26,106 La.App. 2 Cir. 6/24/94, State v. McLemore

• Decision Date: 24 June 1994
• Citation: 640 So.2d 847
• Court: Court of Appeal of Louisiana — District of US
• Parties: 26,106 La.App. 2 Cir

Page 847

640 So.2d 847

26,106 La.App. 2 Cir. 6/24/94

STATE of Louisiana, Appellee, v. Jerry McLEMORE, Appellant.

No. 26106-KA.

Court of Appeal of Louisiana Second Circuit.

June 24, 1994.

Geary S. Aycock, West Monroe, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, Walter E. May, Jr., Dist. Atty., Jonesboro, for appellee.

Before MARVIN, C.J., and HIGHTOWER and VICTORY, JJ.

VICTORY, Judge.

In response to an indictment charging defendant with the second degree murder of his wife, a jury found Jerry McLemore, guilty as charged. LSA-R.S. 14:30.1(A)(1). The court imposed the mandatory term of life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant appeals his conviction urging eight assignments of error. We affirm.

FACTS

On the evening of September 11, 1991, police were summoned to the J & R Quick Stop in Chatham, Louisiana, to investigate the shooting death of Elizabeth Anne McLemore ("Anne"). The victim's husband, Jerry McLemore, reported that earlier that night the couple had traveled from their home in West Monroe, Louisiana, to their deer camp near the town of Chatham in Jackson Parish, Louisiana, to retrieve a brush-cutter needed for lawn work. On the way, they stopped at the J & R Quick Stop. While defendant was inside, Anne waited in their Jeep Cherokee.

According to defendant's statements to police, while he was inside the store, a white male with a long blond ponytail and goatee made lewd gestures to his wife. He remembered seeing a light-colored "Pinto-type" station wagon ("Pinto") and a blue and grey Ford four-wheel drive pickup truck in the parking lot of the convenience store. As the couple drove away, Anne made an obscene gesture to the man.

To reach the camp, defendant told police that he bypassed the most direct route, as there had been recent logging activity on that road and Anne did not want the Jeep to be muddied. Instead, he took a route that passed a nearby camp known as the Browder homeplace. After retrieving the brush-cutter, defendant closed up the camphouse while Anne returned to the Jeep to wait. At this point, he heard gunfire, ran outside and saw that his wife had been shot and that the Jeep's rear window had been shattered. Defendant stated that he also came under rifle fire from a man standing at the end of the driveway, whom he recognized as the man seen earlier at the convenience store. He ran back inside the camphouse, armed himself with a .22 rifle and fired at the man several times before the assailant escaped into the Pinto seen earlier. The defendant ran out into the dirt road after the shooter, then back to the Jeep and drove towards Chatham for help. At the intersection of Parish Road 499 and Highway 4, he saw the car again and fired several rounds at it with his .22 rifle which was aimed out of the back window of the Jeep. However, the car did not give chase and drove away. Defendant's wife was already deceased when examined in Chatham.

Arriving at the camp, sheriff's deputies immediately noticed inconsistencies between defendant's account of the incident and the physical evidence present. The McLemore camp is located just off a dirt road, Parish Road 369, which had been freshly graded. Only three sets of tire tracks were visible. One set showed the McLemore's Jeep entering and exiting the camp driveway. Another set, truck tracks with mud grips, were underneath McLemore's and appeared to belong to a caretaker staying at the Browder camp just down the road. The third set of tracks had been left by the road graders. No other tracks were visible to corroborate defendant's account that the Pinto had traversed Parish Road 369 in front of the camp.

The driveway to the McLemore camp consisted of sandy dirt widely interspersed with small amounts of gravel. In some places, a few large pieces of carpet had been placed upon the driveway. Sheriff's deputies reconstructed the Jeep's placement in the driveway by the presence of glass from the vehicle's back window and tire tracks. Investigating officers noted that footprints made by Avia tennis shoes were present around the area of the Jeep, the front porch of the camphouse and the camp driveway. These tracks, however, were not present on Parish Road 369, contradicting defendant's statement that he chased the Pinto onto the road. Also, officers could not find footprints made by the victim on the sandy ground between the Jeep and the camphouse which would have corroborated defendant's account that Anne had exited the Jeep and entered the house. A few tracks made by Reebok tennis shoes were found on Parish Road 369, as well as a single Reebok track noted in a wet depressed area in the front of the camp but pointing in the direction of Parish Road 369. Investigators began to theorize that defendant entered the camp driveway with his wife by car, went into the camphouse alone, changed shoes, exited through a rear door, circled around the camphouse to the edge of the driveway leaving behind the single Reebok track, shot his wife from behind, changed back into his Avia shoes, and drove his wife into Chatham.

A few days later officers discovered the murder weapon, a Remington .270 pump rifle with a Bushnell scope on it, in a creek bed underneath a bridge on the nearby Johns Road, which runs between Highway 499 and Highway 4. Mrs. Getta Harper, and her son, Tim, alerted the police to a pair of Reebok tennis shoes that they found alongside the Johns Road, a short distance from their home. The shoes appeared to match the Reebok prints noted at the crime scene. In addition, Mr. Eugene Harper reported that on the night of the murder, he saw a red vehicle pass, somewhat quickly, in front of his house which is located only 30 feet from the road. He observed that the vehicle's back glass looked strange, as if part of it was either missing or wiped clean. In defendant's version of the route taken from the camp back to Chatham, he did not travel the Johns Road in front of the Harper's residence, but instead returned to Chatham along Parish Road 369, Highway 499 and Highway 4.

J.T. Simons, the caretaker for the Browder camp located approximately 550 yards from the McLemore camp, recalled that he arrived at the Browder camp just before sunset the evening of the murder. Although it was his custom to leave the gate to this camp open when he was staying there, on this evening he deviated from that practice, and closed and locked the gate. He reported that around 9:00 p.m. he heard five loud shots fired by a high-powered deer rifle. He did not, however, hear any answering shots fired by a .22 rifle. The morning following the shooting, Mr. Simons visited the scene and noted, along with the police, only his tire tracks on Parish Road 369, those of the graders and the other set belonging to defendant.

An arrest warrant was issued for defendant, as well as two warrants for the search of defendant's home which resulted in the seizure of a Remington 1100 12-gauge shotgun. From their investigation, officers had learned that this gun, along with the murder weapon, belonged to Jason Sanford, a former neighbor of the McLemores, and had been reported missing by Sanford's mother, Sharon Thomisee.

ASSIGNMENT OF ERROR # 1

Defendant contends that the trial court erred in denying his pre-trial motion to suppress the physical evidence seized from his home. This case involves one arrest warrant obtained September 18, 1991, and two search warrants obtained September 18 and 19, 1991. Deputy Nelson Spillers of the Jackson Parish Sheriff's Office was in charge of the investigation, and he supplied the facts in each warrant affidavit. Defendant asserts that the affidavits are invalid because: (1) they contain material and intentional misrepresentations and omissions; (2) the searches were not good faith exceptions to the exclusionary rule; and (3) the evidence seized pursuant to the second search warrant, a Remington 1100 12-gauge shotgun, is "fruit of the poisonous tree" and should be suppressed.

Probable cause exists when the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Johnson, 408 So.2d 1280 (La.1982). An issuing magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a "fair probability" that evidence of a crime will be found in a particular place. The task of the reviewing court is simply to insure that the magistrate had a "substantial basis" for concluding that probable cause existed. Illinois v. Gates, 462 U.S 213, 239-41, 103 S.Ct. 2317, 2322-23, 76 L.Ed.2d 527 (1983); State v. Byrd, 568 So.2d 554 (La.1990); State v. Lingle, 436 So.2d 456, 460 (La.1983).

The making of material and intentional misrepresentations to a magistrate involves a fraud upon the courts and will result in the invalidation of the warrant and suppression of the items seized. State v. Byrd, supra; State v. Williams, 448 So.2d 659, 663 (La.1984); State v. Rey, 351 So.2d 489, 492 (La.1977). A defendant bears the burden of going forward on an allegation that an application for a search warrant contains intentional misrepresentation such as would render it invalid. State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988). If the misrepresentations or omissions are inadvertent or negligent, the warrant will be retested for probable cause after supplying that which had been omitted or striking that which had been misrepresented. State v. Byrd, supra; Lingle, supra; State v. Lehnen, 403 So.2d 683, 686 (La.1981).

ARREST WARRANT

The facts recited in the arrest warrant affidavit include the following:

A. Jerry R. McLemore stated that after the killing of his wife he saw a man get into a vehicle being driven...