Brown v. State

• Decision Date: 24 October 2002
• Docket Number: No. 2001-KA-01067-SCT.,2001-KA-01067-SCT.
• Citation: 829 So.2d 93
• Court: Mississippi Supreme Court
• Parties: Vernon E. BROWN a/k/a Hash v. STATE of Mississippi.

829 So.2d 93

Vernon E. BROWN a/k/a Hash v. STATE of Mississippi.

No. 2001-KA-01067-SCT.

Supreme Court of Mississippi.

October 24, 2002.

Carolyn R. Benson, Fulton, attorney for appellant.

Office of Attorney General, by Scott Stuart, attorney for appellee.

Before McRAE, P.J., EASLEY and CARLSON, JJ.

EASLEY, J., for the Court.

PROCEDURAL HISTORY

¶ 1. Vernon E. Brown a/k/a "Hash" Brown (Brown) was indicted by the Itawamba County grand jury on or about November 21, 2000. The indictment charged that on May 22, 2000, Brown uttered a false check to John Blumer (Blumer) d/b/a Piggly Wiggly to the injury of Blumer and The People's Bank and Trust Company and others. The indictment was amended January 22, 2001, at the State's request to charge Brown as a habitual offender pursuant to Miss.Code Ann. § 99-19-81 (2000).

¶ 2. Brown was tried before a jury on June 5, 2001. At the close of the prosecution's case, Brown's motion for a directed verdict was denied. Brown put on no proof, and he was found guilty of the crime charged on the same day. The trial court determined that Brown was qualified to be sentenced under § 99-19-81 as a habitual offender based on prior felony convictions. Brown was sentenced as a habitual offender to the maximum term of fifteen years in the custody of the Mississippi Department of Corrections without reduction, suspension, parole, or probation.

¶ 3. The trial court denied Brown's motion of acquittal, J.N.O.V., or in the alternative, a new trial on June 18, 2001. Brown filed his notice of appeal to this Court on June 26, 2001.

FACTS

¶ 4. On or about May 23, 2000, Brown went into the Piggly Wiggly Grocery Store (Piggly Wiggly) in Fulton, Itawamba County, Mississippi. Brown walked to the cashier in the Piggly Wiggly with approximately $90.00 worth of groceries. Brown gave Kantress Evans (Evans), the cashier, a check. The check was drawn on a Tupelo Foam Sales, Incorporated account, was payable to V. Edwin Brown, and was for the sum of $252.45. Evans cashed the check and gave Brown the difference between the face amount of the check and the cost of the groceries. The check was returned to the store by BancorpSouth in Fulton. The check was returned as unauthorized because it was believed to have been stolen.

¶ 5. Brown appeals to this Court raising the following issues:

I. Whether the trial court judge erred in failing to recuse himself after it was learned that he had signed an indictment against the defendant as an assistant district attorney in a prior criminal case.

II. Whether Brown was denied due process of the law because the procedures of identification were tainted.

III. Whether the trial court erred in failing to grant Brown's motion for a directed verdict and his motion for a J.N.O.V.

DISCUSSION

I. Recusal

¶ 6. Brown alleges that the trial court judge, Judge Richard D. Bowen (Judge Bowen), should have recused himself from presiding over Brown's case. During his service as an assistant district attorney, Judge Bowen signed the indictment in 1979 against Brown on one of the two prior felony convictions used to support Brown's mandatory sentence as a habitual offender. The State's motion to amend indictment to charge habitual offender status asserted that Brown had six prior felony convictions. However, the State only put on proof as to two of the convictions.

¶ 7. Brown never objected to the admission of the two prior convictions. Brown never offered any evidence to refute the fact that he had been twice convicted of the prior felonies. Brown never requested that Judge Bowen recuse himself as the trial judge. The record reflects that Judge Thomas J. Gardner, III was the circuit judge who entered the order amending the indictment to charge habitual offender status on January 22, 2001. The record reveals the following sentencing proceedings before Judge Bowen:

The Court: All right. The [c]ourt having accepted the verdict of the jury as the judgment of the [c]ourt and ordered that judgment entered and made part of the record in this case, I now note that [Brown] was charged by an amendment to the indictment filed and entered in this cause on January 22, 2001, as an habitual offender and the [c]ourt will now proceed to hear proof as to whether—the order amending the indictment is actually also entered on the 22nd day of January 2001, and the motion is contained in the file. It alleges that Mr. Brown is an habitual offender as that term is defined under section 99-1981 of the Mississippi Code ...

The order [amending the indictment] was signed by Judge Gardner on 22 of January 2001, and filed in the cause on the same day ...

In that the order amends the indictment to charge that the Defendant is charged under that section, 99-19-81 of the Mississippi Code to be sentenced to the maximum term of imprisonment as prescribed for such felony as he has been convicted of here. And such sentence not to be reduced or suspended, nor shall the person be eligible for parole or probation in that, and the charge goes—the charged in the order alleges that this [d]efendant, [Brown], was convicted in the Circuit Court of Lee County on two counts of burglary and larceny on March 24, 1978, and sentenced to serve a term of six years and secondly, that he was convicted on the 12th day of February 1980, for the offense of uttering forged prescription and sentenced to serve a term of four years. It alleges four other offenses which is claimed that [Brown] was convicted of stretching from November of 1988 until June 1995. If the [c]ourt is correct in its understanding of the law, proof of any two of those alleged convictions and sentences carry at least one year or more in a facility or penal institution, provided these offenses arose out of separate instance—incidences at separate times, would suffice to place [Brown] in the habitual offender status for which this [c]ourt would have no discretion but to sentence him to the maximum term of imprisonment for the offense of uttering forgery. And furthermore, ordering that such sentence not be reduced or suspended, nor should the [d]efendant be eligible for parole or probation. But that proof of that is required. Is the State ready to proceed with that proof?

State: Yes, Your Honor.

The Court: Is the [d]efendant ready to proceed?

Defense: As ordered, I need to file or make a motion that the judgment be overturned for lack of proper evidence, or notwithstanding the verdict. Is this the proper time to make that motion?

The Court: Ms. Benson, you may make that, as I understand it, within ten days—

Defense: All right.

The Court: I believe is the time period now. You may make it now if you want to or you may present me a motion and an order at a later time. In any event I will allow you ten days from today's date to make that motion.

Defense: All right. Thank you. Thank you, Your Honor.

The Court: With that are you ready to proceed?

Defense: Yes, sir.

The Court: Very well. The State may call its first witness, or offer its first item of evidence.

State: Your Honor, at this time I have two indictments. One is Lee County Cause 18—or 18,216. If you'll notice the raised seal of Lee County Circuit Clerk is attached and because that is a sealed document, the state would offer that, if you notice at the back it has been stamped that is has been sealed. We would offer that into evidence. I offer what is styled Lee County Cause CR93-288, which also has been authenticated and sealed by the clerk of the court of Lee County, Mississippi, in which [Brown] was previously convicted as an habitual offender in Lee County in that cause number. I offer you both of those causes.

The Court: Ms. Benson, have you seen these documents?

Defense: Are these the same as attached in discovery?

The State: Yes, ma'am.

Defense: Yes, I have those.

The Court: Any objection to them being received?

Defense: No, Your Honor. No, Your Honor.

The Court: All right. Very well. Let them be received and marked as exhibits to this hearing.

(SAME RECEIVED INTO EVIDENCE AND MARKED AS STATE'S EXHIBIT NO. S-3, INDICTMENT IN CAUSE NUMBERS 18,216 AND CR93-288, LEE COUNTY CIRCUIT COURT, AND THE SAME MAY BE FOUND IN A SEPARATE EXHIBIT VOLUME)

The Court: All right. State have anything further?

State: No, Your Honor, we do not.

The Court: All right. Do you rest at this time then?

State: Yes, Your Honor, the State would rest.

The Court: All right. What says the [d]efendant? Do have you have anything to offer?

Defense: Nothing to offer. We rest, Your Honor.

The Court: According to State's Exhibit Number 3, which is a composite consisting of a certified copy of an indictment returned by the Circuit—rather the Grand Jury of the Circuit Court of Lee County in Cause Number 18,216, Mr. Vernon E. Brown was indicted on two counts in that indictment. Which incidentally was signed by Assistant District Attorney Richard Bowen, wherein the Defendant was charged in Count I with uttering a false prescription. Count II of that indictment charged that Mr. Vernon E. Brown on the 7th day of October, one day after the date charged in the first count, also attempted to utter a false prescription. Part of the same composite exhibit is a certified copy of a sentencing order entered on the 12th day of February 1980, by the Circuit Judge Fred Wicker, sentencing the [d]efendant upon a conviction as to Count I of that indictment for the offense of uttering a forged prescription, to serve a term of four years in a facility designated by the Department of Corrections. Part of that same composite exhibit contains an indictment rendered by the Circuit Court of Lee, [c]ause [n]umber CR 93-288, during the August term of 1993, charging the [d]efendant, Vernon E. "Hash" Brown with uttering a false and counterfeit instrument and further charging him in that indictment as an habitual offender. However, it was apparently— well, it's not apparent whether he was sentenced as an habitual offender in that charge or not, but in any event, he was

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