Before McMILLIN, P.j., Diaz, And King, JJ.
The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: 09/08/1997 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM WHICH APPEALED: LEAKE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED ON CHARGES OF BURGLARY AND AGGRAVATED ASSAULT.
DISPOSITION: AFFIRMED - 02/23/99
¶1. Glen Mason was convicted of burglary of a dwelling house and aggravated assault. From these convictions, he perfects his appeal to this Court and argues that the trial court erred (1) in overruling his motion for a change of venue, (2) in refusing to suppress the photograph, line-up, and in-court identification testimony, and (3) in denying his motion to suppress hair sample evidence. Finding his arguments without merit, we affirm.
¶2. On the morning of October 18, 1996, Frank Merchant left his home at approximately 8:00. About an hour later, Merchant returned to his home and found a white Buick automobile parked in his carport. Upon entering the house, Merchant saw that his back door was broken. He then heard a noise coming from his daughter's room, so he walked into her room and saw a man he identified as the appellant, Glen Mason, behind the stereo system rolling up the wires. According to Merchant, Mason began moving toward the door, at which time Merchant observed Mason reach into his pants pocket. Mason then pulled a gun from his pocket and shot Merchant above his left eye. Mason fired twice more, hitting Merchant in his right shoulder. As Mason was fleeing the house, Merchant found his own gun and ran outside and began firing at Mason's car as Mason drove away.
¶3. Merchant testified that Mason took stereo speakers, cigarette lighters, and some jewelry from his house on the day of the burglary. Merchant was also able to recall that Mason's car had Attala County license plates and that the last three digits were 370. At the request of law enforcement officials, the Attala County Tax Collector's office searched their records and found only one white Buick car matching Merchant's description. After determining that the automobile was owned by Glen Mason's parents, Mason was arrested and charged with burglary of a dwelling house and aggravated assault. Following a jury trial, Mason was found guilty as charged. It is from these convictions that Mason now brings forth his appeal.
I. DID THE TRIAL COURT ERR IN OVERRULING MASON'S MOTION FOR A CHANGE OF VENUE?
¶4. Prior to the trial in this case, Mason made a motion for a change of venue, wherein he alleged that due to the extensive pre-trial publicity as well as the victim's notoriety in the community, that his trial should be moved to a different location. He further charged that since he is black and Merchant is white, that the feelings of outrage within the community would deny him his right to a fair trial. In support of his motion, Mason attached copies of two newspaper articles which were printed prior to the trial and which contained details of the crime. Mason also provided the affidavits of two Leake County citizens, who stated that it would be in the best interest of Justice that the case be tried in another location.
¶5. "Where a defendant presents the court with an application for change of venue accompanied by two affidavits which affirm the defendant's inability to receive a fair trial in a particular location, a presumption is created that it is impossible for a fair trial to be had in that place." Hickson v. State, 707 So. 2d 536 (¶22) (Miss. 1997). This presumption may be rebutted if the State can show that an impartial jury was impaneled by the trial court. Id. When the State makes such a showing of impartiality, we must defer to the trial court's denial of the change of venue request, for the venue decision is within the discretion of the lower court. Id.
¶6. The trial Judge conducted a hearing in the present case in order to determine the merits of Mason's motion. At this hearing, the State called seven witnesses with extensive ties to Leake County, who all testified that they were unaware of any general feelings of ill will in the community against Mason. The witnesses were also unable to recall any extensive pre-trial publicity associated with the case. The defense then called six witnesses to testify in support of the motion; however, ...