Cabello v. State

Decision Date28 May 1986
Docket NumberNo. 55648,55648
Citation490 So.2d 852
PartiesFrank CABELLO, Jr. v. STATE of Mississippi.
CourtMississippi Supreme Court

J.B. Garretty, Corinth, for appellant.

Edwin Lloyd Pittman, Atty. Gen., by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

The signed confession of fifteen year old Frank Cabello, Jr. led to his conviction of capital murder and sentence of life in prison. From a jury verdict in the Circuit Court of Alcorn County, Frank Cabello, Jr. appeals and assigns as error the following:

(1) The defendant's motion for change of venue should have been granted.

(2) The defendant's motion to exclude an involuntary confession should have been granted.

(3) The defendant's motion for a mistrial should have been granted.

(4) The jury was improperly instructed.

I.

During the afternoon of December 22, 1982, Mr. L. C. Hamm, a resident of Kossuth, Mississippi, drove to the used car lot of Vernon Gurley with the intention of making a car payment. While he was there, Mr. Hamm became suspicious of two boys who were pretending to look at a truck. Mr. Hamm paid Mr. Gurley $65.00 and left.

The next morning, December 23, 1982, Hoyt Horn, a resident of Corinth, Mississippi, awoke to find a car parked on the side of the road approximately 150 yards from his house. During the course of the day he drove by the car several times and finally stopped to investigate. Inside the car he found a dealer tag and a bible with the name "Vernon Gurley" written inside.

Mr. Horn then drove to Vernon Gurley's used car lot where he found the door to Mr. Gurley's office trailer unlocked. Inside he found Mr. Gurley's body "hogtied" in the back room of the trailer. There was duct tape covering the mouth and nose of Mr. Gurley and Mr. Horn tried to pull the tape off so that Mr. Gurley could breathe; but it was too late. On the eve of his 72nd birthday, Vernon Gurley was dead.

When the police arrived, the safe in Mr. Gurley's trailer stood partially open and a pat-down search of Mr. Gurley's body revealed his wallet was missing.

Dr. Charles Thomas McLees performed an autopsy on Mr. Gurley and testified that Mr. Gurley died from strangulation. That conclusion was based on Dr. McLees' observation of the compressed trachea of Mr. Gurley and the large quantity of edema fluid in Mr. Gurley's lungs.

During the course of their investigation the police were led to Mr. L. C. Hamm who they questioned extensively concerning the two boys he had seen at the used car lot the day before the killing. From Mr. Hamm's description, the police composed drawings of the two youths.

In the interim, the manager of the local Ramada Inn reported that several guests had left his motel without paying their bill. He later identified the boys portrayed by the police drawings as the culprits.

Using the motel registration card the police traced a suspect, Frank Cabello, to a California address. Other suspects were tentatively identified as Frank Cabello, Jr. and Rico Anthony Cabello. Murder warrants were issued and an "all-points bulletin" was put out on the National Crime Index Computer System.

The three suspects, Frank Cabello, Sr., Frank Cabello, Jr., and Rico Anthony Cabello were taken into custody January 5, 1983 in Torrance, California. A search of the suspects' car revealed, among other things, rope, duct tape, and a road map with a circle around Corinth. Expert testimony established the rope and duct tape were similar to that found on the body of Mr. Gurley.

The suspects subsequently were extradicted to Corinth, Mississippi and charged with capital murder. Frank Cabello, Sr. was found guilty of capital murder and was given the death penalty. His conviction and sentence were affirmed by this Court in Cabello v. State, 471 So.2d 332 (Miss.1985). An agreement was reached between the State and Rico Cabello whereby Rico agreed to testify against his father and his brother. In exchange, the State agreed to recommend, if the evidence showed that Rico was not present when Vernon Gurley was robbed and killed, that Rico's charges be remanded to the Youth Court of Alcorn County.

Frank Cabello, Jr., who perfects this appeal, was found guilty of capital murder and was sentenced to life in prison.

II.

Should the defendant's motion for change of venue have been granted?

Recent decisions of this Court have reminded the public that "when it is doubtful that a fair and impartial jury can be obtained in the county where the homicide has been committed, an accused on trial for his life 'is but asking for his rights when he requests a change of venue'." Fisher v. State, 481 So.2d 203, 220 (Miss.1985). Johnson v. State, 476 So.2d 1195 (Miss.1985).

"[A] motion for change of venue ordinarily should be granted where, under the totality of the circumstances it appears reasonably likely that, in the absence of such relief, the accused's right to a fair trial may be lost." Fisher v. State, 481 So.2d at 220. This Court has often held that the decision regarding a change of venue in a criminal proceeding is committed to the sound discretion of the trial court. Winters v. State, 473 So.2d 452 (Miss.1985); Cabello v. State, 471 So.2d 332 (Miss.1985). However, Fisher demonstrated that the venue question is in the sound discretion, not the unfettered discretion, of the trial judge.

The question now to be answered is whether the trial judge abused his sound discretion in refusing to grant the defendant's change of venue motion.

During the voir dire of the prospective jury the following exchange occurred:

BY MR. GARRETY: Now, I, like the rest of you, read many details reported in the newspaper having to do with this case, and I, like many, have heard remarks made about this case. Once again, I want you to consider what I am about to ask you: From what you read or heard, have you in any way formed any opinion as to the facts of this case? If you have, please raise your hand. All right, I see no one has raised their hand. Can you hear me, Your Honor?

BY JUDGE WICKER: Yes, sir.

BY MR. GARRETY: A number of you said you had heard about this by word of mouth. Did any of you that heard anything about this case which would tend to lead you to believe some particular actual aspect of the case, would you please raise your hand? I see no hands raised. From that may I say that if one of you are telling me in all sincerity that you have heard, read, or in any way directly or indirectly acquired any knowledge of this case that would have any tendency whatsoever to affect how you might view the evidence in this case.

Furthermore, the defendant presented no evidence whatsoever to show that an impartial jury could not be found in Alcorn County.

In overruling the defendant's motion for a change of venue the trial judge stated:

I listened to all the questions, the responses made by or elicited of the jury, and although a considerable percentage did indicate that they had read about the matter, or heard about it in some way, the court received no indication that what they had read or heard would be of any influence on them with respect to the case at bar. ... I did not get any indication or idea from what the jurors said that they could not try this case fairly and impartially, even having read or heard something about it, which I am sure a considerable number of them had. I am going to overrule the Motion.

This Court holds that the trial judge did not abuse his discretion in overruling the motion for change of venue.

III.

Should the defendant's motion to exclude his confession have been granted?

During the trial of Frank Cabello, Jr. the following written confession was admitted into evidence over the objections of the defendant 1:

I, Frank Cabello, state that I will tell the truth in this statement.

Me and my dad went to the used car lot to rob the car dealer. When we got there my dad and me went into the office and my dad started to talk to him. They talked for about an half hour and then the man opened up the safe and my dad said This is a "stickup". The man said what and my dad told him to lie on his stomich and my dad told him to put his hands behind his back and my dad hogtied him and my dad told me to put some tape on his mouth and before I did my dad asked him what were his car keys were and the man said in his car so I put the tape on his mouth and pushed him in the back room and I started walking out and I saw a money box on the desk and I opened it and seen some change in it and I took the change out of the box and put it in my pocket and went outside and went into the car and waited for him to come out of the office which was about a min. Later he got into the car and went to the motel. Then my dad got out of the car and went to our car were Ricco was waiting my dad drove behind me then I parked the car got out and went into our car and started to drive to CA. He handed me a billfold and some duck tape and told me to throw them out the window and I did and I told Ricco what happened after it happened!

s/Frank Cabello, Jr.

Before the confession was admitted into evidence a hearing was conducted outside the presence of the jury to determine the admissibility of the confession. Billy Clyde Burns, Criminal Investigator for the Corinth Police Department, testified that he initially received a note from Frank Cabello, Jr. stating:

I, Frank Cabello, state that Ricco Cabello did not know about the hole crime and was not told about it until after it happened and I, Frank Cabello, will have a statement about it and I will sign it and so will Ricco Cabello.

After receiving the note Officer Burns went to Cabello's cell where he was handed the confession.

On cross-examination Burns denied threatening Frank Cabello, Jr. with solitary confinement and also denied that he had denied Frank Cabello, Jr. opportunities to speak with an attorney.

Frank Cabello, Jr. testified that Billy...

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