BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
This is an appeal from a criminal conviction in the Circuit Court of Winston County, Clarence E. Morgan, Jr. presiding. Grady Lee Smith was indicted for uttering a forged check and, following a mistrial, retried, convicted and sentenced as a habitual offender under Miss. Code Ann. 99-19-81 to fifteen years at the Mississippi Department of Corrections.
Smith appeals, assigning as error:
(1) The trial court erred in denying appellant's
challenge for cause of certain jurors;
(2) The trial court erred in overruling appellant's motion to suppress his post-conviction confession;
(3) The trial court erred in sentencing appellant to the maximum sentence without eligibility for probation or parole.
On November 25, 1981, 28 year-old Grady Smith purchased four pairs of children's shoes from R. A. Herrington at Budget Shoe Store in Louisville, MS. The total purchase price of the shoes was $32.35. Smith gave Herrington a check for $115.95 and received $83.60 cash as change.
The check which Smith used to purchase the shoes was drawn on the account of Woodward & Woodward and made payable to "Larry Roach" . Smith endorsed the back of the check as "Larry Roach" . When Mr. Herrington presented the check to the Bank of Louisville later that day, payment was refused as the Woodward & Woodward account had been closed since 1976.
On December 2, 1981, Herrington spotted Smith in the downtown Louisville area and contacted Chief of Police Mac Parkes. Parkes approached Smith in Dud's Clothing Store on Church Street at approximately 9:30 a.m., placed Smith under arrest and took him to the Louisville police station. Prior to advising the appellant of his rights, Chief Parks and Officer Ted Carter began questioning Smith who denied any involvement with the check cashing incident. Following this initial interrogation, Smith was taken to the Louisville courthouse, placed in a lineup and identified by Mr. Herrington.
Following the lineup Chief Parkes, Officer Carter, and Officer Ricky Calloway proceeded to the home of Pearline Smith, the mother of the appellant. No search warrant was obtained; however, Officers Carter and Calloway testified that Mrs. Smith gave them permission to search the home. According to Mrs. Smith, the officers walked into the house after her son opened the door and, at no time, were given permission to search the home. While searching the home, the police found four pairs of shoes from the Budget Shoe Store. Appellant Smith was advised of his rights at approximately 10:45 a.m. Smith was told that he had been picked out of the lineup and that the shoes had been found at his mother's home. At 11:45, Smith signed a statement in which he admitted forging the check.
The first assignment raises the question of whether the trial court erred in denying appellant's challenge for cause of certain jurors. At trial defense counsel challenged Juror James O. Stanley, a brother-in-law of Chief of Police Mac Parkes, on the ground that the Chief of Police would be a witness in the case. The court declined the challenge for cause on the ground that Stanley had stated on voir dire that he would not be influenced by the fact that his brother-in-law would be a witness. Defense counsel also challenged Francis S. Ball on the ground that, as a former member of the Louisville Board of Aldermen, she had previously been an employer of Chief Mac Parkes and Officer Ted Carter. The court refused this challenge for cause. The record reflects ...