Butler v. State

• Decision Date: 10 June 1974
• Docket Number: No. 47941,47941
• Citation: 296 So.2d 673
• Parties: Helen Fulgham BUTLER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 673

296 So.2d 673

Helen Fulgham BUTLER v. STATE of Mississippi.

No. 47941.

Supreme Court of Mississippi.

June 10, 1974.

Rehearing Denied July 15, 1974.

Tubb, Stevens & Morrison, West Point, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

Helen Fulgham Butler was indicted, tried and convicted in the Circuit Court of Clay County for the crime of murder of the killing of Mrs. JoAnn Brewer. She was sentenced to life imprisonment in the State Penitentiary. From that conviction and sentence, she appeals. We affirm.

At about 6:15 p.m. on February 6, 1973, Constable McKee received a message that there had been an automobile accident on the Cedar Bluff and Starkville Road in Clay County. He went immediately to the scene and found the automobile of Mrs. JoAnn Brewer in a ditch on the side of the road. Upon investigation, he found that Mrs. Brewer had been shot. She had multiple gunshot wounds, two in the head, one in the neck and one directly through the heart. An examination of the body by a pathologist revealed powder burns indicating the bullet that entered the left side of the head was fired at close range. The pathologist removed three bullets from the body of Mrs. Brewer and these bullets revealed that Mrs. Brewer had been shot with a .22 caliber gun. The bullets were turned over to Sheriff Virgil Middleton of Clay County.

During the course of his investigation, Sheriff Middleton received information that gave him reason to believe that Mrs. Helen Butler knew something about the shooting. On the following day, he together with Deputy McNeel, Investigator Bowen and Sheriff Kellum of Oktibbeha County went to the place where Mrs. Butler worked in Starkville. After being advised of her Miranda rights, Mrs. Butler denied that she knew anything about the shooting, but she voluntarily went with the sheriff to her home and turned over to him a .22 caliber pistol which belonged to her husband John Butler. This pistol was fully loaded, and it together with the bullets removed from the body of Mrs. Brewer were carried to the State Crime Laboratory by Deputy McNeel.

On February 9, 1973, Sheriff Middleton made an affidavit before W. H. Bird, Justice of the Peace, charging Mrs. Butler with the murder of Mrs. Brewer. A warrant was issued for the arrest of Mrs. Butler. At about 5:30 p.m. on that date, Mrs. Butler was arrested by Sheriff Kellum of Oktibbeha County. Mrs. Butler was warned of her Miranda rights and placed in the custody of Sheriff Middleton. Sheriff Middleton then transported Mrs. Butler to West Point where they arrived at about 6 p.m. She was carried to the old Loving law offices, which had been temporarily used as the sheriff's office. Mrs. Butler was again given her Miranda rights, and she signed a waiver of these rights. She was then questioned by Sheriff Middleton and Investigator Bowen from about 6:30 to about 8 o'clock. A short time later, Bill Harpole, an investigator for the Attorney General's Office, and Daniel Davis, an investigator for the Highway Patrol, began questioning Mrs. Butler. At about 9:30 p.m. after Mrs. Butler had talked with her husband and father, she orally confessed to the crime and wrote out in her own handwriting a statement in which she described how she committed the crime. In the statement, she said the crime was planned by Walker Brewer, husband of the deceased, with whom she had been going for about a year. According to plan, Mrs. Butler called Mrs. Brewer and told her that she had information that her husband was going with another woman, and if she would meet her after work, she would take her and show her with whom he was going. Mrs. Brewer agreed to meet her on the road on which the body was found. When Mrs. Brewer arrived and stopped in front of Mrs. Butler's car, Mrs. Butler got out and walked up to the car. Mrs. Brewer rolled down the window, and Mrs. Butler fired one shot into the side of her head. Mrs. Brewer's car rolled forward into the ditch, and Mrs. Butler said she then shot her again. She does not remember how many shots she fired. Then according to plan, she took Mrs. Brewer's purse to make it look like robbery, got into her car and drove home. She said she then emptied the gun and flushed the hulls down the toilet and reloaded the gun. A short time later, she left home to go to a PTA meeting at the school. On the way to the meeting, she threw the purse out of the car at the county lake on the left side of the road and went on to the meeting. On the following day, Officer Harpole went to the place where Mrs. Butler said she had thrown the purse and found it. Prior to trial, counsel for Mrs. Butler filed a motion to suppress certain evidence. Included was the confession, the .22 caliber pistol and the purse of Mrs. JoAnn Brewer. This motion alleged that the oral and written statements made by Mrs. Butler were taken as the result of an illegal arrest, that the statement was not voluntarily given under the totality of the circumstances under which it was taken, that she was subjected to gruelling custodial interrogation without the presence of her attorney in violation of her constitutional rights, that she was forced to sign the statement under the compelling influence of the rigid interrogation thereby abridging her right to protection from self incrimination, and that improper promises and assurances were given as inducements for her to sign the statement. The motion also alleged that the firearm was unlawfully seized.

A hearing was had on the motion to suppress. The trial court overruled the motion and held that the confession was freely and voluntarily given. The court also held that the firearm was voluntarily turned over to the sheriff. Upon the trial of the case, the confession, the purse and .22 caliber pistol were admitted into evidence over the objection of the appellant.

The principal contentions on appeal are that the trial court was in error in overruling the motion to suppress the evidence and appellant's objection to the introduction of the confession, purse and the pistol. Appellant urges that there was no probable cause shown for the issuance of the warrant for her arrest, that her arrest was illegal, that the confession was obtained as a result of the illegal arrest and that the illegal arrest either fatally poisoned the statements or was such a factor that when taken with the other facts in the case, destroyed the voluntariness of the confession.

Since the legality of the arrest is at least a factor to be considered in determining whether the confession was voluntary, we must first determine whether the arrest was legal. The arrest in this case was the result of a warrant issued by the magistrate, based upon an affidavit which simply recited that 'Helen Butler did wilfully, unlawfully and feloniously kill and murder a human being, to-wit: JoAnn Brewer.' The state admits that the affidavit standing alone would not be sufficient to support a finding by the magistrate that probable cause existed for the arrest but points out that the magistrate did not rely solely on the affidavit. He took sworn testimony of the officer to ascertain whether probable cause existed for the arrest, and the magistrate found from this testimony that probable cause did exist for the issuance of the warrant. We held in Prueitt v. State, 261 So.2d 119 (Miss.1972), and Boyd v. State, 204 So.2d 165 (Miss.1967), that the magistrate instead of relying solely on the affidavit may take sworn testimony to ascertain whether there is probable cause for the issuance of the warrant. This the magistrate did in this case. Sheriff Middleton was placed under oath, and he testified to the facts that led him to believe that Helen Butler killed JoAnn Brewer. So, the question presented is whether the evidence presented to the justice of the peace was sufficient to justify a man of average caution to believe that Mrs. Butler committed the crime. After a careful review of the evidence, we find that although it is a close question, the information furnished by the sheriff was not sufficient for a detached neutral magistrate of average caution to believe Mrs. Butler committed the crime. The evidence raises a strong suspicion, but suspicion does not meet the constitutional standard of probable cause. Strode v. State, 231 So.2d 779 (Miss.1970).

The fact that the arrest in this case was without probable cause does not automatically render the confession inadmissible, but it does require an examination of the facts to determine what effect the illegal arrest had upon the giving of the confession. Bell v. State, 274 So.2d 371 (Miss.1973); Keith v. State, 197 So.2d 480 (Miss.1967).

The record in this case reveals that Mrs. Butler is a mature woman 32 years of age and a high school graduate. She had considerable work experience as a telephone operator in Starkville, at a bank in Maben on two different occasions and a bank in Vicksburg, at a concrete and auto parts company in Vicksburg, and for the past three years at the Coca-Cola Bottling Plant in Starkville. She was active in PTA work and other outside activities....