Abram v. State
| Decision Date | 29 July 1992 |
| Docket Number | No. 03-DP-0055,03-DP-0055 |
| Citation | 606 So.2d 1015 |
| Parties | Donald Ray ABRAM v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Merrida Coxwell, Stanfield Carmody & Coxwell, Jackson, for appellant.
Edwin Lloyd Pittman, Atty. Gen., elected Supreme Court Justice Jan. 3, 1988, Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
I.
On July 23, 1982, Loretta Carson and Percy Quin were shot and killed during the course of an armed robbery at John's Quick Stop No. 2 located on Highway 35 North in Marion County, Mississippi.
At the November 1982, term of the Marion County Grand Jury, Donald Ray Abram was indicted on a charge of capital murder pursuant to Miss.Code Ann. Sec. 97-3-19(2)(e) (Supp.1991), i.e., murder committed while engaged in the commission of armed robbery.
Abram was tried for the capital murder of Percy Quin beginning March 27, 1984, following which the jury found Abram guilty of capital murder, and sentenced him to suffer the penalty of death. On April 6, 1984, the circuit court entered a final Order of Conviction and Sentence consistent with the jury's verdict.
In due course, Abram moved for a new trial or judgment notwithstanding the verdict. The trial judge entered an Order April 19, 1984, granting what appears to be a judgment notwithstanding the sentencing verdict. The trial judge held the sentence of death handed down by the jury was unconstitutional under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Based on this view of the unconstitutionality of the death penalty, he sentenced Abram to life without parole pursuant to Miss.Code Ann. Sec. 99-19-107 (Supp.1991).
Abram appealed and has raised the following issues:
1. The appellant's written confession is involuntary as the result of promises and inducements in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 23 and 26 of the Mississippi Constitution;
2. The appellant's confession is inadmissible as an exploitation of an illegal arrest followed by an illegal detention and custodial interrogation in contravention of appellant's rights under the Fourth and Fourteenth Amendments of the United States Constitution and [corresponding provisions of] the Mississippi Constitution;
3. The trial court erred by refusing to suppress the confession after the state failed to follow the procedure for proving the voluntariness of appellant's confession as set forth in Agee v. State, 185 So.2d 671 (Miss.1966);
4. The trial court erred by refusing to grant appellant a murder instruction;
5. The trial court erred by refusing to quash the venire panels after the prosecution used its peremptory challenges to exclude all blacks from the jury in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 26 of the Mississippi Constitution;
6. The court erred in failing to grant appellant a directed verdict on the charge of capital murder after the state rested; and 7. The court correctly granted appellant a judgment notwithstanding the verdict, however, the court erred by sentencing appellant pursuant to Miss.Code Ann. Sec. 99-19-107 (Supp.1990).
The State cross-appealed, and raises the following issues:
1. The trial judge exceeded his authority by staying imposition of the jury's lawful sentence and imposing in its stead a sentence of life imprisonment without parole; and
2. The trial judge improperly interpreted and applied Enmund v. Florida to the facts in the present case.
This case was originally argued to the Court on February 18, 1986. Recognizing the presence of a claim under Batson v. Kentucky, the Court, on April 13, 1988, remanded the case to the Circuit Court of Marion County for the limited purpose of conducting a Batson hearing. Abram v. State, 523 So.2d 1018 (Miss.1988). By Order dated October 14, 1988, the trial court denied relief on this issue, and the case was eventually returned to this Court on July 7, 1989. The case is now ready for decision on all issues.
II.
On July 23, 1982, Donald Ray Abram and Herman Barnes participated in the armed robbery of John's Quick Stop No. 2 in Marion County, Mississippi. During the course of the robbery, Barnes shot and killed the store clerk, Loretta Carson, and a customer, Percy Quin. See Abram v. State, 523 So.2d 1018 (Miss.1988).
On the basis of information provided the Sheriff by two confidential informants, Abram and Barnes became prime suspects. Warrants were obtained by Marion County Sheriff Thomas "Tomboy" Forbes on August 12, 1982, for Abram's arrest on two charges of capital murder and one charge of armed robbery. Abram was taken into custody on August 12, and following three days of incarceration and interrogation, Abram gave a statement to authorities confessing his involvement in the tragic events of July 23, 1982.
Prior to trial, Abram moved to suppress all statements given by him. Pursuant to this request, the trial court conducted a hearing, and the following relevant facts were revealed:
On July 9, 1982, Abram was arrested on a charge of uttering forgery. Once in custody, he was given the standard Miranda warning. He was given an initial appearance on July 10, at which time bond was set at $4,000.00. That bond was later reduced to $1,500.00, and Abram was able to secure his release on July 14, 1982. Also at this time, Fred Cooper was appointed to represent Abram, and August 12 was set as the date for the preliminary hearing on this charge.
As previously mentioned, the series of events leading to the capital murder charge took place on July 23, 1982. It was on this day that Abram and Herman Barnes arrived at the Quick Stop on Highway 35 North in Marion County and committed an armed robbery resulting in the deaths of Loretta Carson and Percy Quin. The investigating authorities were unable to obtain any physical evidence whatsoever linking Abram to this crime.
However, two confidential informants, one of whom the Sheriff termed reliable because of his track record, provided information to Sheriff Forbes linking Abram and Barnes to the crime, and identifying Barnes as the trigger man. The informants apparently gathered their information somewhere along the grapevine because they were not eyewitnesses and they had not spoken to Abram or Barnes.
Based on the information supplied confidentially to him, Sheriff Forbes executed criminal affidavits charging Abram with two counts of capital murder and one count of armed robbery. Forbes presented these affidavits to Justice Court Judge John Speights on August 12, 1982, prior to Abram's scheduled appearance for a preliminary hearing on the pre-existing charge of uttering a forgery. Sheriff Forbes testified that arrest warrants issued forthwith.
Justice Court Judge Speights confirmed the swiftness with which the warrants were issued. He testified that Sheriff Notwithstanding, Speights issued the arrest warrants. Before doing so, however, Speights "wanted to be sure that probable cause existed before [he] issued a warrant." In order to satisfy himself, Speights " Elaborating on his method, Speights testified as follows:
Forbes summoned him to his office whereupon the Sheriff presented the three aforementioned affidavits. The affidavits prepared by Sheriff Forbes were standard form and recited language to the effect that Sheriff Forbes believed Donald Ray Abram committed the crimes of armed robbery and capital murder on or about July 23, 1982 at the Quick Stop in Marion County. These affidavits did not reveal the basis of Sheriff Forbes' belief.
Well, I asked him--I--I didn't have a question-and-answer session. I've known the sheriff for years, and asked the sheriff something to this effect after I had read them--I read them back to the sheriff, and I said, He says, 'Yes.' So I told him to put his hand in the air. I put him under oath, and he signed the affidavits, and then I turned around and signed the warrants.
Speights testified that he asked no questions about the basis for the affidavits. It is not at all clear from the record whether Speights was even aware of the fact that Sheriff Forbes was acting solely on uncorroborated information supplied by two confidential informants. Speights testified that he relied solely on the affidavits themselves and the Sheriff's assurances that probable cause was present. As noted above, the affidavits themselves say nothing about confidential informants. Moreover, the record gives no indication that Sheriff Forbes orally supplied any additional information to Speights at the time the affidavits were presented.
In Speights' words, "I wanted to be sure that the sheriff as the chief law enforcement of the county was aware that the affidavit that I had just read him--that contained enough cause for me to issue a warrant." Once the Sheriff "made those statements under oath," Speights assumed the sheriff had probable cause.
With that part done, and knowing that Abram was to appear that day before Justice Court Judge Speights for a preliminary hearing on the pre-existing charge of uttering a forgery, Sheriff Forbes arranged to take Abram into custody following that hearing.
As scheduled, Abram, who had been out on $1,500.00 bond, appeared for the preliminary hearing before Judge Speights on August 12, 1982, with his court-appointed attorney, Fred Cooper. Presumably upon the advice of counsel, Abram waived preliminary hearing on the forgery charge. At this time, Judge Speights abruptly raised Abram's bail on the uttering charge from $1,500.00 to $10,000.00.
Sheriff...
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