Hester v. State

• Decision Date: 13 February 1985
• Docket Number: No. 54574,54574
• Citation: 463 So.2d 1087
• Parties: Cheryl A. HESTER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1087

463 So.2d 1087

Cheryl A. HESTER v. STATE of Mississippi.

No. 54574.

Supreme Court of Mississippi.

Feb. 13, 1985.

Samuel H. Wilkins, James O. Nelson, II, Wilkins, Ellington & James, Jackson, for appellant.

Bill Allain, Atty. Gen. by Carolyn B. Mills, Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

I.

A Rankin County jury convicted Cheryl A. Hester of the capital murder of Harley Winn, who was found stabbed to death in the woods near a trailer park in Pearl, Mississippi. The jury sentenced Hester to life imprisonment. Of the several points she raises on appeal, we address only the issue of the validity of the search warrant and whether the evidence presented by the state was legally sufficient to support a verdict of guilty. The investigation leading to Hester's arrest will first be reviewed to give an overview; then the evidence and testimony adduced at trial will be examined at length.

About 6:45 p.m., on June 4, 1982, members of the Pearl police department were called to investigate a dead body found in the woods in an unused part of a trailer park off Highway 80 in Pearl. The victim, an elderly man, was identified from cards in his wallet as Harley Winn. He died of multiple stab wounds to the neck and torso. The time of death was fixed at between 4:00 p.m. and 6:00 p.m. Winn's wallet contained no money and his pants pockets had been turned inside out with change scattered about the body. A trail of blood stretched between the road and the body and the leaves along this trail had been disturbed.

Investigation of Winn's recent whereabouts led police to Ernie's bar on West Capitol Street, Jackson. A waitress recalled seeing Winn in the company of a woman who had recently given blood. At the Alpha Plasma Center police were given the defendant's name based on the description by the waitress at Ernie's. Another waitress, Linda Pigg, told police she had seen Winn leave the bar with a woman about 4:00 p.m. the day of the murder. Ms. Pigg saw the same woman return alone to the bar about 6:00 p.m. in a disheveled condition and in a hurry to get her friends to leave with her.

Police obtained a warrant on July 7, 1982, to search the mobile home occupied by Hester and her boy friend, Lavon Murray, for a knife or similar weapon thought to be the murder weapon. Hester was arrested and a long blade folding knife was seized from the basket in the living room. A crime lab analysis of the knife showed only traces of blood, too minute to even type as human. A second search warrant was issued on July 11, 1982, to seize a five-gallon pail of water near the knife, but no trace of blood could be located in the water.

II.

Hester challenges the admissibility of the knife on the basis that the justice court judge was not presented with sufficient facts to support a finding of probable cause to issue the search warrant. Justice Court Judge Blaine was given a sworn affidavit by investigating officer Manning and Mississippi Highway Patrol investigator Virgil Luke, which reads:

Harley M. Winn, white, male age 61 was found murdered at Hillard Trailer Park in the City of Pearl, Rankin County. The cause of death was established as multiple stab wounds. The body was found June 4, 1982 at 6:45 PM.

On June 4, 1982 a Vonda Odom, employed at Ernie's Bar on Capitol Street in Jackson, Ms. did witness Harley M. Winn leaving the bar with a white female, later known to be Cheryl A. Hester at about 4:00 P.M.

The reason Ms. Odom knew that it was 4:00 PM when the subjects left the bar, was because she gets off work at 4:00 P.M. When the subject Cheryl A. Hester returned to the bar at approximately 6:00 Pm. Linda Smith noticed that Cheryl A. Hester came in alone. Also the manager, Bob Wilson of Ernie's Bar, alos (sic) witnessed Cheryl returning at 6 PM.

Mr. Winn and Ms. Hester had left the bar in a car being driven by Ms. Hester.

The Coroner, MJimmy Roberts (sic) and Dr. Galvez of University Medical Center affixed the time of death as between 4 and 6:00 P.M.

Investigators Manning and Luke also gave sworn oral testimony of the results of Manning's investigation. Manning was the only officer with direct knowledge of the witnesses' testimony. Luke related under oath the facts that Manning had developed and let Manning fill in the details. The written affidavit was only a summary of what the officers told Judge Blaine.

Manning said that the waitress Pigg saw Hester return alone to Ernie's about 6:00 p.m., looking as if she had been in a scuffle with her hair sticking up and with leaves and grass in her hair. Pigg told Manning that Hester told her friends, "Let's go, we've got to get out of here." Manning told the judge that Winn had been seen earlier flashing a wad of money around in Ernie's. Manning said that, earlier, waitress Odom saw Winn apply ice to Hester's arm to stop bleeding where she had given blood at a blood bank. Manning told the judge that Winn had been found with both front pockets pulled out, where he usually carried his money.

Investigator Luke added that Hester and Murray had befriended Winn to the point where Winn was spending his money on them. When this reached an extreme, Winn dropped them and avoided them for two weeks. The day before the murder, the three began to associate together again.

Hester focuses upon three discrepancies which developed at the suppression hearing to conclude that probable cause was not shown. First, Manning admitted that none of his witnesses saw Winn drive away from Ernie's in Hester's car, contrary to the affidavit. Second, Luke said that the judge was shown a photograph of Winn missing one shoe and sock, when in fact the photograph shows both Winn's shoes and socks were on. Third, while Manning and Luke positively recalled telling Judge Blaine that Hester returned looking like she had been in a fight and had leaves in her hair, Judge Blaine could only recall being told she was "ruffled up a little".

The written affidavit, standing alone, did not, in the trial judge's, or our own, opinion establish probable cause to issue the search warrant. Hester concedes, as she must, that affidavits insufficient on their face, may be supplemented by sworn oral testimony to show sufficient facts to establish probable cause. Wilborn v. State, 394 So.2d 1355, 1357 (Miss.1981); Read v. State, 430 So.2d 832, 834-35 (Miss.1983); Lee v. State, 435 So.2d 674, 677 (Miss.1983). Hester contends that Judge Blaine relied upon the disproven facts about Hester's car and Winn's shoe and the embellishment by the officers as to Hester's condition when she returned to issue the search warrant.

Probable cause for the issuance of a search warrant exists when the facts and circumstances in a given situation are sufficient to warrant a man of reasonable caution to believe that seizable objects are located at the place to be searched. Lee v. State, 435 So.2d 674, 676 (Miss.1983). The information regarding Winn's death was either directly observed or relayed by the coroner's office to officer Manning. The evidence that Hester had left Ernie's with Winn and returned alone in a disheveled and upset condition was from personal observations of the waitresses at Ernie's, who were interviewed by Manning. The trial judge was persuaded that probable cause to search Hester's trailer was shown from the fact that Winn died in a wooded area surrounded by leaves, in the interval between his departure with Hester from Ernie's and her return to the bar alone because she appeared to have been in a fight and had leaves or grass in her hair, and she urged her friends to leave immediately.

Although this case involves named witnesses, not confidential informants, we deem it significant to recall the analysis in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), quoted in Lee v. State, 435 So.2d at 676:

[T]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... concluding" that probable cause existed....

We point out that the waitresses' statements were based upon personal observations which were verified in part by the police investigation. Officer Manning learned from the Alpha Plasma Center that Hester had given blood on the afternoon of the murder, as Ms. Odom recalled. While no direct corroboration was shown to support Ms. Pigg's personal observation about Hester's condition on her return to Ernie's, the trial judge was not faced with an unnamed informant but a specific witness. We conclude that the fact that the trial judge was told that Hester returned to Ernie's in an upset condition, looking like she had been in a fight with some ground matter in her hair, forms a substantial basis for the issuance of a search warrant since it would warrant a man of reasonable caution in believing she was connected with the death of her recent companion found lying in some scuffled-up leaves, and that a murder weapon would be found in her dwelling.

Although, as Hester points out, no witnesses saw Hester and Winn leave Ernie's in a car, the waitresses saw them leave the bar together. The discrepancy about Winn's shoe is not material to the probable cause determination because it in no way increased or decreased the likelihood that Hester was involved in Winn's death. Finally, the variance between the officer's testimony and Judge Blaine's recollection of what he was told about Hester's appearance on return to Ernie's was noticeable, but Judge Blaine himself remembered being told that she came in hurriedly in a frustrated or upset...