Gales v. State
| Citation | 153 So.3d 632 |
| Decision Date | 09 October 2014 |
| Docket Number | No. 2013–KA–00435–SCT.,2013–KA–00435–SCT. |
| Parties | Brandon Q. GALES a/k/a Brandon Gales v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
Phillip Broadhead, Office Of State Public Defender by George T. HolmesStan Perkins, attorneys for appellant.
Office of the Attorney General by Ladonna C. Holland, John R. Henry, Jr., attorneys for appellee.
EN BANC.
¶ 1. The instant matter is before the Court on appeal filed by Brandon Q. Gales against the State of Mississippi. Gales was convicted in the Washington County Circuit Court of armed robbery and conspiracy to commit armed robbery with sentences of life imprisonment and five years, respectively. Gales appealed, raising three issues. While the trial court committed error, such errors are harmless, and the remaining issues lack merit. Thus, the Court affirms the judgment of the trial court, albeit on different grounds.
¶ 2. On December 19, 2011, at about 10:00 p.m., Abdulhakim Weber was in the process of closing his convenience store, the Hyatt Food Mart, for the night. As an employee was about to lock the front door, two black males masked with white t-shirts came into the store. One of the intruders had a pistol and yelled “nobody move” before firing a shot into the ceiling. The shooter took the money that Weber had been counting at the register, while the shooter's partner took money from Weber's pockets. The shooter then demanded a pack of cigarettes before both robbers fled the scene. Weber's employee called 911.
¶ 3. The store was equipped with twelve security cameras, which captured the quick exchange. The video shows two black males, wearing white t-shirts as masks, entering the store. The shooter wore a black hoodie, light blue jeans, and brown casual shoes. The shooter's partner wore a black sweatshirt, gray pants, and black and gray shoes.
¶ 4. Within minutes of the 911 call, officers arrived at the store and viewed the surveillance footage. Officer Jeremy Arendale described the fugitives to dispatch, which issued a “be on the look out” description. The description depicted a black male with a blue shirt, black pants, and a white hoodie and did not describe the suspect's footwear. Soon after hearing the description, Officer Tabari Thomas spotted a young black male, later identified as Brandon Gales, running roughly five blocks from the Hyatt Food Mart. According to Officer Thomas, Gales was running but attempted to make it seem like he was walking upon noticing the police presence. Officer Thomas stopped Gales and asked him why he was out of breath. Gales responded that he had just left a gambling house.
¶ 5. Officer Thomas then conducted a Terry1 pat-down of Gales. While Officer Thomas did not find a weapon on Gales, he felt a bulge in Gales's back pocket. According to his testimony, Officer Thomas either asked Gales to “let him see what was in his pocket” or Gales voluntarily emptied his pockets, showing him money that Gales said he had won gambling. Officer Thomas asked dispatch for another description of the suspects. Dispatch responded, describing an individual with a black hoodie, light jeans, and brown casual shoes. Gales was not wearing a black hoodie, but instead a gray, long-sleeved shirt; however, he was wearing light jeans and brown casual shoes. Officer Thomas noted that Gales seemed suspicious, as he was out of breath and wearing light clothes for a December night. Because Gales partially matched the description of one of the robbers, Officer Thomas handcuffed and detained Gales for further investigation and soon after drove him to the crime scene.
¶ 6. Arriving at the Hyatt Food Mart, Officer Thomas told Officer Arendale that he had detained a person of interest. Officer Arendale spoke with Gales and photographed the money in Gales's pockets. There are some discrepancies in the record as to what exactly happened next. According to Officer Arendale's recount, he went back into the store and asked Weber how much money was stolen and in what denominations. Officer Arendale returned to Gales, took the money from his pockets, and proceeded to count the money, which Officer Arendale testified was consistent with Weber's description. Officer Arendale, noting a five dollar bill with a red stamp on it, went back to Weber and asked him if there was anything unusual about any of the bills. Weber proceeded to describe a five dollar bill with a red stamp on it that he had received from the bank.
¶ 7. According to Weber's recount, after the police detained the suspect, Officer Arendale immediately brought the money inside the store and placed it on the counter. Officer Arendale asked Weber if he knew any of the serial numbers, and, after viewing the bills, Weber recognized the bill with the stamp on it as one that he had acquired through regular business and not from a bank. Gales was placed under arrest and brought to the police station once the police connected him to the bill with the red stamp.
¶ 8. At the station, officers swabbed Gales's hands for gunshot residue. The swabs were sent to the Mississippi Crime Lab, where forensic scientist Chad Suggs analyzed them for the presence of gunshot residue. Suggs found only a particle indicative of gunshot residue on the back of Gales's left hand; however, he was unable to “identify it as gunshot residue to the exclusion of all other environmental sources.”
¶ 9. The morning after Gales's arrest, officers found a black hoodie and a Smith & Wesson handgun in an alley near North Harvey and Bland Street, near where Gales was detained. The handgun and a spent shell casing found at the crime scene were sent to the crime lab for comparison. Forensic scientist Brian McIntire determined that the bullet fired at the Hyatt Food Mart had been fired from the discovered pistol.
¶ 10. Gales was indicted for two counts of armed robbery and one count of conspiracy to commit armed robbery. Gales filed a motion to suppress all evidence stemming from his unreasonable search and seizure. A hearing was held on the motion, after which the trial court entered an order denying the motion and finding that Officer Thomas's stop and frisk of Gales was proper under Terry. The trial court granted a directed verdict on one count of armed robbery. A jury convicted Gales on the remaining counts of armed robbery and conspiracy, and the trial court sentenced him to life imprisonment and five years, respectively, with the sentences to run concurrently. Gales appealed.
¶ 11. For the sake of organization, Gales's arguments have been divided into five issues. The first three issues concern alleged improprieties as to the Terry stop, Gales's arrest, and the recitation of Miranda warnings, respectively, while the remaining two arguments focus on the narration of the surveillance video and whether there was legal and evidentiary sufficiency supporting the verdict.
I. Whether the trial court erred by refusing to suppress the fruits of an impermissible stop and an unreasonable warrantless search of Gales, when the stated reason for the stop was to conduct a Terry pat-down, but the search and seizure of Gales did not meet the constitutional prerequisites for the police officer's actions.
¶ 12. Gales's first issue deals with whether Officer Thomas properly performed a Terry stop in detaining Gales. For the sake of clarity, the issue has been subdivided into three parts: (a) the initial Terry stop, (b) the Terry pat-down, and (c) the continued detainment and search of Gales following the Terry stop.
¶ 13. The Court applies a mixed standard of review to Fourth–Amendment claims. Eaddy v. State, 63 So.3d 1209, 1212 ( ¶ 11) (Miss.2011) (citing Dies v. State,
926 So.2d 910, 917 (Miss.2006) ). Id. (emphasis added) (citations omitted). When reviewing evidentiary rulings made by a trial court, the Court employs an abuse of discretion standard. Brown v. State, 965 So.2d 1023, 1026 ( ¶ 10) (Miss.2007) (citing Peterson v. State, 671 So.2d 647, 655 (Miss.1996), overruled on other grounds by Caldwell v. State, 6 So.3d 1076 (Miss.2009) ). “[The] Court must first determine if the proper legal standards were applied.” Id. “Where error involves the admission or exclusion of evidence, [the] Court will not reverse unless the error adversely affects a substantial right of a party.” Ladnier v. State, 878 So.2d 926, 933 ( ¶ 27) (Miss.2004) (quoting Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000) ).
¶ 14. First, Gales argues that Officer Thomas did not have a “reasonable suspicion” to stop Gales, as Officer Thomas was responding to the initial, inaccurate description, which described a black male wearing a blue shirt, black pants, and a white hoodie. The description also stated that the suspects were headed in the direction of Belle Aire Street; however, Gales was not walking in that direction. It should be noted that in Gales's motion to suppress, which the trial court denied, Gales conceded that “the Greenville Police Department had the right to stop and question the defendant, and even the right to conduct a pat-down for weapons.” Accordingly, the issue of whether Officer Thomas had legal grounds to conduct the Terry stop of Gales in the first place was conceded and not argued before the trial court. “Failure to raise an issue at trial bars consideration on an appellate level.” Walker v. State, 913 So.2d 198, 217 ( ¶ 49) (Miss.2005); see also Johnson v. State, ––– So.3d ––––, ––––, 2014 WL 971542, *4 ( ¶ 6) (Miss. Mar. 13, 2014). Regardless, the Court will proceed with an analysis of the stop and pat-down.
¶ 15. In response, the State argues that Gales essentially is attacking Officer Thomas's credibility. Furthe...
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