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BOBBY CALDWELL v. STATE OF MISSISSIPPI

NOVEMBER 16, 1983

BOBBY CALDWELL
v.
STATE OF MISSISSIPPI



EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

PART I

THE GUILT PHASE

 This is an appeal from the Circuit Court of DeSoto County wherein the appellant, Bobby Caldwell, was found guilty of the capital murder of Elizabeth Faulkner and sentenced to die in the gas chamber. *fn1 Upon motion of the

 appellant, the venue of the trial was changed from Panola County to DeSoto County. The trial court set the date of execution as January 15, 1982. Caldwell brought this appeal and assigns as error the trial court's actions in:

 1. denying defendant's motion to declare the warrantless arrest illegal in that evidence of another crime was admitted; no probable cause existed at the time of arrest; appellant was not informed of his arrest; the trial court's ruling on the motion was against the weight of the evidence;

 2. denying defendant's motion to suppress the alleged statement, in that the ruling is against the weight of the evidence;

 3. denying the defendant's motion for a special investigator and ballistic expert at state expense, which violated defendant's due process of law;

 4. the state failed in proving venue in that Panola County, Mississippi, has two judicial districts.

 Mr. Robert Faulkner and Mrs. Elizabeth Faulkner were husband and wife. Together they owned Mrs. Lee's Bait Shop, a small grocery store and bait shop on Highway 315 near Sardis Reservoir in Panola County. On the morning of October 29, 1980, Mrs. Faulkner was in the store and her husband was in the back part of the building which served as the couple's living quarters. Mr. Faulkner testified that he heard his wife scream and then two shots fired. He took a shotgun and went to the door which separated the living quarters from the store. From there he saw a black man dressed in dark clothing and a dark toboggan-style hat running out of the store. Mr. Faulkner went through the store and saw his wife lying on the floor behind the counter. He then ran out of the store and fired his shotgun twice at the fleeing assailant. The second time he fired the assailant was jumping over a barbed wire fence and running into a wooded area. Mr. Faulkner then returned to his wife and called an ambulance for her.

 The Faulkner's daughter-in-law lived next door to the store. She came over immediately and called the Panola County Sheriff's Office. Deputy J. C. Sexton arrived approximately twenty minutes later. He was told what direction the assailant ran, whereupon he immediately followed on foot. When Deputy

 Sexton reached the barbed wire fence he found a right handed brown cotton glove stuck on a barb. Crossing the fence, Sexton found fresh boot prints in the mud and followed them approximately .25 miles to a logging road right off of the highway. Sexton testified that the boot tracks ended by some fresh tire tracks. The car was gone but mud on the road indicated the direction it traveled.

 The Panola County Sheriff, David Bryan, ordered that roadblocks be set up throughout the area. Officers at the roadblocks were given a description of the suspect and told he was driving a red and white Malibu or a Chevelle. Shortly thereafter Sheriff Bryan received word that a man matching the suspect's description had passed through at least two roadblocks in a red and white car. At the roadblocks the suspect was identified as the appellant, Bobby Caldwell. The sheriff then instructed Deputies Sexton and Rudd to bring Caldwell in for questioning.

 Sexton and Rudd immediately went to Caldwell's parents' home where they found Caldwell washing a red and white Chevrolet. Caldwell was dressed in dark coveralls, toboggan hat and rubber boots. Deputy Sexton testified that Caldwell's boot tracks in the mud around the car matched those he had followed in the woods a few hours earlier. The officers told Caldwell that they wanted him to accompany them to the Batesville jail because the Sheriff wanted to talk to him. Caldwell started toward the open door on the driver's side of his car when Deputy Sexton noticed the handle of a pistol partially exposed under the car seat. Sexton ordered Caldwell to "Woap, hold it right there" and Deputy Rudd handcuffed him. Sexton retrieved the pistol and determined that it had four (4) live rounds and two (2) spent cartridges in it.

 Caldwell was taken to the Batesville jail between 10:00 a.m. and 11:00 a.m. the morning of the shooting. A search of his clothing revealed a left handed brown cotton glove similar to the one found on the fence. Caldwell was given his rights and he denied any involvement in the shooting. He was then placed in a lineup and identified by Mr. Faulkner as the assailant.

 The following morning Caldwell asked to speak to Deputy Rudd. Rudd and Sheriff Bryan then interviewed Caldwell and from that interview emerged a three page statement in which Caldwell admitted shooting Mrs. Faulkner while attempting to rob her store. The statement is in the sheriff's handwriting and is not signed by Caldwell. Caldwell denied ever having made the statement. Following the statement Caldwell was formally arrested and charged with Mrs. Faulkner's murder.

 The proof at trial included Mr. Faulkner's in-court identification of Caldwell as the assailant, Caldwell's statement, and several expert witnesses who testified that the boot tracks, tire tracks, and ballistic comparisons all corresponded with Caldwell's boots, tires and weapon confiscated from his car. The jury found Caldwell guilty. The same jury also imposed the death penalty.

 Caldwell's first assignment of error groups together four different arguments: (1) the admission of evidence of other crimes during the hearing on the legality of his warrantless arrest. (2) the lack of probable cause to make an arrest, (3) the failure to inform him of his arrest, and (4) the court's error in weighing the evidence. Although lumped together under one assignment of error, we will discuss each of these arguments separately so as to avoid confusion.

 At the time Sheriff Bryan directed Deputies Sexton and Rudd to bring Caldwell in for questioning, the sheriff suspected that he was involved in an attempted robbery of a package store. The package store robbery occurred on October 20, 1980, just nine days prior to Mrs. Faulkner's murder. Sheriff Bryan had information from witnesses to the attempted package store robbery, that the suspect was a black male in his early to mid twenties and drove a two tone red car which had been shot in the trunk during the attempted robbery. The sheriff later received information that a car matching the description of that used in the attempted robbery had been at a local convenience store and had a recently patched and painted hole in the trunk. The information also included the car's license tag number, PAN 777. A check on that tag revealed the car was registered to Caldwell's father, Dempsey Caldwell, Sr. Using this information, Sheriff Bryan discovered that Caldwell was on work release from Parchman and had not been at work the day of the attempted robbery of the package store. Sheriff Bryan had ordered Deputy Rudd to locate Caldwell but these efforts had been futile. When Deputies Sexton and Rudd arrived at the home of Caldwell's father, after Mrs. Faulkner's shooting, the red and white car Caldwell was washing had a patch on the trunk and had been freshly painted.

 In the hearing on Caldwell's motion to declare the warrantless arrest illegal and to suppress evidence obtained therefrom, the judge allowed all of the foregoing testimony regarding the attempted package store robbery. Caldwell argues that evidence of other crimes was inadmissible during this hearing. His position is that the evidence was irrelevant to the purpose of the hearing - determining whether probable cause for his arrest existed. It is a settled rule in Mississippi

 that proof of a crime distinct from that alleged in the indictment is generally inadmissible at the accused's trial on the merits. Eubanks v. State, 419 So. 2d 1330 (Miss. 1982). The rationale for this rule is that evidence of other crimes may tend to prejudice the minds of the jurors or confuse them as to the real issues on trial.

 In the instant case, there was no possibility that the evidence would prejudice the jury because the evidence was taken during a suppression hearing before a jury had even been impaneled. In Brooks v. State, 242 So. 2d 865 (Miss. 1971), this Court held that the "acid test" is the relevancy of the evidence to the purpose or purposes for which it is sought to be introduced. The relevancy here must relate to probable cause for the arrest. Certainly the fact that the law enforcement officers considered Caldwell a suspect in another recent similar crime involving an attempted robbery was relevant to their suspicion and he was involved here, particularly so when descriptions of the suspect and get-away cars were identical. Because there was no jury at this hearing the policy considerations designed to prevent prejudice do not apply to this evidence and its admission was not error.

 Did probable cause exist at the time of Caldwell's arrest? In Michigan v. DeFillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L.Ed.2d 343 (1979), the United States Supreme Court stated that "probable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." 443 U.S. at 37, 99 S. Ct. at 2632, 61 L.Ed.2d at 350. In Powe v. State, 235 So. 2d 920 (Miss. 1970), this Court set forth a two-pronged test to determine probable cause. The arresting officer must first have reasonable cause to believe a felony is being committed and secondly, must have reasonable cause to believe that the person proposed to be arrested is the one that committed it. Reasonable cause to believe a suspect has committed a crime does not require evidence sufficient to support a conviction. Powe, supra. Caldwell concedes the first part of this test but he argues that there was not reasonable cause to believe that he had committed the crime.

 The evidence at the hearing shows that Officers Sexton and Rudd had ample cause to reasonably believe Caldwell committed the crime. Caldwell matched the description the officers had for the suspect as related to both physical description and wearing apparel and he was washing a car that matched the description of the vehicle involved. Also, Officer Sexton recognized Caldwell's boot print as identical to those

 he followed through the woods behind the bait shop. At the time of the arrest the officers also had information that Caldwell had passed through at least two roadblocks in the area of the crime. We hold that that information was sufficient to give the officers reasonable cause to believe Caldwell was involved in the crime.

 Was Caldwell adequately informed of his arrest? Sheriff Bryan testified that Caldwell was not officially arrested until after he gave the statement on October 30, almost 24 hours after being taken into custody, although he was informed of his rights prior to that. In the case of Hinton v. Sims, 171 Miss. 741, 158 So. 141 (1934), this Court ruled that an arrest was illegal where the arresting officer failed to notify the suspect he was under arrest. In Hinton, we said:

 Although the evidence showed that Hinton knew Sims and Myers, and knew that they were deputy sheriffs, it was the duty of Sims to inform him to consider himself under arrest, or by some other language convey to Hinton the idea that he was attempting to arrest him. Instead of doing that, he used the language of a highwayman, "Put up your hands." And, by the way, during these times it is well known that some officers of the law have turned bandits. If it had been shown that Hinton was a desperate and dangerous criminal, a well-known killer, or a would-be killer, Sims might have been justified in proceeding as he did. Gurley v. Tucker (Miss.) 155 So. 189. Must every man, innocent or guilty, put up his hands whenever commanded to do so by an officer, whether in the daytime or nighttime, and regardless of the situation and surroundings, without being informed by the officer of the reason for the command? We think not. We do not mean to convey the idea that the officer must always inform the person sought to be arrested of the object and cause of the arrest before it is made, but we do hold that, except in rare cases, such as referred to in the Gurley Case, he should inform him that he consider himself under arrest.

 171 Miss. at 747, 158 So. at 143. Caldwell meets the requirement

 of the Gurley exception as a desperate and dangerous criminal. Also, the fact that he was under arrest was certainly obvious to Caldwell as he was not free to leave the Batesville jail, was informed of his rights and of the fact that the sheriff wanted to question him regarding a murder. These facts read together indicate that Caldwell was well aware of his arrest prior to being notified thereof. As Caldwell was given his rights and knew that he could request an attorney, the failure to expressly inform him of his arrest on October 29 was not a reversible error. Based on all the foregoing, it cannot be said that the trial judge's ruling at the suppression hearing was against the overwhelming weight of the evidence.

 Caldwell's second assignment of error is the trial court's failure to suppress the alleged statement. Here it must: be noted that Caldwell does not contend that the statement was illegally obtained, rather he argues that it was never made. This Court has held that when there is a conflict as to whether an accused actually gave a statement the resolution of such conflict is for the jury. Talbert v. State, 347 So. 2d 352 (Miss. 1977). In Talbert this Court held:

 The true rule, as applied by the trial court in this case, is found in Weathers v. State, 237 So. 2d 441 (Miss. 1970). In that case, the police officer testified that a confession had been made, and the defendant claimed that it had not. We held, "The conflict between Weathers and the officer as to whether Weathers had, in fact, made the statement attributed to him created a factual issue, the resolution of which lay peculiarly within the province of the jury." Id. at 442. Thus, the court properly admitted the testimony of Deputy Sheriff Nail regarding Talbert's confession. The jury was free to decide whether the statement had been made, and to decide what weight to give it.

 347 So. 2d at 355. Therefore, based on Talbert, the statement was properly admitted and it became a question for the jury as to whether Caldwell ever made such statement.

 Caldwell's third assignment of error contends that the refusal of the trial court to grant his motion that he be provided with an expert in the field of ballistics and an investigator was a denial of due process. Prior to the trial

 Caldwell filed a motion for an order that he be provided with psychiatric and ballistic experts at state expense. The trial court granted the motion as to the psychiatric expert but denied the ballistic expert. In Phillips v. State, 197 So. 2d 241 (Miss. 1967) this Court ruled on ...


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