Van Buren v. State, 56359
| Decision Date | 26 November 1986 |
| Docket Number | No. 56359,56359 |
| Citation | 498 So.2d 1224 |
| Parties | Apprilla VAN BUREN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Bentley E. Conner, Canton, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and DAN M. LEE and ANDERSON, JJ.
This appeal is taken from the Circuit Court of Madison County wherein Apprilla Van Buren was convicted of vote fraud under Miss.Code Ann. Sec. 23-9-703 (Supp.1985). She was sentenced to serve 2 years and 6 months with the Mississippi Department of Corrections. The execution was stayed conditioned on compliance with a probation order requiring her to: perform community work one day a week for 90 weeks; pay court costs and statutory fees and make restitution to Madison County in the amount of $500.00 for her court-appointed attorney; and, be placed on supervised probation for 5 years. Her conviction followed a five-count indictment, an initial trial in which four of the counts were dismissed and a mistrial declared on the second count. Van Buren was subsequently retried on this lone count of vote fraud. She appeals assigning the following errors:
I. The verdict of the jury was contrary to the weight of the evidence and should have necessitated a new trial.
II. A criminal defendant indicted for aiding and abetting another should not be convicted where there is no proof of criminal behavior on the part of the principal named in the indictment.
III. The trial court erred in failing to grant defendant's Instruction D-2, that the testimony of an accomplice should be viewed with great caution.
IV. The trial court erred in refusing defendant's Instruction D-3 setting forth the burden of proof as to the guilt of the principal.
We affirm.
Apprilla Van Buren was indicted in mid-December, 1983 on five counts of vote fraud. The indictment reads that Van Buren, on or about October 4, 1983:
[D]id willfully, unlawfully and feloniously aid, abet, assist, encourage, help and cause Octavia McMorris, who was then and there a person voting an absentee ballot, to violate the following provisions of law pertaining to absentee voting to-wit:
5. Suggesting that such absentee voter voter for a particular candidate or candidates as the ballot was then being marked and did thereby illegally influence the vote of such absentee voter.
against the peace and dignity of the State of Mississippi.
At the first trial on this indictment, the trial court directed a verdict in favor of Ms. Van Buren on counts 1, 3, 4 and 5 but allowed the second count charged to go to the jury. The jury could not render a verdict, however, and a mistrial was declared. A second trial was held September 26, 1984 on the second count only of aiding, abetting, assisting, encouraging, helping and causing Octavia McMorris to make a false affidavit for an application for absentee ballot. The state called only two witnesses.
The first witness was J.D. Rasberry, the Madison County Circuit Clerk. He testified that defendant Apprilla Van Buren was a candidate for county tax assessor/collector in the November 8, 1983 general election. He received from Octavia McMorris, a registered voter, (1) a request for an absentee ballot application, (2) the completed application and (3) the absentee ballot for the general election. Ms. McMorris' application and ballot were among a group of absentee ballots notarized by Mildred Branch which were challenged and ultimately not counted in the general election. Mildred Branch was a notary public. By statute a notarized application for absentee ballot must be received before an absentee ballot is issued, Rasberry testified, and on the basis of the facial validity of Octavia McMorris' affidavit a ballot was issued and returned. Rasberry stated that applications are available to anyone and frequently candidates for office have handed them out. Rasberry further stated that instructions for completing the official ballot are mailed with the ballot, but no instructions accompany the applications.
The second witness for the state was Octavia McMorris. She is a Canton resident who was age 72 at trial and a registered voter. Her testimony was confusing at points. The court during the trial gave the state some leeway in the use of leading questions on direct because "of the fact that this is an elderly lady who does have some difficulty in her testimony."
She testified she voted by absentee ballot in the 1983 general election because she could not get to the polls. She identified State's Exhibit # 2, the application for an absentee ballot, as the paper the defendant, Ms. Van Buren, brought to her home. This was admitted into evidence and made part of the record. It has a blank for the name of the voter at top, and blanks at the bottom for the voter's signature, the signature of a notary public and for the voter's address and date of the election for which the ballot is to be used. All of these blanks are filled in. The name of Mildred Branch appears in the blank for the notary public. The application is dated October 4, 1983. Ms. McMorris testified that when she signed the application, there was no other writing on it. Mildred Branch's name was not on the application when she signed it. She gave the following responses to questions from the prosecution concerning who was present when she signed the application:
Q. Is there any doubt in your mind that this is the application for absent ballot that you filled out last year you say in front of Apprilla Van Buren?
Q. Who was there when you signed this paper?
A. My daughter was there, but she wasn't in the room.
Q. Who was in the room when you signed the paper?
A. My daugher-in-law back there in the back.
Q. Who else was there?
A. That's all. Us three.
Q. When are you saying that this woman right here brought the paper to you?
BY MR. CONNER: Objection, Your Honor.
A. I didn't know no date, month or nothing.
BY THE COURT: Overruled.
Q. My question is just tell us that Mrs. Van Buren had to do with the paper? Was she there when you signed it or was she coming later to pick it up or what? Just tell us. Put it in your own words. Maybe I am asking in too big a words or something.
A. Well, she bring the absentee ballot to be signed, you know. I didn't go to the polls. I signed that one.
Q. Who was there when you signed it? Was she there? That is what I am getting at.
A. Yeah. She was there. She brought it by.
Ms. McMorris testified that after she signed the application a ballot came in the mail. She did not vote the ballot, she merely signed the back of the ballot envelope. The ballot was picked up by the defendant Ms. Van Buren; Ms. McMorris did not mail it herself. Defense counsel objected that evidence of picking up an absentee ballot pertained to an additional crime with which the defendant had not been charged, and therefore should not be admitted. This objection was overruled.
The state introduced Exhibit # 3, the ballot envelope. Ms. McMorris testified that the envelope had no other writing on it when she signed in the space provided for the voter's signature. The name of Mildred Branch appears on the envelope as both the notary and the attesting witness. Again defense counsel objected to admitting the ballot because it was evidence of another crime. The trial court overruled the objection stating "I don't think we can separate it out." Ms. McMorris was allowed to testify that she didn't know who voted the ballot since she didn't mark any names. But she stated However, the ballot was never opened before or at trial.
At defense counsel's urging, the trial court informed Ms. McMorris of her right not to incriminate herself. On cross-examination, defense counsel asked Ms. McMorris if Van Buren had helped her fill out the ballot. Ms. McMorris said no, that in fact the envelope was sealed when she received it in the mail. Ms. McMorris testified that Mildred Branch had helped her complete absentee ballots in previous elections but she had not seen Mildred Branch since 1982.
Ms. Van Buren's defense was predicated on the theory, that she was indicted and tried as an assessory to voter fraud. This brings us to Ms. Van Buren's argument under her second and fourth assignments of errors, which we address together.
II.
IV.
Van Buren seeks to infuse the requirements of the felony accessory statute, Miss.Code Ann. Sec. 97-1-3 (1972), into the vote fraud provision of Sec. 23-9-703. Section 97-1-3 provides the law concerning accessories to felonies before the fact. It provides:
Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and...
To continue reading
Request your trial
-
Stevens v. State, No. 2000-DP-00507-SCT.
...(Miss.1989)). This Court must accept as true the evidence favorable to the State. Wetz v. State, 503 So.2d at 812; see Van Buren v. State, 498 So.2d 1224, 1228 (Miss.1986). ¶ 125. Stevens argues that the evidence in the case was insufficient to support the sentence instruction number six wh......
-
Lynch v. State, No. 1998-DP-01149-SCT.
...such person in the commission of the crime charged.'" Brooks v. State, 763 So.2d 859, 861 (Miss.2000) (quoting Van Buren v. State, 498 So.2d 1224, 1227 (Miss.1986)). Moreover, this Court has Aiding and abetting is defined to be the offense committed by those persons who, although not the di......
-
Brewer v. State, 95-DP-00915-SCT.
...should not hesitate to grant a cautionary instruction when the State is relying upon the testimony of co-conspirators. In Van Buren v. State, 498 So.2d 1224 (Miss.1986), this Court further stated that "[t]he granting of a cautionary instruction regarding the testimony of an accomplice is di......
-
Carr v. State, 90-DP-01106
...kin. See Garrett v. State, 549 So.2d 1325, 1331 (Miss.1989); Wetz v. State, 503 So.2d 803, 812 (Miss.1987) (citing VanBuren v. State, 498 So.2d 1224, 1228 (Miss.1986)). Considering the evidence in the light most consistent with the verdict, we find the record reflects substantial evidence o......