Branch v. State
| Decision Date | 06 April 1977 |
| Docket Number | No. 49730,49730 |
| Citation | 347 So.2d 957 |
| Parties | Jimmie Lee BRANCH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Charles O. Jones, Barry W. Gilmer (Appeal only), Jackson, for appellant.
A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before GILLESPIE, INZER and WALKER, JJ.
WALKER, Justice, for the Court:
Jimmie Lee Branch was accused of raping an adult female citizen of the City of Jackson on the night of March 12, 1975. The victim testified that a man had entered her bedroom while she was asleep, at about one o'clock in the morning, and pressed a pillow over her face, saying, The man blindfolded her and, after forcing her to disrobe, tied her up. During the next four hours, the man raped her four times and also committed oral intercourse upon her. He tried unsuccessfully to commit anal intercourse, and also attempted to force the victim to perform oral intercourse upon him. She testified that the man put what seemed to be a gun to her head and that, although he threatened to kill her, she refused to perform oral intercourse upon him. Before leaving, he ransacked her home and stole many of her belongings.
Although the victim never saw her assailant because of her blindfold, she identified Jimmie Lee Branch at a police lineup by the sound of his voice. She testified that she knew the sound of his voice well, because he kept talking throughout the assault. Furthermore, Branch's fingerprint was found on the mirror in the victim's bathroom. Finally, several of the items stolen from the victim were discovered when the police searched Branch's residence pursuant to a search warrant. The victim identified two pillows, several ash trays, her birth control pills, and her suitcase, all of which were found at Branch's residence. The bottle containing the pills was marked with the name of the victim. At his trial in the Circuit Court for the First Judicial District of Hinds County, Mississippi, the jury, after hearing all the evidence, found Branch guilty as charged, and the judge sentenced him to serve a term of fifty years in the custody of the State Department of Corrections.
In his appeal Branch contends that the judge improperly overruled his motion to suppress evidence obtained by a search of his residence. He further contends that his motion for a mistrial should have been granted because of the prosecutrix's references during her testimony to others who were present at the lineup at which she identified Branch, and because of the prosecutor's cross-examination of Branch's wife as to his relations with other women during their marriage. Finally, Branch contends that the judge erred in admitting any testimony about the lineup at which the victim identified him.
A hearing was held outside the presence of the jury to consider Branch's motion to suppress the evidence discovered at his residence. That search was conducted pursuant to a warrant which was introduced into evidence and made a part of the record. A warrant may only be issued when the police have demonstrated probable cause by introducing evidence of "underlying circumstances" before the magistrate granting the warrant. Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964). In this case, a written statement of underlying facts and circumstances was presented to the magistrate, and was introduced for identification at the hearing on the motion to suppress. However, this statement was never introduced into evidence, and therefore does not appear in the record before this Court.
Branch assigns as error that the underlying facts and circumstances in support of the affidavit for a search warrant do not constitute probable...
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