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NOAH WHEELER v. STATE OF MISSISSIPPI

DECEMBER 14, 1988

NOAH WHEELER
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., PRATHER AND ANDERSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

In January of 1985, Noah Wheeler was indicted in Forrest County for the crime of aggravated assault upon Steve Reid, a law enforcement officer. Venue was changed to Lauderdale County on Wheeler's motion. On June 27, 1986, the jury found Wheeler guilty as charged, and he was sentenced to thirty years imprisonment in the Mississippi Department of Corrections. From that conviction Wheeler appeals, assigning as error the following:

(1) The trial court committed reversible error in failing to grant defendant's motion to suppress all oral and written statements of the defendant.

 (2) The trial court committed reversible error in failing to grant the motions of defendant for mistrial for the following reasons:

 A. Denying his right to a trial by an impartial jury, due process and equal protection as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution by the prosecutor's use of peremptory challenges to remove members of the black race from the panel of prospective jurors;

 B. Permitting the attorneys for the State to repeatedly refer to another crime, i. e., the shooting and murder of Jackie Sherrill, throughout the trial over the objections of the defendant; and

 C. Failing to declare a mistrial when it was obvious that the jury was allegedly deadlocked.

 (3) The trial court committed reversible error in denying defendant's motion for mental examination of the defendant.

 (4) The trial court committed reversible error in failing to grant defendant's motion to discharge his attorney and to obtain other counsel.

 (5) The trial court committed reversible error in failing to grant defendant's motion for a directed verdict and for a peremptory instruction. Additionally, the verdict of the jury is contrary to the law and against the overwhelming weight of the evidence.

 I.

 On December 31, 1984, four police officers, Jackie Sherrill, John Barnes, Steve Reid and Tony Davis, went to Noah Wheeler's home in Hattiesburg, Mississippi, at the request of Catherine Crowson of the Welfare Department. These officers and Mrs. Crowson had obtained a warrant for the arrest of Noah Wheeler on a complaint involving children in Wheeler's home. After the officers reached the home, a struggle ensued between three of the officers and Wheeler. A gun belonging to one of the officers went off, and Sergeant Jackie Sherrill was shot and killed *fn1 and Officer Steve Reid was wounded by a gunshot.

 The testimony of the three officers at the scene (Reid, Davis and Barnes) was that Wheeler bolted out of the door, and a struggle ensued between the three officers and Wheeler. Wheeler managed to take Reid's pistol from his holster before Reid was aware of it, and fired three shots before they were able to subdue him.

 Wheeler testified that the gun discharged while it was being held by one of the officers. The gun which was fired was the officer's as Wheeler at no time had a gun in his possession.

 After the rendition of the verdict by the jury, the court sentenced Wheeler to a term of thirty (30) years in the Mississippi Department of Corrections to run consecutively with any other of Wheeler's sentences.

 II.

 DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS ALL ORAL AND WRITTEN STATEMENTS OF WHEELER?

 Prior to trial, defense counsel filed a motion to suppress as evidence any and all incriminating confessions, admissions or statements alleged to have been made by Wheeler on the grounds that any and all such statements were obtained from him illegally, involuntarily and in violation of his constitutional rights.

 This motion to suppress was consolidated with the charge of capital murder against this same defendant, (Noah Wheeler v. State, No. DP-80, decided Dec. 14, 1988), and was overruled ruled by the trial court. This Court takes judicial knowledge of that hearing contained within another record before this Court and notes that the opinion in Wheeler v. State, supra, affirms the conviction based upon admissions of

 those confessions.

 There were two verbal statements and one written confession in question. The two verbal statements in question were made by Wheeler en route to the hospital and references were made to these statements by various witnesses during the trial. A typical statement was: "He (Wheeler) asked Officer Miller and I was the lady dead? Said he knew he had popped her twice." During the struggle between the officers and the defendant, Wheeler was physically assaulted to bring him under control and remove the gun from him. He alleged that because of this encounter his eyes were closed from swelling and that he was unable to see what he signed. An investigator secured Wheeler's signature to a waiver of rights form and proceeded to secure a confession.

 The trial judge heard the suppression evidence and overruled the motion to suppress. *fn2

 This finding of the trial judge is in accord with the decisions of this Court. Chisolm v. State, 529 So.2d 630 (Miss. 1988); Hemingway v. State, 403 So.2d 1335 (Miss. 1986); Neal v. State, 451 So.2d 743 (Miss. 1984).

 This Court reaffirms the holding of the trial court that the statements and confession were admissible.

 III.

 DID THE TRIAL COURT ERR BY FAILING TO GRANT WHEELER'S MOTIONS FOR MISTRIAL?

 The defendant enumerates several grounds allegedly warranting the granting of any one of his several motions for mistrial, which are: (A) the State's use of peremptory challenges to exclude blacks from the jury; (B) the references to the shooting death of Officer Jackie Sherrill, which occurred at the same time as the aggravated assault; and (C) the trial court's response to the jury's question. The Court addresses each.

 A.

 DID THE TRIAL COURT ERR IN DENYING THE BATSON MOTION?

 The defense argues that the alleged use of its peremptory challenges to exclude black persons on the jury ...


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