Greene v. State, 52953

• Decision Date: 02 December 1981
• Docket Number: No. 52953,52953
• Parties: Stephen GREENE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 805

406 So.2d 805

Stephen GREENE v. STATE of Mississippi.

No. 52953.

Supreme Court of Mississippi.

Dec. 2, 1981.

Boerner & Underwood, William D. Boerner, Brookhaven, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and BROOM and HAWKINS, JJ.

BROOM, Justice, for the Court:

Grand larceny is the offense for which the defendant/appellant Stephen Greene was charged and convicted in the Circuit Court of Amite County. The indictment charged that Samuel Case, Roger Case and Stephen Greene "acting in concert each with the others" stolen certain copper wire, the property of Mississippi Power & Light Company (MP & L herein). Defendant Greene was sentenced to serve a term of two years in the custody of the Department of Corrections. On appeal, he argues: (1) he was wrongfully denied a continuance, (2) he should have been allowed to make challenges for cause to prospective jurors in chambers rather than in open court, (3) erroneous evidentiary rulings were made by the trial judge, (4) witness Varnado was erroneously allowed to testify as to the cost of the wire, (5) testimony of co-indictee Roger Case was erroneously allowed, (6) the evidence was insufficient, and (7) the lower court erred in overruling his objections to the state's jury instruction. We affirm.

The following facts are established by the testimony. One of MP & L's employees was travelling on a public highway in Amite County during the night of April 3, 1980, and observed a pick-up truck parked by the road with a ladder up against a utility pole. This employee, Bob Duncan, notified law officers who came to the scene and found several rolls of wire together with the ladder and a blue and white Chevrolet pick-up with a Lincoln County license. The truck was owned by Samuel Case. A search was launched for the suspect, and Roger Case was taken into custody early the next morning as he walked down a highway some seven or eight miles away from the scene. Defendant/appellant Stephen Greene was found and taken into custody at approximately midnight as he walked along the highway about two miles from the scene. He was wearing jogging shoes and blue jeans-wet from the knees down.

Roger and Samuel Case, who were jointly indicted along with the defendant Greene, pled guilty to the charge and at trial were state's witnesses. According to the testimony of Roger, he was searching for wire along with his brother Samuel and the defendant Greene. Roger testified that the defendant helped take the wire over the fence, but later he equivocated and indicated uncertainty as to whether the defendant helped him, and stated it was so dark that he could not see the defendant. Substance of Samuel Case's testimony was that Roger and the defendant were with him and hunting wire on the night in question. Samuel testified he climbed the ladder and cut the wire, but he was unable to say who rolled the wire because he "was watching the electricity."

First argument made is that the trial judge erred in refusing to grant defendant a continuance. Primarily, the motion focused upon the assertion that the state failed to timely provide the defendant with copies of jury instructions in accordance with the 24-hour prefiling rule and failed to "produce certain essential information" which the defendant had requested by prior motion. The long established rule in this jurisdiction is that trial judges have vested in them broad discretionary powers in granting or refusing to grant a continuance. Miss.Code Ann. § 99-15-29 (1972). The appeal before us does not have in it a record of proceedings or evidence presented showing prejudice to the defendant in support of the motion for continuance, and upon such a record we are unwilling to hold that the lower court acted erroneously in denying the continuance.

The second argument of the defendant is that he was erroneously not allowed to make his challenges for cause to prospective jurors in chambers instead of in the presence of the jury in open court. The record shows that the defendant asked the trial court to allow him to make his challenges for cause in chambers and not in open court. In actuality, counsel at oral argument stated that he made no challenges for cause. In his brief, the defendant correctly notes that "this Court has no way to actually review the questions, answers or demeanor of each of said members of the jury panel pursuant to said questioning due to the fact that the voir dire examination was not taken down, much less transcribed." Since the record does not contain the dialogue between the court and the jurors, it is impossible for us at the appellate level to ascertain whether any juror was prejudiced because of partiality and therefore erroneously allowed to remain on the jury. The burden of making a record to reflect partiality or impropriety regarding the selection of jurors rests upon the complaining litigant (defendant here). Skelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Absent any record of the proceedings that developed in the jury selection process, we are unable to say that the jurors selected were unfair or prejudiced in any respect. The defendant correctly cites Peters v. State, 314 So.2d 724, 728 (Miss.1975) where we did state that it is "a much better system for the trial court to conduct the discussion as to the jury challenges in an anteroom." We also stated in Peters:

It is not necessary for the attorneys to call their individual names in public and to advise them that they are not wanted as jurors. It is far better for the trial Judge to announce the names of the jurors selected rather than the names of the jurors rejected. (Emphasis added.) Id. at 729.

Although, as stated in Peters, it is the better practice in criminal cases for the trial judge to hear challenges for cause in chambers rather than in open court, the record does not show that the defendant was prejudiced in any way. Accordingly, the argument made about the request to make challenges to jurors in chambers does not require reversal.

Thirdly, the defendant argues that the lower court erred in overruling his objections concerning the introduction of physical evidence. Assertion is made by the defendant that in developing its case the state failed to "establish any chain of custody, but merely asked the witness, Chief Leroy Smith, to identify the wire." There was no error because the items complained of were never actually admitted into evidence but were merely marked for identification purposes. Likewise, there was no request (which could have been made outside the jury's presence) that the physical evidence be removed from the courtroom.

Fourth argument made by the defendant is that the lower court erred in allowing testimony about the cost or value of the stolen wire in question. Complaint is made that a part of state witness Omar Varnado's testimony as to the value of the wire was hearsay. When the defendant's objection was made to the testimony, the court was considering the matter and discussing it at which time the state withdrew the question propounded, and then qualified the witness Sturgeon to testify as to the value of the wire in question. Sturgeon's testimony established that he had sold copper wire before for as high a price as ninety cents and during the week before trial had sold wire for sixty-five cents. The following is excerpted from Sturgeon's...