Stone v. State

• Decision Date: 23 August 2012
• Docket Number: No. 2010–KA–01722–SCT.,2010–KA–01722–SCT.
• Citation: 94 So.3d 1078
• Parties: Ted W. STONE a/k/a Ted Stone v. STATE of Mississippi.
• Court: Mississippi Supreme Court

94 So.3d 1078

Ted W. STONE a/k/a Ted Stone

v.STATE of Mississippi.

No. 2010–KA–01722–SCT.

Supreme Court of Mississippi.

June 28, 2012.

Rehearing Denied Aug. 23, 2012.

Richard Shane McLaughlin, Tupelo, attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, Scott Stuart, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court:

¶ 1. Ted W. Stone was convicted of the aggravated assault of Carolyn Stone and was sentenced to twenty years' incarceration and a $4,000 fine. Having carefully considered the record and the briefs filed on behalf of Ted Stone and the State, we discern no error. Accordingly, we affirm Stone's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ted Stone (“Stone”), Kay Stone Hill, and Carolyn Stone are the children of Seretha Stone. A grand jury indicted Stone for the aggravated assault of Carolyn Stone on July 26, 2010. Stone's jury trial began on October 5, 2010, in Itawamba County Circuit Court. Due to prior threats and assaults, Carolyn previously had obtained a restraining order requiring Stone to stay off her property. However, on June 7, 2010, Stone entered Carolyn's house.

¶ 3. Carolyn, Kay, and Seretha testified to the following events: Stone pushed his way past Seretha and into the house. Once in the house, he sat in a chair in the living room. Carolyn then entered the room and stood behind a recliner. Seretha left the room to avoid interfering in the conversation between Carolyn and Stone. Without provocation, Stone began beating Carolyn with his walking cane. Upon hearing a noise in the living room, Seretha returned to see Stone beating Carolyn. Seretha grabbed the cane and tried to take it away from Stone. As she was pulling on the cane, the rubber tip came off. Kay attempted to thwart the attack by striking Stone with a cordless telephone. Stone pushed her into a chair. Kay ran outside and called the police. Seretha testified that, after the scuffle, Stone “turned around and left and we called 911[,]” but that the police were already on their way because of Kay's call.¹ Carolyn testified that, when Stone stopped beating her, she ran from the living room into a bedroom and attempted to call the police, but was too dazed to operate the phone. Carolyn testified that Stone then walked into the bedroom and told her: “I will visit my mother in this house any time I want to. Do you understand?” and then left.

¶ 4. Stone offered a different account at trial. He testified that Seretha allowed him to enter the house. He sat in a chair in the living room, and was talking with Kay when Carolyn entered the room and began berating Seretha for allowing Stone to enter the house and arguing with Stone about the ownership of the house. Carolyn initiated the violence when she picked up the cordless phone and began striking Stone with it. He told her to stop, but she continued. He hit a footstool with his cane, at which point he conjectured that the cane's rubber tip must have fallen off. He then hit Carolyn “as hard as [he] could” in an attempt to get her away from him. He then agreed to leave, and, as he was limping out with his cane, Carolyn pushed him. As he was falling, he again hit her with the cane, this time causing her head to bleed. He testified that he awoke on the floor some time later and left the house immediately.

¶ 5. Carolyn also testified that, between 2002 and 2005, Stone had slapped her; hit her in the face with a flyswatter; held a baseball bat over her head while she was in bed while threatening to “beat [her] to a pulp” and kill her; and threatened to stalk, kill, and beat her with a hammer. In January 2005, Carolyn obtained a restraining order prohibiting Stone from entering her property. She testified that she and her mother actively avoided Stone—locking their doors and staying out of the front yard to avoid seeing Stone if he drove by—and, thus, hadn't seen much of Stone for the five months before the assault. As a result, Carolyn was surprised and scared when she saw him in her living room on June 7.

¶ 6. At trial, the State sought to introduce into evidence Stone's multiple threats and attacks of Carolyn to prove motive, intent, preparation, plan, knowledge, and absence of mistake or accident. The State asserted that evidence of these threats and prior assaults was necessary to reveal the complete story of the crime for which Stone was being tried. The trial court agreed, and, after determining that the evidence was more probative than prejudicial, allowed the State to introduce evidence of Stone's prior bad acts. After the State had presented its case in chief, Stone's counsel moved for a directed verdict, arguing only that the State had not proven that Stone had manifested indifference to human life. The trial judge denied the motion for a directed verdict. After receiving proper instruction from the court, the jury returned a guilty verdict of aggravated assault. Stone was sentenced to twenty years, with four years suspended, and a fine of $4,000. The court denied Stone's motion for judgment notwithstanding the verdict.

ISSUES

¶ 7. Stone's appellate counsel raised the following issues:

(1) Whether the trial court erred in denying Stone's motion for a directed verdict, because the State did not present sufficient evidence for the jury to find Stone guilty of aggravated assault.

(2) Whether the trial court erred in admitting evidence of Stone's prior bad acts.

¶ 8. Subsequently, Stone filed an inartful pro-se supplemental brief. Stone apologized “to the Court ... for [his] inclusion of facts which may be deemed inadmissible in consequence of their absence from the record....” The supplemental brief raised four issues:

(1) “Ineffectual Assistance of Counsel” for trial counsel's failure to seek a change of venue, failure to challenge an ex-parte order excusing Assistant District Attorney Dennis Farris from testifying, failure to subpoena several witnesses that Stone had requested be called, and failure to subpoena Stone's medical records.

(2) A claimed Miranda² violation related to Stone's apology to Carolyn during his preliminary hearing, a recording of which was admitted at trial and played for the jury.

(3) “There was no use of a ‘deadly weapon’ nor intent to inflict ‘serious bodily injury.’ ”

(4) “Illegal and disparate sentence.”

ANALYSIS

I. Standards of Review

¶ 9. “This Court reviews the denial of a motion for a directed verdict de novo.” Parker v. State, 30 So.3d 1222, 1231 (Miss.2010) (citation omitted). This Court applies an abuse-of-discretion standard when reviewing a trial judge's decision regarding the admission or exclusion of evidence. Hargett v. State, 62 So.3d 950, 952 (Miss.2011).

¶ 10. First, we direct our attention to the pro-se claims.

II. Stone's ineffective-assistance claim contains numerous facts outside the record.

¶ 11. We decline to address Stone's ineffective-assistance claim, because it contains numerous allegations outside the record. This Court has long held that it cannot consider that which is not in the record. See, e.g., State v. Cummings, 203 Miss. 583, 591, 35 So.2d 636, 639 (Miss.1948) ( “[b]eing an appellate court, we take the record as it comes to us, and receive no new evidence here.”) (citations omitted); Pratt v. Sessums, 989 So.2d 308, 309–10 (Miss.2008) (“[w]e cannot consider evidence that is not in the record.”) (citation omitted). As Stone's ineffective-assistance claim contains numerous allegations outside the record, we find that such claims are more properly the subject of a petition for post-conviction relief.

III. Stone's claim of a Miranda violation is procedurally barred, because he never asserted it at trial.

¶ 12. Stone never asserted a Miranda violation at trial. “[T]his Court has ... consistently held that errors raised for the first time on appeal will not be considered....” Stockstill v. State, 854 So.2d 1017, 1023 (Miss.2003) (citations omitted). As Stone raised his claim of a Miranda violation for the first time on appeal, it is procedurally barred. Alternatively, the claim is without merit, as Stone's apology to Carolyn was not the product of custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (providing that “the prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”) (emphasis added).

IV. Stone's sentence of twenty years' imprisonment with four years suspended and a $4,000 fine was not illegal.

¶ 13. Imposing a sentence of twenty years' imprisonment with four years suspended and a $4,000 fine was within the trial court's statutory authority for the crime of which Stone was convicted. Mississippi Code Section 97–3–7(2) provides that a defendant convicted of aggravated assault “upon a person who is sixty-five (65) years of age or older or a person who is a vulnerable adult,” may be punished by a fine of up to $5,000 and up to thirty years' imprisonment. Miss.Code Ann. § 97–3–7(2) (Rev.2006). As the record reveals that Carolyn was seventy-three years old at the time of the aggravated assault, Stone's sentence was within the statutory limits for the aggravated assault of a person who is sixty-five years of age or older. Accordingly, this argument is without merit.

V. The pro-se argument that there was no use of a deadly weapon or intent to inflict serious bodily injury is repetitive of an issue raised by appellate counsel.

¶ 14. The pro-se argument that there was no use of a deadly weapon or intent to inflict serious bodily injury is essentially the same as the argument of Stone's counsel that the trial court erroneously denied a directed verdict for the State's failure to prove all elements of aggravated assault. Therefore, our analysis of this pro-se argument is merged with our analysis of appellate counsel's argument in the following section. See infra...