PATTERSON, CHIEF JUSTICE, FOR THE COURT:
Arthur Ray Lanier was convicted in the Circuit Court of Forrest County upon an indictment charging him with the murder of Buford Dedeaux, a policeman of Gulfport, who was "acting in his official capacity . . . (as) a peace officer . . ." in violation of Mississippi Code Annotated, 97-3-19 (2) (a), (Supp. 1982). Lanier was sentenced to death. The homicide occurred in the First Judicial District of Harrison County but was transferred to Forrest County on a motion for change of venue. On this appeal Lanier argues (among other contentions) his arrest was illegal; videotaped inculpatory statements were improperly admitted into evidence, as was the weapon used in the homicide; erroneous selection of the jury; erroneous jury instructions; the sufficiency of the evidence to convict; the final argument of the district attorney; the lack of aggravating circumstances; and the constitutionality of the capital murder statute, 97-3-19 (2) (a).
For understanding of the issues a summary of the evidence follows which will be supplemented with exact testimony where necessary for discussion.
Policeman Dedeaux was shot to death by the defendant in the first hour of June 8, 1979, in the First Judicial
District of Harrison County, near the city limits of north Gulfport. After being shot Dedeaux requested assistance by radio but died shortly after the arrival of assisting officers. When the first policeman arrived he found Dedeaux in his policeman's uniform lying mortally wounded on the driver's side of his police car. At the scene, the following evidentiary items were found: a yellow bicycle, a green ditty bag, a blue watchcap, several spent .22 calibre cartridge casings and Dedeaux' service revolver. The homicide apparently occurred about 12:30 a.m. and Lanier was arrested about 5:00 p.m. the same day at his grandmother's residence in north Gulfport. He was fully advised of his Miranda rights and at approximately 1:10 a.m. on Sunday, June 10, 1979, made a videotaped statement in which he admitted shooting Dedeaux *fn1 under the circumstances hereinafter related.
Lanier stated that while riding his bicycle, he was stopped by Officer Dedeaux and directed to empty the ditty bag. In complying Lanier removed a pistol from the bag and Dedeaux drew his gun and fired at him. He stated that he fired at Dedeaux while running backwards but was not sure if any of the shots had actually struck Dedeaux, who entered the patrol car and radioed for help. Lanier then stated that he threw the gun away and returned to his grandmother's home. Following this statement, Lanier assisted the officers in locating the gun he had thrown away.
The first argument of the defendant is that the trial court erred in permitting the jury to view and hear the videotaped statement in which he admitted shooting Dedeaux. He filed a motion to suppress "because, among other things, there was no probable cause for arrest." The trial judge conducted a hearing on the suppression motion and overruled it. *fn2 The defendant contends the arrest warrant for his arrest was invalid and aside from it there was not probable cause for his arrest. He argues the warrant was invalid because the affidavit of the district attorney did not set forth sufficient facts to establish probable cause for its issuance and additionally, the warrant was issued by a deputy court clerk who was neither a neutral nor detached magistrate as required by law. In responding the state urges there was probable cause for the arrest either with or without the warrant.
The following facts were established during the suppression hearing. After being shot, Dedeaux radioed other officers that he needed help, and when assistance arrived on the scene they found Dedeaux lying on the front seat of the patrol car mortally wounded. The lights of the police car were not on and Dedeaux expired without regaining consciousness.
An investigation ensued in which Prentiss Smith, an official of the Harrison County Sheriff's Department, participated. At the time his investigation began Dedeaux' body had been removed but the quest revealed a yellow bicycle with a crescent wrench and key wired to the handlebars, a blue pullover hat on the hood of the police car, and a green "ditty bag." These items were found either on or in the immediate area of the patrol car. Continued canvassing of the neighborhood adjacent to the scene yielded no further clues.
At the request of police officials, a picture of the bicycle found at the scene was displayed on local television. In response to it, Jimmy Moore contacted Officer Smith at about 1:30 p.m, June 8, 1979. Smith was informed by Moore that he and Cyril Lindsey, a companion, had been watching television and recognized the bicycle as that of Lanier. Moore explained that he and Lindsey worked at the same company with Lanier and saw him ride the bicycle to work on Thursday morning, June 7. Moore and Lindsey were brought to the police station and identified the bicycle as that of Lanier. Moore and Lindsey also stated they had observed Lanier carrying the ditty bag and wearing the watchcap. These identifications linked Lanier to the homicide. The district attorney was informed of these facts and they formed the basis for the ensuing affidavit and arrest warrant.
At approximately 5:00 p.m. on June 8, Officer Prentiss Smith, who had previously participated in the investigation, served the arrest warrant by informing Lanier that he had a warrant for his arrest. The warrant was served upon Lanier at his grandmother's home at which time he was informed of his "Miranda rights" by Officer J. D. Cook. When asked if he understood these rights Lanier responded that he did.
We are of the opinion that the arrest warrant was invalid because the deputy clerk had no authority to issue it. He was neither a judge nor a conservator of the peace as defined by Mississippi Code Annotated, 99-15-3 and 99-15-5 (1972). Moreover Mississippi
Code Annotated, 9-9-27 (1972), provides that, ". . . any reputable citizen may make an affidavit charging crime before the judge of the county court, and such affidavit shall be filed with the clerk of the county court . . .," indicating as do the previous sections that the issuance of an arrest warrant is a judicial function. Nowhere do we find authority for a clerk or deputy clerk to perform such judicial function. See Martin v. State, 190 Miss. 32, 199 So. 98 (1940), and Porter v. State, 135 Miss. 789, 100 So. 377 (1924). The arrest warrant was invalid.
The state nevertheless contends that Lanier's arrest was justified pursuant to Mississippi Code Annotated, 99-3-7 (1972) and Mississippi Uniform Criminal Rules of Circuit Court Practice 1.02 as a warrantless arrest because the arresting officer knew a felony (homicide) had been committed and reasonable grounds to believe the person arrested had committed it. As mentioned the arresting officer had participated in the investigation and had knowledge of the facts then known by the authorities. While it is true in making the arrest the officer stated that he had "a warrant" for such, we do not think this invalidates the arrest if the officer then had knowledge of facts sufficient to constitute probable cause for a warrantless arrest. See United States v. Mahoney, 712 F.2d 956 (5th Cir., 1983), and Powell v. State, 394 So. 2d 326 (Miss. 1981), wherein this Court discussed the requirement of probable cause:
In Evans v. State, 275 So. 2d 83 (Miss. 1973), p.85, in quoting from a United States Supreme Court decision, we stated:
"The Court pointed out in Brineaar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L.Ed. 1879 (1948):
`In dealing with probable cause, *** as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (338 U.S. at 175, 69 S. Ct. at 1310, 93 L.Ed. *** at 1890).'
" It has been said that ordinarily, when the trustworthy evidence makes it clear that an offense has been committed *** and then available evidence makes it reasonable to infer that the
particular person not necessarily was, but may have been, one of the offenders, most discreet and prudent men would order that person's arrest. "394 So. 2d at 328.
See also Jones v. State, 358 So. 2d 414 (Miss. 1978).
In Rome v. State, 348 So. 2d 1026, 1027 (Miss. 1977), we stated that" probable cause means more than bare suspicion, but does not necessarily require sufficient evidence to support a criminal conviction. "To the same effect see Powe v. State, 235 So. 2d 920 (Miss. 1970).
Officer Smith had knowledge that a homicide had been committed. The critical issue is whether there was sufficient evidence to create a reasonable probability that Lanier had committed the homicide. A brief return to the scene of the crime might be helpful. When the Gulfport officers responded to Dedeaux' distress call they found a police car with Officer Dedeaux lying near death in it with his service revolver on the ground. They also found a yellow bicycle, a blue cap, a green ditty bag and nine .22 calibre shell casings in the immediate vicinity. Later in the day they received information that Lanier had been observed riding the same bicycle on the morning preceding the homicide and that he wore a cap similar to that found on the hood of the police car.
We conclude the officer had probable cause to make the arrest without a warrant. Moreover, if it be assumed arguendo, that probable cause did not exist for either the issuance of the arrest warrant or the arrest, this does not of itself necessarily invalidate the subsequent confession. In Butler v. State, 296 So. 2d 673 (Miss. 1974), we held:
The fact that the arrest in this case was without probable cause does not automatically render the confession inadmissible, but it does require an examination of the facts to determine what effect the illegal arrest had upon the giving of the confession. Bell v. State, 274 So. 2d 371 (Miss. 1973); Keith v. State, 197 So. 2d 480 (Miss. 1967).
A discussion of the arguendo hypothetical merges
into the voluntariness of the confession and will be considered on that point.
THE CONFESSION ADMISSIBLE OR INADMISSIBLE
In arguing the confession was involuntary Lanier directs our attention to the delay of 50 or 60 hours by the Gulfport Police Department in bringing him before a judicial officer for his initial appearance pursuant to Mississippi Uniform Criminal Rules of Circuit Court Practice 1.04. He also contends the police officials continued to interrogate him after he had refused to waive his" Miranda rights, "and that the confession was obtained as a result of a promise to obtain psychiatric help for him. He asserts that if any of the above contentions be insufficient to suppress, that nevertheless the" totality of the circumstances "requires suppression. *fn3
The attack upon the admissibility of the inculpatory statement presents inter-related issues requiring some analysis from both Fourth and Fifth Amendment perspectives. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L.Ed.2d 416 (1975); Hall v. State, 427 So. 2d 957 (Miss. 1983). Both the United States Supreme Court and this Court have held that the threshold issue in deciding admissibility requires a determination of the statement's voluntariness. The test is whether the statement was obtained in violation of the requirement stated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). If an arrestee is informed of his Miranda rights, and if upon a review of the" totality of the circumstances "it is determined that those rights were" scrupulously observed, "and the statement was not obtained as a result of force, threats, coercion, or promises, then the threshold requirement of the voluntariness of the confession is satisfied. Brown v. Illinois, supra; Hall v. State, supra. See Fikes v. Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L.Ed.2d 246 (1957); Lee v. State, 338 So. 2d 399 (Miss. 1976).
In short, the basic analysis in evaluating the admissibility of a statement involves several factors. Was the statement voluntary under Miranda? This question forms the sine qua non. Further inquiry goes to the legality of the arrest itself. If the arrest was legal, as we have heretofore held, and the statement voluntary, then it is valid evidence. If the arrest was illegal, (as posed in hypothetical) then the analysis must include a determination as to whether the statement was obtained
by the exploitation of the illegal arrest. Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L.Ed. 824 (1979); and Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L.Ed.2d 314 (1982).
In making these determinations we consider, as did the trial court, that Lanier was arrested at about 5:00 p.m. on Friday, June 8, 1979, and was given the Miranda warning. He was then transported to the Harrison County Sheriff's office where a waiver of rights' statement was read to him by Officer Smith. Lanier then stated that he wanted to talk to his mother before signing anything. Thereafter he was removed to the city jail where his rights were read to him by Officer Pell. Later at 7:00 p.m. Detective Johnson arrived at the police department and Lanier was again advised of his constitutional rights after which he stated that he understood and signed the form which was witnessed by his brother and Officer Johnson.
Lanier's brother remained with him thereafter and according to Officer Johnson, Lanier agreed to make a statement and signed the form but then decided he did not like the word" waiver "and asked that it be deleted. After the deletion was made Lanier gave an oral statement denying that he had anything to do with the crime. At approximately 5:30 p.m. the next day, Saturday, June 9, Lanier was again given his Miranda warnings and moved from the city jail to the Gulfport Police Department, where he once again signed a waiver of rights' form at about 8:00 p.m. after deleting the words" waiver of rights, "and answered some general questions after which he remained alone until nearly 11:00 p.m. At approximately 11:20 p.m. after again being advised of his rights, he asked for his mother who came to the police department at about 12:30 a.m. After Lanier had visited and talked with his mother, he signed a waiver of rights form and made the videotaped statement which is presently argued to be inadmissible because it was not voluntarily taken.
Our review of this record reveals beyond peradventure of doubt that Lanier knowingly and voluntarily waived his right to remain silent and, accordingly, the questioning to which he submitted was not constitutionally prohibited. Although he was not pleased with the" waiver of rights "language he nevertheless discussed the homicide in question with officers and gave a videotaped statement at approximately 1:10 o'clock on the morning of June 10, 1979, after he was warned of his constitutional prerogatives, after
he had executed a formal waiver of those rights and after he had visited with his mother and who was present when the statement was given. We have scrutinized this record in great detail and are unable to discern any testimony indicating that the statement resulted from an assumed invalid arrest. We reiterate that it is our opinion there was probable cause for the arrest. We now hold there was no inducement or coercion to obtain the statement from Lanier by way of promise of hope or reward; nor do we find any evidence of physical or mental coercion for the statement through delay or any violation of Miranda v. Arizona, supra.
We need address, however, the contention of Lanier that he was promised mental health assistance. We think the argument advanced is out of context with the statement and assumes that the help offered was conditioned upon his confession. The record shows otherwise as is excerpted from the transcript:
JOHNSON: O.K. Are you aware of what you're saying?
JOHNSON: Are you saying it on your own free will?
JOHNSON: Without any promises or threats?
LANIER: Did, uh, the only thing they said `bout helpin' me give me some mental help.
JOHNSON: Well, if you need mental help, you know we'll help you.
LANIER: Well, I don't know why I did it. I don't know why.
Lanier's mother testified this colloquy was made prior to the confession and that the officers told her son they would give him help. It need be noted the help was forthcoming whether the statement was given or not and there is nothing to indicate the officers made Lanier any promise for the purpose of inducing him to make his statement. In State v. Beck, 390 So. 2d 748, 749 (Fla. 1980), it is stated:
. . .non-particularized comments . . . concerning medical or psychiatric assistance . . . do not result in exclusion of a confession, so long as the aid is not offered in return for a consequent statement.
As stated, we are of the opinion the trial court did not err in denying the motion to suppress and did not err in later admitting it into evidence during the trial-in-chief.
Cardinal to the disposition of this case is the statement of Lanier which was introduced by the state. Since Lanier did not testify at trial, the statement's verbage is nakedly before us without explanation. It is extremely important because the court must determine from it whether Lanier was or was not entitled to a manslaughter instruction. Less opening remarks, the statement follows in pertinent part:
(OFFICER) JOHNSON: Okay. What we're concerned here with is the killing of Gulfport Police Officer Buford Dedeaux, and it happened early Friday morning, approximately 1:00 A.M., which would be the 9th of June, 1979. And you've been arrested and charged with Murder, and what I'd like you to do, in your own words is explain to me everything that happened that night.
(OFFICER) DANIELS:" Scuse me Tom, that's the 8th.
JOHNSON: Oh, is it the 8th?
DANIELS: Approximately 12:45.
JOHNSON: Okay. Uh, would you do that?
(APPELLANT) LANIER: Yes sir.
LANIER: Well, on that, on that particular night, no, thank you, I was riding around. I went to my brother's house, took a bath, riding around on the bicycle. I took my bath. And, and I didn't have nothin' to do. I went to the club, drunk a little beer, and smoked some weed.
JOHNSON: What club did you go to?
LANIER: Club Shangri-Lai.
LANIER: And I just rode around, and I went back to my brother house. He was in the bed sleeping and I woke him up, and we chat, and he told me a friend of mine Kenny Martin told me to come by his house and uh I went by.
JOHNSON: Alright, what were you riding on?
JOHNSON: That yellow one?