Ronald Allen v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00637-COA
RONALD ALLEN A/K/A HEAD
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
03/14/2001
HON. RICHARD W. MCKENZIE
PERRY COUNTY CIRCUIT COURT
GEORGE S. SHADDOCK
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY:
E. LINDSAY CARTER
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
SALE OF A CONTROLLED SUBSTANCE: SENTENCE
TO SERVE A TERM OF THIRTY YEARS IN THE MDOC
AND PAY A FINE OF $5,000.
DISPOSITION:
AFFIRMED - 07/16/2002
MOTION FOR REHEARING FILED: 7/29/2002; denied 9/17/2002
CERTIORARI FILED:
MANDATE ISSUED:
10/8/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND BRANTLEY, JJ.
BRIDGES, J., FOR THE COURT:
PROCEDURAL HISTORY
¶1. Ronald Allen, a/k/a Head, was indicted by the Perry County Grand Jury for the sale of a controlled
substance in violation of Mississippi Code Annotated Section 41-29-139 (a) (1) (Rev. 2000). A trial
commenced and a jury convicted Allen of such charge. The trial judge sentenced Allen to thirty years to be
served in the Mississippi Department of Corrections and to pay a five thousand dollar fine. Allen perfected
his appeal and comes before this Court citing four issues for review.
I. Did the trial court err in allowing amendments to the indictment?
II. Did the trial court err in failing to grant a mistrial after a witness spoke improperly?
III. Is the verdict against the overwhelming weight of the evidence?
IV. Is the sentence unduly harsh and grossly disproportionate to the crime charged?
¶2. Finding no error, we affirm the conviction and sentence of the trial court.
STATEMENT OF THE FACTS
¶3. On February 19, 1998, the Forrest/Perry Metro Narcotics Task Force planned a drug buy from
Ronald Allen, an individual suspected of selling narcotics. The operation was conducted using Jeff Holmes,
a confidential informant, and Vicki Lee, an undercover agent. The plan was for these two individuals to go
to the home of Ronald Allen and attempt to purchase forty dollars worth of crack cocaine.
¶4. Under the direction of Task Force Commander Dewey Caffey, Holmes was fitted with a tape recorder
and Lee wore a voice transmitter which allowed the activities to be heard and recorded by the other
members of the task force. The two individuals drove to the home of Ronald Allen, approached him outside
of his home, asked him for forty dollars worth of drugs and received two rocks of crack cocaine.
LEGAL ANALYSIS
I. Did the trial court err in allowing amendments to the indictment?
¶5. The original indictment included only the name of undercover agent Lee as the purchaser of the drugs.
Prior to trial and after a hearing on the matter, the State successfully amended the indictment to include the
informant Holmes as the purchaser in the presence of Lee. Defense counsel continued his objection on the
day of trial. Allen claims the amendment was one of substance and not form, which renders the amendment
improper. "[T]his Court conducts de novo review on questions of law. The question of whether an
indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this
court." Simmons v. State, 784 So. 2d 985, 987 (¶7) (Miss. Ct. App. 2001).
¶6. "It is fundamental that courts may amend indictments only to correct defects of form, however, defects
of substance must be corrected by the grand jury." Mitchell v. State, 739 So. 2d 402, 404 (¶5) (Miss. Ct.
App. 1999). "[A] change in the indictment is permissible if it does not materially alter facts which are the
essence of the offense . . . as it originally stood or materially alter a defense to the indictment as it originally
stood so as to prejudice the defendant's case." Id. "The test . . . is whether the defense as it originally stood
would be equally available after the amendment is made." Eakes v. State, 665 So. 2d 852, 859-60 (Miss.
1995).
¶7. Looking at the case sub judice, the only change to the indictment was the addition of Holmes's name as
the purchaser. There was no question that Holmes was involved in the transaction and the fact that his voice
was easily identified on both of the audio recordings of the transaction placed him at the scene. Applying the
foregoing standard, we find that the addition of the second name in no way affected Allen's defense.
Therefore, we find that the name amendment to the indictment was one of form and not substance and the
trial court had the authority to so amend.
¶8. Allen also raises in his brief an objection to a second amendment to the indictment, made on the
morning of trial. Allen was originally charged with the sale of a controlled substance within 1000 feet of a
church, which allows for an enhanced penalty. The surveyor who measured the distance from the site of the
sale to the church was unavailable to testify, thus the State removed this portion of the charge from the
indictment. This second amendment only helped Allen, as he would be facing less time in jail if convicted. At
trial, he made no objection to the amendment, thus he is procedurally barred from raising this issue on
appeal. Swington v. State, 742 So. 2d 1106, 1112 (¶14) (Miss. 1999).
¶9. Allen is also very concerned with the fact that the body of the indictment was altered to exclude the
enhancement portion about the church but the charge of the crime at the bottom of the indictment failed to
remove the enhancement portion. He is of the opinion that the jury acted out of emotion when they
convicted him based on the charge on the indictment. However, our review of the record reveals that only
the trial judge knew about this mistake on the indictment. Furthermore, the trial judge had prior notice of the
pending indictment change and did not read aloud the enhancement portion of the indictment when he
charged the jury. The jury was never aware that the original indictment charged Allen with sale within 1000
feet of a church. This issue is devoid of merit.
II. Did the trial court err in failing to grant a mistrial after a witness spoke improperly?
¶10. On direct examination, the assistant district attorney asked Commander Caffey "[w]here did you get
the information that caused you to pursue this operation against the defendant?" Commander Caffey
responded that he had "numerous sources." This statement was promptly objected to and was followed by
the counselors's arguments concerning the statement. After some deliberation, the trial judge sustained the
objection and admonished the jury to disregard it.
¶11. The trial judge "is in the best position for determining the prejudicial effect" of objectionable testimony.
Alexander v. State, 520 So. 2d 127, 131 (Miss. 1988). As such, the decision to grant or deny a mistrial
after a prejudicial comment is made is within the trial judge's discretion. Horne v. State, 487 So. 2d 213,
214 (Miss. 1986). Given no "serious and irreparable damage," the trial judge should direct the jury to
disregard the statement. Roundtree v. State, 568 So. 2d 1173, 1178 (Miss. 1990). "It is well settled that
when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial
error does not result." Estes v. State, 533 So. 2d 437, 439 (Miss. 1998). We presume that the jurors will
follow the instructions given by the court. Payne v. State, 462 So. 2d 902, 904 (Miss. 1984). "To
presume otherwise would be to render the jury system inoperable." Johnson v. State, 475 So. 2d 1136,
1142 (Miss. 1985).
¶12. In applying the law to the facts in this case, we conclude that the trial judge did not abuse his discretion
by refusing to declare a mistrial. Any defect was cured when the judge immediately admonished the jury
and, in response, each jury member affirmed that each could put aside what they heard and continue with
the case. This issue is without merit.
III. Is the verdict against the overwhelming weight of the evidence?
¶13. Allen contends that the verdict of the jury was against the overwhelming weight of the evidence and
was the result of bias and passion on the part of the jury. In determining whether a jury verdict is against the
overwhelming weight of the evidence, this Court must accept as true all evidence which supports the verdict
of the jury and will only reverse when the lower court abused its discretion in failing to grant a new trial.
Collins v. State, 757 So. 2d 335, 337 (¶5) (Miss. Ct. App. 2000). On review, the State is given "the
benefit of all favorable inferences that may reasonably be drawn from the evidence." Id. at 337 (¶5). "Only
in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to
stand would sanction an unconscionable injustice will this Court disturb it on appeal." Id.
¶14. Allen admits that he has a "high hill" to climb concerning this issue. He relies on the conflicts in
testimony of the State's witnesses and the fact that the Narcotics Task Force targeted him as a suspect.
"This Court does not serve as a new jury. We do not reevaluate the evidence and determine what we would
have done in the jury's place." Triggs v. State, 803 So. 2d 1229, 1233 (¶10) (Miss. Ct. App. 2002). As
the Mississippi Supreme Court stated in Henson v. Roberts:
The demeanor or bearing, the tone of voice, the attitude and appearance of the witnesses, all are
primarily for inspection and review by the jury. The jury not only has the right and duty to determine
the truth or falsity of the witnesses, but also has the right to evaluate and determine what portions of
the testimony of any witness it will accept or reject; therefore unless it is clear to this Court that the
verdict is contrary to the overwhelming weight of the credible testimony, this court will not set aside
the verdict of a jury.
Henson v. Roberts, 679 So. 2d 1041, 1045 (Miss. 1996) (citations omitted).
¶15. A review of the facts of this case make it clear that there was ample evidence to support the jury
verdict. The jury weighed the value of the varying testimony and determined that the State's witnesses were
more worthy of credit. This Court shall not disturb the findings of the jury unless fair minded jurors could
only find the accused not guilty. Mitchell v. State, 572 So. 2d 865, 867 (Miss. 1990).
¶16. The facts, when viewed in a light most favorable to the State, prove that Allen did sell two rocks of
crack cocaine to Jeff Holmes in the presence of Vicki Lee. As such, the lower court's ruling is affirmed.
IV. Is the sentence unduly harsh and grossly disproportionate to the crime charged?
¶17. Allen argues that his sentence of thirty years in the custody of the Mississippi Department of
Corrections is excessive, manifestly disproportional to the crime committed and in violation of the cruel and
unusual punishment prohibitions of the Mississippi and United States Constitutions. However, he does
recognize that the general rule in Mississippi is that a sentence should not be disturbed on appeal so long as
it does not exceed the maximum allowed by statute. Edwards v. State, 615 So. 2d 590, 597 (Miss. 1993)
. See also Fleming v. State, 604 So. 2d 280, 302 (Miss. 1992).
¶18. Our supreme court has stated that "[s]entencing is within the complete discretion of the trial court and
not subject to appellate review if it is within the limits prescribed by statute." Hoops v. State, 681 So. 2d
521, 537 (Miss. 1996). Furthermore, the trial judge's decision will not be disturbed on appeal if the
sentence is within the term provided by statute. Davis v. State, 724 So. 2d 342, 344 (¶10) (Miss. 1998).
The statute for sale of a controlled substance dictates that upon conviction, a person could be sentenced to
not more than thirty years and shall be fined not less than five thousand dollars nor more than one million
dollars. Miss. Code Ann. § 41-29-139 (b) (1) (Rev. 2001).
¶19. Allen sets forth many authorities in support of his contention of cruel and unusual punishment; however,
we find that each and every case presented to us is devoid of any support for this issue. The legislature gave
the sentencing power to the trial judge to allow judges room to exercise their own sound judgment in the
cases coming before them. The trial judge exercised this power and chose to sentence Allen to the
maximum term allowed by statute. His sentence is not disproportionate to the crime or excessive in nature.
This argument is without merit.
¶20. THE JUDGMENT OF THE PERRY COUNTY CIRCUIT COURT OF CONVICTION OF
THE SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF THIRTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, A FINE OF
FIVE THOUSAND DOLLARS, AND SURRENDER DRIVER'S LICENSE IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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