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BOBBY GLEN WILCHER v. STATE OF MISSISSIPPI

FEBRUARY 15, 1984

BOBBY GLEN WILCHER
v.
STATE OF MISSISSIPPI



EN BANC

PART I, HAWKINS, JUSTICE, FOR THE COURT:

GUILT PHASE

Bobby Glen Wilcher appeals from his conviction of the Capital Murder of Velma Odell Noblin and sentence of death. We affirm the guilt phase of the trial. We likewise affirm the sentencing phase.

 The numerous issues raised on this appeal are discussed in order.

 FACTS

 Two Scott County ladies were brutally murdered on a dead-end rural road in a remote area of Scott County. They were requested by Wilcher to drive him to his parents home from a honky-tonk in Scott County and after he got into the car with them he persuaded them to drive to this area in the pretext of carrying him home.

 On this appeal, the first point is:

 CHANGE OF VENUE

 The Defendant argues he was entitled to change of venue.

 On May 11, 1982, a motion for a change of venue was filed, to which were attached nine (9) affidavits from residents of Scott County, each concluding with an opinion that the Defendant could not receive a fair trial in Scott County because of the notoriety, and that the murder victims were well-known, respected, and had many kinsmen in the county.

 At a hearing on the motion, the state presented eleven (11) witnesses supporting the contention of the state that there had been no prejudgement of Defendant to the extent that a fair and impartial jury could not be impaneled. The circuit judge overruled the motion, but also stated he would review the question again when the special venire was examined.

 On July 26, 1982, the Defendant filed another motion for a change of venue, again overruled. The circuit judge noted the prospective jurors" by and large "had formed no opinion on the guilt or innocence of the Defendant.

 This Court has held the matter of granting the change of venue is within the sound discretion of the circuit judge, and there is no justification to reverse a circuit judge on such a ruling unless it" clearly appears "such discretion has been abused. Tubbs v. State, 402 So.2d 830 (Miss. 1981); Myers v. State, 268 So.2d 353, p. 357 (1972); Gallego v. State, 222 Miss. 719, 77 So.2d 321 (1955); Shimniok v. State, 197 Miss. 179, 19 So.2d 760 (1944).

 Upon the conflicting evidence of this case, we cannot state there was an abuse of discretion in overruling the motion.

 AUTHORITY OF THE CIRCUIT COURT TO TRY THE CASE AT A SPECIAL TERM

 The Defendant was indicted at the regular March term of 1982 of the Circuit Court of Scott County. Following his arraignment the circuit judge announced to the attorneys that he anticipated calling a special term in the event the motion for a change of venue was overruled.

 On July 1, 1982, the circuit judge entered an order calling for a special term of Circuit Court to convene July 26, 1982.

 Upon appeal, the Defendant claims he was entitled to a" continuance "of his case until the next regular term in October, 1982. His argument, however, is premised upon the authority of the Circuit Court to try his case at the special term. The Circuit Court clearly had statutory authority to try this case at a special term. Miss. Code Ann. 9-1-1.

 Defense counsel's citation of Gortney v. City of New Albany, 171 Miss. 896, 158 So. 921 (1935), is misplaced, where an entirely different question was presented to this Court.

 In our modern day, with the added rules of criminal discovery, and complexity and difficulty of trial under present procedures, there will be many instances in rural counties when it will not only be desirable but indeed necessary for some cause to be tried at other times than a regular term of court.

 AUTHORITY TO EXCUSE A JUROR OPPOSED TO THE DEATH PENALTY

 One juror stated unequivocally he was opposed to the death penalty to the extent that it would prevent his making an impartial decision on the Defendant's guilt, that he would not even consider the court's instructions, and that under no circumstances would he vote for the death penalty.

 The only authority the Defendant cites in support of his assignment the circuit judge erred in excusing this juror for cause is the United States Constitution, the Sixth and Fourteenth Amendments.

 There is no merit in this assignment. See Adams

 v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L.Ed.2d 581 (1980); Witherspoon v. State, 391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968); Armstrong v. State, 214 So.2d 589 (Miss. 1968).

 ADMISSIBILITY OF CONFESSIONS AND TANGIBLE EVIDENCE

 BACKGROUND

 Around 10:00 o'clock in the morning of Saturday, March 6, 1982, Bobby Easterling made an affidavit before Robert G. Wilkerson, a justice court judge of Scott County, charging that Bobby Wilcher did unlawfully" take and carry away 1 - .38 cal. Colt with Guard over the Hammer ". Judge Wilkerson then issued a warrant for the arrest of Wilcher on a charge of" Larceny ", and delivered it to Mike Bennett, a deputy sheriff of that county. Bennett had other official duties at the time, and took the warrant to the sheriff's office, notifying the personnel there that" if anybody saw him, to pick him up ". No one else executed the warrant, and later in the day Bennett upon inquiry learned the location of the Gene Wilcher home, and went there and arrested Wilcher around 3:00 p.m. En route to the jail, Wilcher asked Bennett what" larceny was ", and Bennett told him he did not know. When Wilcher was brought to jail, Bennett handed him a copy of the warrant.

 Almost simultaneously to their arrival at the jail, two girls and a boy came into the sheriff's office and reported seeing two bodies. Bennett took Wilcher to a cell and went to the location of the bodies.

 It so happened in the early morning hours of that March 6, Bobby Wilcher was stopped for speeding by a police officer. He was driving a car belonging to one of the victims. The officer observed two (2) women's purses on the front seat and a black bra on the back seat. Wilcher told the officer that he was hurrying to the hospital for treatment of a cut finger and requested that the officer escort him. Wilcher was covered with blood. The officer followed but radioed another policeman to meet him at the hospital. Upon arrival at the emergency room at 2:00 a.m., Wilcher gave the officers a blood-covered knife. This knife was kept by the hospital security guard until turned over to police the evening of March 6. Wilcher's nicked thumb was treated with a band-aid and he was released. After receiving this information implicating Wilcher, Glen L. Warren, sheriff of that county, and Otis Kelly, a deputy, took Wilcher from the jail to the sheriff's office shortly after 7:00 p.m. that Saturday evening. Wilcher was given

 the conventional Miranda warnings, which were read to him on a form and signed by him at 7:19 p.m. Wilcher declined to make any statement at the time.

 Wilcher requested to see his parents, and the officers took him to the Gene Wilcher home. They stood in another room while Wilcher talked with his parents a short while, and then returned with Wilcher to the sheriff's office.

 Wilcher was then presented with another Miranda warning which was read to him, and signed by him at 9:14 p.m. He then gave a statement which was written by Sheriff Warren and signed by Wilcher. This statement admitted killing both the victims with a knife.

 The sheriff wanted to question him further shortly after 10:00 p.m. that evening. Another Miranda warning was given and Wilcher signed another standard form at 10:22 p.m., but declined to make any further statement.

 Wilcher was nineteen years of age, married with one child, and separated from his wife. He moved from Louisiana into the home of his parents in the latter part of February, 1982, and had been living there about a week and a half before March 5. The residence was under the control of the father, Gene Wilcher. No rent was charged Wilcher by his father, and he was provided a bedroom occupied only by himself. There was no lock on the bedroom door, however, and other than the fact that only Wilcher slept in the bedroom, there was nothing about the room setting it separate and apart from the Gene Wilcher household.

 Gene Wilcher telephoned the sheriff's office on Monday, March 8, for permission to talk with his son. Otis Kelly answered the telephone and while they were waiting for a response to this request, a conversation was had between Kelly and Gene Wilcher. In that conversation it developed that in the house there was some tangible property of importance to the law enforcement officers. *fn1

 Upon the invitation of Gene Wilcher, Kelly and Albert Harkey, a constable of that county, went to the Gene Wilcher home. Gene Wilcher escorted them to the bedroom, pointed to a styrofoam container on the top of a chest-of-drawers, and said," It's in here. "

 The officers took the container, and in it were a watch, two rings and a necklace belonging to the murdered victim Velma Odell Noblin.

 After retrieving this jewelry, Warren and Kelly again attempted to talk with Wilcher that evening in the sheriff's office. At 8:54 p.m. Wilcher was again read the standard Miranda form, which he signed, but he declined to give any further statement to the officers.

 On Thursday following, March 11, Warren and Kelly questioned Wilcher again, and again he was given a standard Miranda form beforehand. Upon this occasion, however, the sheriff did not read the form aloud to Wilcher, but Wilcher read it himself and signed it. Following this, he accompanied the officers, and at Wilcher's direction, they drove several miles out into rural Scott County onto a county unpaved road. At a certain point Wilcher pointed to a certain location in a ditch, and the sheriff got out and picked up two purses and a brassiere.

 On their way back to the jail, Wilcher again requested permission to visit his mother, and the sheriff took him by the Gene Wilcher home where he had a short visit with his mother.

 Upon their return to Forest, Wilcher gave a more detailed statement, written down by the sheriff and signed by Wilcher, in which he again admitted the savage murder of these two ladies in order to rob them.

 According to Wilcher's confession after the ladies consented to drive him home from a night spot in that county, he had tricked them into driving down an isolated road, presumably in search of the location of his father's home. In a remote spot he stabbed them both to death.

 COMPETENCY OF CONFESSIONS

 Over defense counsel's objection, both statements, as well as the two purses and the brassiere, were introduced into evidence as part of the state's case in chief.

 Upon this appeal the Defendant challenges the validity of the confessions, and the competency of the physical evidence, claiming his arrest was illegal, and that in obtaining the confessions the officers violated his Sixth Amendment right to counsel, and also that they were not free and voluntary, but resulted from coercion and promise of leniency.

 The claim of illegal arrest arises from Miss. Code Ann. 99-3-7, the pertinent part of which reads:

 Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person's arrest and the officer has knowledge through official channels that the warrant is outstanding for that person's arrest. In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor. If the person arrested so requests, the warrant shall be shown to him as soon as practicable. [Emphasis added]

 There was a sufficient compliance with the statute under the facts of this case when officer Bennett informed Wilcher he was being arrested for larceny, and gave him a copy of the warrant as soon as they reached the jail. See Boyd v. State, 406 So.2d 824 (Miss. 1981); and Torrence v. State, 283 So.2d 595 (Miss. 1973).

 Wilcher does not contend there was no probable cause for his arrest on the charge of larceny, and the mere fact officer Bennett did not have all the information pertaining to the circumstances resulting in the issuance of the warrant at the time he apprehended Wilcher certainly does not vitiate the legality of his arrest. There is no statutory requirement for an arresting officer under the circumstances of this case to do more than Bennett did in effecting the arrest and subsequent thereto. In this day and age it would place an insuperable burden on arresting officers, when notified by responsible law enforcement agencies that a warrant is outstanding for a particular person, to require the arresting officer to also know the background and circumstances resulting in the warrant. There is no such constitutional or statutory requirement. This is not a case of a person being arrested on some vague suspicion, never told anything, and being held incommunicado for some period of time. Nor is this a case in which an officer either wilfully or through gross ineptitude failed to perform a duty of disclosing the reasons for the arrest.

 Probable cause existing, and a lawful warrant having been issued, this Court is not going to adopt some strained view of whether an arresting officer has sufficiently disclosed the reason he is making the arrest when there has been absolutely no prejudice or harm done the accused,

 in any event.

 Finally, the arrest in this case was for an offense totally unrelated to the murder charge, as yet unreported when the arrest was made.

 To address the remaining contention of the invalidity of the evidence, it is necessary to set forth the various witnesses' versions of the circumstances prior to the officers' conduct.

 The circuit judge conducted a hearing out of the presence of the jury on the validity of the confessions. Officers Warren and Kelly testified the statements were made after complete Miranda warnings were given, there was no threat of any kind made, and no promise of reward or leniency was offered.

 Wilcher testified he repeatedly made demand for an attorney, beginning with the first day when he was arrested. This was positively denied by Warren and Kelly. Bennett said he had no recollection of anything being said on the way to the jail except being questioned by Wilcher as to what larceny was, and he did not recall being asked anything about an attorney. Bennett arrested Wilcher upon the warrant for larceny, and had nothing to do with questioning him on the murder charge.

 Wilcher testified Kelly threatened him by making menacing gestures towards him, likewise specifically denied by Kelly and Warren.

 Finally, Wilcher testified the sheriff told him if he would cooperate, he could see his family every Tuesday night. Officer Kelly did recall the sheriff telling Wilcher he could see his parents on Tuesday night if he would cooperate.

 Even if this remark were given the full import as argued by defense counsel, it hardly amounts to any promise of leniency. It is extremely difficult for us to perceive how such a limited promise could cause Wilcher to confess to such grave crimes, and indeed he makes no contention that he gave the statements as a result of this statement by the sheriff. See: Harrison v. State, 285 So.2d 889 (Miss. 1973); Brister v. State, 211 Miss. 365, 51 So.2d 759 (1951).

 The sheriff's testimony puts the remark in an entirely different perspective. Warren testified Gene Wilcher came to see him following his son's indictment

 and after all questioning had been concluded, requested that he be permitted to see his son in private. After this conversation with the father, Sheriff Warren testified that on either that day or the day following he talked with Wilcher:

 Well, I asked Bobby - I told Bobby that I would - if he would cooperate with me in jail, while he was up there in jail, and behave himself, that I would let him see his mother and daddy during the week at night for two or three weeks, so they could have some time to talk to each other in private, because on Sunday afternoon during visiting hours, and at that time our visiting hours were only one hour, and it was a large crowd of people always in the jail, and there was no place that they could have any privacy at all in the jail.

 The sheriff's version was not refuted by Gene Wilcher. It also negates the claim that the sheriff's offer to let Wilcher's parents see them privately on non-visiting nights had anything to do with an offer of leniency to secure a confession.

 Following the hearing out of the presence of the jury, the trial court ruled the confessions and the tangible objects recovered in the ditch were admissible evidence. It is the function and duty of a trial judge to make a preliminary determination whether a confession was freely given by an accused, and this Court must respect his finding where the evidence is conflicting. See, Harrison v. State, 285 So.2d 889, p. 891 (1973). In this case the weight of the evidence strongly supports the ruling by the circuit judge that the confessions were voluntary and therefore competent evidence. The tangible objects recovered in the ditch as a result of Wilcher's confession were likewise admissible evidence.

 ADMISSIBILITY OF JEWELRY

 Over Wilcher's objection the jewelry consisting of a watch, two rings and a necklace belonging to Velma Odell Noblin were introduced into evidence by the state in its case in chief. Upon appeal it is contended this violated Wilcher's state and federal constitutional rights

 against unreasonable search and seizure.

 It is undisputed that the officers went to the Gene Wilcher home at his express invitation. When they arrived, he promptly escorted them to the bedroom occupied by his son, and on his own, pointed to the container with the jewelry in it, and said," It's in here. "

 Had Gene Wilcher been the defendant in this case, there could be no question about the legality of the officers' conduct.

 The Defendant charges, however, Gene Wilcher did not have the authority to take the officers to the son's bedroom and point out the location of the jewelry, and that only the Defendant could give this permission. Scott v. State, 266 So.2d 567 (Miss. 1972), cited by the Defendant, and involving a search of a rented, locked room has no application here.

 The bedroom was part of the Gene Wilcher household, and had been occupied but shortly over a week by the Defendant at the time. As between himself and his father, the Defendant had no independent right to occupy the bedroom. It was assigned to him by his parents when he returned from Louisiana. He occupied it under the gratuitous consent of his father, who could have required him to move to another room or vacate the home at any time.

 This case is really no different to the father on his own volition delivering the jewelry to the law enforcement officers. But the father did not even want to so much as touch the jewelry. Instead, he directed the officers to it, and pointed it out. No constitutional rights of the defendant would have been violated if the father had personally delivered the jewelry to the sheriff.

 The father also had a right to escort the officers to a room in his house, and the officers had a right to enter, and there have the father point to the jewelry in a container.

 The validity of a search occasionally depends upon factual distinction seemingly as close as a razor's edge. Not this case. See: United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L.Ed.2d 242 (1974); Bell v. State, 360 So.2d 697 (Miss. 1978); and Brown v. State, 358 So.2d 1004 (Miss. 1978).

 ARREST FOR LARCENY

 The Defendant complained prejudicial error was committed by the District Attorney asking on cross-examination if he was arrested for larceny on Saturday afternoon, March 6.

 The contention of the Defendant throughout trial proceedings and in this Court had been he was mistreated by the law enforcement officers. Part of this alleged mistreatment was a failure to inform him of the reason for his arrest.

 In his direct testimony before the jury, Wilcher was asked about the conversation he had with the arresting officers from the time of his arrest until he was incarcerated. His only reply was that he had asked for a lawyer several times, without success.

 Wilcher omitted from his relation of the conversation between himself and Bennett that he inquired what he was being arrested for, and Bennett's reply.

 On cross-examination the state was permitted over the Defendant's objection to ask him if Officer Bennett advised him what he was being arrested for. He replied that he asked Bennett what he was being arrested for, and Bennett stated," Larceny. "

 This was proper cross-examination. Wilcher himself on direct examination had testified he was placed under arrest by Bennett. He had also testified as to the entire purported conversation between himself and Bennett, and the other officers when he first got to the jail.

 It was proper for the state to fill in the omission for two reasons. First, having told the jury on direct examination of his arrest, the state was entitled to cross-examine, absent some compelling reason or instruction of the court otherwise, to inquire what he was arrested for. This becomes pertinent in this case, because the record reflects the murders were not reported to the law enforcement officers until subsequent to the arrest of Wilcher. See: Shelby v. State, 402 So.2d 338 (Miss. 1981).

 JURY ISSUE ON KIDNAPPING

 The indictment charged Wilcher with murder while engaged" in the commission of the crime of robbery or an attempt to commit the crime of robbery of the said Velma Odell Noblin, and while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime

 of kidnapping of Kattie Bell Moore and the said Velma Odell Noblin. "

 Wilcher's confession stated he intentionally gave the victims the wrong directions to his home so as to get them into a deserted place, with the intent to rob them after he got them there. They followed his directions; he killed and robbed them.

 By Instructions S-1A and S-7, the circuit judge submitted the issue of kidnapping to the jury. Instruction S-7 followed Miss. Code Ann. 97-3-53 (1974 Supp.), the criminal statute on kidnapping.

 The Defendant does not claim Instruction S-7 fails to correctly state the law. Rather his complaint is that insufficient evidence was adduced to make a jury issue on the kidnapping charge.

 The basis of this claim is that no force was used by Wilcher to get the women into the car and, as they believed they were doing, to drive him to his parents' home.

 Manifestly, if they had been either physically forced to leave with him, or left at gunpoint, it would have been kidnapping.

 While it is true neither of these ladies ever knew they were not free to do as they pleased until Wilcher's show of violence, the actual fact is that they were Wilcher's prisoners from the time the car left the night club.

 Under modern day statutes, including our own, the crime of kidnapping may be accomplished by trickery and deceit as well as by force.

 A jury issue was made on whether Wilcher by his trickery intended to cause these to be ladies to be secretly confined against their will. See: Miss. Code Ann. 97-3-53; Hughes v. State, 401 So.2d 1100, p. 1105 (Miss. 1981).

  As to the evidence to the crime of kidnapping other than the confession, the physical facts, place of slaying, together with the confessions, established the corpus delicti of the statutory crime of kidnapping. See: Poole v. State, 150 So.2d 429, 246 Miss. 442 (1963), cited in McCraw v. State, 260 So.2d 457 (Miss. 1972).

  REFUSAL OF REQUESTED INSTRUCTION D - 37

  The Court refused requested defense Instruction D-37. Having granted the Defendant Instruction D-17, this ...


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