Cabello v. State, 55581

CourtUnited States State Supreme Court of Mississippi
Citation471 So.2d 332
Docket NumberNo. 55581,55581
PartiesFrank J. CABELLO, Sr. v. STATE of Mississippi.
Decision Date01 May 1985

William W. Odom, Jr., Jon Hurd Hill, Odom & Hill, Corinth, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III and Marvin L. White, Jr., Sp. Asst. Attys. Gen., Jackson, for appellee.

En Banc.

PATTERSON, Chief Justice, for the Court:

Frank J. Cabello, Sr. appeals his conviction of capital murder and sentence of death by a jury in the Circuit Court of Alcorn County.

On December 23, 1982, Hoyt Horn found Vernon Gurley, a 72 year old used car dealer, dead in Gurley's trailer office in Corinth, Mississippi. Gurley was "hog-tied," bound by rope and according to Horn taped "solid all over his nose and all around At approximately 2:05 p.m. Officer Billy Burns arrived at the scene and noted, among other things, that the office safe was open and there was an adding machine on the floor.

                his mouth and face."   Horn removed the tape from Gurley's mouth and attempted to revive him;  failing in this he called the police

Dr. Charles Thomas McLees performed an autopsy on Gurley and testified in his opinion the cause of death was strangulation. Because the body had been in a heated room, Dr. McLees was unable to determine the time of death but estimated Gurley had been dead from six to twenty-six hours.

Dr. McLees' conclusion that Gurley was strangled was based on the observation that "His trachea was compressed from the twine that had been around him; he had marked pulmonary edema, [and] ... he had marked edema fluid in his mouth and nose" and Gurley's larynx was collapsed. This condition according to the witness had to have been caused from extreme external pressure.

Investigators received their first clue from an unidentified woman who phoned the night of December 23 and stated the perpetrators were two young boys in an orange car. Two days later officers deduced that L.C. Hamm, who had made a car payment to Gurley on the afternoon of December 22, was the last person not involved in the crime to see Gurley alive. Hamm had seen "two young boys in an orange car" near the trailer office and gave officers information sufficient to render composite drawings. Police took these to the Ramada Inn near Gurley's office and used car lot and questioned the employees there. From this interrogation it was decided that Frank Cabello, Sr. [hereinafter Frank, Sr.], Frank Cabello, Jr. [hereinafter Frank, Jr.], and Rico Anthony Cabello were suspects.

Ramada Inn Manager David Coln testified a man who identified himself as Frank Cabello, Sr., phoned him at approximately 9:00 a.m. on December 21 stating his two sons were enroute to Corinth but that he would be detained in Birmingham, Alabama, until the following day. Frank, Sr. asked Coln to put the boys up for the night; assuring him that he would pay the bill the following day. Frank, Jr. and Rico, his younger brother, approximately 16 and 13 years old, arrived at the Ramada Inn about 12:30 that afternoon in a small orange car with luggage tied on top. The older boy signed the registration card "Frank Cabello" giving a California address and car license number. The boys were assigned Room L 37.

The following day Frank, Sr. phoned Coln, stating he was having car trouble but would arrive in Corinth that afternoon to pay the bill. While in the motel parking lot that afternoon, Coln observed that the older Cabello boy, the registrant, had recorded a license number on the registration card different from that on the automobile. Upon calling the police department, Coln was informed their licensing checking equipment was not functioning, precluding an investigation that day. Shortly thereafter Coln left work and did not return until the next morning, when he discovered the Cabellos had left the premises.

In December 1982, Becky Settlemires was a maid at the Ramada Inn. When she arrived to prepare Room L 37 on December 21, it was occupied by a brown haired boy, of about 16 years wearing blue jeans. After leaving the room and upon her return in a few minutes she saw a man "in blue striped pants and a blue top" who "looked like he needed a shave and had on glasses." A younger boy was also in the room. While Settlemires was cleaning the room, the man sat on the dresser and picked up a card with Settlemires' name on it. According to her, "Well, he picked up my card and asked me was my name Becky and I turned around and said, 'Yes.' " The following day Settlemires entered the Cabellos' room at approximately 11:30; at that time "the older man and the older boy came out and the little boy stayed in there" with her. Settlemires identified the older person in L Rico Cabello, 14 years of age at time of trial, testified for the state in return for its recommendation that his case be remanded to the Youth Court of Alcorn County. Rico testified that in December 1982, he had been traveling with his brother Frank, Jr. and his father in an orange Mustang automobile. When they arrived in Corinth on December 21, they stopped at a phone booth "up the road from the Ramada." There Frank, Sr. called the motel and arranged for Frank, Jr. and Rico to be put up for the night. They then left their father "at a restaurant on 72" and went to the motel to check in. Then Rico left Frank, Jr. at L 37 and returned to the restaurant for his father, and both came back to the motel.

37 on December 21 and 22 as the defendant.

On either December 21 or 22, Rico and Frank, Jr. took a walking tour of several motor vehicle dealerships, including Gurley's car lot. Rico testified he spoke to Gurley, who had been outside his office charging a battery on one of his cars. Later they returned to the motel and told their father what they had observed. At that point Frank, Sr. cursed Rico for having told Gurley they were staying at the Ramada. Thereafter Frank, Sr. and Frank, Jr. "started wiping the room down" to remove fingerprints and instructed Rico to finish the job when they left on foot.

Frank, Sr. and Frank, Jr. returned about thirty minutes later in a "rust colored, reddish" car which Rico had seen earlier at Gurley's car lot. Frank, Sr. got out of the car, knocked on the door, told Rico to get his heart medicine and get into the Mustang, which was already packed with the Cabellos' belongings.

Frank, Jr. drove Gurley's car, followed by Frank, Sr. and Rico in the Mustang, down a "side road" where Frank, Jr. abandoned it and got into the car with his father and brother. As they were driving away, Frank, Jr. "remembered that he had left that survival rifle in the car." Frank, Sr. returned to Gurley's car where they retrieved the rifle.

The Cabellos then proceeded on Highway 72 toward Memphis, Tennessee. Rico testified concerning a conversation which occurred while they were traveling, "My father asked Frank to give him the money." Frank, Jr. complied, later throwing several items out the car window. When asked if he remembered what his brother and father said they had done to Mr. Gurley, Rico replied, "They said hog-tied him and put tape on his mouth and eyes."

Frank, Jr. and Rico were arrested in New Braunfels, Texas, on December 26. Pursuant to that arrest the Mustang was impounded and subjected to an inventory which revealed rope behind the driver's seat, a roll of duct tape, and a .22 calibre handgun. The boys were released the following day.

By authority of a warrant from Mississippi, Frank, Sr. was arrested in Torrance, California, on January 5, 1983. Again, the Mustang was impounded and searched pursuant to warrants from the Superior Court of Los Angeles County and from the Circuit Court of Alcorn County, Mississippi. Officers found, among other things, a rope, duct tape, a road map with a circle around Corinth, a .22 calibre RG revolver and two boxes of ammunition. Expert testimony established the rope and duct tape were similar to that found on Gurley's body and could have come from the same source.

In the interest of succinctness we have consolidated some of the appellant's assignments of error in order to discuss in a single proposition those involving related facts and issues. However, we emphasize we have considered each assignment individually.




Frank, Sr. argues the court should have sustained his motion in view of pervasive community hostility and pre-trial publicity which undermined his rights to an impartial Granting or denying change of venue is within the sound discretion of the trial court and its action will not be reversed absent a clear abuse of that discretion. Billiot v. State, 454 So.2d 445, 454 (Miss.1984); Wilcher v. State, 448 So.2d 927, 930 (Miss.1984).

jury and a fair trial. His sworn motion is supported by the affidavits of one W.M. Henson and defense attorney, W.W. Odom, Jr., as well as being buttressed by the introduction of numerous newspaper accounts of the crime.

In overruling Frank, Sr.'s motion for change of venue the trial court noted,

Normally a motion for change of venue is heard before the jury is impanelled and voir dired and also the rules of the court provide that motions of this type should be filed by the first day of the term. I think this case has been set for trial now approximately one month or five weeks, ... and this is the third week of the term and the motion has not been brought up until today when the jury came in and the special venire reported.

The court stated further that only five of the 80 prospective jurors had indicated they had heard of the case and formed an opinion about it. We assume, since the issue is not raised, that none of the five were called as jurors to decide the case. From these facts, we cannot say that the trial court abused its judicial discretion in denying Frank, Sr.'s motion.




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