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MAY 04, 1983




Alvin Hill appeals from his conviction of capital murder and sentence of death in the Circuit Court of DeSoto County. We affirm.

The two most serious questions on this appeal concern the admission of the murder weapon into evidence as being violative of the "fruit of the poisonous tree" doctrine and the refusal of the trial judge to grant instructions requested by the defense in the sentencing phase. The former is discussed in Part II of this opinion, the latter in Part IV.

 The remaining assignments of error are addressed in Part III.



 On Friday, August 17, 1979, at approximately 6:30 p.m., reserve deputy sheriffs Donald Sutton and Mike Madden were patrolling Stateline Road in DeSoto County. They observed a disturbance at a car parked in a driveway and stopped to investigate. The problem was nothing more than a family quarrel, but while they were quieting the disturbance, they detected a foul odor. They walked towards the woods north of the road, from whence the odor came, and just inside the woods found the decomposed body of Robert Lee Watkins, whose truck had been hijacked. Watkins had been robbed and murdered on July 12, 1979.

 At the time of his death Watkins was employed as a truck driver for American Freight Lines Trucking Company in Memphis.

 Upon seeing the decomposed body, other law enforcement officers were summoned, and an investigation continued well into the night. Beside the remains Watkins' wallet was found, containing his Tennessee driver's license, his social security card, and a credit card bearing his name. The remains were identified by experts, and there is no question but that the human bones and remnants of rotting flesh the officers found were what was left of Watkins' corpse.

 On July 16, 1979, after the Watkins murder but prior to discovery of Watkins' body, in Tunica County, Alvin Hill and one Sammy Lee Hampton hijacked and robbed a truck driver employed by the Nat Buring Packing Company. Hill was arrested and taken into custody for this crime by Tunica County Sheriff Hugh Monteith on July 20. The record does not reflect precisely

 when Hampton was arrested, but no doubt his arrest also took place on or about July 20.

 FBI Agent Bobby G. Shanks questioned Hill in a Memphis police station on July 19 and 20 about the hijacking of the American Freight Lines truck. He testified he questioned Hill again July 25 in the DeSoto County jail. Present at these interrogations, in addition to Agent Shanks and Hill, were A. D. Gatewood of the Mississippi Highway Safety Patrol and Sheriff Monteith. According to Agent Shanks, he informed Hill on July 25 that Hampton had told him the previous day that Hill was involved in the hijacking of the American Freight Lines truck and the disappearance of the driver. According to Shanks, when he made this statement to Hill, he replied, "Sammy will get his." *fn1

 Ricky Wayne Ward was chief investigator for the DeSoto County sheriff's office on August 17, 1979, and some time that night informed Hill the body of Watkins had been found.

 Ward next questioned Hill on the morning of August 18 in the Tunica County jail.

 Shortly after 5:00 o'clock that afternoon, in the presence of Sheriff Monteith, DeSoto County Sheriff Denver Sowell, deputy Bobby Gene Biffle, and Ward, Hill confessed the robbery and murder of Watkins. The confession was made in the sheriff's office in Tunica County.

 According to Hill's confession, one Gregory Tucker and another black male whose name he did not know participated in the hijacking and robbery, but Hill stated he was the person who shot Watkins. He stated Watkins was on his knees at the time, and the first shot was into the back of Watkins' head. He believed he shot three times. (R. 175). When asked what he did with the murder weapon, Hill stated it was thrown into the Coldwater River from a highway bridge south of Hernando.

 Two aspects of the confession need now be noted. First, it was later ruled an involuntary confession on a pre-trial motion to suppress, and was therefore inadmissible at trial. Second, Hill's statement in the confession that the gun was thrown into the river was false. Later in the evening of Saturday, August 18, around 8:00 to 8:30, Ward returned to Hill's jail cell, and Hill told him "Mr. Carter" of Memphis had the gun. *fn2

 On Sunday, August 19, Sheriff Monteith telephoned the Memphis Police Department and informed officer Bobby S. Rust

 that a black male named Robert Carter had the pistol, and that he worked for either a Goodyear or B.F. Goodrich store on Union Avenue.

 On Monday morning, August 20, officer Rust and Sergeant Priddy of the Memphis Police Department questioned Carter at a B.F. Goodrich store on Union Avenue; Carter told them he had loaned his pistol to a black male he knew only as "Rusty" (and who in fact was Hill). Carter took the officers to his apartment in Memphis and delivered the pistol to them. Carter was not implicated in either of Hill's robberies, and never was charged with any offense. He testified as a witness for the state at Hill's trial.

 After recovering the weapon, the Memphis Police Department delivered it to Ward.

 On October 5, 1979, the grand jury of DeSoto County indicted Hill, Tucker, and one Laverne Milam for capital murder of Watkins, in the commission of the crime of robbery, in violation of section 97-3-19 (2)(e) of the Mississippi Code. Milam did not testify and the record does not reveal anything about him other than the fact that he was arrested in Flagstaff, Arizona, and returned to Memphis by the Memphis Police Department. Tucker pleaded guilty to manslaughter and testified as a witness for the state.

 The circuit judge conducted a hearing on November 4, 1980, on the motion to suppress the confession, and ruled the confession had been given as a result of inducements by Ward, and was therefore inadmissible.

 A bifurcated trial of Hill for capital murder was begun November 17, 1980, and concluded November 21.

 Clarity of this opinion does not require a detail of the trial evidence. When necessary or appropriate, we will discuss relevant portions of the record under the various assignments of error.

 One part of the trial proceedings, however, does deserve our scrutiny at this time. This involves the admission into evidence of the murder weapon, the pistol recovered from Carter.

 When Sheriff Monteith was called as a witness by the state, the record reveals the following testimony relative to the source of his information about the murder weapon:

 Q. Sheriff Monteith, in the course of your

 investigation, did you have occasion to interview Sammy Hampton?

 A. I did.

 Q. As a result of those interviews, did you at anytime inform officers of the Memphis Police Department where a possible gun could be found?

 A. I did.

 * * *

 Q. Do you recall, Sheriff Monteith, who you gave that information to?

 A. I gave it to a Sgt. Priddy of Major Crimes in Memphis, Tennessee. Sgt. Priddy.

 Q. As a result of that information being given to Sgt. Priddy, do you know whether or not any weapon was recovered?

 A. No, sir, I do not know whether - I passed the information on, and I do not know the results of that - what the outcome of that was.

 (R. 818-819) (emphasis added).

 The above testimony of Sheriff Monteith was admitted in open court without objection by defense counsel.

 Later in the trial, the trial judge conducted a hearing in chambers prior to the introduction of the murder weapon before the jury. During that hearing, officer Rust related the receipt of the information about the pistol from Sheriff Monteith on Sunday, August 19, as above noted; that Sheriff Monteith did not give the source of the information; and that Rust did not know from whom Sheriff Monteith got his information. Rust then testified to obtaining a .357 Magnum (Ruger) revolver pistol from Carter the next day, also as above noted.

 Officer J. E. Anderson and Sergeant R. E. Priddy of the Memphis Police Department corroborated the testimony of Rust as to the recovery of the weapon from Carter. Priddy further testified that Hampton had been previously arrested for the Tunica County robbery and that Hampton had supplied no information about the American Freight Lines hijacking. Priddy also testified that in their questioning of Milam, he had no

 knowledge of where the pistol came from.

 Ward then testified he had received the pistol from the Memphis Police Department. Ward was not asked on direct examination and did not testify whether he had received any information about this gun from Hill.

 On cross-examination of Ward, the following appears in the record:

 Q. Rick, you did not participate in the recovery of this weapon?

 * * *

 A. No, I was contacted by the Memphis Police Department that they had custody of the weapon.

 Q. Did they ever tell you how they got information in reference to the recovery of this gun, what their source of information was?

 A. No, sir.

 * * *

 Q. Rick, what information did you receive on this gun?

 A. Rust or Priddy one called me and told me that they had picked somebody up who had the gun that was used in the murder, and that the person had told them that they had loaned Hill this gun, and they wanted to know if we needed it in our case. I told them yes, and I asked them to return it - you know, give it to us for they (sic) trial, and they said yes. So, I went up and they took me over to the property room and assigned it over to me.

 (R. 925-927).

 Following the above testimony, the trial judge made a ruling. In so doing, he also had before him a transcript of the November 4 pre-trial hearing at which time he suppressed the confession. The circuit judge noted that in Hill's confession he stated the gun was thrown into the Coldwater River. The circuit judge then made the following statement:

 The Defendant takes the very strong stand that this is - could only be or is in fact fruits of the poisonous tree, that the information could only have been provided to law enforcement officers from Defendant Hill. The testimony before the Court, however, and what I must consider and bound thereby. . .

 At this point in his ruling the circuit judge was interrupted by defense counsel, who requested that the court hear Hill for limited purposes only as to the admissibility of the weapon. (R. 929-930).

 Pertinent portions of Hill's testimony in chambers are as follows: Q. Alvin, you testified earlier, and the Court is acquainted with you. Would you tell the Court when and whom you told about the whereabouts of this gun in question? A. I told Mr. Ward about it. Q. When did you tell Mr. Ward about it? A. Well, it was the same day I gave my confession, but it was about 8:00 or 8:30 that night. He came back - I told him I throwed it in the Coldwater River and he came back and said he couldn't find it. He was saying that he wanted me to help him, to tell him where it was. So, I told him Mr. Carter had it. Q. Was Sheriff Monteith at the jail at that time? A. No, sir, he was gone home. Q. Alvin, did you at anytime indicate the whereabouts or who owned this pistol to Sammy Hampton?

 A. No, sir.

 Q. Did you tell Sheriff Monteith?

 A. No, sir.

 Q. The only officer you told about it was Rick Ward.

 A. Yes, sir, that's right.

 (R. 930-931).

 Cross-examination of Hill elicited the following:

 Q. Mr. Hill, have you discussed what we call the fruit of the poisonous tree doctrine with your lawyers?

 A. No, sir.

 Q. Have they not told you that any evidence that is recovered as a result of suppressed confessions would be inadmissible?

 A. I don't understand your words.

 * * *

 Q. Now, did your lawyers tell you that anything else that was recovered after that confession couldn't be introduced?

 A. No, sir, they haven't told me that.

 Q. They haven't told you that? Did you hear Sheriff Monteith say he got the information, ...

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