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LARRY L. WALKER v. STATE OF MISSISSIPPI

JULY 24, 1985

LARRY L. WALKER
v.
STATE OF MISSISSIPPI



EN BANC

SULLIVAN, JUSTICE, FOR THE COURT:

Larry L. Walker was convicted in the First Judicial District of Hinds County, Mississippi, for shooting a firearm into a building usually occupied by persons and he was sentenced to serve ten years in the custody of the Mississippi Department of Corrections.

STATEMENT OF FACTS

 About 12:30 a.m. on January 16, 1982, Shirley Jones saw Larry L. Walker driving a blue Ford Maverick fastback occupied by Walker and another white person identified as Kenneth Painter, a co-indictee, at or near the corner of Farish and Hamilton Streets in Jackson, Mississippi. She testified that they turned on Hamilton Street, drove to the front of the Jackson Advocate, stopped and started shooting into the building. She gave a description of the two individuals, later went to police headquarters, furnished a description of Walker from which a composite picture was prepared, and then selected Walker

 from a group of five pictures. About two or three days later, Jones identified Walker in a line-up as the driver of the automobile. Jones later went to Walker's home and identified Walker's vehicle as the one she saw on the night of the shooting.

 Thereafter, Sgt. Robert L. Campbell, a member of the Jackson Police Department, obtained a search warrant on January 12, 1982, to search appellant's residence. As a result of that search, a large assortment of guns and ammunition were seized at Walker's residence. Bullets obtained by test firing one of the guns were ballistically compared with some bullets fired into the building occupied by the Jackson Advocate. These tests showed that the gun had fired some of the bullets into the building.

 Walker testified that he did not own the guns but they had been left at his home by one William Balstrup, who left a note that he would return to Walker's home in one week for the guns. The note was introduced in evidence. Walker's defense was alibi. He stated that he had gone to a tavern at 10:00 p.m. on January 15, 1982, and stayed there until he left with the owner at approximately 1:30 a.m. on January 16, 1982. Walker said he went to the owner's home where he remained until approximately 2:30 a.m., January 16, 1982. Walker denied that he fired shots into the Jackson Advocate. His alibi was corroborated by Leslie Robbins, a customer in the tavern, and the tavern owner himself, Bobby Edwards.

 Sgt. Campbell signed an affidavit for a search warrant on January 21, 1982, and the magistrate issued a search warrant for Walker's residence at 3124 Whitten Road, Jackson, Mississippi. The underlying facts and circumstances sheet attached to the affidavit for search warrant follows:

 UNDERLYING FACTS AND CIRCUMSTANCES SHEET

 I, Sgt Bob Campbell have interviewed a black female by the name of Shirley Jones, and this subject has stated to me that she was present the night of 1-16-82 at or about 0100 hours when she observed a blue Maverich pull up in front of the Jackson Advocate Building on Hamilton Street, and fire a burst of gun fire into the front of the building.

 This witness described the vehicle as a Ford Maverick, the type that is a two door sedan with a sloping rear roof known as a fast back. I have since that time of the interview found that Larry Walker, a

 white male who resides at 3124 Whitten Road has a vehicle fitting this description, I have taken the witness to look at this car, and she has positively identified this vehicle as the vehicle she observed on the night of the incident. This witness has also given descriptions which fits that of Larry Walker and that of Kenneth Painter, also of the same address on Whitten Road.

 A confidential source has further advised me that Larry Walker does own a 30 caliber carbine of the type that was used in the incident in that evidence was found at the scene to identify this type of weapon.

 Based on the above information, I request that a search warrant be issued for the above address to search for evidence in this crime, being a 30 caliber carbine rifle, semi auto matic.

 /s/ Robert L. Campbell

 I.

 DID THE TRIAL COURT ERR IN DENYING

 WALKER'S MOTION TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE?

 Walker asserts that the search warrant was invalid as the affidavit did not set forth facts and circumstances from which a neutral and detached magistrate could find probable cause to issue the search warrant. He cites three deficiencies: (1) The reliability of Shirley Jones, an eyewitness to the shooting, was not shown; (2) the affidavit failed to clearly indicate which of the facts alleged were hearsay or which were within affiant's personal knowledge; and (3) the confidential source mentioned in paragraph 3 of the underlying facts in the affidavit was not shown.

 Walker bases his argument upon the two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969). After the briefs were filed in this case, the United States Supreme Court decided Illinois v. Gates, ___ U.S. ___ , 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983), which abandoned the two-prong test and replaced it with the "totality of the circumstances" analysis to determine whether probable cause existed for the issuance of a search warrant.

 We too have adopted the new "totality of the circumstances" analysis. In Lee v. State, 435 So. 2d 674 (Miss. 1983), quoting from Gates, we said:

 The task of the issuing magistrate is simply to makes a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . concluding" that probable cause existed. . . . .

 435 So. 2d at 676.

 In Lee, we applied the new Gates test and determined that probable cause existed for the warrant.

 Furthermore, in Hall v. State, 455 So. 2d 1303 (Miss. 1984), while not relying expressly upon Gates, we stated a totality of the circumstances test and upheld the facial validity of a warrant-affidavit. 455 So. 2d at 1308-09. We reaffirmed our adoption of this test in Stringer v. State, No. 54,805, February 27, 1985, not yet reported.

 In accordance with these cases, we now examine the affidavit in this record to determine if the facts and circumstances set forth therein were sufficient for the issuing magistrate to make a practical, common sense decision whether, given all the circumstances in the affidavit before time, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there was a fair probability that evidence of the crime would be found at the residence of Walker.

 In the first two paragraphs of the underlying facts and circumstances sheet, the affiant related the substance of an interview with an eyewitness who observed the crime, gave a description of the automobile in which the persons who fired the shots were riding, gave a description which fit that of appellant and Kenneth Painter, and identified the automobile in the presence of the officer. These facts, standing alone, were sufficient to enable the issuing magistrate to make a practical decision that there was a fair probability that evidence of the crime would be found at appellant's residence.

 With reference to this part of the affidavit, appellant contends that the reliability of the eyewitness to the shooting was not shown and that this was necessary. We have considered this argument in at least three cases and have held that, when information is furnished by an eyewitness rather than from an informant, there is no need to show the party supplying the information was a credible person. Foley v. State, 348 So. 2d 1034 (Miss. 1977); Holt v. State, 348 So. 2d 434 (Miss. 1977); and Wolf v. State, 281 So. 2d 445 (Miss. 1973). The rationale for the victim or eyewitness exception is that the statements of such eyewitnesses are based on their own observation and thus are not likely to reflect mere "idle rumor or irresponsible conjecture." The United States Courts of Appeals for the Fifth and Eighth Circuits have likewise considered the same question and reached a similar conclusion. United States v. Flynn, 664 F.2d 1296 (5th Cir. 1982); United States v. Bell, 457 F.2d 1231, 1238-39 (5th Cir.), appeal after remand 470 F.2d 1178 (5th Cir. 1972); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S. Ct. 2149, 23 L.Ed.2d 773 (1969).

 In the third reason advanced by appellant for the insufficiency of the affidavit, he argues that the affidavit failed to clearly indicate which of the facts alleged were hearsay and which were within the affiant's own knowledge. He cites United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965), but he can take little comfort from this case. In Vantresca, the United States Supreme Court reversed the First Circuit and disagreed with its conclusion that the affidavit might have been based wholly upon hearsay. The Court then set forth in detail the reasons for its conclusion.

 The affidavit in the case before us shows clearly the facts relied upon by affiant which were hearsay and the facts which were within his personal knowledge. Accordingly, we find no merit in this contention.

 In the third paragraph of the affidavit, the officer averred that a confidential source had advised him that appellant owned a .30 caliber carbine. The reliability of the informant was not stated, but this omission is not fatal because this information may be purged from the affidavit and the other remainder of the affidavit may be considered to determine if probable cause existed for issuance of a search warrant. United States v. Napoli, 530 F.2d 1198 (5th Cir. 1976), and United States v. Jones, 475 F.2d 723 (5th Cir. 1973).

 The affidavit, omitting paragraph three, is sufficient to support issuance of a search warrant.

 II.

 DID THE COMBINATION OF PREJUDICIAL EXTRANEOUS MATTERS INTRODUCED BEFORE THE JURY DENY APPELLANT WALKER A FAIR AND IMPARTIAL TRIAL?

 The first feature under this assignment of error is the complaint by the appellant that Charles Tisdale was allowed to put before the jury that the Jackson Advocate had been shot into prior to the occasion on which Walker is charged. At this point, it might be helpful to know that the Jackson Advocate had been fired into on one previous occasion in December and then on the occasion of this case in January. The first part of this assignment deals with the introduction of a series of photographs (Ex. 1 - Ex. 8), which picture bullet holes in the glass front of the building and bullet holes on the inside of the building. The defense attorney, Mr. Stanfield, stated in the record that he had no objection to the introduction of these pictures into evidence.

 Tisdale was then asked by the district attorney if any of the bullet holes were in the building prior to the January shooting. Mr. Tisdale responded that at least two bullet holes were put into the office on the night of December 19th. There was no objection. Mr. Tisdale was then asked to circle on the photographic exhibit the bullet holes that were already in the building before the January shooting. This was done without objection.

 As no objection was made, this error was not preserved and there is no merit to it on appeal.

 The second prong of this assignment of error deals with testimony given by Mr. Tisdale in the presence of the jury that the Jackson Advocate had printed articles against the Klu Klux Klan. Mr. Tisdale was asked what kind of articles his newspaper was running before the shooting incident of January 16, 1982. The response was that the paper had carried articles that basically point out dangerous agendas in the community that affect black people, among them a series called Klan Watch, which dealt with issues relating to black people and the Klan in the United States. In response to the next question, which was "Were those articles carried prior to January the 16th, 1982?" "A. Yes."

 Mr. Stanfield objected, on the grounds that this was inadmissible unless it could be specifically tied in with Mr. Walker as the defendant. Mr. Wingate informed the court that he could tie the articles to Mr. Walker, and the objection was overruled. The state failed to offer any further evidence to tie the Klan Watch articles to Mr. Walker, except that on cross-examination Mr. Walker admitted that he had once been a member of the Klan.

 While it was error to admit testimony about the articles in Klan Watch, the error is not one that demands or justifies reversal of this conviction. Rogers v. State, 266 So. 2d 10 (Miss. 1972); Cooley v. State, 391 So. 2d 614 (Miss. 1980).

 Walker also complains that, over his objection, Tisdale was allowed to testify that three men in a truck stopped his 24-year old daughter and threatened to blow her head off if Tisdale did not quit publishing the newspaper. And they also threatened Mr. Tisdale's grandson and said that he looked half-white and they did not need mongrels in Mississippi. Tisdale also testified that, because of these threats, his daughter had to leave law school and the state of Mississippi.

 On cross-examination of Mr. Tisdale, defense attorney Stanfield asked:

 Q. Are you saying that your newspaper, since you've been involved in it, has been a controversial type situation? A. Well, you could say that.

 Q. And you don't know - has the controversy been financial or has it been criticism or what? A. Well, there have been both. . . . . Questions in this vein continue on the cross-examination of Mr. Tisdale throughout the record.

 On redirect examination of Mr. Tisdale, Mr. Wingate opened by asking Tisdale if he had ever received threats and on how many occasions he received threats. After getting ...


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