Corry v. State, 96-KA-01251-SCT

• Decision Date: 09 April 1998
• Docket Number: No. 96-KA-01251-SCT,96-KA-01251-SCT
• Citation: 710 So.2d 853
• Parties: David B. CORRY and Paul J. Corry v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 853

710 So.2d 853

David B. CORRY and Paul J. Corry v. STATE of Mississippi.

No. 96-KA-01251-SCT.

Supreme Court of Mississippi.

April 9, 1998.

Michael B. Cupit, Brookhaven, for Appellants.

Michael C. Moore, Attorney General, Scott Stuart, Special Asst. Atty. Gen., for Appellee.

Before PRATHER, C.J., and SMITH and WALLER, JJ.

SMITH, Justice, for the Court:

¶1 David B. Corry and Paul J. Corry appeal to this court their convictions from a trial de novo without a jury in the Circuit Court of Amite County. On November 25, 1995 David Corry and Paul J. Corry were charged with various hunting violations. Specifically, David Corry was charged with the criminal offenses of hunting deer without orange, hunting deer over bait, and hunting deer without a license. Paul Corry was charged with the criminal offenses of hunting deer without orange and hunting without a license. On a first impression issue, we determine that § 49-7-33, our "baiting" statute is constitutional. There is no merit to any of the issues raised by the Corry's.

¶2 The following sequence of events led up to the charges filed against the Corrys.

FACTS

¶3 Sometime around October 7, 1995, Mississippi Wildlife and Fisheries conservation officer Donald Foreman received information from a confidential source that someone was hunting deer over ground baited with shelled corn on Micheal Cupit's ¹ land. Subsequently, on November 25, 1995, Officer Foreman, accompanied by Officer Ricky Long, went to the location where the hunting violations were allegedly occurring. In order to reach the Cupit property, the officers crossed over land owned by Merkle Brady and E.L. Caston. Officer Long testified that while standing on land adjacent to Cupit's, he observed an individual on Cupit's land in a tree stand (approximately 15 to 20 feet off the ground) with a gun but not wearing orange. Officer Long then entered Cupit's land and ascertained that the individual in the tree stand was Paul Corry. Officer Foreman testified that he had already crossed onto Cupit's land when Officer Long made him aware of the individual in the tree stand. The defendants noted this difference in testimony. The remaining facts are not in controversy.

¶4 Paul Corry told the officers that his brother, David Corry, was also hunting somewhere on the Cupit property. There was no corn found around Paul, therefore, he was only charged with hunting deer without orange and hunting without a valid license. However, Officer Foreman then located David Corry and charged him with hunting over bait, hunting deer without orange, and hunting without a valid license ². Officer Foreman indicated that there was a four foot circle full of shelled corn located about thirty yards in front of the stand where David Corry was hunting.

¶5 On December 13, 1995, Paul and David Corry were found guilty of all the charges in the Justice Court of Amite County, Mississippi. On October 9, 1996, an appeal was taken to the Circuit Court of Amite County, Mississippi, where the case was tried de novo without a jury. During the course of the trial, the defendant's attorney, Michael B. Cupit, entered a motion to require the game wardens to disclose the identity of the confidential informant (which was taken under advisement and ruling reserved) and a motion to suppress the evidence (which was overruled). The defendants did not present any witnesses nor did they testify. On October 14, 1996, the Circuit Court judge entered an Order finding the defendants guilty of all charges and assessed a $100 fine per charge along with court costs. The trial court's order specifically found that Officer Long's personal observations gave the officers probable cause to believe violations were occurring and thus the right to proceed onto Cupit's property without a search warrant and issue the citations.

¶6 Also on October 14, 1996 the defendants, by and through their attorney Cupit, filed a Motion to Rule on Requests Taken Under Advisement specifically requesting that the trial court require the game wardens to disclose the confidential informant's identity. On that same date the Circuit Court entered another Order denying the defendant's motion to disclose the confidential informant's identity, specifically stating that the court found that Officer Long had probable cause to enter Cupit's land based on his personal observations and without regard to any information provided by the confidential informant. Subsequently, on October 18, 1996, the Circuit Court entered an Amended Order which reinstated the previous findings of the October 14, 1996 Order and additionally found that Miss.Code Ann. § 49-7-33 is constitutional.

¶7 The defendants appeal the Circuit Court's decision to this Court and raise the following issues:

I. DID THE TRIAL COURT ERR IN FAILING TO FIND THAT THE GAME WARDENS' ACTIONS IN THIS CASE VIOLATED ARTICLE 3, SECTIONS 23 AND 26 OF THE MISSISSIPPI CONSTITUTION (1890) AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION (1787)?

II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION TO SUPPRESS?

III. DID THE TRIAL COURT ERR IN FAILING TO COMPEL THE GAME WARDENS TO IDENTIFY THEIR "CONFIDENTIAL INFORMANT"?

IV. IS MISS. CODE ANN. § 49-7-33 (1972) UNCONSTITUTIONAL?

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN FAILING TO FIND THAT THE GAME WARDENS' ACTIONS IN THIS CASE VIOLATED ARTICLE 3, SECTIONS 23 AND 26 OF THE MISSISSIPPI CONSTITUTION (1890) AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION (1787)?

¶8 The Corry's allege that the conservation officers conducted an illegal search in violation of the Mississippi Constitution and the United States Constitution because they did not have a search warrant and because they trespassed across three different tracts of land to make the arrests involved in this case. They cite several Mississippi Supreme Court cases in support of their contention that because the officers trespassed, their subsequent search of the land and of the defendants was illegal. They further allege that because the search was illegal, any information gained from the defendants should have been suppressed.

¶9 The Corry's maintain that the officers trespassed across two tracts of adjoining property owned by Merkle Brady and E.L. Caston respectively. We hold that the defendants do not have standing to assert a trespass on property other than their own. Trespass is not a strict liability crime as the defendants would like for us to believe. This is evidenced by the provision in the statute that the landowner can dismiss any prosecution under this section. See Miss.Code Ann. § 97-17-93 (Supp.1997). "This Court has repeatedly held that a defendant cannot complain of an unlawful search of the premises of another, or where he has no right of possession such as to make him the owner for the time being." McBride v. State, 221 Miss. 508, 517, 73 So.2d 154, 157 (1954) (citations omitted). Likewise, a defendant cannot complain of a trespass on the premises of another. It is for the landowner or their agent to assert the charge of trespass. Accord Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982) (a party may not rest his legal claims upon the rights of third parties); Baltimore Gas and Elec. Co. v. Lane, 338 Md. 34, 656 A.2d 307, 313 (1995) (right to exclude others from property is an incidence of legal possession); State v. Gaulke, 177 Wis.2d 789, 503 N.W.2d 330, 332 (App.1993) (defendants lack standing to assert alleged trespass on their father's property).

¶10 The defendants further maintain that the conservation officers trespassed upon Cupit's land in order to ascertain whether a hunting violation was occurring. Granted, lessor Cupit and the lessees, Paul and David Corry, have standing to assert a claim of trespass. However, in this case the trial court specifically found that the officers had probable cause to enter the land based on Officer Long's personal observations that led him to believe that hunting violations were then and there occurring. Pursuant to Mississippi statute "[a]n officer ... may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence...." Miss.Code Ann. § 99-3-7 (1994).

An offense is being committed in the presence of an officer when he acquires knowledge thereof through one of his senses. Where through the sense of sight, or smell, or hearing, an officer receives knowledge that an offense is being committed in his presence, he may arrest the offender without a warrant.

Moss v. State, 411 So.2d 90, 95 (Miss.1982) (citing Reed v. State, 199 So.2d 803 (Miss.1967)). Accordingly, in the case at bar we hold that once the officers observed a violation of the law being committed in their presence, they had the authority to enter Cupit's land and make a warrantless arrest and a search incident to that arrest.

¶11 The trial court is the finder of fact and made the specific finding that the officers had probable cause to enter Cupit's land based on Officer Long's personal observations. This Court will not overturn the trial court's decision unless the decision was manifestly wrong. "When a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings." Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994) (citing Omnibank of Mantee v. United S. Bank, 607 So.2d 76, 82 (Miss.1992)). " 'Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court must be manifestly wrong.' " Id. (quoting Tricon Metals v. Topp, 516 So.2d 236, 238 (Miss.1987); Brown v. Williams, 504 So.2d 1188, 1192 (Miss.1987)).

¶12 Officer Long testified that he observed an individual in a tree...