Daniel v. State, 58151

• Decision Date: 14 December 1988
• Docket Number: No. 58151,58151
• Citation: 536 So.2d 1319
• Parties: Edward Epps DANIEL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1319

536 So.2d 1319

Edward Epps DANIEL v. STATE of Mississippi.

No. 58151.

Supreme Court of Mississippi.

Dec. 14, 1988.

Ross Parker Simons, Pascagoula, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Harrison S. Ford, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and ZUCCARO, JJ.

ZUCCARO, Justice, for the Court:

The appellant, Edward Epps Daniel (Spider), was indicted as an habitual offender pursuant to Miss.Code Ann. Sec. 99-19-81 (1972), by a grand jury in Jackson County, Mississippi for the crime of sexual battery against a child under the age of twelve years. Daniel was tried and found guilty, by a jury, and then sentenced to a term of thirty years in custody of the Mississippi Department of Corrections. Daniel appeals assigning as error the following:

I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS THE RESULTS OF TESTS DONE ON BLOOD SAMPLES AND BODY-CAVITY SWABS TAKEN FROM THE APPELLANT.

II. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION IN LIMINE TO PROHIBIT THE STATE FROM INTRODUCING TESTIMONY OR EVIDENCE SHOWING THAT APPELLANT EITHER HAD GONORRHEA OR SEXUALLY TRANSMITTED GONORRHEA TO THE VICTIM.

III. THE TRIAL COURT ERRED IN ALLOWING THE APPELLANT TO BE CONVICTED OF A CRIME ALLEGEDLY COMMITTED ON JANUARY 17, 1986 WHEN THE STATE FAILED TO PUT ON PROOF THAT THE CRIME WAS COMMITTED ON THAT DATE.

STATEMENT OF FACTS

The appellant Edward Epps Daniel was indicted by the grand jury of Jackson County, Mississippi. The indictment alleged that Edward Daniel ("Spider") committed sexual battery upon Jacquelyn Broadnax, six years old at the time, on or about January 17, 1986. Appellant was indicted under Miss.Code Ann. Sec. 99-19-81 as an habitual offender.

"Spider" was arrested on March 11, 1986 in Comeaux by the Comeaux Police Department. On March 13, 1986 "Spider" was transported to Pascagoula.

Detective Jo Ann Byrd and Ralph Holiman, Assistant District Attorney, appeared before Honorable Clinton Lockard, Circuit Judge in Pascagoula, and requested that the court "order that blood samples and body cavity swabbings be taken as a search incident to arrest" of "Spider" Daniel.

The court ordered that blood samples and swabbings of body cavities be taken by appropriate and qualified medical personnel and that the results of these tests be disclosed to any lawful police authority of the State of Mississippi.

Dr. Cathy Butts, a pediatrician at the Jackson County Health Department, testified that she performed the tests which revealed that Jackie had gonorrhea. Dr. Butts testified that Jackie's hymen had been torn and that there was scarring inside Jackie's vaginal vault. Dr. Butts testified that the scarring was consistent with sexual penetration and inconsistent with results which would occur by scratching. The doctor testified that Jackie had internal as well as external gonorrhea in the vaginal and anal areas.

Dr. Butts also testified that she tested "Spider" for gonorrhea. Dr. Butts testified that the test results revealed that "Spider" was infected with penile gonorrhea only.

Jackie Broadnax testified at trial. Jackie identified "Spider" and testified that he had molested her. It is not necessary for purposes of appeal that we discuss the details of Jackie's testimony. Suffice it to say that, Jackie unequivocally named "Spider" as the person who sexually abused her.

"Spider" Daniel testified at trial in his own defense. He denied committing sexual battery upon Jackie. "Spider" testified that Coretta Ezell had made sexual overtures towards him and that he had declined the overtures. "Spider" testified that Coretta became angry and persuaded Jackie to lie about him.

The jury returned a verdict of guilty of sexual battery against "Spider" Daniel. "Spider" was sentenced to thirty years, the maximum penalty under the statute, as an habitual offender. He appeals.

I. DID THE TRIAL COURT ERR IN OVERRULING APPELLANT'S MOTION TO SUPPRESS THE RESULTS OF TESTS DONE ON BLOOD SAMPLES AND BODY CAVITY SWABS TAKEN FROM APPELLANT?

"Spider" Daniel argues that the introduction into evidence of the results of tests performed on blood samples and body cavity swabs taken from him was a violation of his Fourth and Fourteenth Amendment rights to be protected from unreasonable searches and seizures. The results of the tests revealed that "Spider" Daniel was infected with gonorrhea.

Prior to trial, "Spider" filed motions in limine to prohibit testimony being elicited or otherwise placed into evidence with reference to the fact that "Spider" Daniel had gonorrhea. The motion was overruled and the defense renewed the motion on the date the trial opened. The court overruled the motions.

At trial, Jo Ann Byrd testified that she had taken "Spider" to the health department to have him tested for gonorrhea after having obtained a court order. Dr. Catherine Butts testified that she performed the tests revealing "Spider" had gonorrhea. "Spider" testified that he had gone to the health department and had been informed by the doctor that he had gonorrhea.

We are called upon today to determine whether the aforementioned tests violated the appellant's Fourth Amendment constitutional privilege, "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. We must recognize that the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified or which are made in an improper manner. Birchfield v. State, 412 So.2d 1181, 1183 (Miss.1982).

"Spider" argues here on appeal that the samples were taken from him in the absence of a valid search warrant and therefore violated his right to be free from unreasonable search and seizure.

The record reveals that Ms. Jo Ann Byrd, a detective with the Pascagoula Police Department and Ralph Holiman, an assistant district attorney, appeared before the Honorable Clinton Lockard, Circuit Judge in Pascagoula, and requested a search warrant to obtain blood samples and body fluids from "Spider" Daniel. Byrd and the assistant district attorney, Holiman, presented Judge Lockard with a "Motion for Search Incident" [sic] which set forth the reasons for requesting a search warrant authorizing the removal of blood and body fluids from "Spider" Daniel. The reasons set forth follow:

I. That a warrant for the arrest of "Spider" Daniel had been issued on March 10, 1986 on charges of fondling.

II. That minor victims in the case had informed police that "Spider" Daniel was the perpetrator.

III. That the minor victims had been diagnosed as having gonorrhea, a venereal disease.

IV. That the tests were necessary for the proper investigation of the case.

Honorable Clinton Lockard ordered the tests on March 11, 1986.

Appellant, on appeal, and for the first time, argues that the tests were taken without a warrant. The appellant argues that the search warrant was not a search warrant but an attempt by the State "to legitimize its unconstitutionally intrusive search and seizure through the use of a court order" obtained by use of a motion for a search incident to arrest.

In the case sub judice the question this Court must answer is whether the State was justified in requiring Daniel to submit to the tests, and whether the means and procedures employed respected relevant Fourth Amendment standards of reasonableness.

It must first be said that, search warrants are required, absent an emergency, where intrusions into the human body are concerned and testing procedures plainly constitute searches of persons and depend antecedently upon seizures of persons within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908, 919 (1966).

We must first inquire into whether or not the State was justified in requiring "Spider" Daniel to submit to the tests. This discussion should include an inquiry into whether or not the search satisfied the warrant requirement. Appellant argues that there was no warrant authorizing the search by the health department into his body.

We must determine whether or not the order of the trial court granting that the tests be performed satisfied the warrant requirement.

In Lee v. State, 435 So.2d 674, 675 (Miss.1983) Mississippi accepted the "totality of circumstances" approach for determining whether probable cause exists for the issuance of a search warrant. The "totality of the circumstances" test was set forth by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Under Gates the magistrate or judge issuing the warrant is to take a practical, common-sense approach of whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the person supplying the information there is a fair probability that contraband or evidence of crime will be found in a particular place. It is the duty of this Court to determine 1) whether or not probable cause existed in the case sub judice; 2) whether the motion for search incident (sic) satisfies the requirement of an affidavit and therefore can be accepted in lieu of an affidavit; 3) whether or not the trial court's order authorizing the search or tests is equivalent to a search warrant.

We find that probable cause existed in support of the issuance of a search warrant based upon the following facts:

(1) Jackie Broadnax was diagnosed as having gonorrhea.

(2) Jackie revealed that she had been sexually molested by "Spider" Daniel.

(3) Two other children for whom Daniel baby sat were infected with gonorrhea and informed authorities that they had been molested by Daniel. (This fact is revealed by the testimony of Jo Ann Byrd and is related to separate charges not involved in this appeal. One of other children is the sister of Jackie Broadnax. Her name is Latasha...