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SEPTEMBER 03, 1986




Nathaniel Moore was convicted of armed robbery in the Circuit Court of Scott County on March 12, 1985. He was sentenced to thirty (30) years. Moore seeks to have this conviction reversed on the basis of the trial court's admission of a confession made after an allegedly illegal arrest, and on its refusal to instruct the jury on lesser included offenses. We find no merit to these assigned errors, and affirm the conviction and sentence.


 On September 27, 1984, Verna Lee Gatewood was driving his tractor on a dirt road on his farm when he was accosted by two men wearing ski masks. According to Gatewood, the men were both armed with handguns, which they pointed at

 his head and demanded his wallet. The assailants took his billfold containing $170.00 and his Quartz watch, then forced him to lie on the ground while they bound his hands, feet, and mouth with tape and cloth from one of the robbers' sweatshirt.

 As the robbers left, Gatewood heard them say they were going to his store, where Gatewood's wife was, alone. After waiting about five minutes, Gatewood retrieved his pocketknife and cut his bindings enough to be able to drive his tractor. He alerted some neighbors and then drove his tractor to the store.

 Gatewood could only describe the robbers as two black men, although he did note that one was lighter-skinned than the other. One of the men had holes cut in his ski mask for his eyes and mouth, while the other (later identified as Moore) only had holes cut in his ski mask for his eyes. Although Gatewood could not identify Moore as one of the robbers at the preliminary hearing, he did identify him at trial. "I could put it together now the way he walks and his motions and so forth."

 Sheriff Glenn Warren arrested Moore on October 15, 1984, on a John Doe warrant. The basis for the arrest was information given to Warren by Larry Carbins. Carbins, who is the defendant in another armed robbery case involving Gatewood, is the brother of Ricky Chisolm, who allegedly participated with Moore in this robbery. No one else had made a statement to Warren regarding Moore, nor did Warren have any physical evidence linking Moore to the crime. On direct examination, Warren testified that the information came from "someone whose information had proved reliable in the past." However, on cross-examination, Warren testified that he "did not consider Larry Carbins a reliable person." Moore made one telephone call after he was arrested on October 15. He was interrogated that evening, but did not want to talk. He was also interrogated the next evening, again without success. However, on the third night, Moore executed a Waiver of Rights form and made this statement:

 On 9-27-84 Ricky Chisolm and myself (Nathaniel Moore) left Morton and we went up to Mr. Vern lee Gatewood on the Contrell Road, and we parked the car on a dirt road, and started through the woods. We were going to rob Mr. Gatewood's store, and we met Mr. Gatewood coming through the woods on his tractor, and Ricky pulled a gun on Mr. Gatewood and made him get off the tractor, and Mr. Gatewood

 got off the tractor with his hands up and begged us not to kill him. We made him lay down on the ground, and we took his billfold, and I tore my shirt up, and I tied his feet and Rickey tied his hands. The black mask is mine, and the red mask is Ricky's. When we left, we waited for Mr. Gatewood, and we heard him leave on his tractor, and we ran on back to the car and left. We rode back to Paul Chambers' store, then turned and went to Harperville and got some gas, and then we left there and went back to Morton, Mississippi.

 Moore was tried on March 12, 1985. He moved to suppress the statement given to the sheriff, on the grounds that his arrest was illegal, that he was denied the right to an attorney, and that the statement was involuntary. However, the statement was admitted, the court finding that warnings were properly given, that the defendant understood his rights, that the information from Carbins gave the sheriff probable cause for arrest, that Moore had made a phone call, and that the statement was voluntary.

 At trial, Sheriff Warren admitted that Moore had never admitted to having a gun, that there never was a lineup, that Gatewood could only identify his assailant as black, giving approximate height and color, that Gatewood's watch had never been recovered, and that no gun was recovered from Moore.

 Nathaniel Moore also testified at trial. He denied robbing Gatewood, and explained his statement as follows: "I have never been in trouble in my life, and I was scared stiff. I didn't know what to do. They kept bringing me down. I just told them, well, if I tell them anything, maybe they will just let me alone." He also alleged that Sheriff Warren had told him to confess, so they could plea bargain and go light on him. According to Moore, Warren told him that Gatewood had already identified his picture. When Moore asked for a lawyer, he testified that Warren told him that it would take 2-3 weeks to appoint one, and that he would sit in jail until he confessed. Moore first alleged that he gave the statement under coercion. "I thought if I tell him that, maybe they would catch the robber who did it, and maybe I would be set free." However, he later testified that he did not tell the sheriff anything that was in the statement. He stated that he did not know Ricky Chisolm, although he does know someone named "Pork Chop."

 At the close of the trial, the defense submitted an instruction on larceny, and one on strong armed robbery. The basis for their submission was that no gun was taken from the defendant, nor was one mentioned in his statement. The instructions were refused, the court reasoning "The evidence in this case for the state is that of armed robbery. Upon what theory can I give the defendant a lesser included ...

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