author: THOMAS, J.,

text:
    Glenn Allen FORD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00728-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.
    Leslie D. Roussell, Laurel, attorney for appellant.

      Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., THOMAS, MYERS and GRIFFIS, JJ.
   THOMAS, J.,

for the court.

¶ 1. Glenn Allen Ford pled guilty to possession of a controlled substance, methamphetamine, and was sentenced to a term of eight years with two suspended and to pay a $20,000 fine by the Circuit Court of Lamar County. Aggrieved, he asserts the following issue on appeal:

I. WHETHER THE SENTENCE IN THIS CASE WAS DISPROPORTIONATE TO THE OFFENSE PLED TO AND/OR WHETHER THE SENTENCE IN THIS CASE WAS DISPROPORTIONATE TO SIMILAR CRIMES.

Finding no error, we affirm.

FACTS

¶ 2. Glenn Allen Ford was arrested by the narcotics task force and charged with possession of 1.9 grams of methamphetamine as well as precursor chemicals with intent to manufacture methamphetamine. Ford’s pickup was seized by the authorities and civil forfeiture proceedings were initiated against the truck. The forfeiture proceeding was stayed until conclusion of the criminal proceeding against Ford.

¶ 3. With the assistance of counsel, a plea bargain agreement was reached wherein Ford agreed to plead guilty to possession of 1.9 grams of methamphetamine and the State agreed to dismiss the charge of possession of precursor chemicals with intent to manufacture. No agreement was reached as to time to be served or fine to be paid. In his petition to enter a guilty plea, Ford acknowledged knowing that the range for a sentence was from two to eight years along with a fine of up to $50,000. Ford also acknowledged having previous convictions in federal court for possession of a controlled substance.

¶ 4. Ford pled guilty to possession on March 18, 2002, in Lamar County Circuit Court. The trial court explained the constitutional rights Ford was waiving with his plea, including his right against self-incrimination and his right to a jury trial. Ford acknowledged understanding the rights he was waiving as well as again acknowledging the sentencing range and maximum fine for his offense. After further questioning Ford, the trial court found that his plea was voluntarily and intelligently entered. At a separate sentencing hearing, Ford was sentenced to eight years with two years suspended, pay a $20,000 fine, and complete a drug rehabilitation program. The trial court ordered Ford’s truck sold and the proceeds applied to his fine.

I. WAS THE SENTENCE IN THIS CASE DISPROPORTIONATE TO THE OFFENSE PLED TO AND/OR WAS THE SENTENCE IN THIS CASE DISPROPORTIONATE TO SIMILAR CRIMES?

¶ 5. Ford asserts that his sentence amounts to cruel and unusual punishment and that it is disproportionate to similarly situated defendants in the same circuit court district as well as in the rest of the State of Mississippi. Ford cites Williams v. State, 757 So.2d 953 (Miss.1999), in support of his argument, in which the Mississippi Supreme Court states:

This Court will review a sentence where it is alleged that the penalty imposed is disproportionate to the crime charged. The factors to consider when conducting a proportionality analysis include (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.

Id. at 957(¶ 21)(citing Fleming v. State, 604 So.2d 280, 302-03 (Miss.1992); Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Although the test set forth is indeed correct, Ford fails to note the language immediately preceding the above quote from Williams. “The general rule is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Williams, 757 So.2d at 957(¶ 21)(citing Fleming, 604 So.2d 280 at 302).

¶ 6. The statute under which Ford was sentenced, Miss.Code. Ann. § 41-29-139, provides penalties for possession of controlled substances including methamphetamine and states that anyone convicted of possession of more than one-tenth gram but less than two grams shall be sentenced to imprisonment for not less than two years nor more than eight years and fined not more than $50,000. Ford’s sentence of eight years with two suspended and fine of $20,000 is well within the maximum limits set by the applicable statute.

¶ 7. Although Ford claims that his sentence is disproportionate to others in Lamar County, the record contains no information regarding the sentences of other similarly situated defendants, either in Lamar County or in the State of Mississippi. Ford attempts to use the federal sentencing guidelines to show that his sentence was too harsh, but it should be noted that Ford was sentenced under state jurisdiction and Mississippi has not adopted the federal guidelines. They are therefore irrelevant for offenses under exclusive state jurisdiction. Similarly, there is no information included regarding the separate civil forfeiture proceedings held in connection with selling Ford’s truck. The burden is on the appellant to include whatever is needed in support of his arguments. This Court must “decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions.” Mason v. State, 440 So.2d 318, 319 (Miss.1983).

¶ 8. Ford pled guilty to possession of 1.9 grams of methamphetamine while having prior convictions for possession of a controlled substance. He was convicted of violating federal controlled substance laws involving methamphetamine for which he was serving 29 months at the time of his sentencing hearing. Ford acknowledged knowing the range of sentence he could receive. He knew that the prosecution was dropping a charge in return for his guilty plea. Having been sentenced well within the statutory maximum for his particular offense, this is not cruel and unusual punishment. Barnwell v. State, 567 So.2d 215, 221-22 (Miss.1990). This issue is without merit.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF POSSESSION OF A SCHEDULE II CONTROLLED SUBSTANCE AND SENTENCE OF EIGHT YEARS WITH SIX YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY TO THE SENTENCE NOW BEING SERVED IN FEDERAL CUSTODY, AND TWO YEARS SUSPENDED AND FINE OF $20,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Troy Michael JONES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01325-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.
    Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   IRVING, J.,

for the court.

¶ 1. Troy Michael Jones filed this appeal following the dismissal of his petition for post-conviction relief by the Circuit Court of Union County. Jones presents two issues: (1) whether he was denied effective assistance of counsel and (2) whether the trial court erred in finding that his plea was voluntarily entered.

FACTS

¶ 2. Jones was charged with the armed robbery of a B Quik convenience store in New Albany, Mississippi. Two other individuals, Robert Antron Carr and Marcus Young, were also charged with participating in the robbery. Carr and Young pleaded guilty to armed robbery and were sentenced to five years each in the custody of the Mississippi Department of Corrections.

¶ 3. Jones went to trial on September 8, 1999, and was the only witness to testify on his behalf. The jury was unable to reach a unanimous verdict, and a mistrial was declared. Five days later, Jones signed, under oath and penalty of perjury for any false statement, a “Petition to Enter Plea of Guilty” in which he offered a plea of “no contest” to simple robbery. The court accepted his plea, found him guilty, and sentenced him to serve eight years, with three years suspended, in the custody of the Mississippi Department of Corrections. Approximately sixteen months later, Jones, feeling that his plea was ill-advised, filed a motion for post-conviction relief with the Circuit Court of Union County. The court, after an eviden-tiary hearing, dismissed the motion. This appeal followed.

¶ 4. Additional facts are developed during the discussion of the issues.

DISCUSSION AND ANALYSIS OF THE ISSUES

¶ 5. Jones alleges that his trial counsel was ineffective and that Jones’s plea was involuntary. All the allegations, except one, regarding the ineffectiveness of counsel concern actions or omissions allegedly committed by counsel prior to or during Jones’s trial which ended in a mistrial. That trial had nothing to do with the no contest plea that Jones entered which led ultimately to the conviction giving rise to this appeal. The one exception is the allegation that Jones’s trial counsel led Jones to believe that Jones would get probation if Jones entered a plea of guilty. Therefore, we address only this issue which also is essentially Jones’s second issue in which he claims that his plea was not voluntary because he was misled regarding the sentence he could expect to receive.

¶ 6. In his PCR petition filed in the trial court, Jones alleged that his no contest plea was “predicated upon a[p]lea [a]greement, signed under duress, ineffective assistance of counsel and due process violation.” Jones also alleged that rights guaranteed to him by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution had been violated. He did not elaborate further.

¶ 7. Paragraph 8 of the plea agreement, which Jones contends he signed under duress, states: “I have not been beaten, threatened, mentally or physically forced, intimidated or coerced in any manner to plead no contest to the crime charged against me. I offer my plea of no contest freely and voluntarily and of my own accord and with full understanding of all matters set forth in the indictment.”

¶ 8. Paragraph 10(b) of the petition states:

It is my understanding that the district attorney will recommend to the Court that I receive a sentence ... [of] five years. I understand that there are no side agreements or other promises. I ■understand that this agreement is not binding on the Court and that if my no contest plea is accepted by the Court, the Court may impose the same sentence as if I had pleaded no [sic] and had been found guilty by a jury.

¶ 9. Paragraph 13 of the petition states: “I believe that my lawyer is competent and has done all that anyone could do to counsel and assist me, and I am fully satisfied with the advice and help he has given me.”

¶ 10. During the plea qualification hearing, Jones was sworn and answered a series of questions asked of him by the court. He admitted his identity and affirmed that the signature on the “Petition to Enter Plea of Guilty” was his signature. He answered in the negative when asked if anyone had made any promises or offers of reward to him to induce him to plead guilty. He also answered in the negative when asked if anyone had threatened, forced, coerced or done anything to him to make him plead guilty. Further, when he was asked if he was offering the plea of guilty knowingly and of his own free voluntary will and accord, he answered in the affirmative.

¶ 11. During the hearing of the PCR petition, Jones and his great aunt were the only witnesses to testify. Both of them testified essentially that Jones entered the plea reluctantly because each of them felt he had no other choice. Jones testified that he signed the petition to enter guilty plea but insisted that the decision to plead no contest was made under duress. The trial court was not persuaded and neither are we.

¶ 12. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032 (¶ 8) (Miss.1999); Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

¶ 13. We have reviewed the entire transcript of the PCR hearing. The conduct of Jones’s trial attorney which Jones says placed him under duress was far from what would be considered acts of duress. In fact, it can only be described as exceptionally good lawyering. Jones’s trial counsel gave him an honest assessment of Jones’s chances of prevailing in a retrial and the consequences that would flow from a guilty verdict. While Jones professed his innocence and asserted that he was not satisfied with the services rendered by his trial attorney during the trial that ended in a mistrial, his testimony, as well as his aunt’s, makes clear that the real reason Jones took the plea deal is that they feared he would be convicted of armed robbery in the retrial and sentenced to life in prison. We are convinced that the fear that this circumstance would come to fruition had little to do with the attorney’s performance and much to do with the strength of the State’s case against Jones.

¶ 14. In Jones’s appellate brief, his appellate counsel, who is not the same as his trial counsel, asserts that Jones’s trial counsel “led Jones and his mother to believe that Jones would receive probation if he pled guilty” and that “but for the promise of probation,” Jones would not have pleaded guilty. We first note that this allegation was not made in Jones’s PCR petition nor in the hearing on the petition, and because it is being raised for the first time on appeal, it is procedurally-barred. Conley v. State, 790 So.2d 773, 790(¶ 57) (Miss.2001). However, notwithstanding the procedural bar, it is belied by the sworn petition to enter a guilty plea that Jones signed, as well as by the sworn testimony that Jones gave at the plea hearing and by the sworn testimony that both Jones and his aunt gave at the hearing on the PCR petition.

¶ 15. There is no basis for disturbing the finding of the trial court that Jones is not entitled to any relief. Therefore, the decision of the trial court denying post-conviction relief is affirmed.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY DENYING POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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

GRIFFIS, J., NOT PARTICIPATING.

      . During the plea hearing, the trial judge repeatedly referred to the plea as a "plea of guilty” as opposed to a "plea of no contest.” However, near the end of the hearing, the trial judge acknowledged his understanding that the plea was being offered under the circumstances sanctioned in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). No issue is made in this appeal regarding the type of plea offered.


author: LEE, J.,

text:
    Troy Lee LOTT, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00945-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.

      Troy Lee Lott, Jr. (Pro Se), Edmund J. Phillips, Newton, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    . Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. The appellant, Troy Lee Lott, Jr., was indicted and convicted on three counts of armed robbery and was sentenced to serve twenty-five years for Count I, ten years for Count II, to run concurrently to the sentence in Count I, and ten years for Count III to run consecutively to the sentences in Counts I and II. Lott’s motion for new trial was denied, and he appeals to this Court arguing that the trial court erred in overruling his objection to admitting his confession into evidence, that his counsel was ineffective and that his requested peremptory instructions, motion for directed verdict and motion for judgment notwithstanding the verdict were improperly denied. We review these arguments and find no merit; thus, we affirm.

FACTS

¶ 2. Ed Reeves was in a shop building outside of the home of Larry Weems in Scott County the night and early morning hours of January 25 and 26, 2001. Marty Jones arrived and opened the shop door to find Lott standing inside with a double-barreled shotgun. Lott ordered Jones to get to the ground and hit him with the shotgun. Lott’s three accomplices were present, as well. The aggressors kicked and beat Reeves, causing him to lose his breath. Lott asked where Weems’ safe and the guns were, and when Jones responded that he did not know, Lott tied him up, took twenty-five dollars, a pocket knife and a lighter from his pocket, and then took Reeves with them to go to Weems’ house. Jones remained tied up in the shop with two of Lott’s accomplices holding a shotgun on him.

¶ 3. Weems was sleeping at his house, as was Deborah South. Lott and an accom-pliee took Reeves and burst into Weems’ home, with Lott forcing Reeves into the house by holding a gun to his head. Once the other two accomplices came into the house from the outbuilding, the group took Weems’ collection of pistols, shotguns, rifles, a coin collection,, a camcorder and cell phones, and also Reeves’ money and his cell phone. Weems testified that the robbers threatened to cut his arms off and burn his house down if he did not cooperate with them, and they later set his bed on fire. Lott’s girlfriend at that time, Annie Williams, testified that Lott called her prior to the robbery and told her he was on his way to rob “some old white man.” Later, Lott came back and showed her some of the loot he had collected in the robbery, and she eventually told the police that Lott hid the guns and loot in the woods behind her apartment. Lott learned that the police were coming and fled the state, finally being arrested in Georgia. Lott later signed a detailed statement of confession.

DISCUSSION

I. DID THE TRIAL COURT ERR IN ADMITTING THE APPELLANT’S CONFESSION? ,

¶ 4. Lott argues that his confession was involuntary and the trial court erred in allowing it to be admitted.

When the voluntariness of a confession is put into question, the defendant has a due process right to a reliable determination that the confession was in fact voluntarily given. The State bears the burden of proving all facts prerequisite to admissibility beyond a reasonable doubt. This burden is met and a prima facie case made out by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. The defendant must offer testimony that violence, threats of violence, or offers of reward induced the confession to rebut the State’s prima facie case. If the defendant does this, then the State must offer all the officers who were present when the defendant was questioned and when the confession was signed, or show why they are not present.

Cox v. State, 586 So.2d 761, 763 (Miss.1991).

¶ 5. Lott claims that when the officers were interrogating Billy Lewis, one of his accomplices in the robbery, he saw and heard them threaten Lewis, knock him to the ground from his chair, and then lie to the court when asked if Lott’s claims of harassment were true. Lott claimed that he feared he would face the same harassment if he failed to cooperate with the officers, and that is why he signed the confession even though it was not true. However, the two interrogating officers present at the time Lott signed the confession both testified that they did not threaten or coerce Lott into confessing. Accordingly, the burden of proof is met, and we find the confession was properly admitted.

II. WAS COUNSEL INEFFECTIVE, WAS THE MOTION FOR DIRECTED VERDICT AND REQUEST FOR PEREMPTORY INSTRUCTIONS IMPROPERLY DENIED, AND WAS THE JUDGMENT NOTWITHSTANDING THE VERDICT IMPROPERLY DENIED?

¶ 6. In his brief, Lott’s attorney finds Lott’s basis for appeal to be without merit. He directs us to Turner v. State, 818 So.2d 1186 (Miss.2001), however, and asks on appeal that Lott, personally, be given opportunity to comment or raise additional points, which Lott does in a separate pro se supplemental brief.

¶ 7. In Lott’s brief under his “statement of issues,” he lists thirty-four separate issues, but fails to follow up this list of issues with any argument, except on a few points. The issues Lott does address are that the trial court erred in denying him the right to hire his own counsel resulting in appointed counsel who was ineffective, that the court erred in denying his requested peremptory instructions, and that the trial court erred in denying his motion for directed verdict and motion for judgment notwithstanding the verdict.

a. Ineffective counsel

¶ 8. With Lott’s allegation of ineffective counsel, we look to the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires that we determine whether counsel’s overall performance was deficient and whether or not the deficient performance, if any, prejudiced the defense. The burden of proof is on the defendant to prove both prongs, and the adequacy of counsel’s performance as to its deficiency and prejudicial effect should be measured by a totality of the circumstances. Ratliff v. State, 752 So.2d 416(¶ 6) (Miss.Ct.App.1999). However, there is a strong, yet rebuttable, presumption that the actions by the defense counsel were reasonable and strategic. Id. Lott claims that his counsel was deficient in failing to call any defense witnesses, in failing to move for a continuance to allow Lott to choose other counsel, in failing to introduce favorable evidence, in failing to present mitigating evidence during sentencing, and since he was innocent yet convicted, was deficient since the trial resulted in a conviction. In essence, Lott’s contention here seems to be that because things did not go his way, his counsel did not do an adequate job. A review of the record reveals no deficiency in the performance of his attorney, who zealously cross-examined the witnesses and competently defended Lott — the law and facts simply were not on Lott’s side. Therefore, we find that neither of the Strickland prongs are met, and this argument fails.

b. Direct verdict/peremptory instructions/judgment notwithstanding the verdict

¶ 9. Lott argues the denial of his motion for directed verdict and request for peremptory instructions was error, requiring reversal. He also claims that his motion for judgment notwithstanding the verdict was improperly denied as the evidence was insufficient to support the verdict. All three points concern the sufficiency of the evidence.

The standard of review for peremptory instructions and directed verdicts are the same. “In passing upon a request for a peremptory instruction, all evidence introduced by the State is to be accepted as true, together with any reasonable inferences that can be drawn from that evidence, and if sufficient evidence to support a verdict of guilty exists, the motion for a directed verdict is to be overruled.”

Conners v. State, 822 So.2d 290(¶ 5) (Miss.Ct.App.2001).

After a defendant makes a motion for a JNOV, the trial court must consider all of the evidence — not just the evidence which supports the State’s case — in the light most favorable to the State ... if the facts point in favor of the defendant to the extent that reasonable jurors could not have found the defendant guilty beyond a reasonable doubt, viewing all facts in the fight most favorable to the State, then it must sustain the assignment of error.

Sherrod v. State, 755 So.2d 569(¶ 8) (Miss.Ct.App.2000).

¶ 10. Two of the robbery victims testified and both identified Lott as one of the robbers; Deborah South who was in the house at the time of the robbery identified Lott as one of the robbers; Lott’s former girlfriend, Annie Williams, testified that Lott told her beforehand of his plans to commit the robbery and afterwards showed her some of the loot taken in the robbery; Officer Minor testified that he recovered the stolen items from the woods behind Lott’s girlfriend’s home; Officer McNeece testified concerning taking Lott’s confession; and, Lott’s written confession was entered into evidence. We find that the evidence in the case, taken in a fight favorable to the State, was sufficient to support the guilty verdict; thus, the judge did not err in denying the motion for directed verdict, in denying the requested peremptory instructions and in denying the motion for judgment notwithstanding the verdict.

¶11. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS; COUNT II, ARMED ROBBERY AND SENTENCE OF TEN YEARS TO RUN CONCURRENTLY TO COUNT I; COUNT III, ARMED ROBBERY AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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


text:
    Darrell RUSSELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00009-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.

      Alva Peyton Taylor, Yazoo City, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, Jr., attorney for appel-lee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. This case involved the July 1998 theft of chemicals from the Jimmy Sanders Seed Company in Belzoni. After a December 2001 trial, Darrell Russell was convicted in the Yazoo County Circuit Court of receiving stolen property, and he was sentenced to serve five years in the custody of the Mississippi Department of Corrections. His motion for judgment notwithstanding the verdict or new trial was denied, and he appeals to this Court arguing that the verdict was against the overwhelming weight of the evidence. We review this argument and find no merit; thus, we affirm.

FACTS

¶ 2. On Saturday, July 18, 1998, a trailer-load of insecticide and herbicide was brought to the Jimmy Sanders Seed Company in Belzoni. The truckload was parked over the weekend, awaiting transport to Cleveland a few days later. Store manager Danny Cordell arrived at the store the following Monday morning to find the trailer-load of chemicals missing, so he contacted the Yazoo County Sheriffs Department.

¶ 3. Soon thereafter, farmer William Frey contacted Bruce West at the seed company to ask whether certain chemicals would be appropriate to use on his crops. Frey had learned from Danny Dew that he could buy these chemicals extremely cheap from one of Dew’s friends-. These chemicals were the same type that were stolen, and West became suspicious and asked Frey to further question Dew as to the quantity of these chemicals and of the container sizes. After West learned that this description was identical to that of the stolen chemicals, Frey was enlisted by investigators to participate in a sting operation to make a controlled buy of the chemicals in efforts to catch the thief.

¶ 4. Frey was given a number of marked bills and sent to Dew’s residence to conduct the buy. When Frey arrived, Darrell Russell was standing outside of a car where, in exchange for $1180 which Frey gave him, he opened his trunk and revealed one fifteen-gallon drum of the insecticide and six cases of the herbicide, which he helped Frey load into Frey’s car. After the transaction, Frey returned to meet with an investigator, and they compared the numbers on the insecticide drum to find they matched the numbers supplied by the seed company. Mike Braswell, an investigator with the Mississippi Department of Agriculture, followed Russell after the transaction, and upon being notified that the numbers matched, stopped Russell and arrested him. Braswell found the marked bills and eight additional cases of the herbicide in Russell’s possession.

DISCUSSION

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 5. With his lone issue, Russell argues that the judge erred in denying his motion for new trial, since the verdict was against the overwhelming weight of the evidence.

A motion for a new trial will be granted when the weight of the evidence is so overwhelming that an unconscionable injustice would result if a new trial is not granted.... In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice....

Berry v. State, 754 So.2d 539(¶ 4) (Miss.Ct.App.1999). In his motion for judgment notwithstanding the verdict or in the alternative a new trial, Russell failed to list with specificity those points he claimed warranted the judge’s overruling the jury’s verdict. Rather, he simply asked the judge to set aside the verdict. During sentencing, his attorney did ask that the judge rule on the motion. The judge asked the basis for the motion to which the attorney replied that the verdict was against the overwhelming weight of the evidence, was not based on credible evidence, and was not the true verdict of a reasonable and impartial jury. The court succinctly denied the motion without further discussion.

¶ 6. Russell argues that the State failed to prove every element of the offense of receiving stolen property, which is defined in Miss Code Ann. § 97-17-70(1) (Rev.2000):

A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.

¶ 7. Russell specifically claims the State failed to prove that he knew the chemicals were stolen. Russell cites to the testimony of Frey, the farmer, and Cordell, the store manager, and attempts to show that their uncertainty concerning whether the chemicals were stolen proves that he, too, could not have known. He states that no testimony allowed the jury to conclude that he knew or reasonably should have known that the chemicals were stolen, and the circumstantial evidence against him was not sufficient to support a guilty verdict.

¶ 8. The State rebuts by citing to Van v. State, 477 So.2d 1350 (Miss.1985), which states:

Guilty knowledge is the gist of the offense of receiving stolen property.... The relevant inquiry in this case should be whether [the appellant] received property under circumstances that would lead a reasonable man to believe it to be stolen. Appellant’s own actions subsequent to receipt may have a bearing on whether he knew or should have known the property to be stolen.

Van, 477 So.2d at 1351 (citation omitted). In the present case, Russell attempted to sell the drum of chemicals out of his personal automobile, yet he argues that evidence of his possession of recently stolen property was insufficient to show guilty knowledge. See Whatley v. State, 490 So.2d 1220, 1223 (Miss.1986). In McClain v. State, 625 So.2d 774, 778-79 (Miss.1993), the supreme court held:

We remain mindful that in prosecutions for receiving stolen property, guilty knowledge is the gist of the offense and must be proved. This does not mean that the accused shall have personally witnessed the theft, but that he received the property under circumstances that would lead a reasonable man to believe it was stolen.... Evidence of the unexplained possession of recently stolen goods by one charged with unlawfully receiving them is admissible in a prosecution for the offense and is a strong circumstance to be considered with all the evidence in the case on the question of guilty knowledge.... Guilty knowledge may be proved by direct evidence, or, since it is rarely the subject of direct and positive proof, by any surrounding facts or circumstances from which knowledge may be inferred.

(citations omitted) (emphasis added).

¶ 9. In the present case, Russell attempted to sell the restricted chemicals from the trunk of his car and he attempted to sell them for a price well below market value to get rid of them quickly. Russell chose not to testify, which is his constitutional right.

While it is the right and privilege of a defendant to refrain from taking the witness stand, and no presumption is to be indulged against him for exercising that right, still the testimony of the witnesses against him may be given full effect by the jury, and the jury is likely to do so where it is undisputed and the defendant has refused to explain or deny the accusations against him.

McGilvery v. State, 497 So.2d 67, 68 (Miss.1986).

¶ 10. Looking to the definition of the crime of receiving stolen property, the State had the burden of proving that Russell intentionally possessed, received, retained or disposed of stolen property knowing that it had been stolen or having had reasonable grounds to believe it had been stolen. Taking the evidence in a light favorable to the verdict, we find the jurors reasonably inferred that Russell’s having the stolen property in his personal automobile, his selling it far below market price, and the secretive way in which he secured a buyer cumulatively provided the jurors reason to find Russell had guilty knowledge sufficient to support guilt. Further, since Russell provided no explanation of his possession of the recently stolen goods, as previously noted from McClain, the circumstances would lead a reasonable man to believe the property was stolen. We find the judge did not err in denying his motion.

¶ 11. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT OF CONVICTION OF RECEIVING STOLEN PROPERTY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO YAZOO COUNTY.

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


author: McMILLIN, C.J.,

text:
    Jerry VINCE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01376-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.

      Glenn Louis White, Petal, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris, attorney for appellee.

      Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Jerry Vince was convicted of receiving stolen property by a Walthall County Circuit Court jury and was sentenced to the maximum allowable term of five years. Based on a finding that Vince had two prior felony convictions, the trial court ordered that the sentence be served without eligibility for probation or parole. Vince has appealed his conviction and sentence to this Court and asserts the following errors: (a) the trial court erred in determining that Vince’s prior conviction for interstate transportation of a stolen vehicle was admissible for consideration by the jury as a part of the prosecution’s case; (b) the court erred in refusing his requested circumstantial evidence instruction; (c) Vince received ineffective assistance of counsel based on defense counsel’s failure to raise a hearsay objection to certain testimony; (d) the evidence establishing his guilt was insufficient as a matter of law to support the conviction, or, alternatively the guilty verdict was against the weight of the evidence; and (e) his sentence as a habitual offender was in error because of the prosecution’s failure to properly prove the existence of the required prior convictions. We conclude that Vince’s conviction ought to be affirmed but that the judgment of sentence must be vacated and this cause remanded for resentencing in accordance with the terms of this opinion.

I.

Facts

¶ 2. A law enforcement officer investigating the suspected theft of a skidder and trailer owned by Harold'Puderer was able to locate the missing items hidden in a clearing on wooded property belonging to the appellant, Jerry Vince. The property was removed by Puderer with permission of the investigating officer but without Vince’s knowledge. This resulted in Vince reporting the equipment as being stolen from him. In the course of the investigation, Vince claimed to have purchased the equipment from an individual named Mark Miller, who had appeared at his residence unannounced and offered the equipment for sale for $1,000. Vince produced a bill of sale that, on its face, appeared to have been executed by Miller before a notary public in Louisiana. However, at trial, the investigating officer testified that the Louisiana official told him that Vince had appeared alone at his office to obtain the notary’s acknowledgment of execution of the document. Law enforcement officers were unable to locate an individual named Mark Miller, and Vince told them that he had never seen the man until he appeared at his door offering to sell the equipment. A witness at trial testified that Vince had discussed the equipment with him and, rather than claiming ownership through purchase, had told him that the equipment was borrowed.

¶ 3. The defense did not call any witnesses.

II.

Admissibility of Prior Conviction

¶ 4. The facts of this case illustrate the confusion that sometimes arises regarding the purposes for which, and the circumstances under which, a defendant’s prior convictions may be introduced into evidence for consideration by the jury. At the close of the prosecution’s case, the State sought a ruling that evidence of Vince’s prior conviction for interstate transportation of a stolen vehicle was admissible. In the context of the prosecution’s remarks and the timing of the motion, it is evident that the State sought the court’s ruling as a warning shot across the defendant’s bow in anticipation that Vince might be considering taking the stand in his own defense. The State’s attorney specifically invoked Mississippi Rule of Evidence 609 in seeking a ruling from the court. Rule 609 deals strictly with the use of prior criminal convictions used “[f]or the purpose of attacking the credibility of a witness.... ” M.R.E. 609(a).

¶ 5. Nevertheless, the State’s argument in favor of admissibility centered entirely on the proposition that the prior conviction met one of the stated exceptions to Mississippi Rule of Evidence 404. Rule 404 deals with the entirely different proposition that proof of prior criminal activity, though generally not admissible if offered to persuade the jury that the defendant has a propensity for such behavior, may be admissible in certain specific situations as tending to make the fact of defendant’s guilt more likely. M.R.E. 404(b). Though not an exhaustive list, the rule suggests several circumstances where evidence of previous criminal involvement may be admitted as bearing directly on the issue of guilt. The list includes matters such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b).

¶ 6. One of the principal differences between prior conviction evidence admitted under Rule 404(b) and Rule 609 is that evidence of prior criminal activity admitted for one of the purposes allowed under Rule 404(b) is admissible as a part of the prosecution’s case in chief without regard to whether the defendant may, or may not, take the stand in his own defense; On the other hand, it is self-evident that, if the defendant elects not to testify, then there is no basis to impeach him as a witness and Rule 609 cannot be the vehicle to get a prior conviction before the jury.

¶ 7. In the case now before us, the prosecuting attorney initially framed his motion as being brought under Rule 609 but the thrust of his argument was that the prior conviction was admissible under Rule 404(b), specifically to negate a claim of accident or mistake. The trial court, in ruling on the admissibility of the prior conviction, also based its ruling on Rule 404(b) considerations and not Rule 609.

¶ 8. Now, on appeal, Vince claims that the court’s determination was incorrect under Rule 609 and that the prior conviction was not admissible for purposes of impeachment. He claims that he elected not to testify based on the chilling effect of the court’s erroneous ruling and that this had the effect of denying him a fundamentally fair trial. However, as' the foregoing discussion has shown, the admissibility of this previous conviction hinged, not on whether Vince elected to testify in his own defense, but on whether the defense presented evidence from any source that tended to advance a claim that his possession of the stolen property was somehow accidental or mistaken on his part. Once such a claim became a legitimate issue in the trial, according to the trial court’s ruling, the prior conviction would be admissible.

¶ 9. Certainly, the defendant taking the stand and advancing a version of events that tended to make his possession appear accidental or based on some mistake would be one way to invoke a claim of accident or mistake within the meaning of Rule 404(b), but it is just as certainly not the only way. Facts setting up such a claim could also be provided by defense witnesses other than the defendant. This would lay the predicate for admissibility of the prior conviction under the theory of the court’s ruling just as effectively as testimony to that effect from Vince. By the same token, Vince could have testified in his own defense and not said anything that would legitimately raise the issue of accident or mistake and the prior conviction would remain inadmissible under Rule 404(b) because of the absence of a proper predicate, i.e., putting a claim of accident or mistake at issue. In that second scenario, where the defendant testifies, the question of whether the conviction would be admissible purely for impeachment purposes under Rule 609 would have been an entirely different matter.

¶ 10. On the record now before us, the admissibility of the conviction purely for impeachment purposes under Rule 609 has never been properly considered and ruled upon by the trial court. Our duty is to rule on claimed errors committed at the trial level and we normally do not consider matters not first presented to the trial court for a ruling. Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988). In the case now before us, the trial court ruled the conviction admissible for Rule 404(b) purposes. Vince contends in this appeal that the conviction was not admissible for impeachment purposes under Rule 609, which, despite some loose language in the record, has not been ruled on by the trial court. Nothing in the issues raised or argued in this appeal significantly challenge the trial court’s ruling as to Rule 404(b) admissibility, and, in all events, a ruling based on Rule 404, even if erroneous, does nothing to improperly interfere with a defendant’s right to testify in his own defense. The issue is without merit.

Ill

Ineffective Assistance of Counsel

¶ 11. The investigating officer was permitted to testify without objection that he discussed the circumstances under which the sworn acknowledgment of the bill of sale had been obtained with the Louisiana notary public and that the official had confirmed that Vince alone had appeared and requested the official’s certification. Vince now asserts that this evidence was plainly objectionable hearsay and was extremely damaging to the defense. He says that defense counsel’s failure to interpose a timely hearsay objection to the damaging testimony is enough to demonstrate that he was denied his constitutionally-guaranteed right to effective assistance of counsel in defending the charges against him.

¶ 12. Claims of ineffective assistance of counsel, in order to prevail, must meet a two-prong test. First, it must be shown that counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Secondly, it must be shown that, but for counsel’s deficient performance, there was a substantial likelihood of a different outcome in the case. Id. We would agree that the statement offered by the investigating officer concerning what he learned in a conversation with the Louisiana notary public was hearsay that, upon a timely objection, ought to have been excluded from the evidence. We also are satisfied that the evidence was damaging to the defense.

¶ 13. However, there was a substantial amount of admissible evidence that tended to cast doubt on the legitimacy of the bill of sale, including the fact that the mysterious seller named in the instrument could not be located and the inherent implausibility of Vince’s version of events as related by him to the investigating officer. When combined with the fact that the defense did not offer any evidence tending to establish a legitimate transaction of sale between Vince and this shadowy figure, we conclude that there was a substantial body of evidence from which the jury could reasonably conclude that the bill of sale was not genuine, even without evidence regarding the Louisiana notary public’s purported knowledge about the circumstances of its execution. That fact, combined with other evidence in the record tending to establish Vince’s guilty knowledge concerning his possession of the equipment, appears to have made the overall evidence of Vince’s guilt overwhelming with or without the hearsay statements allegedly made by the Louisiana notary public. In that circumstance, even were we to conclude that defense counsel’s failure to interpose a hearsay objection in this one instance, of itself, rose to the level of incompetent performance that would invoke Strickland, we do not conclude that there was a reasonable probability that the exclusion of this evidence would have resulted in an acquittal. For that reason, the claim of ineffective assistance fails to meet the second part of the two-prong test of Strickland and, for that reason, cannot succeed.

IV.

Circumstantial Evidence Instruction

¶ 14. Vince claims that the case against him is based entirely on circumstantial evidence and that the trial court erred in refusing his requested “two interpretation” instruction. Instructions of this nature are required only when all of the evidence tending to establish guilt is circumstantial. Sullivan v. State, 749 So.2d 983, 992 (¶ 20) (Miss.1999). The Mississippi Supreme Court has said, in a drug possession case, that eyewitness evidence placing illicit drugs in the defendant’s apartment was direct evidence of constructive possession which negated the requirement of a circumstantial evidence instruction. Keys v. State, 478 So.2d 266, 268 (Miss.1985). In the case before us, there was eyewitness testimony that Vince was in actual possession of the stolen equipment. Possession, as in Keys, is one of the essential elements of the crime, the only remaining question in Vince’s case being his understanding of the nature of his possession. The State was, beyond question, unable to present any direct evidence that Vince knew that the equipment had been stolen; however, there was testimony that Vince had told conflicting stories regarding how he came into possession of the property and had offered what the jury could reasonably have concluded was a forged bill of sale as proof of ownership. That was, in our view, sufficient to support the jury’s determination that Vince knew or reasonably should have known that the equipment was stolen. The Mississippi Supreme Court observed in Keys that “[pjroof of felonious intent will always be by circumstantial evidence except where the accused has confessed.” Id. However, intent or guilty knowledge is only one element of the crime. We conclude that the direct evidence of possession was enough, under established case law, to remove the necessity for a circumstantial evidence instruction or the related “two interpretation” instruction.

V.

Proof of Prior Convictions for Enhanced Punishment

¶ 15. The trial court permitted an amendment to the indictment to assert that Vince was a habitual criminal subject to enhanced punishment under the provisions of Section 99-19-81 of the Mississippi Code. There is no written motion in the record requesting such an amendment though there are statements in the record by the prosecuting attorney that “the State has put him [Vince] on notice that it intends on proceeding as an habitual.... ” None of the dialogue on the record regarding the State’s intentions sets out with any clarity the relevant facts necessary to identify the prior convictions relied upon by the prosecution until after the sentencing hearing had begun.

¶ 16. The order allowing the amendment, quoted in its entirety, states as follows:

This cause having come to be heard on motion of the State of Mississippi to amend the above referenced indictment to reflect the habitual status of the defendant pursuant to Mississippi Code Section 99-19-81 and the court having heard the evidence finds the motion well taken as the defendant was convicted of two prior felonies. Therefore, it is
Ordered that the above referenced indictment is amended to reflect the habitual status of the defendant pursuant to M.C.A. Section 99-19-81, as amended, the court having heard the .evidence finds the motion well taken as the defendant was convicted of two prior felonies.

¶ 17. While Vince’s complaint raised in his brief deals with the sufficiency of the evidence presented to establish his two prior convictions, we are constrained to note as plain error the evident deficiency in the form of the amended indictment insofar as it purported to charge Vince as a habitual offender. Uniform Circuit and County Court Rule 11.03 requires that, in eases such as this:

[t]he indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.

URCCC 11.03.1.

¶ 18. In Ard v. State, the Mississippi Supreme Court considered an indictment that purported to charge the defendant as a habitual offender. Ard v. State, 403 So.2d 875, 876 (Miss.1981). Apparently, the necessary information as to one indictment was included in the amendment; however, the court found the indictment to be defective on its face in its attempt to charge the necessary second prior conviction. As to that conviction, the indictment read: “[A]nd the said Billy Ard was convicted in the State of Mississippi, of another felony, same being Cause No. 218.” Id. The court said that “[i]t is readily seen that the indictment does not meet the requirements of the statute ...” and, thus, rendered invalid any attempt to sentence Ard as a habitual offender. Id.

¶ 19. In Lay v. State, the supreme court dealt with an indictment that purported to charge a single prior drug-related conviction to enhance the degree of punishment in a heroin sale case. Lay v. State, 310 So.2d 908, 909 (Miss.1975). As to the prior conviction, the indictment charged as follows:

[that John Lay, Jr.] did willfully, knowingly, unlawfully and feloniously sell, barter and transfer a controlled substance without authority of law, to-wit: Heroin, and that said John Lay, Jr. has previously been convicted in New Orleans, Louisiana on May 20, 1969 and July 15, 1969 for violation of the Uniform Controlled Substance Act of 1972, as amended....

Id. The court found this language fatally defective as not supplying the necessary “particularity” to properly charge prior convictions. Id. at 910. Equally as important to the case now before us, the supreme court specifically held that “[t]hese defects in the indictment were not waived even though Lay failed to demur to the indictment before trial.” Id.

¶20. Because the defect in the indictment in this case was so fundamental and because of the importance to the criminal process of a properly drawn indictment that fully acquaints the defendant with the nature of the accusations brought against him, we note the matter as plain error and conclude that it requires us to reverse Vince’s sentence insofar as he was sentenced as a habitual offender. See Usry v. State, 378 So.2d 635, 639 (Miss.1979) (discussion).

¶ 21. We cannot leave this aspect' of the case, however, without further observing the long-standing admonition of the supreme court warning against the “tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender. ...” Seely v. State, 451 So.2d 213, 215 (Miss.1984). Rather than approving such an off-hand treatment of the issue, the supreme court said:

We wish to leave no doubt that the requirement of a bifurcated trial means a full two-phase trial prior to any finding that a defendant is an habitual offender and subject to enhanced punishment. Further, a complete record of the second part of the trial must be made.

Id. In the case now before us, the entire extent of the proof as to Vince’s prior convictions consisted of the following statement by the prosecuting attorney:

Your Honor, prior to sentencing, Your Honor, the State of Mississippi has filed a motion to amend the indictment reflecting the habitual status of Mr. Jerry Vince.
In support of that motion we tender to the Court the NCIC report, demonstrating several prior convictions. But for the purpose of this motion, I will highlight 1976, Mr. Vince was sentenced to Angola Penitentiary in the State of Louisiana, for a term of eighteen months; and in 1990, he was sentenced in the Federal District Court of Cincinnati, Ohio, for the charge of Interstate Transportation of a Stolen Motor Vehicle, and was sentenced to twenty-seven months. For the purpose of this motion, Your Honor, we tender this.

¶ 22. Without reaching the unresolved issue of whether an unauthenticated computer printout purporting to be an NCIC compilation of a defendant’s criminal history is sufficient evidence to establish prior convictions beyond a reasonable doubt, we observe that, in this case, the report is not a part of the record. The NCIC printout does not appear as one of the exhibits, nor is it listed as an exhibit in the official transcript prepared by the court reporter. The State has the burden of proof as to all the essential elements of the crime. Washington v. State, 645 So.2d 915, 918 (Miss.1994). Even without consideration of the defects on the face of the indictment, we are forced to conclude that the State failed as a matter of law to carry its burden of proof to show Vince’s requisite prior convictions beyond a reasonable doubt. Thus, we conclude this to be a second and' equally compelling reason to vacate Vince’s sentence insofar as it purported to sentence him as a habitual offender under Section 99-19-81 of the Mississippi Code.

¶ 23. We note that during the course of the sentencing hearing the prosecuting attorney offered the observation that the State relied on the NCIC printout “pursuant to [Ficklin] v. State, a 2000 Court of Appeals case, stating that computer printouts of the NCIC report were admissible and legally sufficient to amend the indictment.”

¶ 24. This statement is incorrect. This Court’s decision in Ficklin v. State, 758 So.2d 457 (Miss.Ct.App.2000) did not involve the question of the admissibility or the evidentiary worth of raw NCIC printouts. Rather, that case dealt with computer-generated records of the Mississippi Department of Corrections regarding Ficklin’s prior history of incarceration in this State, which records were found to be exceptions to the hearsay exclusionary rule as being data compilations of records maintained in the ordinary course of a public agency’s business. Ficklin, 758 So.2d at 462. The records were further found to be self-authenticating because they were certified in writing as being correct under the signature of the custodian of those records. Id. These records are markedly different from NCIC records, which purport to be a compilation of information gathered from various jurisdictions throughout the country, the accuracy of which cannot necessarily be certified by the NCIC compiler. By way of example, though the NCIC custodian may properly certify that the NCIC report is an accurate transcription of criminal records supplied by the State of Idaho, that custodian is not in a position to assess the accuracy of the underlying information provided by the records custodian. See Harveston v. State, 798 So.2d 638, 640-41 (¶¶ 5-11) (Miss.Ct.App.2000).

¶ 25. Because we have already decided that the enhanced punishment meted out to Vince on this record cannot be upheld, we find no purpose in delving further into the issue of the utility of NCIC records as evidence. Rather, we end this portion of the opinion by offering this simple admonition from the Mississippi Supreme Court in McIlwain v. State:

We have regularly upheld sentences under the habitual criminal statutes where the proof of prior convictions was made by certified copies of the judgments of conviction. This accords with the basic principle that the best evidence of a conviction is the judgment of conviction.

McIlwain v. State, 700 So.2d 586, 589 (¶ 13) (Miss.1997) (emphasis supplied) (citations omitted). A prosecuting attorney, intent on proving prior convictions, would do well to heed this simple and straightforward advice from the Mississippi Supreme Court rather than needlessly testing the limits of the rules of evidence by attempting to make do with increasingly remote and less reliable methods of proof.

¶ 26. Our decision to reverse and render on the propriety of sentencing Vince as a habitual offender renders moot another aspect of Vince’s claim that he received ineffective assistance of counsel. Vince argued in his brief that his attorney’s failure to oppose the introduction of the NCIC report on hearsay grounds rendered counsel’s performance ineffective when measured against the level of competency guaranteed him by the Sixth Amendment. Having decided the question of sentencing as a habitual offender in Vince’s favor on other grounds, we need not consider that claim on the merits.

VI.

Weight and Sufficiency of the Evidence

¶ 27. Vince argues that the evidence was insufficient as a matter of law to support a guilty verdict. Alternatively, he urges that the verdict was against the weight of the evidence, entitling him to a new trial. His argument is based on what he perceives to be the unsatisfactory nature of the State’s proof of guilty knowledge on his part. In claims of this nature, this Court must review all of the evidence and view it in the light most favorable to upholding the verdict. McFee v. State, 511 So.2d 130, 133 (Miss.1987). We are further required to conclude that the jury drew all reasonable inferences from the evidence in a manner consistent with a finding of guilt. Id.

¶ 28. We have, in another part of this opinion discussing the necessity for a circumstantial evidence instruction, dealt with the evidence that we found was sufficient to support an inference of guilty knowledge on Vince’s part. The conclusion we reached on that issue answers equally as well on this question and demonstrates the lack of merit in Vince’s claim that the evidence was insufficient to convict.

¶ 29. As to the claim that the verdict was against the weight of the evidence, we observe that the defense presented no evidence to counterbalance the State’s proof that we have found sufficient to support a reasonable inference of guilty knowledge on Vince’s part. A new trial may be ordered on this ground only to avoid a substantial miscarriage of justice. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). There was ample evidence that, if found credible by the jury, would establish Vince’s guilt and there was essentially no affirmative evidence tending to show that his possession of the equipment was derived and maintained innocently. The jury determines what weight and worth to give to the evidence. Meshell v. State, 506 So.2d 989, 991 (Miss.1987). By its verdict, it plainly indicated that it found the State’s proof trustworthy and we can discover no basis to conclude that the jurors somehow deviated from their duty in so finding. Vince has failed to demonstrate that he is entitled to a new trial in order to avoid a manifest injustice.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY OF CONVICTION OF RECEIVING STOLEN PROPERTY IS AFFIRMED. THE JUDGMENT CONCLUDING THAT THE DEFENDANT IS SUBJECT TO ENHANCED PUNISHMENT UNDER SECTION 99-19-81 OF THE MISSISSIPPI CODE AS A HABITUAL OFFENDER IS REVERSED AND RENDERED AND THIS CAUSE IS REMANDED FOR THE SOLE PURPOSE OF RESENTENCING THE APPELLANT. COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

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


text:
    Antonio SHEFFIELD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00283-COA.
    Court of Appeals of Mississippi.
    April 29, 2003.

      Rodney D. Robinson, Deceased, Felicia Dunn Burkes, Gulfport, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Antonio Sheffield was found guilty of simple assault on a law enforcement officer by a Harrison County Circuit Court jury. The offense occurred during a time that Sheffield was incarcerated and arose out of a confrontation between Sheffield and a prison guard. Sheffield has appealed his conviction asserting two specific grounds for reversal: (a) first, he claims that the court erred in an evidentiary ruling that excluded evidence of the guard’s aggressive behavior toward other inmates; and (b) that the court erred when it refused to give a self-defense jury instruction requested by the defense. Additionally, Sheffield argues that, even if the two assigned errors are not of sufficient gravity to require reversal when considered in isolation, the cumulative effect of the erroneous rulings was enough to deny him a fundamentally fair trial as assured him by the Sixth Amendment to the Constitution of the United States. Finding no basis requiring relief, we affirm the judgment of the circuit court.

I.

Facts

¶2. The facts of the case are not in substantial dispute. A physical confrontation between Sheffield and a Harrison County Adult Detention Center officer named Lieutenant Robert Weatherford occurred after Sheffield refused Weather-ford’s order that he remove and surrender a sweatshirt which Weatherford contended was not authorized dress for Sheffield as an inmate in the institution. Weatherford testified that he approached Sheffield after Sheffield repeatedly refused a direct command to surrender the shirt and that, as he approached the prisoner to forcibly remove the shirt, Sheffield without provocation knocked him to the floor with a blow from his fist and continued to hit him several more times after the guard went down. Weatherford received a cut lip and a chipped tooth as a result of the blows.

¶ 3. Sheffield admitted striking Officer Weatherford, but claimed that he only did so in self-defense when he saw Weather-ford preparing to spray him with an incapacitating chemical spray used by guards to control inmate behavior. Sheffield did not dispute the fact that Weatherford had ordered him to surrender the sweatshirt, but justified his refusal to do so by saying that he had not been properly informed that the shirt violated prison rules and that other prison officials had seen him wearing the shirt earlier during the day and had not said anything about it.

II.

Character Evidence Relating to the Victim

¶4. Sheffield claims that he was improperly restricted in presenting his claimed defense that he struck Weather-ford for the sole purpose of defending himself from what he reasonably feared to be an imminent attack likely to produce death or serious bodily injury. His contention on appeal is that he was prevented from presenting evidence to demonstrate to the jury that Weatherford was overly aggressive in his treatment of prisoners, thereby making Sheffield’s claimed fear of imminent harm more reasonable. Under this general umbrella, Sheffield complains of three different evidentiary rulings by the court. We will consider them in the order raised in the brief.

A.

Improper Limitation on the Defendant’s Testimony

¶ 5. Sheffield testified in his own defense and claimed that he had

heard other things about [Weatherford] as far as misconduct with other inmates and stuff. I can name them if it takes it, you know. I can call officers’ name, you know, that have told me stuff and how they feel negative about him, you know, for certain reasons. I can go into that if it need be.

¶ 6. Defense counsel invited Sheffield to proceed with particulars but the State interposed an objection which the court sustained. The defense made no proffer as to what the particulars of Sheffield’s testimony might have been had he been allowed to continue. In a self-defense case, the reputation of the victim may be relevant when there is a claim that the victim was the initial aggressor. M.R.E. 404(a)(2); see McCullough v. State, 750 So.2d 1212, 1220-21 (¶ 36) (Miss.1999). In a somewhat related situation, when the defendant claims to have acted preemptively to protect himself from a feared but yet-unrealized attack, the defendant’s knowledge concerning the victim’s character for aggressive behavior may be relevant to permit the jury to assess the reasonableness of the defendant’s response to what might otherwise appear as an overreaction against the victim. Stoop v. State, 531 So.2d 1215, 1219-20 (Miss.1988). In the latter circumstance, it is essential that the proper predicate be laid for the admissibility of evidence of the victim’s propensity for violence, ie., that the defendant was actually aware of the victim’s character so that this prior knowledge colored the defendant’s decision regarding the necessity of violent physical effort to avoid an anticipated attack. This is so because of the obvious proposition that, if the defendant was not actually aware of the victim’s reputation for violent behavior, there was no reasoned basis to utilize force that, in the ordinary circumstance, would appear excessive and unjustified.

¶ 7. There is nothing in the testimony of Sheffield indicating that he had any basis to reasonably believe that Weather-ford was bearing down on him with the intention of inflicting serious bodily injury. There is a marked difference between testimony that Sheffield felt Weatherford was singling him out for harassment and testimony that Sheffield actually feared for his physical safety at the hands of Weather-ford. His testimony about what he had heard from others was characterized only as “misconduct,” which certainly does not necessarily invoke notions of physical assaults designed to inflict serious injury. Had Sheffield proceeded with a proffer giving greater details as to what exactly he understood about Weatherford’s propensity for violent behavior against inmates, we would be in a better position to assess the harm to the defense that was occasioned by the trial court’s decision to cut off that line of Sheffield’s testimony. Without such a proffer, we are unable to determine whether evidence relevant to the question, not of Weatherford’s general reputation as an unusually tough guard, but of his propensity for unprovoked physical assaults on inmates, was available to aid the jury in its deliberation on the question of self-defense. Mississippi Rule of Evidence 103(a) states that “[e]rror may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected....” M.R.E. 103(a). We cannot reach such a conclusion on the record now before us.

B.

Testimony of Defense Witness James Brown

¶ 8. One of Sheffield’s fellow inmates was allowed to testify, over the State’s objection, concerning his knowledge of “Lieutenant Weatherford’s reputation in the jail.” The extent of his testimony even closely related to Weatherford’s alleged propensity for violence was the statement that “[Weatherford] was just messing with a lot of folks in there, you know.” From there, Brown attempted to launch into testimony about Weatherford’s alleged sexual improprieties with a female inmate. The State promptly objected once again. This time the trial court properly sustained the objection. The defense abandoned that line of inquiry and returned to Brown’s knowledge of the circumstances of the incident itself. Now, on appeal, Sheffield claims that he was improperly restricted in presenting testimony from this witness relating to the issue of self-defense. The facts do not bear out such an assertion. Certainly, an allegation of sexual misconduct does nothing to show a propensity for unprovoked violence on the part of Weatherford. There was no effort to obtain further testimony from Brown relating to the specific issue of Weatherford’s tendency toward violence that was thwarted by a ruling of the trial court. Neither did the defense make a proffer of what additional testimony it hoped to obtain from this witness. On this record, there is no basis to conclude that Brown was possessed of admissible information concerning the limited field of Weatherford’s reputation for violence that the trial court wrongly prevented the jury from considering.

C.

Proffered Testimony of Earl Walls

¶ 9. Sheffield sought to call Earl Walls as a defense witness. In this instance, the court required a proffer of the anticipated testimony before allowing Walls to testify. In the proffer outside the jury’s presence, defense counsel indicated that Walls would testify as to a previous incident where Weatherford allegedly choked an inmate while the inmate was physically restrained with handcuffs. The trial court refused to permit the testimony when the defense conceded that there was no indication that Sheffield had any previous knowledge of that particular incident. Now, Sheffield claims that ruling was erroneous.

¶ 10. The record in this case makes clear that Sheffield’s defense is not based on a claim that Weatherford was, in fact, the initial aggressor in their physical confrontation and that the ensuing blows he administered to Weatherford were in an attempt to defend himself from an ongoing assault. Instead, Sheffield’s defense is premised on the notion that his decision to inflict multiple blows to the face and head of Weatherford was based on a reasonable fear that an unprovoked and unwarranted violent physical assault by Weatherford, though not yet commenced, was imminent. In that situation, it is not just the victim’s purported character for violent behavior that is important. It is also the fact that the defendant is actually aware of that reputation and that knowledge then drives the actions of the defendant that, without an understanding of his awareness of the victim’s violent propensities, might appear unwarranted or disproportionate. See Freeman v. State, 204 So.2d 842, 844 (Miss.1967). Absent a showing that Sheffield was actually aware of the prior alleged choking incident, there could be no basis to claim that Sheffield, in fear of some similar unwarranted attack, elected to act preemptively to avoid injury to himself. Thus, there was no error in excluding the testimony of this witness.

III.

Jury Instructions

¶ 11. Sheffield argues that the trial court committed reversible error when it declined to give his requested jury instruction on self-defense. The instruction read as follows:

The court instructs the jury that if you believe from the evidence the defendant Antonio Sheffield, had a reasonable ground to believe that he was in immediate, imminent and impending danger of great bodily harm at the hands of Robert Dean Weatherford, Jr., at the time of this incident, accompanied by an overt act by Weatherford, then Antonio Sheffield had a right to use force to protect himself.

¶ 12. In determining whether error lies in the manner in which the jury was instructed, the various requested instructions are not considered in isolation. Rather, the instructions actually given must be read as a whole. Turner v. State, 721 So.2d 642, 648 (¶ 21) (Miss.1998). When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Coleman v. State, 697 So.2d 777, 782 (Miss.1997). Two instructions were given by the trial court that more than adequately presented Sheffield’s theory of defense. The first instruction given read as follows:

The Court instructs the Jury that to make an assault justifiable on the grounds of self-defense, the danger to the Defendant must be either actual, present and urgent, or the Defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the Defendant acts.

¶ 13. In addition, a second instruction relating to self-defense contained the following language:

The Court instructs the jury that insulting words do not constitute an assault, and if the jury believes from the evidence beyond a reasonable doubt that Weatherford was the aggressor and struck the defendant the first blow or attempted to strike the defendant first, and afterwards the defendant defended himself with no more force than was necessary to ward off the attack as he had a legal right to do, then the duty of the jury is to find the defendant not guilty.

¶ 14. The jury was thus instructed as to the two related but not identical theories of self-defense, to wit; (a) that Weatherford was, in fact, the initial aggressor, or (b) that Sheffield had reasonable cause to believe that a violent physical assault from Weatherford was imminent. The refused instruction was nothing more than an alternate method of stating the self-defense theory set out in the first of the instructions given that are quoted above. The court is not required, simply because the defense requests it, to give multiple instructions relating to the same concept of law. Laney v. State, 486 So.2d 1242, 1246 (Miss.1986).

IV.

Cumulative Effect of Error

¶ 15. Sheffield claims that the cumulative effect of the individual errors assigned on appeal deprived him of a fundamentally fair trial. The Mississippi Supreme Court has held “individual errors, not reversible in themselves, may combine with other errors to make up reversible error.” Wilburn v. State, 608 So.2d 702, 705 (Miss.1992).

¶ 16. When such a claim is made, this Court must decide “whether the cumulative effect of all errors committed during the trial deprived the defendant of a fundamentally fair and impartial trial.” Id. However, a necessary predicate to an inquiry of that nature is a determination that multiple errors in the conduct of the trial, in fact, occurred. Once the Court has determined that the asserted individual errors are without merit, then the defendant’s claim of cumulative effect must be seen as without merit by simple logic. That is the situation now before the Court.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF SIMPLE ASSAULT ON A PEACE OFFICER AND SENTENCE OF FIVE YEARS WITHOUT THE BENEFIT OF PAROLE OR PROBATION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. HIS SENTENCE SHALL RUN CONSECUTIVELY WITH HIS FEDERAL SENTENCE CASE NUMBER 1:00CR53BRR-001. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: JOHNSTONE, Justice. SEE, Justice

text:
    Ex parte Donald Keith BURNSED. (Re Donald Keith Burnsed v. City of Evergreen).
    1990792.
    Supreme Court of Alabama.
    March 2, 2001.
    Paul M. Harden, Sr., of Harden & Harden, Monroeville, for petitioner.
    Frederick H. Stevens, city atty., Evergreen, for respondent.
   JOHNSTONE, Justice.

After a bench trial in the Municipal Court of the City of Evergreen, Donald Keith Burnsed, represented by counsel, was convicted of the misdemeanor offense of driving under the influence of alcohol (DUI). The proceedings were recorded by a court reporter. A transcript of the bench trial is in the record on appeal. On June 15, 1999, the municipal judge ordered Burnsed to pay a $600 fine and $172.50 in court costs. Burnsed moved for a new trial, which the municipal judge denied on August 19, 1999. On September 14, 1999, Burnsed appealed to the Court of Criminal Appeals pursuant to Rule 30.3(c), Ala. R.Crim. P. Sua sponte, the Court of Criminal Appeals dismissed the appeal without an opinion on November 29, 1999. Burnsed v. City of Evergreen, 796 So.2d 462 (Ala.Crim.App.1999) (table). The Court of Criminal Appeals dismissed the appeal on the ground, not raised by the City, that Burnsed had failed to satisfy the requirements of Rule 30.2, Ala. R.Crim. P.:

“An appeal from the district or municipal court shall go directly to the appropriate appellate court:
“(1) If an adequate record or stipulation of fact is available and the right to a jury trial is' waived by all parties entitled to trial by jury, or
“(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question.”

(Emphasis added.) See also § 12-12-72, Ala.Code 1975. In its order dismissing Burnsed’s appeal, the Court of Criminal Appeals specifically stated that Burnsed had failed “to show that the transcript in question was prepared by a person duly appointed by the trial court to serve as an official court reporter.” Citing Ex parte French, 547 So.2d 547 (Ala.1989), the Court of Criminal Appeals stated further, “[ajbsent such an appointment the transcript in question is nothing more than an unofficial record and will not serve as an adequate record for purposes of Rule 30.2(1) of the Alabama Rules of Criminal Procedure unless the City of Evergreen approves of its usage.”

In an application for rehearing, Burnsed asserted that, after the Court of Criminal Appeals dismissed his appeal, it should have then transferred his case to the circuit court for a trial de novo. Overruling Burnsed’s application for rehearing and denying his Rule 39(k), Ala. R.App. P., motion, the Court of Criminal Appeals stated that it could not transfer the case to the circuit court because the circuit court did not have jurisdiction to hear the case because Burnsed did not file his notice of appeal within 14 days of the denial of his motion for a new trial, as required by Rule 30.1(a), Ala. R.Crim. P. The Court of Criminal Appeals noted that, although Burnsed invoked the jurisdiction of the Court of Criminal Appeals by filing his notice of appeal to the Court of Criminal Appeals 25 days after his posttrial motion was denied (within the 42-day jurisdictional time limit for appealing from municipal court to the Court of Criminal Appeals under Rule 30.3(c)), he failed to invoke the jurisdiction of the circuit court because he filed his notice outside the 14-day jurisdictional time limit for appealing from municipal court to circuit court. The order of the Court of Criminal Appeals invites this Court to amend the jurisdictional time limit in Rule 30.3(c) from 42 days to 14 days so that, when the Court of Criminal Appeals dismisses an appeal from the municipal or district court, it will then have the authority to transfer the case to the circuit court for a trial de novo.

Burnsed has petitioned this Court for certiorari review, which we have granted. This opinion does not address whether we should amend Rule 30.3(c) to be consistent with Rule 30.1(a), because this Court finds that the Court of Criminal Appeals erred in dismissing Burnsed’s appeal on the ground that an adequate record of the municipal court proceedings did not exist.

The case of Ex parte French, supra, cited by the Court of Criminal Appeals in support of its finding that Burnsed did not provide an adequate record of the municipal court proceedings, is distinguishable from the case before us. In Ex parte French, an employee sued his employer in the district court for breach of contract. After hearing testimony and arguments, the district court entered a judgment in favor of the employer. The employee appealed to the circuit court, where the employer moved for a summary judgment. In support of its motion, the employer attached a copy of the transcript of the district court proceedings, which had been recorded by a stenographer hired by the employer. The employee moved to suppress the transcript, but the circuit court denied the motion and entered a summary judgment in favor of the employer. The employee appealed to the Court of Civil Appeals, which affirmed the judgment of the circuit court. French v. GTE Communication Sys. Corp., 547 So.2d 543 (Ala.Civ.App.1988).

In his petition to this Court for a writ of certiorari, the employee argued that “the Court of Civil Appeals erred in affirming the circuit court’s order overruling his motion to suppress the transcript of the district court proceedings.” Ex parte French, 547 So.2d at 547. The employee sought to have the transcript suppressed because the stenographer had been hired by the employer rather than appointed by the trial court or accepted by agreement of both parties. This Court stated that, in holding that the transcript by the private stenographer was admissible, the Court of Civil Appeals neglected to address the application of §§ 12-17-270 through 12-17-277. We held that “an unofficial transcript, prepared by a person not duly appointed as an official court reporter pursuant to the provisions of Ala.Code 1975, §§, 12-17-270 through -277, or [not] approved by the adverse party or parties, is inadmissible in a subsequent trial.” 547 So.2d at 549.

Section 12-17-1 et seq., including in particular § 12-17-270 (which authorizes the appointment by the court of an official court reporter) apply in circuit court and district court only. Those Code sections do not apply to municipal courts. Unlike circuit courts and district courts, municipal courts are not courts of record. Ex parte Town of Gulf Shores, 412 So.2d 1259 (Ala.Crim.App.1982). While a defendant who demands a court reporter is entitled to one in the circuit court or the district court, § 12-17-270, Marquis v. State, 439 So.2d 197 (Ala.Crim.App.1983), and Ex parte White, 403 So.2d 292 (Ala.1981), no rule or statutory law requires a municipal court to appoint an official court reporter upon a defendant’s request. See, e.g., Parker v. City of Tuscaloosa, 698 So.2d 1171 (Ala.Crim.App.1997).

Because the municipal court was not authorized to appoint an official court reporter, even if requested by Burnsed, Burnsed’s failure “to show that the transcript in question was prepared by a person duly appointed by the trial court to serve as an official court reporter” did not constitute a ground for the dismissal of Burnsed’s appeal. Rule 30.2(1) itself authorizes a defendant to appeal from the municipal court to the Court of Criminal Appeals or to the Supreme Court “[i]f an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury.” The record establishes that the defendant waived his right to a jury trial. Likewise, the record establishes that an adequate record of the proceedings in the municipal court was prepared. The record does not contain any objection by the City of Evergreen to the court reporter, the transcript, its accuracy, or its use for the appeal. Thus, Burnsed has satisfied the requirements of Rule 30.2(1), Ala. R.Crim. P. To the extent that Parker v. City of Tuscaloosa, supra, conflicts with this opinion, it is overruled.

The judgment of dismissal is reversed and this cause is remanded to the Court of Criminal Appeals for reinstatement of Burnsed’s appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON, J., concurs in the result.

SEE, J., dissents.

SEE, Justice

(dissenting).

The Alabama Rules of Criminal Procedure allow a defendant who has suffered an adverse judgment in a municipal court to appeal that judgment directly to the Court of Criminal Appeals, under certain conditions. Rule 30.2, Ala. R.Crim. P., provides:

“An appeal from the district or municipal court shall go directly to the appropriate appellate court:
“(1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury, or
“(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question.”

Burnsed waived his right to a jury trial, and he argues that the transcript of the municipal court proceeding that was prepared by a person he hired was an “adequate record.” The majority agrees, holding that a transcript of a municipal court proceeding prepared by a person employed by the defendant is an “adequate record,” as that phrase is used in Rule 30.2(1), Ala. R.Crim. P. I disagree, and, therefore, I must respectfully dissent.

In Parker v. City of Tuscaloosa, 698 So.2d 1171 (Ala.Crim.App.1997), which the majority overrules to the extent it conflicts with today’s decision, the Court of Criminal Appeals considered a case similar to this one. Parker, facing prosecution in the municipal court, hired a court reporter to transcribe the proceeding. The prosecutor objected to the reporter’s transcribing the proceeding, and the municipal court judge sustained his objection. Parker petitioned the circuit court for a writ of mandamus, which the circuit court denied. Parker then appealed to the Court of Criminal Appeals, which held, based in part on this Court’s decision in Ex parte French, 547 So.2d 547 (Ala.1989), that “the appellant’s argument that he had the right to have ‘any court reporter from any source, compensated by any party’ transcribe the hearing for purposes of a direct appeal to [the Court of Criminal Appeals was] without merit.” Parker, 698 So.2d at 1173.

In Ex parte French, this Court considered a case involving similar issues. Michael French sued his former employer, GTE Communication Systems (“GTE”) in the district court. The district court did not provide an official court reporter; GTE hired a stenographer to record the proceedings. The district court entered a judgment in favor of GTE, and French appealed to the circuit court. GTE offered into evidence the transcript of the district court proceeding that GTE’s stenographer had prepared. French moved to suppress the transcript. The circuit court denied French’s motion, admitted the transcript into evidence, and entered a summary judgment in favor of GTE. The Court of Civil Appeals affirmed. French v. GTE Communication Sys. Corp., 547 So.2d 543 (Ala.Civ.App.1988). This Court granted French’s petition for certiorari review and considered his argument that the circuit court erred in denying his motion to suppress, and, thus, that the Court of Civil Appeals erred in affirming.

This Court in Ex parte French reviewed several cases in which it had considered the question whether a transcript of a prior proceeding was admissible as evidence in a later proceeding. See Olds v. Powell, 10 Ala. 393 (1846); Degg v. State, 150 Ala. 3, 43 So. 484 (1907); and Woods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681 (1920). In each case, this Court had held that the transcripts were inadmissible. This Court held that GTE’s transcript of the district court proceeding was inadmissible as evidence in the circuit court. In so holding, this Court noted that “a transcript by a reporter hired and paid by one party has no ... guarantee of authenticity, and the opposing party is provided no protection from possible errors or even fraud.” Ex parte French, 547 So.2d at 549.

The majority concludes that this present case is distinguishable from Ex parte French because this case originated in the municipal court, and because the provisions of the Code of Alabama concerning the appointment of official court reporters, § 12-17-270 et seq., do not apply to the municipal courts. I believe, however, that the concerns voiced in Ex parte French by a unanimous Court are persuasive. In Ex parte French, this Court stated that a transcript prepared without the sanction of the court or the opposing party “has no ... guarantee of authenticity” and is thus inadmissible in evidence in a later trial. Id. If an unofficial transcript is not sufficiently trustworthy to allow its use as evidence in a subsequent proceeding at the trial court level, I cannot agree that it is sufficiently trustworthy to conclude that it nevertheless is an “adequate record” for purposes of allowing a direct appeal to the Court of Criminal Appeals.

Rule 30.1(a), Ala. R.Crim. P., provides that “[a] defendant convicted of an offense in a municipal court ... shall have the right to appeal the judgment, within fourteen (14) days of the date of the judgment or the denial of a timely filed post-judgment motion, to the circuit court for a trial de novo.” If a defendant is unsuccessful in the circuit court, he would then have an official transcript from which to appeal to the Court of Criminal Appeals. See § 12-17-270, Ala. Code 1975.

I believe that the potential inaccuracy in an unofficial transcript and the possible fraud that could be involved in the use of such a transcript outweigh a party’s desire to bypass the circuit court when pursuing an appeal. Therefore, I must dissent from the holding that an unofficial transcript is “adequate” for purposes of allowing an appeal from the municipal court directly to the Court of Criminal Appeals.

      . Rule 30.3(c) provides that a defendant may appeal from the district or municipal court to the Court of Criminal Appeals or to the Supreme Court "by filing with the clerk of the district or the municipal court a notice of appeal within forty-two (42) days from the date of pronouncement of sentence or the date of denial of a timely filed post-trial motion, whichever is later.”

      . Because the parties did not stipulate that this case involved only questions of law, this second part of Rule 30.2 does not apply.

      . The defendant hired a court reporter- to record the municipal court proceedings. The City objected to the presence of the court reporter for any purpose. The municipal judge sustained the objection insofar as the defendant sought to use the transcript prepared by the court reporter for purposes of appeal pursuant to Rule 30.2. Upon the defendant’s petition for a writ of mandamus, the Court of Criminal Appeals held that, because no law authorized the municipal court to appoint a court reporter, "[the defendant] [did] not have a legal right to have a transcript of the municipal court proceedings prepared by any court reporter of his choosing and paid for by him or by a court reporter hired by the City at the City's expense for the purposes of pursuing a direct appeal to this court.’’ 698 So.2d at 1173-74. (Emphasis omitted.)

      . The parties did not enter into a stipulation of facts or a stipulation that Burnsed’s appeal presents only issues of law. Therefore, the only portion of Rule 30.2 that would authorize Burnsed to appeal directly to the Court of Criminal Appeals is that portion of the rule allowing an appeal if there is an "adequate record” of the municipal court proceeding.

      .The majority states that, in Parker, the Court of Criminal Appeals held that a municipal court was not "authorized” to appoint an official court reporter. 844 So.2d at 528 n. 3. I believe that in stating that, this Court overextends Parker. In Parker, the Court of Criminal Appeals stated:
      "Sections 12-17-270 through 12-17-277, Ala.Code 1975, govern official court reporters, and they do not require that a municipal court appoint a court reporter as an official court reporter.... Therefore, the municipal judge did not have an imperative duty to allow the private court reporter hired by the appellant to create an official transcript for purposes of a direct appeal to this court or an imperative duty to provide, at the City's expense, a court reporter whose transcript could be used for purposes of a direct appeal to this court.” 698 So.2d at 1173 (emphasis added). Thus, Parker holds only that a municipal court does not have a duty to provide a court reporter; it did not purport to prohibit a municipal court from providing a court reporter.

      . This Court also considered Middleton v. Hartford Accident & Indemnity Co., 119 F.2d 721, 724 (5th Cir.1941), in which the United States Court of Appeals for the Fifth Circuit noted that "the rule concerning official transcripts on appeal 'does not contemplate that one party shall employ a stenographer of his choice to report for him, without the authority of court or adversary.’ ” Quoted in Ex parte French, 547 So.2d at 548.

      . This Court noted Rule 80, Ala. R. Civ. P., which provides:
      "Whenever the testimony of a witness at a trial or hearing which was stenographi-cally reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony."
      However, the Court also noted that Rule 80 "applies only to an official stenographer.” Quoting Comment to Rule 80, Ala.R.Civ.P.