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FRANK CABELLO, JR. v. STATE OF MISSISSIPPI

MAY 28, 1986

FRANK CABELLO, JR.
v.
STATE OF MISSISSIPPI



BEFORE WALKER, PRATHER AND SULLIVAN

PRATHER, JUSTICE, FOR THE COURT:

The signed confession of fifteen year old Frank Cabello, Jr. led to his conviction of capital murder and sentence of life in prison. From a jury verdict in the Circuit Court of Alcorn County, Frank Cabello, Jr. appeals and assigns as error the following:

(1) The defendant's motion for change of venue should have been granted.

 (2) The defendant's motion to exclude an involuntary confession should have been granted.

 (3) The defendant's motion for a mistrial should have been granted.

 (4) The jury was improperly instructed.

 I.

 During the afternoon of December 22, 1982, Mr. L. C. Hamm, a resident of Kossuth, Mississippi, drove to the used car lot of Vernon Gurley with the intention of making a car payment. While he was there, Mr. Hamm became suspicious of two boys who were pretending to look at a truck. Mr. Hamm paid Mr. Gurley $65.00 and left.

 The next morning, December 23, 1982, Hoyt Horn, a resident of Corinth, Mississippi, awoke to find a car parked on the side of the road approximately 150 yards from his house. During the course of the day he drove by the car several

 times and finally stopped to investigate. Inside the car he found a dealer tag and a bible with the name" Vernon Gurley "written inside.

 Mr. Horn then drove to Vernon Gurley's used car lot where he found the door to Mr. Gurley's office trailer unlocked. Inside he found Mr. Gurley's body" hogtied "in the back room of the trailer. There was duct tape covering the mouth and nose of Mr. Gurley and Mr. Horn tried to pull the tape off so that Mr. Gurley could breathe; but it was too late. On the eve of his 72nd birthday, Vernon Gurley was dead.

 When the police arrived, the safe in Mr. Gurley's trailer stood partially open and a pat-down search of Mr. Gurley's body revealed his wallet was missing.

 Dr. Charles Thomas McLees performed an autopsy on Mr. Gurley and testified that Mr. Gurley died from strangulation. That conclusion was based on Dr. McLees' observation of the compressed trachea of Mr. Gurley and the large quantity of edema fluid in Mr. Gurley's lungs.

 During the course of their investigation the police were led to Mr. L. C. Hamm who they questioned extensively concerning the two boys he had seen at the used car lot the day before the killing. From Mr. Hamm's description, the police composed drawings of the two youths.

 In the interim, the manager of the local Ramada Inn reported that several guests had left his motel without paying their bill. He later identified the boys portrayed by the police drawings as the culprits.

 Using the motel registration card the police traced a suspect, Frank Cabello, to a California address. Other suspects were tentatively identified as Frank Cabello, Jr. and Rico Anthony Cabello. Murder warrants were issued and an" all-points bulletin "was put out on the National Crime Index Computer System.

 The three suspects, Frank Cabello, Sr., Frank Cabello, Jr., and Rico Anthony Cabello were taken into custody January 5, 1983 in Torrance, California. A search of the suspects' car revealed, among other things, rope, duct tape, and a road map with a circle around Corinth. Expert testimony established the rope and duct tape were similar to that found on the body of Mr. Gurley.

 The suspects subsequently were extradited to Corinth,

 Mississippi and charged with capital murder. Frank Cabello, Sr. was found guilty of capital murder and was given the death penalty. His conviction and sentence were affirmed by this Court in Cabello v. State, 471 So.2d 332 (Miss.1985). An agreement was reached between the State and Rico Cabello whereby Rico agreed to testify against his father and his brother. In exchange, the State agreed to recommend, if the evidence showed that Rico was not present when Vernon Gurley was robbed and killed, that Rico's charges be remanded to the Youth Court of Alcorn County.

 Frank Cabello, Jr., who perfects this appeal, was found guilty of capital murder and was sentenced to life in prison.

 II.

 Should the defendant's motion for change of venue ...


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