Steen v. State
| Docket Number: | 2002-KA-01955-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-11-2004 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of cocaine - Weight of evidence - Cautionary instruction - Amendment of indictment - Instruction on elements - Prosecutorial misconduct - Impartial jury Judge(s) Concurring: King, C.J., Bridges and Southwick, P.JJ., Thomas, Lee, Irving, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-08-2002 Appealed from: Calhoun County Circuit Court Judge: Andrew K. Howorth Disposition: SALE OF COCAINE, SENTENCED TO A TERM OF FIFTEEN YEARS IN THE CUSTODY OF MDOC, FIVE YEARS SUSPENDED WITH FIVE YEARS' POST-RELEASE SUPERVISION. District Attorney: James M. Hood, III Case Number: CK2000-077 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Tommy Steen a/k/a Kalin Steen a/k/a Tommie Steen |
TOMMY STEEN (PRO SE)
THOMAS C. LEVIDIOTIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sale of cocaine - Weight of evidence - Cautionary instruction - Amendment of indictment - Instruction on elements - Prosecutorial misconduct - Impartial jury |
| Summary of the Facts: | Tommy Steen was convicted of the sale of cocaine and was sentenced to fifteen years with five years suspended and five years on post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Steen argues that the verdict was against the overwhelming weight of evidence, because crucial portions of the video were “blacked-out,” the State failed to establish a chain of custody with regard to the cocaine, and the State failed to produce in evidence the twenty dollars used in the transaction. With regard to the video, while the videotape may not be conclusive proof as to what transaction took place, it certainly is not contrary to the State’s case, which was corroborated by the confidential informant’s testimony. With regard to chain of custody, the State introduced testimony from witnesses establishing the chain of custody. There was no testimony by any of the State’s witnesses that would produce a reasonable inference of tampering. With regard to the money, Steen was not arrested until several days after the transaction because he was but one target in a larger undercover operation using the same confidential informant and the money could not be recovered. Issue 2: Cautionary instruction Steen argues that the court erred in refusing to give a cautionary instruction. However, Steen has failed to include the instruction in the record. In addition, Steen has failed to provide any authority to support the argument that a confidential informant’s testimony by itself mandates a cautionary jury instruction. Issue 3: Amendment of indictment Steen argues that his constitutional rights were violated when the court amended his indictment to reflect the correct date of the offense without the concurrence of the grand jury. Unless time is an essential factor in the crime, an amendment to change the date on which the offense occurred is one of form only. Steen did not present any defense at trial that would be affected by a change of date. Issue 4: Instruction on elements Steen argues that the jury was not informed properly of the elements in the indictment, because the State’s instruction omits the words “willfully” and “knowingly.” Not only was no objection made on these grounds at trial, but the statute under which Steen was convicted only requires a person to either “knowingly or intentionally” sell a controlled substance. Issue 5: Prosecutorial misconduct Steen argues that the prosecutor made improper comments to the jury. The fact that the district attorney essentially told the jury to not feel sympathy for Steen because he placed himself in that situation does not rise to the level of unjust prejudice. Issue 6: Impartial jury Steen argues that his jury did not reflect a fair racial cross-section of the community. The elements necessary to establish a prima facie violation of the fair cross-section requirement for an impartial jury are the group alleged to be excluded is a "distinctive" group in the community; the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and this under representation is due to systematic exclusion of the group in the jury selection process. No attempt was made to establish a prima facie violation because Steen has failed to address any of these elements. |
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