Steed v. State, 98-KA-00450-COA.

• Decision Date: 18 May 1999
• Docket Number: No. 98-KA-00450-COA.,98-KA-00450-COA.
• Citation: 752 So.2d 1056
• Parties: Frank Joe STEED, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

752 So.2d 1056

Frank Joe STEED, Appellant, v. STATE of Mississippi, Appellee.

No. 98-KA-00450-COA.

Court of Appeals of Mississippi.

May 18, 1999.

Rehearing Denied August 10, 1999.

Steven E. Farese, Ashland, Hal Gerber, Memphis, TN, Attorneys for Appellant.

Office of the Attorney General by Edwin A. Snyder, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, AND LEE, JJ.

LEE, J., for the Court:

¶ 1. Frank Joe Steed was convicted for violating § 97-21-7 of the Mississippi Code Annotated (Rev.1994) which is entitled "Certificate of Acknowledgment or Proof of Deeds and Other Recordable Instruments." The basis of the charge brought by the State was that Steed had affixed his signature and acknowledgment to a warranty deed outside the presence of the purported signors of said deed, Frank and Rose Woolsey. From this conviction, Steed perfects his appeal to this Court and argues the following issues: (1) whether the trial court erred in denying the appellant's motion for recusal, (2) whether the trial court erred in denying the appellant's motion for change of venue, (3) whether the trial court erred in denying the appellant's motion for continuance, (4) whether the trial court erred in overruling the appellant's motion for judgment notwithstanding the verdict in regards to the State failing to prove that venue was proper, (5) whether the trial court erred in preventing counsel for the appellant from arguing that the State failed to prove venue, (6) whether the trial court erred in denying the appellant's motion for mistrial, (7) whether the trial court erred in granting instructions number ten, subsection three and number twelve, and (8) whether the sentence of fifteen years with seven years suspended and eight years to serve was excessive or unconstitutional. Finding his arguments without merit, we affirm.

FACTS

¶ 2. In October 1988, Frank E. and Rose A. Woolsey lived in Olive Branch, Mississippi. The Woolseys had read an advertisement in the Memphis newspaper for the sale of lots located in Sardis Country Estates. The Woolseys decided to purchase a lot and build a cabin for a weekend/summer retreat. In October 1988, the Woolseys purchased lot 19-A from Frank Joe Steed which was located in Sardis Country Estates. Subsequently, the Woolseys decided they desired to purchase the adjacent lot, lot 19-B, because it had a stream located on it and they thought it would be a nice place to plant a garden. In 1989, the Woolseys purchased lot 19-B from Frank Joe Steed which was located in Sardis Country Estates. In 1990, shortly after the purchase of the aforementioned lots, the Woolseys moved to Arkansas and, thereafter, their visits to their weekend retreat in Sardis Country Estates became much less frequent. The Woolseys did not discover a problem with what they believed to be their property until they returned for their grandson's wedding.

¶ 3. When the Woolseys went to view what they believed to be their lots they discovered a cabin located in the middle of the property. The Woolseys proceeded to go to the Batesville Chancery Courthouse to determine the origins of the apparent problem. Testimony in the case revealed that the land description on the deed relative to lot 19-A was actually for the adjacent lot, lot 19-B, and that their purchase of 19-B was not for the two and one-half acre adjacent lot, but was for a lot 19-B located in Sardis Country Estates approximately two miles away which consisted of one-half an acre. There was additional confusion surrounding the property lines of lots 19-A and 19-B. Due to the misunderstanding of the location of lot 19-B Steed proceeded to correct the problem with numerous surveys and corrected warranty deeds.

¶ 4. Steed's wife testified that Steed had mailed a warranty deed along with a letter which requested the Woolseys to sign the deed and return it to him to try and rectify the discrepancies in the property description; however, testimony further revealed that Steed was aware that the Woolseys had moved to Arkansas, but sent the deed to their old address in Olive Branch, Mississippi. Steed's wife further claimed the deed had been returned to them with what appeared to be the Woolseys's signature, but it had not been notarized.

¶ 5. Upon receipt they took the deed and cross-referenced what the Steeds believed to be the Woolseys's signatures with other documents containing their signatures in an attempt to determine if they were authentic. Mrs. Steed testified that they determined that the deed contained the signatures of the Woolseys, and Steed proceeded to notarize the warranty deed without the Woolseys affixing their signature in his presence. Mrs. Steed testified that her husband notarized the certificate of acknowledgment in Tate County; however, additional testimony revealed that the acknowledgment stated Panola County as the location of the notarization. Steed filed the new deed with the Batesville Chancery Clerk's Office located in Panola County in an attempt to correct the discrepancy. Additionally, there was proof that the land was located in the Second Judicial District of Panola County, and that the business operated by Steed was located in Panola County. At the trial, the Woolseys testified that not only had they not affixed their signatures to the subject deed but they resided in Arkansas on the date it was acknowledged and had never seen the deed which purportedly contained their signatures.

¶ 6. Steed was indicted by the Grand Jury of Panola County, Mississippi on March 25, 1996, under Miss.Code Ann. § 97-21-7, certificate of acknowledgment or proof of deeds and other recordable instruments. Steed's first trial was held in October 1997, and ended in a mistrial. The trial judge ordered that defendant's retrial be set for January 12, 1998, where he was found guilty of violating § 97-21-7.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE STEED'S MOTION FOR RECUSAL.

¶ 7. The first assignment of error is that the trial court erred when it denied Steed's motion for recusal. Steed argues that the trial judge should have recused himself from the trial due to the following circumstances: (1) the trial court originally heard this case on October 7, 1997, and Steed felt the court showed prejudice against him due to the way the Court addressed his counsel and wife, and (2) the court had heard a prior civil jury case which involved Steed, and Steed felt aggrieved by the orders pertaining to attorney's fees and orders concerning motions for a new trial. Additionally, for the first time on appeal, Steed claims the trial judge exhibited prejudice when the judge stated, "It's a shame when old people can't go and buy a piece of land and have piece of mind and not have to deal with a crook and a thief as the proof proved that you were in this case." Finally, Steed argues he was prejudiced by the trial judge's cumulative rulings with regard to his motion for continuance, motion for mistrial, and preventing his counsel from arguing that the State failed to prove venue; all of which prevented him from receiving a fair trial. This Court has reviewed the record as it pertains to Steed's arguments relative to any prejudice that might have resulted and find these arguments to be without merit.

¶ 8. Steed properly cites Canon three from the Mississippi Code of Judicial Conduct as authority for the applicable standard applied when determining whether recusal is warranted. Canon three (C)(1)(a) states as follows:

C. Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

Miss.Code Jud. Conduct 3, subd. C(1)(a).

¶ 9. This Court does not have the benefit of the record from the first trial and, therefore, is left only with the assertions that were made by Steed before the second trial when he presented his motion for recusal. Steed stated that during the October 7, 1997 trial which concluded in a mistrial, the judge exhibited behavior which indicated prejudice against him. Steed furnished several instances in which he claims the trial judge's prejudice was exhibited. One such instance provided by Steed was during his first trial in the case at bar when the trial judge addressed his wife. Steed explained that his wife had been asked to leave the stand and view a screen and it required that some testimony be given by the wife while away from the stand. Steed argues the judge demonstrated bias and prejudice when he stated in an abrupt voice "hey lady" and startled her and instructed his wife "if you don't speak up where the [c]ourt can hear you, what you have got to say is not going to be worth nothing."

¶ 10. In McFarland v. State, 707 So.2d 166, 179 (Miss.1997), the appellant argued that the trial judge was in error when he failed to recuse himself from presiding over his trial. Similar to the case at bar the appellant pointed to the judge's comments made during the trial as evidence that there was bias and prejudice. Id. The appellant specifically pointed to the judge's voir dire comments, his comment, "Don't make it a habit," made in response to defense counsel's request to approach the bench, and the comment made by the judge during the sentencing of the appellant which was as follows:

I didn't quite understand your remarks as to whether it pointed at the Court or whether it pointed at the jury; you made some remarks in the record in the matter about the future. I don't think you intended to stand up to this Court and threaten this Court; did you?

Id. at 180.

¶ 11. The Mississippi Supreme Court noted that when an appellate court reviews whether a judge should have disqualified himself from the trial an objective standard is applied. Id. A judge must disqualify himself from presiding over a trial if a...