been made concerning the solution to the problem.” The next transcribed hearing was in October 2001. Both attorneys informed the court that the boundary line that was referenced in the deed should be deemed to be the road as it appeared on the plat prepared by the surveyor who had been employed by the Charles DeLoach heirs. The ambiguity in the deed description was resolved with the adoption of an identified road’s current location.

¶ 10. The Charles DeLoach heirs still contended that it was the intent of the brothers in 1994 to divide the land into two exact halves. Using the present gravel road as the boundary made the southern tract larger by 65-80 acres. At the conclusion of the second hearing, and after the parties had agreed to deem the gravel road to be the boundary referenced in the deed descriptions, the chancellor asked for briefing on the effect of the deed reference to “half’ of the 800 acre tract:

North half, south half. So, what does that mean? Is 40 or 50 acres inconsequential or is it substantial? What if it said the north half and it only gave you 10 acres and the other party 790 acres? Would that make any sense? Would that be a problem? I don’t know.... So let’s get some law. There probably is some law on that we need to take a look at, and I need to see whether we need to go forward with some sort of contention of reformation or not. But I need to see the law first.

¶ 11. In February 2002, the chancellor ruled that since the boundary referenced in the deed had been agreed to be the gravel road, no defect in the description any longer existed. Extrinsic evidence of intent was relevant only if the description was vague. Since there was no ambiguity, there could be no reformation. This appeal has followed.

DISCUSSION

¶ 12. On appeal, the Charles DeLoach heirs seek judicial reformation of the 1994 deed. Generally, an instrument that is unambiguous will not be reformed absent proof of mistake, fraud, or duress. See Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990). This deed had been ambiguous — indeed, the railroad dummy line’s location remains at best a guess. However, the parties in this litigation created a meaning for that description. There never was a written stipulation setting out the terms of the agreement. After one attorney explained what the parties had agreed, the chancellor summarized the agreement as being that the location of a gravel road as shown on a survey “will stand as the dividing line of the road mentioned in the deed, as it is today and will be the division line between the property, as set forth in the deed itself and as described in the deed.... ” Both attorneys agreed with this characterization of the stipulation.

¶ 13. What was not stipulated was that this surveyed road was the dividing line intended by the brothers when they executed their deeds to each other in 1994. The location of the old road and railroad line may not have been known nor even considered by the brothers. Instead their father’s 1962 description may have been somewhat carelessly utilized in 1994. The courtroom agreement effectively rewrote the ambiguous deed such that it now had a definite, post-execution meaning, but not stipulated was the 1994 intent of the deed. The Charles DeLoach heirs have all along argued that when the two brothers acquired equal one-half interests in the property, then by quitclaim deeds divided the land in two, their intention was that each would own an equal-sized tract. That is certainly a reasonable conclusion. When the hearing ended in October 2001, though, parol evidence of the intent of the parties had not been introduced. The chancellor later ruled that absent ambiguity in the description, no evidence could be introduced to demonstrate that the land was intended to be divided into two precisely equal halves. Whether that is correct is our issue on appeal.

¶ 14. When reformation of a deed is permitted, it is for the purpose of removing ambiguity or correcting error arising from mistake, fraud or duress. As to ambiguity, the rule is this:

When the language'of the deed or contract is clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all its parts as written. When, however, the language falls short of the qualities - above mentioned and resort must be had to extrinsic aid, the court will look to the subject matter embraced therein, to the particular situation of the parties who made the instrument, and to the general situation touching the subject matter, that is to say, to all the conditions surrounding the parties at the time of the execution of the instrument, and to, what as may be fairly assumed, they had in contemplation in respect to all such said surrounding conditions, giving weight also to the future developments therein about which were reasonably to be anticipated or expected by them; and when the parties have for 'some time proceeded with or under the deed or contract, a large measure, and sometimes a controlling measure, of regard will be given to the practical construction which the parties themselves have given it, this is on the common sense proposition that actions generally speak even louder than words.

Royer Homes of Mississippi, Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 754-55 (Miss.2003), quoting Farragut v. Massey, 612 So.2d 325, 329 (Miss.1992), which quoted Sumter Lumber Co. v. Skipper, 183 Miss. 595, 608-09, 184 So. 296, 298-99 (1938).

¶ 15. As to mutual mistake by the parties to a deed, this explains the obligation of the court:

One of the assignments argued by the appellants is that the court erred in admitting parol evidence to show the intention of the parties to the deed as the deed was plain and unambiguous. The appellant cites numerous authorities to support his contention, however, these cases are not applicable in reformation proceedings.
“It is practically a universal rule that in suits to reform written instruments on the ground of fraud or mutual mistake, parol evidence is admissible to establish the fact of fraud or of a mistake and in what it consisted, and to show how the writing should be corrected in order to conform to the agreement or intention which the parties actually made or had.... ”

Bedford v. Kravis, 622 So.2d 291, 294 (Miss.1993), quoting Smalley v. Rogers, 232 Miss. 705, 710-11, 100 So.2d 118, 119-20 (1958), which quoted 45 Am.Jur., Reformation of Instruments, § 113 (1943). An ambiguous deed can be reformed. So may an unambiguous deed in situations in which because of mutual mistake or fraud the description used did not reflect the intent of the parties.

¶ 16. We have been discussing general legal principles. Preliminary to applying them here is another general legal principle — an issue cannot be raised for the first time on appeal. We must be able to find that the issue of reformation was presented to the chancellor for resolution. The chancellor cannot be found to have erred by failing to answer a question never posed.

¶ 17. The Charles DeLoach heirs clearly pled that the gravel road that lay on top of an old railroad dummy line could not be reliably located, and therefore an equal division of the property into north and south halves should be made. The initial answer alleged that the location of the relevant road was not discernible. Then, in January 2001, Charles DeLoach filed this request of the court:

appoint the two surveyors to work jointly together for the Court to equitably divide the property and to prepare for the Court’s adoption a proper and fitting legal description, said description and division to equitably divide all of the property in question, by acreage and by value of said property and the improvements thereon, and to submit this proposal to the Court and to the parties for consideration and adoption.

¶ 18. In April 2001, in their answer to an amended complaint, the Charles De-Loach heirs continued to assert the ambiguity in the deed and the consequent need for an equitable division. In July 2001, in a cross-complaint, the Charles DeLoach heirs pled that the land described had never been surveyed, and that the parties’ two surveyors had been unable to locate the center line. The heirs alleged that the deed “description is vague and of such a nature as to render it impossible to determine exactly what was contemplated by each of the parties at the time that the deeds were executed.” The prayer for relief was that a survey of the entire 800 acres be performed and that two “equitably divided” portions be made. This pleading alleges ambiguity and impossibility of locating the boundary.

¶ 19. This reveals that throughout the litigation prior to the October 2001 hearing, Charles DeLoach and then his heirs had relied totally on ambiguity as the basis for reformation. Then, at the October 2001 hearing, both sides agreed to consider a gravel road located by both surveyors during the litigation as the boundary for purposes of the deed. The question now is whether ambiguity as a basis for reformation was thereby eliminated. There was still pleading support for an equal division based on ambiguity, but was the issue waived by the stipulation? It is as if a deed between brothers referred to a completely unknowable point of beginning, for example, a landmark known only to their father as “Rosebud” and to which he had referred in another, decades-earlier deed. The parties to the deed during litigation agree to make the unknowable knowable by deeming a certain tree as the one that would be considered to be Rosebud. No intent contemporaneous to their own deed existed as to such a designation.

¶20. Whether such facts mean that there is no longer ambiguity as a basis for clarifying a deed depends in part on the specifics of the parties’ agreement. Had there been a written stipulation, such detail might have been included. We find no effort in what was said orally on the record to limit the stipulation to some sort of alternative, e.g., only if the chancellor found an insufficient basis to reform the deed would the agreed boundary be the road. It is clear that the attorney for the Charles DeLoach heirs, immediately after the chancellor accepted the stipulated meaning for the deed description, argued that the inability to locate with certainty the road and railroad mentioned in the deed required reformation to accomplish the intent in the deed for an equal division. The attorney was trying to hold onto the ambiguity issue.

¶ 21. Retaining the issue of deed ambiguity as a basis to require an equal division was rather imprecisely pursued. We do not decide whether this stipulation as to the boundary waived ambiguity as a basis for reforming the deed. It is enough that the chancellor ultimately, despite his earlier uncertainties, had too little in the record on which to base a different conclusion about the location of the boundary. Though the railroad apparently had been abandoned even by the 1930’s, the evidence was that the only gravel road that ever traversed west and east on this property in the relevant area was one quite near the present one. A 1930’s map showed a similarly-located road; inferentially, that is the road that existed in the 1960’s when the parties’ father used it as a description. For the chancellor to have rejected this road as the intended boundary, even without the concession by the parties, would have required an assumption based on no evidence that the only discoverable road in the late 1990’s was at a different location than the one on the property in the 1960’s, and that the earlier road had disappeared without a trace on this unimproved land.

¶ 22. With ambiguity unavailable as a basis on which to reform this deed, the issue of mutual mistake being raised by the pleadings and supported by evidence now needs to be addressed. The appellee Wayne DeLoach argued below in his trial brief and repeats here that there never has been a pleading raising mutual mistake. Certain issues must be pled explicitly:

In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity.

M.R.C.P. 9(b). In order for mutual mistake to be a foundation for parol evidence, it should be explicitly pled. Turner v. Terry, 799 So.2d 25, 34 (Miss.2001). Unless we find trial of the issue by consent, the Charles DeLoach pleadings must have raised the issue of mutual mistake and the resulting need for reformation. We search for relevant pleadings.

¶ 23. There is nothing stated generally, much less “with particularity,” in any of these pleadings concerning mistake or the “circumstances” of such a mistake that would support reformation. Instead, there is pleading of ambiguity. At most, Charles DeLoach and his heirs have stated that the intent of the instruments was to make an equal division of the property. That is not, however, an alert to the court or the other party that the deed description failed of its purpose because of mutual mistake. The pleadings sought equity because the deeds were impossible to interpret. That impossibility was ended by evidence and by agreement.

¶ 24. Pleading insufficiency must also be considered in light of other rules of procedure, which include that matters tried by consent need no pleadings in support. M.R.C.P. 15(b). We thus search for whether the proceedings below consensually considered mutual mistake.

¶ 25. At one hearing, the attorney for the Charles DeLoach heirs stated that due to the vagueness of the deed, he filed a cross bill asking for reformation “so that the effect of the deed that will be created will be the intent that was originally put into the deed.” He further stated that “the land is not divided equally by that road ... But there’s a substantial difference between the size of the two pieces of property.” Then the attorney for the Charles DeLoach heirs made this assertion:

And if it states that each one is to convey a quitclaim to the other one-half of the property — and I think you have to read the intention of the deed by what the deed says, and it intends to give each from the other the one-half interest in half the property — then we’ve got to look at the idea of [reformation] of the deed for a dividing line.

¶26. The Charles DeLoach heirs initially relied on vagueness in the deed to support reformation. After the stipulation before the chancellor eliminated ambiguity, the heirs relied on the inconsistency between the location of the deemed boundary and the claimed intent to divide the land equally. The chancellor asked for briefs to determine whether the reference in the deed to “half’ overrode the boundary of the gravel road. That is a legitimate legal question but not a factual question. The chancellor noted that distinction: “I think that what we have here is not a factual dispute but a legal dispute” as to what part of the deed description controlled. Does the reference to one-half control, or the described boundary? The canons of construction for deeds make specific boundaries control over acreage and fractions of property. Carrere v. Johnson, 149 Miss. 105, 115 So. 196, 197 (1928) (specific description by metes and bounds controls over general description of “31 acres on east side” of tract); see generally, Jack H. Ewing, “Mississippi Land Descriptions,” XVIII Miss. L.J. 381 (1947). The chancellor’s final judgment agreed that the deed’s reference to half of the 800 acre tract failed as a matter of legal construction to override the specific road boundary.

¶27. The chancellor did not request briefs on the issue of mistake, nor had anyone alluded to mistake other than in the most general form. The trial brief for Wayne DeLoach is in the record; any trial brief submitted by the heirs is not. In his trial brief, Wayne DeLoach argued that only a few matters besides ambiguity would justify reformation. He noted that among them was mutual mistake, but that was not pled and could not in this case support reformation.

¶28. We find no pleading supporting mutual mistake as a basis for reformation, nor was the issue tried by consent. Modern pleading practice is not overly technical, and notice pleading is usually sufficient. Pleading mistake or fraud requires somewhat more. M.R.C.P. 9(b). Trial by consent can override the pleading failing, but no such consent appears on this record.

¶ 29. It is not as if an obvious issue was overlooked in this case. Even when pled, mutual mistake must be proven beyond a reasonable doubt. McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992). Throughout this case, no evidence other than the use of the word “half’ in the deed description conceivably was a foundation for mistake. No evidence from either brother was offered as to his mistaken understanding of the road’s location when signing a deed just a few years before the litigation began. After judgment, the Charles DeLoach heirs presented an affidavit as to what Sidney DeLoach meant when he first used the description in the 1960’s. However, the unifying of the divided tracts into one parcel in 1994 negated any mistake arising from earlier deeds. The affidavit would have had some relevance had it been shown that the brothers in 1994 were operating under a misunderstanding caused by their father’s earlier mistake about the boundary.

¶ 30. To be clear, we recognize that mutual mistake is available to correct a description that is plain and is the one that the parties fully intended to use. “Most mistakes of fact in conveyancing, except those caused by clerical misprision, arise in cases when descriptive terms are intentionally employed under the mistaken impression that they apply to the property sought to be conveyed.” Miles v. Miles, 84 Miss. 624, 37 So. 112, 115 (1904). As was said over a century ago by Chief Justice J.A.P. Campbell, “where parties contract for a particular result, and intend to effect it, and fail to accomplish it, even through ignorance or mistake of law, equity will effectuate the intent of the parties.” Bedford, 622 So.2d at 295, quoting Hall v. State to Use of Lafayette County, 69 Miss. 529, 13 So. 38, 39 (1891).

¶ 31. Ambiguity of words is not needed for reformation. However, regardless of some general goal of equity, both De-Loaches must have had a dominant purpose for their 1994 transaction to convey or receive exactly one half of the larger tract, and mutually and mistakenly believed that these obscure landmarks— gravel road, dummy rail line — accomplished that goal. The kind of evidence necessary is exemplified in a conveyance of residential property long ago in the City of Jackson. There was a mutual mistake by the parties as to whether the eastern margin of a driveway was the boundary between two numbered lots, the one on the west having a house and the one on the east being vacant land. In fact, the driveway was entirely on the eastern lot and so were other improvements. McGee and Alexander had owned both lots together, but then divided them.

The valuable improvements were situated on the western side of the two lots, and McGee was interested in buying from his associate the improved premises and in occupying the same as his home. Mr. Alexander was interested in taking over the vacant property at an agreed value and in erecting thereon at his own expense another dwelling house. There was no intimation that the occupation lines of the Sykes lot and premises were to be disturbed. The testimony of McGee and Alexander establish a mutual mistake of fact, and indeed this mistake is admitted.

Brimm v. McGee, 119 Miss. 52, 80 So. 379, 381 (1919). Reformation was ordered.

¶ 32. It may be that additional evidence existed. The Charles DeLoach heirs in a post-judgment motion raised explicitly for the first time that they wished to present evidence on the question of mistake or fraud. It was that motion that attached an affidavit regarding the intent of Sidney W. DeLoach in the 1960’s to divide the property equally between his sons. That evidence was relevant but somewhat misdirected, as the mutual mistake issue concerned what the brothers meant in 1994 when they divided the entire 800 acres between them. Perhaps the issue had been just below the surface in the suit, but it had not been pled nor tried by consent. Even if the chancellor might have been within his discretion to reopen the case, we find no abuse in his refusing to do so.

¶ 33. THE JUDGMENT OF THE TALLAHATCHIE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . "Dummy lines” were temporary and lightly-built rail lines laid into timber lands during logging operations. Trucks long ago replaced the trains. One authority explained the synergy of sawmills and the railroads: "From these mills, logging railroads radiated outward, like the branches of a tree, to reach the far-flung timber. Known to Mississippians as ‘dummy lines’ because they went nowhere, some reached a length of 30 to 35 miles.” Gilbert Hoffman, Dummy Lines Through the Longleaf: A Histoiy of the Sawmills and Logging Railroads of Southwest Mississippi (Oxford: Center for the Study of Southern Culture, Univ. of Mississippi, 1992), x. There was evidence proffered in this case that by the 1930’s the railroad tracks on this land had been taken up and only some ties and other occasional remnants were visible even then.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    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.

      Tommy Steen, appellant, pro se.
    Thomas C. Levidiotis, Oxford, Attorneys for Appellant.
    Office of the Attorney General by John R. Henry, Attorney for Appellee.
   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?
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 Sheriffs 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 ear 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 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 every person who handled the object or an accounting of every moment in order to establish proper chain of custody. Id.

¶ 12. Steen argues that there is a reasonable inference of tampering because there was a discrepancy during cross-examination regarding the date written on the evidence bag. Steen further argues that a reasonable inference of tampering existed because there was “bad-blood” between Kimble and himself. We disagree.

¶ 13. Kimble testified that he gave the cocaine to Deputy Winters at the post-buy location. Deputy Willard testified that Deputy Winters gave it to him. Deputy Willard also testified that he sealed the cocaine in an evidence bag. and transported it to the safe at the Calhoun County Sheriff s Department until it was sent to the crime lab. Hickmon testified that she received the evidence bag at the crime lab and the seal was unbroken.

¶ 14. Deputy Winter’s absence alone does not produce a reasonable inference of tampering. In fact, there was no testimony by any of the State’s witnesses that would produce such a result. In addition, any accusation of “bad-blood” between Steen and Kimble would have no bearing on whether Deputy Winter should have testified. We find no error.

¶ 15. Finally, Steen directs us to the State’s failure to produce into evidence the twenty dollars used in the transaction. The recovery of the currency often proves very helpful to the State’s case in similar circumstances. In fact, Deputy Willard testified that he made a habit of photocopying the currency used in controlled buys in hopes of matching the serial numbers after an arrest. However, in the instant case, Steen was not arrested until several days after the transaction because he was but one target in a larger undercover operation using the same confidential informant. As a result, we find no error in the State’s failure to produce it.

¶ 16. We find no merit to this issue. Allowing the verdict of guilty to stand would not sanction an unconscionable injustice. Accordingly, we hold that the verdict is not contrary to the overwhelming weight of evidence.

II. DID THE TRIAL COURT ERR IN REFUSING JURY INSTRUCTION D-2?

¶ 17. Steen offered instruction D-2, a cautionary instruction, regarding Kimble’s testimony but the trial judge refused it. However, Steen has failed to include jury instruction D-2 in the record. In fact, the record does not contain a single jury instruction offered by Steen. The appellant has the duty to provide us with a proper record for appeal. Smith v. State, 572 So.2d 847, 849 (Miss.1990). This is no mere formality because the trial court’s ruling is presumed to be correct and the appellant has the burden of proving reversible error. Id. In other words, if the appellant gives us nothing to review, we must presume that the trial court was correct in refusing the instruction.

¶ 18. In his brief, Steen even states that he is aware of the fact that jury instruction D-2 is not included in the record. Steen asks us to review the trial transcript in order to obtain the substance of the proposed instruction. This, however, simply will not do. While the trial transcript informs us of the reasons why the trial judge refused the instruction, we have no proof of what the instruction actually stated. This error on Steen’s part is also no mere formality because our standard of review requires us to read the instructions together as a whole, with no one instruction to be read alone or taken out of context. Howell v. State, 860 So.2d 704, 761 (¶ 203) (Miss.2003). “A defendant is entitled to have jury instructions given which present his theory of the case.” Id. “However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.” Id.

¶ 19. We would also decline to grant relief on this issue because Steen has failed to provide any authority to support the argument that a confidential informant’s testimony by itself mandates a cautionary jury instruction. Steen directs our attention to Edwards v. State, 630 So.2d 343, 344 (Miss.1994), but we find that case distinguishable from the case sub judice. In Edwards, the court held that a cautionary instruction was mandatory because the State’s case was based solely on an accomplice’s testimony and corroborated only by the confidential informant. Id. In the instant case, we have no accomplice or co-defendant and the State’s evidence consisted of more than the confidential informant’s testimony. We find no merit to this issue.

III.DID THE TRIAL COURT ERR IN AMENDING THE INDICTMENT?

¶ 20. On the day of trial, an order was entered amending the indictment to reflect the correct date of the offense. Steen argues that his constitutional rights were violated when the trial court amended his indictment without the concurrence of the grand jury.

¶ 21. The issue of whether an indictment is fatally defective is an issue of law and enjoys a relatively broad standard of review by this Court. Peterson v. State, 671 So.2d 647, 652 (Miss.1996). A trial court has no authority to grant substantive amendments to indictments. Conley v. State, 790 So.2d 773, 781 (¶ 16) (Miss.2001). “However, unless time is an essential factor in the crime, an amendment to change the date on which the offense occurred is one of form only.” Id.

¶ 22. In Griffin v. State, 540 So.2d 17, 21 (Miss.1989), the Mississippi Supreme Court stated:

The test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence [the] accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

¶ 23. Steen did not present any defense at trial that would be affected by a change of date. Steen presented no witnesses on his behalf. In fact, both parties seem to be in agreement that the transaction took place on the day reflected in the amended indictment. We find that the amendment to the indictment was merely a change as to form and did not in any way prejudice Steen. As a result, the trial court did not err in allowing the State to amend the date of 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?

¶ 24. The indictment under which Steen was charged stated that he “unlawfully, willfully, feloniously, knowingly and intentionally” sold a controlled substance. Steen argues that the jury was not informed properly of these elements because the.State’s jury instruction S-l omits the words “willfully” and “knowingly.”

¶ 25. We see no error for two reasons. First, the record reveals that no objection was made on these grounds at trial. The “[fjailure to offer a timely objection to an instruction at trial constitutes a waiver of the issue on appeal.” Roberson v. State, 838 So.2d 298, 305 (¶ 27) (Miss.Ct.App.2002). Second, the statute under which Steen was convicted only requires a person to either “knowingly or intentionally” sell a controlled substance. Miss.Code Ann. § 41-29-139(a) (Rev.2001). We find no merit to this issue.

V. WAS THE APPELLANT DENIED THE RIGHT TO A FAIR TRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT?

¶ 26. Steen argues that the prosecutor made improper comments to the jury. During the State’s closing argument, the district attorney stated, “[T]his guy is a gambler. He’s a gambler by selling dope. He knows the running odds of getting popped. He’s a gambler here today. He’s gambling that one of you is going to feel sympathetic toward him or some other reason and hang up the jury.” Steen’s counsel objected to these statements but the trial judge refused to sustain the objection noting that it was closing argument.

¶ 27. The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990). The standard of review that we, as an appellate court, must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. Slaughter v. State, 815 So.2d 1122, 1130 (¶ 45) (Miss.2002). Our supreme court has held that attorneys are allowed wide latitude in closing arguments. Holly v. State, 716 So.2d 979, 988 (¶33) (1998). In addition, “[a]ny alleged improper comment must be viewed in the context, taking the circumstances of the case into consideration.” Ahmad v. State, 603 So.2d 843, 846 (Miss.1992).

¶ 28. Steen raised this issue in his pro se brief but he does not state in what way he was prejudiced. We also note that the trial court instructed the jury not to be influenced by sympathy or prejudice and that no remarks made by counsel were to be considered as evidence. The fact that the district attorney essentially told the jury to not feel sympathy for Steen because he placed himself in that situation does not rise to the level of unjust prejudice in this case. As a result, we find no merit to this issue.

VI. WAS THE APPELLANT DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY?

¶ 29. Steen argues that his jury did not reflect a fair racial cross-section of the community, and as a result, denied him his constitutional right to trial by an impartial jury. The elements necessary to establish a prima facie violation of the fair cross-section requirement for an impartial jury are (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this under representation is due to systematic exclusion of the group in the jury selection process. Lanier v. State, 533 So.2d 473, 477 (Miss.1988).

¶ 30. We agree with the State that no attempt was made to establish a prima facie violation because Steen has failed to address any of the above stated elements in his briefs. As a result, we find this issue to be without merit.

VII. DOES THE CUMULATIVE EFFECT OF THESE ERRORS WARRANT REMAND OR REVERSAL?

¶ 31. Since we find no error in any of Steen’s preceding issues, we find his final issue regarding the cumulative effect of the alleged errors to be moot.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED AND FIVE YEARS ON POST-RELEASE SUPERVISION AND A FINE OF $1500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: GRIFFIS, J.,

text:
    Mitchell Montreal FALCONER, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-02042-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Mitchell Montreal Falconer, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Mitchell Montreal Falconer was indicted as an enhanced penalty drug offender and as a habitual offender for the transfer of cocaine. He pled guilty and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections. Falconer filed two separate motions for post-conviction relief. These motions were denied. Falconer appeals the denial of these motions.

STANDARD OF REVIEW

¶ 2. “In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002).

ANALYSIS

I. Sentence

¶ 3. First, Falconer claims the trial court erred by stating that the amount of cocaine was 0.1 gram when the indictment stated the amount to be less than 0.1 gram. Falconer appears to argue that because the actual amount of cocaine was less than 0.1 gram then he may be charged with either a misdemeanor or a felony under Mississippi Code Annotated Section 41-29-139(c)(l)(A) (Rev.2001). This statute is "the basis for his argument that he should have received a maximum sentence of eight years. However, this statute is applicable to the offense of simple possession of controlled substances.

¶ 4. Falconer was indicted and subsequently pled guilty for the transfer of cocaine. Miss.Code Ann. § 41-29-139(a)(l) (Rev.2001). The transfer of cocaine carries a maximum penalty of thirty (30) years in prison. Miss.Code Ann. § 41-29-139(b)(1) (Rev.2001). The enhanced penalty statute allows the sentence to be doubled where a defendant’s conviction is a second or subsequent drug offense. Miss. Code Ann. § 41-29-147 (Rev.2001). Because this was Falconer’s fourth drug conviction, his sentence could be doubled. Therefore, the imposition of a fifteen year sentence was well within the sixty year maximum sentence. We find no error in the length of his sentence.

¶ 5. Falconer next claims that the trial court erred by not including post-release supervision and a substance rehabilitation program in his sentence. Falconer also asserts that his sentence constituted cruel and unusual punishment.

¶ 6. Our courts have consistently ruled that “[sjentencing is within the complete discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.” Nichols v. State, 826 So.2d 1288, 1290 (¶ 10) (Miss.2002). As previously discussed, Falconer’s sentence was well within the sixty year maximum. We find that the trial court properly exercised its discretion in sentencing Falconer.

¶ 7. Finally, Falconer claims the trial court erred by sentencing him to a longer term than his co-defendant. Falconer, by not raising this issue at his sentencing or plea hearing, waived this issue. Collins v. State, 822 So.2d 364, 366(¶ 5) (Miss.2002).

¶ 8. Notwithstanding the waiver, the facts simply support Falconer’s longer sentence. Falconer admitted that he was the drug supplier for his co-defendant. Falconer was indicted and convicted as an enhanced drug offender, subject to a sixty year sentence. His co-defendant was a first time offender, with no prior felony convictions, who faced a maximum thirty year sentence. In addition to his three previous drug convictions, Falconer also had numerous misdemeanor offenses. These factors justify the court’s decision to sentence Falconer to a longer term. Thus, we do not find the decision to be clearly erroneous.

II. Ineffective assistance of counsel

¶ 9. Falconer claims his counsel coerced him into pleading guilty by telling him that he could not find a defense for his case. Falconer also asserts he was unaware of his sentencing range and that the district attorney was going to recommend a fifteen year sentence.

¶ 10. To prevail on an ineffective assistance of counsel, the defendant must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced him in such a way that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the alleged deficiency by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). An appellate court applies “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 11. Falconer has failed to demonstrate that his counsel’s performance was deficient. In his plea petition, Falconer affirmed that he was satisfied with the advice of his counsel. The fact that Falconer’s counsel informed him that he was unable to find a defense for his case did not amount to deficient performance. Falconer’s plea petition clearly stated that the sentencing range for the sale or transfer of cocaine was zero to thirty years, with sixty years for enhanced punishment for a habitual offender. Falconer’s attorney filed a certificate that stated that he explained to Falconer the allegations contained in the indictment and the maximum and minimum penalties. The record, therefore, clearly contradicts Falconer’s claim that he was unaware of the sentencing range.

¶ 12. Furthermore, Falconer has failed to demonstrate that he would have received a different outcome but for his counsel’s actions. Falconer makes no specific allegations of action or inaction on the part of his counsel that resulted in prejudice to his defense. Considering the totality of the circumstances, the performance of Falconer’s counsel was neither deficient nor prejudicial. Therefore, Falconer has failed to prove ineffective assistance of counsel.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HARRISON COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


author: WOODALL, Justice.

text:
    Ex parte Kathy SAWYER and Phillip Boyd. (In re Candace Lambert, as administratrix of the estate of Marguerite Hicks, Deceased v. State of Alabama Department of Mental Health and Mental Retardation et al.)
    1020460.
    Supreme Court of Alabama.
    May 16, 2003.
    Rehearing Denied Aug. 29, 2003.
    John D. Clements, Ricky J. McKinney, and Robert E. Battle of Burr & Forman, LLP, Birmingham; and Courtney Tarver, Alabama Department of Mental Health & Mental Retardation, for petitioners.
    Kenneth J. Mendelsohn, Thomas E. James, and Ellenann C. Benefield of Jemi-son, Mendelsohn & James, P.C., Montgomery, for respondents.
   WOODALL, Justice.

Kathy Sawyer and Phillip Boyd, defendants in a civil action filed by Candace Lambert, as administratrix of the estate of Marguerite Hicks, deceased, petition this Court for a writ of mandamus directing the Montgomery Circuit Court (“the trial court”) to vacate the order it entered on December 4, 2002, purporting to return the action to the Montgomery Circuit Court after it had transferred it to the Baldwin Circuit Court. We grant the petition and issue the writ.

In two motions, Sawyer and Boyd sought an order transferring this action to the Mobile Circuit Court. On August 26, 2002, the trial court ordered, in pertinent part, that this action be transferred to the Baldwin Circuit Court. On September 3, 2002, Lambert filed a “motion to reconsider,” asking the trial court to “reconsider its previous ruling, vacate it and enter a new order denying Defendants’ Motion to Transfer Venue.” Alternatively, Lambert requested that “[i]f the court does not overturn its previous decision, ... the court [should] transfer the case to Mobile County, as the Defendants requested, instead of Baldwin County.”

The case was docketed in the Baldwin Circuit Court on September 6, 2002. On September 26, 2002, Sawyer and Boyd filed a written response to Lambert’s motion to reconsider, arguing, in part, that the trial court, “having already transferred this case to the Circuit Court of Baldwin County, ... now lacks jurisdiction to entertain [Lambert’s] motion to reconsider.” After a hearing on December 4, 2002, the trial court, on that same date, entered an order granting Lambert’s motion to reconsider and ordering that the action “is transferred to Montgomery County.”

Sawyer and Boyd argue that the trial court had no authority to enter its December 4, 2002, order, returning the case to the Montgomery Circuit Court. We agree. This Court summarized the relevant legal principles in Ex parte Med-Partners, Inc., 820 So.2d 815, 821 (Ala.2001):

“Once the transferor court has granted the motion to transfer the ease and the file has been sent to, and docketed by, the transferee court, the transferor court cannot then change its mind and vacate or set aside its transfer order or order the case returned. Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953). Furthermore, the trial judge of the transferee court may not consider a motion to retransfer the case to the county in which it was originally filed. Ex parte Tidwell Indus., Inc., 480 So.2d 1201 (Ala.1985).. The aggrieved party’s sole remedy in such a case is a petition for writ of mandamus directed to the transferor court.
“ “Where the trial court has improperly ordered a transfer, mandamus against the transferor court is an appropriate remedy, notwithstanding the fact that an order has been entered which moves the case to the transferee court. The transferee court lacks authority to consider a motion to re-transfer an action to the" county in which it was initially filed. Mandamus to the transferor court is the appropriate avenue for seeking redress of any error in the transfer.’
“2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 82.4, p. 553 (3d ed.1996) (citations omitted).”

As previously noted, the Baldwin Circuit Court, the transferee court, docketed this case on September 6, 2002. Thereafter, the Baldwin County circuit judge assigned to the case entered orders in the case'. Therefore, Lambert’s “sole remedy [was] a petition for writ of mandamus directed to the transferor court.” The trial court’s December 4, 2002, order purporting to order the case returned to the Montgomery Circuit Court was a nullity and must be vacated.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., concurs in the result.