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DAYRAL T. NATHAN v. STATE OF MISSISSIPPI

OCTOBER 25, 1989

DAYRAL T. NATHAN
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PRATHER AND ROBERTSON.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

Dayral T. Nathan was convicted on all counts of a three-count indictment in the Circuit Court of Jackson County, Mississippi, to-wit: Count I, Burglary of an occupied dwelling in the night with a deadly weapon with intent to commit armed robbery; Count II, Armed Robbery; Count III, Kidnapping. The indictment charged that Nathan was an habitual offender under 99-19-83. Following the sentencing hearing the indictment was amended and Nathan was sentenced as an habitual offender under 99-19-81. We affirm.

FACTS

 In the early morning hours of October 5, 1986, Simmie W. Graves awoke to find a black man sitting on his chest. The men struggled. Graves ceased resisting after being struck in the face numerous times and told his throat would be cut if he did not stop fighting. The intruder removed a folded ten dollar ($10.00) bill from Graves' wallet and accompanied Graves to the kitchen.

 Following the instructions of the intruder, Graves wrote a check in the amount of one hundred fifty dollars ($150.00) and got dressed. The men got into Graves' truck, which was parked under the street lights, and Graves drove the truck to Wayne Lee's Grocery in order to cash the check. The trip took eight to ten minutes.

 Upon arrival at Wayne Lee's grocery, Graves left the keys in the truck and entered. Heeding the intruder's warnings, Graves did not tell anyone what was happening. The employees of Wayne Lee's refused to cash the check.

 As Graves returned to the truck, he saw the intruder standing by a Coke machine. Graves returned to Wayne Lee's store to get help. Finding no help, Graves once again left the store and then saw the intruder on the far side of the truck at the edge of the parking lot. As he was driving away, Graves saw the intruder again in front of the Rock-A-By Motel.

 Graves drove directly to the Pascagoula Police Station, arriving between 1:15 and 1:20 a.m., and related his story to Lieutenant Tom Miletich. Graves described the intruder as a black man, approximately 5'7" , wearing dark pants and a light colored, horizontally stripped shirt. Lt. Miletich relayed this information over the radio and asked for any unit in the area of Rock-A-By Motel and Wayne Lee's to respond.

 Officer Ronnie Castille was on routine patrol at approximately 1:30 a.m. when he saw a black male wearing dark pants and a light colored shirt run across the road. Officer Castille decided to investigate since he was in a commercial area which had been the scene of previous burglaries.

 After turning his patrol car around, Officer Castille received Lt. Miletich's radio transmission and responded. Castille reached the suspect and asked him to stop; the suspect complied. At this time a Reserve unit joined Castille.

 Castille asked the suspect his name and received an answer: "Dayral Nathan." The officer then asked where Nathan was coming from and where he was headed. In response, Nathan said he was going to visit his sister and had just come by the Rock-A-By Motel. Castille conducted a pat-down of Nathan. Nathan informed the officer that he was carrying a knife. Castille told him to leave the knife where it was; Nathan complied.

 Radio communication between Officer Castille and Lt. Miletich continued. Castille learned that the suspect was wanted for armed robbery, assault and kidnapping. He was also advised that the suspect would have a folded ten dollar bill ($10.00) and a knife in his possession. Nathan displayed the items and the officer took them. At this time, acting on orders from Lt. Miletich, Castille placed handcuffs on Nathan and transported him to the police station.

 Upon arrival at the station, Nathan was escorted into the

 booking area. Graves was instructed to step out of Lt. Miletich's office and look through the window into the booking area to see if he could identify his attacker. Graves immediately identified Nathan, who was then booked.

 Dayral Tyrone Nathan was tried and convicted on all three charges on May 29, 1987. On June 2, 1987 Nathan was adjudicated as an habitual offender under MCA 99-19-81 and was sentenced to concurrent sentences of (1) 20 years on Count I, (2) 30 years on Count II and (3) 30 years on Count III. Feeling aggrieved with the outcome, he appealed and, through counsel, assigns as error the following:

 I. The Court Erred in Overruling the Defendant's Pre-Trial Motion to Suppress Any and All Statements he May Have Made to the Law Enforcement Officers at the Time of or Subsequent to his Arrest and Any and All Physical Evidence Removed From Defendant by Law Enforcement Officers at the Time of or Subsequent to his Arrest and Any and All Results of Scientific Tests Performed Upon Said Physical Evidence Because All of Said Evidence Was the Result of an Illegal Search and Illegal Arrest.

 II. The Court erred in Overruling the Defendant's Pre-Trial Motion to Suppress All Evidence and Testimony Concerning a Post-Arrest, Pre-Trial Identification and an In-Court Identification of the Defendant by the Alleged Victim During the Trial Because the Out of Court Identification Procedure was Unnecessarily Suggestive and Gave Rise to a Substantial Likelihood of Misidentification and There was Not a Sufficient Independent Basis Apart From the Out of Court Identification Upon Which to Base an In-Court Identification and Said Identification Would Not Have Occurred but for the Illegal Arrest of the Defendant.

 III. The Court Erred in Overruling the Defendant's Objection to the Amendment of the Indictment and the Court Erred in Sentencing the Defendant Without Amending Said Indictment Until Some Ten (10) Days After Sentencing and After the Defendant Had Been Committed to the Mississippi Department of Corrections.

 Nathan, pro se, assigns as error the following:

 I. The Use of a Photo Display of the Petitioner Deprived the Petitioner [of] Due Process of the Law [Guaranteed by] the Fourteenth Amendment of the U.S. Constitution.

 II. The Manner in Which the Photo Was Admitted Into Evidence Violated the Petitioner's Rights to a Fair Trial [Guaranteed] by the Sixth Amendment of the U.S. Constitution.

 III. The State Failed to Comply with Rule 4.06 (by) Not Producing the Report of the Officer Who did an Overall Investigation in the Petitioner['s] Case.

 IV. The State Failed to Comply with Rule 4.06 Until During Trial[,] State Exhibit No. 8.

 We first address the assignments of error presented by Nathan's counsel.

 ASSIGNMENTS OF ERROR PRESENTED BY COUNSEL

 I.

 The Court Erred in Overruling the Defendant's Pre-Trial Motion to Suppress Any and All Statements he May Have Made to the Law Enforcement Officers at the Time of or Subsequent to his Arrest and Any and All Physical Evidence Removed From Defendant by Law Enforcement Officers at the Time of or Subsequent to his Arrest and Any and All Results of Scientific Tests Performed Upon Said Physical Evidence Because All of Said Evidence Was the Result of an Illegal Search and Illegal Arrest.

 Nathan argues two separate grounds in support of this assignment, each of which is addressed below. After careful reading of the record and application of the law, we find no merit in either of these arguments.

 A. Arrest and Search

 Nathan contends that he was not under arrest at the time he was stopped by Officer Castille. Since he was not under arrest, he argues the pat-down conducted by Officer Castille was in actuality a search conducted for the sole purpose of discovering evidence to form the basis for probable cause for the arrest in violation of Adams v. Williams, 407 U.S. 146 (1972). As such, Nathan contends that he was subjected to an illegal pre-arrest search which exceeded the limits of Terry v. Ohio, 392 U.S. 1 (1968),

 thereby violating his rights under the Fourth Amendment to the United States Constitution and Article III, 23 of the Mississippi Constitution. Relying on Keys v. State, 283 So. 2d 919 (Miss. 1973) for support, he argues that all evidence obtained from this illegal search should have been suppressed.

 The facts in Keys are distinguishable from the case sub judice. The law enforcement officer in Keys had a search warrant for the defendant's apartment, 283 So. 2d at 920, and proceeded to Keys' apartment to serve the warrant. Upon arrival he saw Keys driving away; followed Keys and - although Keys was not violating any laws - pulled Keys over for the purpose of serving the warrant. Once his vehicle was stopped, Keys was ordered out of the car. The officer conducted a pat-down and recovered containers of marijuana from Keys' person; a search of Key's automobile yielded additional amounts of marijuana. Key's was arrested for possession of marijuana and subsequently served with the search warrant. This Court held that the search was illegal and that the evidence obtained as a result of the illegal search was inadmissible.

 It is clear from the facts that the officer in Keys was looking for an identified person for the specific purpose of serving him with a search warrant. In the case sub judice, Officer Castille had already made the decision to investigate before he received the radio call to look out for a man meeting Nathan's description. Therefore, Castille was not looking for an identifiable person at the time he observed Nathan running in a high crime area; Officer Castille was on routine patrol.

 This Court has articulated three types of actions in which police officers may engage in the performance of their duties of "preventing crime, detecting violations, making identification, and in apprehending criminals . . ." :

 (1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause.

 Singletary v. State, 318 So. 2d 873, 876 (Miss. 1975). While probable cause is required before a lawful ...


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