Tony Stevens v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KP-00123-COA
TONY STEVENS A/K/A TONY STEVENSON A/K/A
TONY STEPHENSON
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
1/17/2002
HON. ANDREW K. HOWORTH
CALHOUN COUNTY CIRCUIT COURT
TONY STEVENS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
JAMES M. HOOD, III
CRIMINAL - FELONY
CONVICTION OF ARMED ROBBERY, LIFE
IMPRISONMENT WITHOUT POSSIBILITY OF
PAROLE
AFFIRMED - 03/18/2003
BEFORE SOUTHWICK, P.J., LEE AND MYERS, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
Tony Stevens was convicted of armed robbery by a Calhoun County Circuit Court jury. On
appeal Stevens argues that the State failed to establish the essential elements of the crime, that an improper
closing argument was made by the State, and that a separate sentencing phase needed to be conducted.
Finding no merit in Stevens' claims, we affirm the conviction.
FACTS
¶2.
On the evening of December 18, 1997, Stevens approached Leon Prestage, the night security
guard of a mill yard, threatened him with a gun and demanded Prestage turn over his money. Prestage said
that he had no money. Stevens then shot him in the stomach and fumbled for the guard’s wallet as Prestage
lay on the ground. Stevens fled without having taken anything from his victim. He was arrested a few days
later and confessed to the events just described.
¶3.
Stevens was convicted after a jury trial. Even though his trial counsel perfected the appeal, Stevens
proceeds pro se after having discharged his attorney.
DISCUSSION
¶4.
We will discuss Stevens' assignments of error after reviewing his motion to supplement his initial
brief. Stevens alleges that new evidence has come to his attention since the filing of his original brief. What
he only recently had learned was this: a written statement was not taken from the victim at the time of the
crime, a warrant was never issued for his arrest, the victim never completed an affidavit to support an arrest
warrant, and the substance of the victim's testimony was never submitted to him during discovery. Because
of these failures, Stevens claims he was taken completely by surprise by the victim’s trial testimony.
¶5.
A party wishing to submit additional briefs must seek leave of the appellate court. M.R.A.P. 28(c).
The grant or denial of such leave is discretionary with this court. After a review of Stevens' claim of new
evidence and the record as a whole, we decline to grant such leave. Nothing is raised that justifies further
briefing and a response from the State.
1. Essential elements of the crime charged
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¶6.
Stevens alleges that the State failed to prove all the essential elements of the crime of armed
robbery. Thus he challenges the sufficiency of the evidence. Stevens bases this claim upon the language
from the initial appellate opinion in this prosecution. Stevens v. State, 784 So. 2d 979 (Miss. Ct. App.
2001). That conviction was based on the same events of December 1997.
¶7.
The earlier appeal followed Stevens' guilty plea to the charge of assault with a deadly weapon.
After the court accepted the plea, the State indicated that the correct charge was for armed robbery, rather
than the lesser offense of assault with a deadly weapon. Stevens immediately attempted to withdraw his
guilty plea but the circuit court denied the motion. Stevens then pursued post-conviction relief in this court.
We reversed, holding that, due to the confusion over the crime to which Stevens had actually agreed to
plead guilty, the plea was not sufficiently knowing and voluntary. We also noted that Stevens’ statements
in open court did not provide an adequate factual basis: "Stevens' account of the events giving rise to his
prosecution does not adequately describe either the crime of armed robbery or an attempt thereof." Id.
at 982.
¶8.
Our prior holding did not mean that Stevens could not, after a trial, be found guilty of armed
robbery. At the plea hearing, the court had only Stevens' statement that he did not mean to shoot Prestage
and changed his mind about taking the wallet. The limits of that statement taken in conjunction with the
confusion over the crime to which he was pleading guilty, required reversal.
¶9.
At the trial following our remand, the trial court had the testimony of the victim and a police officer
who read Stevens' confession into evidence. For guilt of armed robbery, the State had to prove that the
defendant took or attempted to take from the person or from his presence the personal property of another
and against his will by violence or by putting the person in fear of immediate injury by the exhibition of a
deadly weapon. Miss. Code Ann. § 97-3-79 (Rev. 2000).
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¶10.
Prestage's testimony established that Stevens attempted to take his wallet against his will. Stevens
did more than merely exhibit a deadly weapon. He used one. The fact that Stevens left the scene after
having been thwarted in the robbery but not in the violence is immaterial. The statute allows convictions
for attempts to take the property of another. Each element of the crime was confirmed by Stevens himself
in his signed confession to police. The evidence was sufficient.
2. Improper closing argument
¶11.
Stevens argues that the State's closing argument was improper because it focused upon the
elements of the crime of aggravated assault rather than for armed robbery. However, Stevens did not
object to the content of the State's closing argument and thus failed to preserve the point for appellate
review. Dunaway v. State, 551 So. 2d 162, 165 (Miss. 1989). There was nothing so significant in the
argument as to deny Stevens' fundamental rights such as to overcome the procedural bar. Thus we do not
further address the issue.
3. Sentencing hearing
¶12.
The trial court did not conduct a separate sentencing hearing after the jury verdict. This allegedly
denied Stevens a fair trial. No separate hearing was needed. The jury fixed his sentence at life
imprisonment. That was within their discretion for a charge of armed robbery. Since Stevens was an
habitual offender, with three prior convictions for burglary, the life sentence was without possibility of
parole. Miss. Code Ann. § 99-19-81 (Rev. 2000). There was no purpose to be served by a sentencing
hearing, and its absence was not error.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF LIFE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.
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McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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