Henry v. State

• Decision Date: 05 February 1986
• Docket Number: No. 54719,54719
• Citation: 486 So.2d 1209
• Parties: J.W. HENRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1209

486 So.2d 1209

J.W. HENRY v. STATE of Mississippi.

No. 54719.

Supreme Court of Mississippi.

Feb. 5, 1986.

Rehearing Denied May 7, 1986.

James G. Tucker III, Cook, Tucker & Sharp, Bay St. Louis, for appellant.

Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Edwin Lloyd Pittman, Atty. Gen. by Gail Lowery, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Justice, for the Court:

This appeal arises out of a burglary conviction in Hancock County for which J.W. Henry was sentenced to five years imprisonment. On appeal, Henry asserts that the trial court lacked jurisdiction, and that an inculpatory statement he made should not have been admitted into evidence. Finding no reversible error, we affirm.

Beyond the substantial legal issues tendered, the prolongation of the processing and adjudication of this appeal is a matter of great concern. In the six years that have come and gone since he was convicted on this burglary, J.W. Henry has completed On the afternoon of November 2, 1978, a two-door, hardtop, cream and gold Pontiac drove up to the rear of the home of Richard E. Grayson in Waveland, Mississippi. The car contained three or four young black men. Some of the young men exited the vehicle. Two stood around outside while one apparently entered the house. Moments later, Will Hines, a neighbor, approached the Grayson home and asked one of the two young men outside the house what they were doing. This conversation--and his observation of Grayson's stereo set outside the house--caused Hines to suspect that the Grayson home was being burglarized. He returned to his home and called the police.

the service of his sentence. Although we here affirm, such laxity and delay is most disturbing.

In response to Hines's call, the police arrived and, with Hines's assistance, determined that the Grayson home had been burglarized. Hines furnished a description of the vehicle used during the commission of the burglary. In due course, the police located a vehicle matching that description and photographed it. Hines was shown this photograph and two or three photographs of other cars. He identified the photograph of the vehicle the police had located. The police determined that the vehicle belonged to Joseph Henry, a separate person having no relation to J.W. Henry except the coincidence of their last names.

Hines also told the police that the black youth with whom he had spoken was named Pookie Mercer. Mercer was arrested but denied knowing anything about the burglary. J.W. Henry was subsequently arrested pursuant to an arrest warrant about which more will be said later. The evidence that initially caused the police to suspect J.W. Henry does not appear in the record.

Henry was arrested at 4:55 p.m. on November 6, 1978. He was taken to the police station, advised of his Miranda rights, and presented with a "Waiver of Rights" form which he signed at 5:03 p.m. By 5:35 p.m., Henry had confessed to the burglary. A police officer transcribed Henry's confession, but Henry refused to sign the written statement.

The record reflects that on November 9, 1978, proceedings in this case were begun against J.W. Henry in youth court of Hancock County. The prosecutor's office was apparently of the impression that Henry was, at that time, only 17 years old. Upon discovering this error, the youth court entered an order of dismissal without prejudice.

The Grand Jury of Hancock County, on January 10, 1979, returned an indictment charging J.W. Henry and two others with the burglary of the Grayson home. Henry moved to quash the indictment and remand the case to youth court. That request was denied.

The case was called for trial in the Circuit Court of Hancock County on April 10, 1979. At trial, two police officers who had been present during the waiver of rights and interrogation of J.W. Henry stated that no coercion was used to affect the waiver, nor was Henry under any duress at that time. The police officers' recounting of the oral confession made by J.W. Henry was the primary evidence offered at trial which connected Henry to this burglary.

After hearing and considering all of the evidence, the jury returned a verdict of guilty of burglary of a dwelling, Miss.Code Ann. Sec. 97-17-19 (1972). Henry was sentenced to a term of five years in the custody of the Mississippi Department of Corrections.

At the outset, Henry challenges the authority of the circuit court to hear and adjudge the charge against him. Instead, he argues, jurisdiction lay in the youth court.

In support, Henry urges: (1) the only evidence in the record regarding his age at the time of the crime in the record is in the form of affidavits showing him to be 17 years old; and (2) even if he was 18, a December 10, 1975, order of the youth court of Hancock County (adjudicating him Henry's first basis for his youth court jurisdiction theory--an absence of proof that he was 18 years old at the time of the crime--dissolves rather quickly in the face of his birth certificate which establishes Henry's date of birth as October 9, 1960. ¹ The instant burglary occurred on November 2, 1978. Enough said.

a delinquent and retaining jurisdiction for dispositional purposes) had the effect of vesting in the youth court jurisdiction over all of Henry's subsequent misadventures until he should reach the age of 20 years, supposedly as provided in the old youth court act, Miss.Code Ann. Sec. 43-21-9 (1972).

Henry's second point begins with an order entered by the youth court of Hancock County on December 10, 1975. By virtue of that order, Henry was adjudged a delinquent and was placed on supervised probation. The order expressly provided that the Youth "Court retains jurisdiction of said child as authorized ... [by law]."

For a determination of what jurisdiction was authorized by law, we review the statutes.

The Youth Court Act, in effect at the time, provided in Miss.Code Ann. Sec. 43-21-9 (1972):

Where jurisdiction shall have been obtained by the Court in the case of a child, jurisdiction of such person as well as of any offenses by him committed may be retained or resumed by the Court until he becomes twenty years of age....

No doubt this statute conferred upon the youth court authority to act with respect to Henry's 1975 delinquency through and including his twentieth birthday. In Re Green, 203 So.2d 470, 472 (Miss.1967). In no way, however, does it operate to deprive the circuit court of jurisdiction to try new offenses committed beyond a juvenile offender's eighteenth birthday, though the youth court retains jurisdiction for dispositional purposes (including probation revocation or modification) of all matters arising out of the prior juvenile offense.

The point has been made express in an amendment to the youth court jurisdiction statute effective July 1, 1979. Miss.Code Ann. Sec. 43-21-151(2) provides:

The youth court shall not have jurisdiction over offenses committed by a child on or after his eighteenth birthday.

The new statute only makes clear what was apparent from a common sense reading of the jurisdictional statute in effect at the time of the offense in issue.

Having due regard for all of the facts and circumstances of this case, we hold that the Circuit Court of Hancock County had full authority to hear and adjudicate all matters pertaining to and arising out of the indictment filed January 10, 1979, and charging J.W. Henry with the offense of burglary of the home of Richard E. Grayson. The circuit court committed no error when it overruled Henry's "Motion to Quash Indictment and Remand Case to Youth Court."

Henry's second assignment of error concerns the admissibility of his confession made shortly after his arrest. Henry claims that his arrest was illegal; that the inculpatory statement he gave less than 40 minutes later was a product of that arrest; and, therefore, that the statement was inadmissible. Henry invokes the doctrine announced by the Supreme Court of the United States in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and fully accepted in this state in Hall v. State, 427 So.2d 957, 959-961 (Miss.1983).

Applying the test as set forth in Brown we must affirm.

Before the admissibility of J.W. Henry's inculpatory statement can be considered, the circumstances surrounding his arrest must be analyzed. Henry was arrested by Officer Robert Tartavoulle pursuant to a warrant issued by an ex officio justice of the peace. The warrant was based on the affidavit of Officer Sandra Henley, who, with her partner, Tartavoulle, had been summoned to the scene of the crime. The affidavit read:

Before me Lucien M. Gex, Jr., an ex-officio Justice of the Peace of the said County, Sandra F. Henley makes oath that J.W. Henry on or about the 2nd day of November, 1978, in City of Waveland of said County, did unlawfully, willfully and feloniously break and enter the dwelling house of Richard E. Grayson, 712 South Beach Blvd., Waveland, Mississippi with the felonious intent to take, steal and carry away certain personal property located therein of the property of Richard E. Grayson, being in violation of Section 97-17-19, Miss.Code 1972 annotated, and being against the peace and dignity of the State of Mississippi.

It may be that this affidavit was technically deficient. To effect an arrest for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe a felony has been committed; and, (2) reasonable cause to believe that the person proposed to be arrested is the one who committed it. Caldwell v. State, 443 So.2d 806, 811 (Miss.1983), citing Powe v. State, 235 So.2d 920 (Miss.1970) (warrantless arrest); Rule 1.01, Uniform Criminal Rules of Circuit Court Practice (arrest with warrant). "Probable cause" means less than evidence which would justify condemnation, but more than bare suspicion. Hester v. State, 463 So.2d 1087 (Miss.1985), citing Powe, supra. Here,...