PRATHER, JUSTICE, FOR THE COURT:
The appellant, Robert Lee Shell was convicted in the Circuit Court of Winston County for the capital murder of Mrs. Audie Johnson, while in the act of committing armed robbery. Miss. Code Ann. 97-3-19 (2)(e) (Supp. 1989). The jury found that Shell should receive the death penalty, from which sentence he appeals.
During the early morning hours of June 8, 1986, Mrs. Audie Kirkland Johnson, a sixty-eight (68) year old resident of Winston County, was at her home with her step-daughter, Mrs. Evelyn Lenaz. Following the death of her husband approximately two weeks earlier, Mrs. Johnson had family members staying with her. On this early Sunday morning, Mrs. Johnson was brutally attacked and murdered by an unknown assailant, and Mrs. Lenaz was permanently injured.
The assailant struck Mrs. Johnson numerous times across the head with a tire iron, causing massive injuries to her head, comminuted fractures, extensive bruises, subdural hemorrhaging, and heavy bleeding, which caused her death. She suffered a cut above her right eye, and on her right index finger, she received a cut so severe that a portion of the finger was almost severed from the hand.
At approximately 3 p.m. on Monday, June 9, Rev. Burlon Commer, the pastor of the church the Johnsons attended, received a call from Mrs. Lenaz at his home. She told him that she had been attacked. Rev. Commer called the Winston County Sheriff's Office and met a deputy sheriff at the Johnson residence. When
the two men went inside the house, they found Mrs. Lenaz in a barely conscious state and also found Mrs. Johnson's body. According to witnesses at trial, Mrs. Johnson was a neat housekeeper, but when Rev. Commer and the deputy sheriff entered the house, they discovered that it was in a state of disarray. Papers were scattered about the house, and in the bedrooms, dresser drawers were emptied. Mrs. Lenaz, survived the encounter, although she was hospitalized for two weeks and remembered none of the events surrounding her attack.
Sheriff Billy Rosamond questioned Robert Lee Shell on June 10, two days after Mrs. Johnson's murder while the Sheriff's department was talking to all the people who lived near the Johnson residence. (Shell lived approximately one mile from Mrs. Johnson). Rosamond stated that Shell initially told him that he and his wife had been to a party that Saturday night and had not seen or noticed anything unusual.
Prior to June 21st, the sheriff talked to Joe Hickman, Robert Shell's father-in-law, at Hickman's house trailer. Shell's house trailer was located behind Hickman's trailer. The sheriff learned from Hickman that, although Shell and his wife had been at a family party on the Saturday night preceding Mrs. Johnson's death, Shell left the party early, and his wife was brought home by another family member. Hickman stated that Shell was not at his home that Saturday night and early Sunday morning until between six and seven a. m. Shell told Hickman that he had run out of gasoline and left his car at a store just north of the Johnson home. Robert Shell and his wife took gasoline to Shell's car and removed it. This information caused the sheriff to ask Hickman to have Shell come to his office.
The Sheriff spoke with Shell again on June 21st, when he voluntarily came in, at which time Shell told him the same story concerning his whereabouts on the evening in question. Then Shell told the sheriff to ask his wife if he didn't believe his story. The sheriff then talked to Shell's wife separately, but Shell's story was not corroborated by his wife; rather, she corroborated her father's story. Rosamond asked Shell and his wife if they would object to a search of their trailer for clothing, to which search they agreed. The Shells signed a waiver form, allowing the Sheriff's department to search the trailer.
While at the trailer, Shell's wife, in the presence of Sheriff Rosamond and Officer Curtis Austin, told her husband to" tell. . . the truth "because she had already" told. . .the truth. "The Sheriff then took Shell back to the Sheriff's office, where Shell was read his constitutional rights under the Miranda decision, (Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S. Ct. 1602,
16 L.Ed.2d 694, 10 A.L.R. 3d 974 (1966)) and signed the waiver of rights form. Following the signing of the form, Shell initially told the same story he had told before. When the Sheriff reminded him what his wife had said to him at the trailer, Shell admitted that he had been out driving the early morning of June 8, and had stopped to pick up two friends, Jimmy Rush and Bubba Hughes. According to this version of Shell's story, Rush and Hughes decided to break into Mrs. Johnson's house. When Shell entered the house, he saw Hughes beating a woman with the tire tool he had used to break into the home. Shell said that he told Hughes to quit beating the woman, and the three men proceeded to ransack the house, eventually netting $287.00 in cash. The men split the money three ways; Shell took the tire tool and threw it behind the house, and went home. The time was approximately 4:30 a.m. on Sunday, June 8, 1989.
Following the giving of this second statement, Shell was officially placed under arrest, and Sheriff Rosamond called Deputy Greg Lee in to assist him. Lee read Shell his rights once again, and asked him if he would be willing to give a statement that would be put in writing. Shell agreed, and Lee took down a statement that was consistent with Shell's prior oral statement to Sheriff Rosamond. Shell told the Sheriff where he had thrown the tire tool, but because it was too dark, they did not look for it that day. Based on Shell's statement implicating Rush and Hughes, warrants were issued for their arrest. When the two men were found, Hughes and Rush were taken to separate jails to keep the men apart until the Sheriff could talk to each of them individually. Rosamond testified at trial that the only evidence linking Rush and Hughes to the crime was Shell's statement.
The next day, June 22nd, Shell accompanied Rosamond and Lee to the Johnson residence to show them where he had thrown the tire tool. Once Shell showed the two men where he thought the tool was, the tool was found. Shell was returned to the Sheriff's office and was read his Miranda rights again prior to questioning by Rosamond and Lee. In this third statement, Shell did not mention Bubba Hughes as an accomplice, and further stated that he wore gloves while inside the Johnson residence and mentioned a pocket knife he had thrown away beside the railroad track. Shell showed the officers where the gloves were located, but the knife was not found until later.
Sheriff Rosamond testified that on the morning of June 23, when he arrived at work, he was told that Shell wanted to see him. When Rosamond talked to Shell, Shell told him that Jimmy Rush was not involved in the attack on Mrs. Johnson or Mrs. Lenaz. The Sheriff called Deputy Greg Lee into his office again, and Shell was read his rights. In the fourth statement Shell gave, he admitted that he had acted alone when he broke into Mrs.
Johnson's home, killing her and injuring Mrs. Lenaz. A psychiatric examination was given the defendant which showed that the defendant was criminally responsible at the time of the crimes and was competent to stand trial although he had a history of alcohol and substance abuse.
At trial Sheriff Rosamond testified that Shell was asked to give the sheriff's office the tennis shoes he was wearing, and that he did so voluntarily. Bloodstains were found in several rooms of the house, and traces of blood were found on the tire tool, the gloves, and on the tennis shoes belonging to Robert Lee Shell. No blood was found on a pair of tennis shoes belonging to Jimmy Rush.
Frank McCann, a forensic scientist with the Mississippi Crime Laboratory, testified that the marks found on a piece of paper from inside the Johnson residence were made by the right shoe of Robert Lee Shell. Furthermore, the marks on a business card also found inside the home were made by a right shoe pattern similar to or consistent with, the shoe worn by Shell. McCann also testified that the tests he had run were 100% accurate.
Shell testified at trial, relating a fifth version of the crime. He stated that he had been riding around with Jimmy Rush the night in question. He testified that Bubba Hughes was not with them, but a man named Dexter Ball was. According to Shell's testimony at trial, he, Rush and Ball rode in Shell's car to Noxapater. Rush was at the wheel because Shell was too intoxicated to drive. The group travelled to a party at an unspecified location and then returned to Winston County. According to Shell, his car ran out of gas on the way home, forcing him to leave his car at Flowers' Store.
Continuing Shell's in-court testimony, he stated that as he was walking down the road, he saw three men running from a trailer near the Johnson residence. When the men saw Shell, they yelled at him and began chasing him. Shell was able to outrun the men and hide in the woods. When Shell reached his trailer, he climbed in the bathroom window and went to bed. Shell further testified that when he went to pick up his car the next day, he discovered a gun holster, Army belt, and a pocket knife on the back seat. He also testified that he received two phone calls warning him that he should" take the blame "for what had happened on the night of June 8," or else they would get to my wife and me. "When shown the tennis shoes that the Sheriff's office claimed to have taken from him, Shell stated they were not his shoes.
When questioned about the approximate $300.00 he showed his aunt and uncle the day after Mrs. Johnson's murder, Shell claimed
he had won the money gambling the night before. Shell was the only witness put on by the defense. During rebuttal testimony by the State, Greg Lee discredited Shell's testimony. He testified that he had measured the two windows on the back side of Shell's trailer and that they were 55-60 inches from the ground and measured only 12 inches in width. Shell testified on cross-examination that he weighed 170 pounds in June of 1986.
Following the presentation of all evidence by both sides, the jury found Shell guilty of capital murder. Under a separate sentencing hearing in accordance with Miss. Code Ann. 99-19-101 (7) (Supp. 1989) the jury found that the defendant Shell, intended to kill, attempted to kill, and actually killed Audie Kirkland Johnson, and contemplated that lethal force would be used. Additionally, under Miss. Code Ann. 99-19-101 (2) (Supp. 1989), the sentencing jury found as aggravating circumstances that the capital murder was (1) committed when engaged in the commission of robbery and (2) was especially heinous, atrocious, and cruel. Further, the sentencing jury found that" there are insufficient mitigating circumstances to outweigh the aggravating. . . "circumstances and imposed the sentence of death. Following sentencing, the case was appealed to this Court.
THE GUILT/INNOCENCE PHASE
DID THE" STATISTICAL ABERRATION "WHICH RESULTED IN NINE MEMBERS OF THE VENIRE WHO HAD HAD A CLOSE RELATIVE MURDERED REQUIRE
AMELIORATIVE ACTION BY THE TRIAL COURT?
Under Shell's first assigned error, he claims a" statistical aberration "*fn1 in the venire from which the jury was drawn prevented him from receiving a fair trial. Mhoon is factually distinguishable from the case at bar, and as a consequence, there is no merit to this assignment of error.
Of the forty-two (42) members of the regular and special venire panels, nine (9) of them had relatives who had been murdered. These relatives included brothers, brothers-in-law, first cousins, fathers-in-law, grandparents and uncles. The State argues on appeal that Shell is barred from assigning this as error because defense counsel failed to object to the composition of the venire and/or jury at trial. Cannaday v. State, 455 So. 2d 713, 718-19 (Miss. 1984). *fn2
Although not objected to at trial, this assigned error has no merit. Of the nine (9) members of the venire who had had relatives murdered, seven (7) of them did not serve on the jury
at all. When voir dire was completed, the defense had two peremptory challenges that had not been used. Therefore, if the defense had objected to the two (2) remaining members of the venire who actually served on the jury and had relatives who had been murdered, none of the original nine would have served. The defense had sufficient peremptory challenges remaining to remove the jurors if they so desired. See Gilliard v. State, 428 So. 2d 576, 580 (Miss. 1983); Rush v. State, 278 So. 2d 456, 458 (Miss. 1973).
Shell relies heavily on Mhoon, supra, to support his claim that the venire, and consequently the jury, were tainted by the presence of nine (g) venirepersons who had relatives that had been murdered. This Court disagrees, because the facts surrounding Mhoon are distinguishable from those in this case. In Mhoon, twelve (12) of the thirty-nine (39) venirepersons" were either policemen or related by blood or marriage to a current or former police officer. . . "Id. at 80. of this number, six (6) served on the jury, and the jury foreman was a policeman in uniform. Finally, defense counsel in Mhoon exhausted all of his peremptory challenges during jury selection. Id. This Court held that the" statistical aberration ", which produced such a venire/jury, mandated a reversal of Nhoon's conviction for a new sentencing hearing. Id. at 81-82. The Court was careful to point out, however, that the mere presence of law enforcement officials in a jury pool was not per se improper, provided the prospective juror was otherwise qualified and was not peremptorily struck by either party. Id. at 81.
In the case sub judice, the trial court questioned each member of the venire about their ability to be impartial, and defense counsel asked each member of the venire if those relationships would prevent them from being" fair and impartial "toward the defendant, Robert Shell. Neither juror Sherrod, whose uncle had been killed, nor juror Goss, whose brother had been killed, indicated they would find it difficult to fulfill their obligations in a fair and impartial manner. Neither juror was peremptorily challenged or challenged for cause.
Cases from other jurisdictions, both federal and state, have held that the presence on a jury of a crime victim, or the relative of a crime victim, is not per se improper.
The fact that a juror or his relative has been the victim of some crime, unrelated to the offense being tried, is, we think, only minimally relevant to the question of that juror's impartiality. Indeed, if the mere fact that a juror or his relative had been the victim of some crime unrelated to that being tried constituted grounds for discharge, it would become difficult, if not impossible, to assemble a jury panel.
In Jones, supra, the Court summarized the issue thusly:" We decline to establish a per se rule of disqualification where a juror is related to a victim of a similar crime. "Id. at 1008. See also, Williams v. U.S., 521 A.2d 663, 665 (D.C. App. 1987); Commonwealth v. Johnson, 445 A.2d 509, 514 (Pa. Super. 1982).
After reviewing Mhoon and case law from various other jurisdictions, this Court concludes that there is no merit to this assignment of error.
DID THE FAILURE TO STRIKE VARIOUS JURORS FOR CAUSE DEPRIVE SHELL OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY?
Under this assignment of error, Shell asserts that the" local knowledge "of the facts of the case made a fair trial impossible. He maintains that too many of the jurors had extensive knowledge of the case and/or built-in biases which created doubt as to their impartiality. After examining both the voir dire of prospective jurors and the actual composition of the jury, this Court concludes there is no merit to this claim.
Once again, the State is correct in noting that no objection was ever made by the defense to the composition of the jury. Cannaday v. State, 455 So. 2d 713, 718-19 (Miss. 1984). It is also noteworthy that Shell had initially requested a change of venue. However, before the trial began, he withdrew the motion for a change of venue on his own accord. Shell had the constitutional right to have his trial held in Winston County where the offense was committed. Miss. Const., Art. 3, Sec. 26; State v. Caldwell, 492 So. 2d 575 (Miss. 1986).
Shell asserts in his brief that twenty-five (25) of the prospective jurors knew the victim or a member of her family, including her late husband. Shell also maintains that thirteen (13) prospective jurors stated they could not be impartial, for various reasons. The most crucial fact in the case is how many of these alleged" biased "members of the venire became jurors. From this Court's inspection of this record, no member of the jury that convicted Robert Lee Shell had prior knowledge of Mrs. Johnson or her family, and each juror stated unequivocally that they could be impartial. There is no reason to doubt the truth of these responses.
As indicated above, this Court has held on more than one occasion that when a trial court fails to sustain a challenge for cause by the defense, it must be shown that the defense had exhausted all of its peremptory challenges before the trial court's refusal to allow the challenge for cause. Chisolm v. State, 529 So. 2d 635, 639 (Miss. 1988); Johnson v. State, 512 So. 2d 1246, 1255 (Miss. 1987). Shell failed to use his full allotment of peremptory challenges. When voir dire was completed, he still had two peremptory challenges remaining. For all of these reasons, this Court concludes there is no merit to this assignment of error.
WERE STATEMENTS USED AGAINST SHELL TAKEN IN VIOLATION OF THE SPOUSAL PRIVILEGE?
Shell next contends that on several occasions certain statements allegedly taken in violation of the spousal privilege, were allowed into evidence. Three of these alleged violations of the spousal privilege occurred at the pre-trial hearing and one occurred at trial.
No person has a privilege to refuse to be a witness, or to refuse to disclose any matter or to produce any object or writing, or to prevent another from being a witness, disclosing any matter or producing any object or writing (M.R.E. 501), except for recognized privileges given by the federal or state constitutions or by the rules of evidence. The recognized spousal privilege asserted by Shell here is found in Rule 504, Mississippi Rule of Evidence (M.R.E.), the relevant portions of which read as follows:
RULE 504. HUSBAND-WIFE PRIVILEGE
(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.
(b) General Rule of Privilege. In any proceeding, civil or criminal, a person has a privilege to prevent his spouse, or former spouse, from testifying as to any confidential communication between himself and his spouse.
(c) Who May Claim the Privilege. The privilege may be claimed by either spouse in his or her right or on behalf of the other. . . .
The spousal privilege has ancient roots *fn3 and prohibited a
wife from testifying against her husband based upon the concept that husband and wife were one entity. Since the woman held no separate legal existence in medieval times, the husband was that entity. Trammel v. United States, 445 U.S. 40, 44, 100 S. Ct. 906, 63 L.Ed.2d 186 (1980). Although the basis for the privilege has long been abandoned, the spousal privilege has continued in some form and is applied to both spouses. The privilege is under criticism today under the view that the spousal privilege contravenes the public's" right to every man's evidence ". Trammel, supra, 445 U.S. at 50.
The first complaint occurred at the pre-trial motion to suppress hearing during Sheriff Rosamond's testimony. He testified that Mrs. Shell" . . .told me the same thing that her daddy did. "He then related the essence of Mrs. Shell's story given outside the defendant's presence denying that Shell had been at home with her Saturday night after the party on June 8. No objection was made at this point to the Sheriff's testimony, and the State asserts, once again, that Shell is procedurally barred from challenging this point on appeal. Because the matter was not presented to the jury, at most, it would infect the integrity of the suppression hearing.
In such a setting, it is appropriate to quote from Cole v. State, 525 So. 2d 365 (Miss. 1987).
Counsel may not sit idly by making no protest as objectionable evidence is admitted, and then raise the issue for the first time on appeal. If no contemporaneous objection is made, the error, if any, is waived. This rule's applicability is not diminished in a capital case. Irving v. State, 498 So. 2d 305 (Miss. 1986), cert. denied, ___ U.S. ___, 107 S. Ct. 1986, 95 L. Ed. 2d 826 (1987); Johnson v. State, 477 So. 2d 196 (Miss. 1985), cert. denied, 476 U.S. 1109, 106 S. Ct. 1958, 90 L. Ed. 2d 366 (1986); In re Hill, 460 So. 2d 792 (Miss. 1984); Hill v. State, 432 So. 2d 427 (Miss. 1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983).
Cole v. State, 525 So. 2d at 369; See also, Pinkney v. State, 538 So. 2d 329, 338 (Miss. 1988). But see, Cole, supra, 525 So. 2d at 384-85 (Robertson, J., concurring).
The next instance of" objectionable "testimony occurred at the pre-trial hearing as well. The Sheriff testified that Shell was not aware of the particulars of his wife's testimony, whereupon Rosamond related her version of the night's events to
the appellant. At this point, defense counsel raised an objection to the Sheriff's statements based on spousal privilege. The objection was overruled by the trial court.
Shell's reliance on Bayse v. State, 420 So. 2d 1050 (Miss. 1982), is misplaced. In Bayse, a police officer was allowed to" repeat all of the statements made by the defendant's wife to him and outside the defendant's presence. "Id. at 1053. That case differs from the case sub judice in that here, three of the four complained-of statements were made at a pre-trial hearing, where the primary issue was the voluntariness of the statements, not the guilt of the appellant. Additionally, Shell encouraged the Sheriff to question his wife, in an effort to corroborate his story.
The defendant asserts that these three instances that occurred at the pretrial stage constitute reversible error. The error asserted is introduction of statements of Shell's wife made to the Sheriff that were subject to the spousal privilege of M.R.E. 504. Rule 504 applies to the spouse testifying as to confidential communication between the spouses and not intended for disclosure to any other person. Initially, this Court notes that these statements of Shell's wife were made to the Sheriff, outside her husband's presence. They were not confidential statements between spouses, and they were not intended to be confidential because Shell invited the Sheriff to talk to his wife. There is no spousal privilege here. If there were any private communications between the Shells that were repeated to the Sheriff by Mrs. Shell, Shell waived any privilege by inviting the Sheriff to talk to his wife. Such a statement was not made under circumstances that suggest it was intended to be confidential.
Additionally, there is equally applicable here the procedural bar for the defense failure to contemporaneously and timely object. This Court holds that no error was committed here for reason of the spousal privilege assertion, and even if so, any error would be harmless. This is so because the evidence received does not call into question the voluntariness finding of the suppression hearing and because the evidence was not presented to the trial jury. B. At Trial
The next challenged exchange occurred after searching the trailer, when Sheriff Rosamond asked Shell to come down to the Sheriff's office to talk further. As they were leaving, Sheriff Rosamond testified that Mrs. Shell said," Robert, you tell Mr. Rosamond the truth. I've already told him the truth. "Sheriff Rosamond repeated this statement at both the pre-trial hearing and at trial, but defense counsel only timely challenged the statement's admissibility at trial. This objection was overruled
This claim of spousal privilege must also be analyzed under M.R.E. 504. True, the statement was made between the defendant and his wife, but it was made in the presence of the Sheriff and deputy sheriff and was not under circumstances suggesting confidentiality.
The presence of the Sheriff and his deputy when the statement was made is fatal to this portion of Shell's claim.
The privilege protected by Miss. Code Ann. 13-1-5 extends only to communications which are intended to be confidential. Thus, the presence of another person, even a family member, is deemed to mean that the communication was not intended to be confidential. Fanning v. State, 497 So. 2d 70, 74 (Miss. 1986); Dycus v. State, 440
So. 2d 246, 256 (Miss. 1983). This view has been carried forward in Rule 504. See Comment, Rule 504, Mississippi Rules of Evidence;
It is important that this Court note that the Sheriff was asked by the prosecutor" [A]fter you talked to his wife, what happened? "The Sheriff's reply, although unresponsive, was" [s]he told me the same story that he had told me. "Record, Vol. III, p. 255. Initially, a reader might wonder to whom the" he "refers. A reading of the trial transcript, however, will reveal that only the defendant's statements were in the record. The content of Shell's now-deceased father-in-law was not mentioned at trial, nor was the content of the spouse's statements.
This Court concludes that there is no error based upon the spousal privilege in this record. The hearsay aspect of this assignment is the subject of an assignment under VI.
WERE THE SHOES TAKEN FROM SHELL SEIZED IN VIOLATION OF ARTICLE 3, SECTION 23 OF THE MISSISSIPPI CONSTITUTION AND THE FOURTH
AMENDMENT OF THE U.S. CONSTITUTION?
Shell claims here that his tennis shoes were taken from him in violation of his constitutional rights under Mississippi Constitution Art. 3, 23, which provides that" [t]he people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized. "U.S. Const. Amend. W. He advances two
theories to support his claim that the shoes were illegally seized: the evidence which supported probable cause for the arrest was illegally obtained; and, even if there was sufficient evidence to establish probable cause, the seizure of the tennis shoes without a warrant was illegal. This Court disagrees.
Before the trial began, defense counsel filed a written motion to suppress various statements made by Shell, allegedly in violation of his constitutional rights. Shell claimed the statements were" obtained in violation of defendant's privilege against self-incrimination and his right to counsel. . . "and" . . .constitute the fruit of an unlawful arrest in violation of defendant's right of privacy. . . "At the conclusion of the hearing, the trial court found that the appellant had been given his Miranda warnings, that these rights had been voluntarily, knowingly, and intelligently waived each of the four times he was interviewed, that under all the circumstances and applicable law, the arrest was legal and based on probable cause, and that the statements made by the appellant were voluntarily, knowingly, and intelligently made and were therefore admissible.
The trial court's holding was based on the following findings of fact. During the Sheriff's investigation into Mrs. Johnson's death, he found a discrepancy in the appellant's story. The appellant and his wife voluntarily went to the sheriff's office, at the Sheriff's request. Further discussions with the appellant and his wife led to an increase in the discrepancy. The Shells consented to a search of their trailer, after which the appellant voluntarily returned to the Sheriff's office. Although not in custody, Shell was read his Miranda rights, and he read and signed a written waiver of those rights. He gave a statement following the waiver of his Miranda rights, and as the investigation continued, he was given the Miranda warnings on other occasions. On each of those occasions, he waived his rights and gave statements. The trial court further found that the State had produced each person who could have conceivably been present when any threats were made and also found that no coercion had been used. Agee v. State, 185 So. 2d 671 (Miss. 1966). The trial court also addressed the issue of right to counsel, which was raised in the motion but not argued. The trial court found there were no constitutional violations in that area.
This Court has summed up the requirements for probable cause which would support a warrantless arrest in the following manner:
[A] police officer must have (1) reasonable cause to believe a felony has been committed; and (2) reasonable cause to believe that the person proposed to be arrested is the one who committed it.
Floyd v. State, 500 So. 2d 989, 991 (Miss. 1986). See also, Lockett v. State, 517 So. 2d 1317, 1327 (Miss. 1987); Rule 1.02 (3), Miss. Unif. Crim. R. Cir. Ct. Prac.
Along these lines, the Court has also held that:
The existence of" probable cause "or" reasonable grounds "justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The determination depends upon the particular evidence and circumstances of the individual case.
Lockett v. State, 517 So. 2d 1317, 1327 (Miss. 1987) (quoting Swanier v. State, 473 So. 2d 180, 186 [Miss. 1985])
To be even more specific, law enforcement officials need not believe" beyond a reasonable doubt "that a crime has been committed, they need only have a" reasonable belief. . .a belief rising above mere unfounded suspicion. "Alexander v. State, 503 So. 2d 235, 238 (Miss. 1987). In this case, the information possessed by the Sheriff's department meets these minimum requirements. Therefore, under the circumstances of this case, there was probable cause for the warrantless arrest.
Under the second half of Shell's argument, he maintains that even if there was sufficient probable cause for the warrantless arrest," the seizure of his shoes without a warrant was illegal. "The basis of Shell's assertion appears to be a lack of" exigent circumstances "which would have justified the warrantless seizure of the tennis shoes. This Court disagrees.
It is a long-standing rule in this, and other jurisdictions that, pursuant to a lawful arrest, law enforcement officials may seize personal effects and clothing from one who has been arrested.
In the instant case the officers took the personal possessions of the defendant after he was arrested. This search is always necessary for many reasons. Among those are: to discover weapons and means of escape; to prevent means of injury to the prisoner and others; to discover necessary medical requirements; to discover evidence in connection with the charge for which accused was arrested; to discover wounds and need for immediate first aid, and to preserve the property of the defendant.
Upshaw v. Shaw, 350 So. 2d 1358, 1363-64 (Miss. 1977) (quoting Wright v. State, 236 So. 2d 408, 411-12 [Miss. 1970]) (Emphasis added). See also, Wright v. Edwards, 343 F. Supp. 792, 798 (N.D. Miss. 1972); U.S. v. Farrar, 470 F. Supp. 128, 131 (S.D. Miss. 1979).
This point of law has also been addressed by various legal commentators:
Thus, on incident-to-arrest grounds, it has been held that at the station the police may search through the arrestee's pockets, wallet, other containers on the person, and even underclothing, may require the arrestee to strip, and may seize incriminating objects thereby revealed. It is not necessary that there be advance probable cause that such objects will be found.
2 W. LaFave, Search and Seizure, 5.3 (a), at 479-80 (1987). (See also, accompanying footnotes and cases cited therein).
LaFave, supra, cites several cases from other jurisdictions which have specifically addressed the evidentiary value of the arrestee's clothing. See State v. Brierly, 109 Ariz. 310, 509 P.2d 203 (1973) (bloody clothing); Eberhart v. State, 257 Ga. 600, 361 S.E.2d 821 (1987) (defendant required to remove clothing on which police then discovered victim's blood); State v. Freeman, 297 N.W.2d 363 (Iowa 1980) (bloody shoes and trousers); State v. Pettle, 286 So. 2d 625 (La. 1973) (t-shirt, pants, underwear); Commonwealth v. Gliniewicz, 398 Mass. 744, 500 N.E.2d 1324 (1986) (boots worn by defendant with tread similar to that of print at crime scene and with blood on them); State v. Smith, 295 Minn. 65, 203 N. W. 2d 348 (1972) (boots); Greenfield v. Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974) (bloody clothing).
In the case at bar, the seizure of Shell's tennis shoes is clearly within the intended scope of the above-cited principles of law. The shoes were removed at the Sheriff's department's request, pursuant to a valid arrest which was based on probable cause. As a consequence, there is no merit to this assignment of error.
DID THE PROSECUTION IMPROPERLY COMMENT ON SHELL'S FAILURE TO COMMUNICATE HIS TESTIMONY TO LAW ENFORCEMENT OFFICIALS PRIOR TO
TRIAL, IN VIOLATION OF DOYLE V. OHIO?
On direct examination, Shell testified that on more than one occasion he had tried to tell the Sheriff about seeing three people run out of Mrs. Johnson's house on the evening of June 8. On ...