Holbrook v. State

• Decision Date: 13 January 2004
• Docket Number: No. 2002-KA-01722-COA.,2002-KA-01722-COA.
• Citation: 877 So.2d 525
• Parties: Edward Fred HOLBROOK, Jr., a/k/a Bubba, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

877 So.2d 525

Edward Fred HOLBROOK, Jr., a/k/a Bubba, Appellant, v. STATE of Mississippi, Appellee.

No. 2002-KA-01722-COA.

Court of Appeals of Mississippi.

January 13, 2004.

Rehearing Denied March 23, 2004.

Certiorari Denied July 12, 2004.

David Clay Vanderburg, attorney for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

EN BANC.

SOUTHWICK, P.J., for the Court.

¶ 1. Edward Holbrook, Jr. was convicted of attempting a burglary, arson, and a murder. On appeal he alleges that his motion to suppress should have been granted, that venue was improper and that there was error in finding him to be an habitual offender. We find no error and affirm.

¶ 2. Holbrook and his wife Kathy Holbrook were divorced in October 2001. After the divorce, Mr. Holbrook lived at Senatobia Lakes in Tate County, Mississippi. His former wife moved in with her sister, Sandra Beard, and later moved into her own place in Batesville, Panola County, Mississippi. Ms. Holbrook worked at her sister's store in Batesville.

¶ 3. Tony Watts became acquainted with Edward Holbrook through their work. Watts also lived in Senatobia. At trial, Watts testified that Holbrook left a note for him at his home on November 16, 2001. In response to the note, Watts and his wife Tammy went to Holbrook's home. Holbrook told his visitors that he was divorced but that he loved his former wife and wanted her back. He also stated that his former wife's sister was to blame for the divorce. Holbrook explained that he wanted to "rob and burn" his former sister-in-law Sandra Beard's store. While the store was burning and attention was diverted, he then wanted to burn Beard's home. Holbrook asked Mr. Watts to help by driving him to Beard's home and store. Holbrook showed Watts a spray container. He planned to use this container to spray the buildings with gasoline before he lit them on fire.

¶ 4. The men then took Mrs. Watts home. Holbrook and Watts then drove to Panola County. Holbrook pointed out the store that he wished to rob and burn. Holbrook then directed Watts to his ex-wife's home. He said that he was going to set Ms. Holbrook's car on fire and the fire would then spread to her house. He said that his former wife would have to escape the fire through her bedroom window. The two men then went to the sister-in-law's home. Holbrook wanted to set fire to her home in order to kill her. After this tour, the two men went back to Holbrook's home.

¶ 5. When Watts returned to his own home at approximately 2:00 a.m., he told his wife what had happened. Watts called the Federal Bureau of Investigation later that morning. The FBI instructed Watts to notify local authorities. Watts discussed Holbrook's plan with the Batesville Police Department. Watts explained that Holbrook planned to commit the arson that night. The police equipped Watts with a body wire. Once he went back home, Watts found a note from Holbrook requesting Watts to come to his home. Watts notified police and then went to Holbrook's home.

¶ 6. After Watts arrived, Holbrook filled a sprayer with fuel and then tested it in his yard. Holbrook then put the sprayer and a black jug of gasoline in Watts's vehicle. The two left for Batesville. As they were driving to Batesville, the fumes from the black jug became overwhelming. Holbrook threw the jug out of the car. The men then came upon a road block set up by the State Highway Patrol. The men went through the road block and then on to Senatobia. As they approached the interstate highway, local authorities stopped and arrested both men. The arrest took place in Tate County prior to the pair's arrival in Panola County.

¶ 7. Watts's description of the place in which the black jug had been thrown from the vehicle led to the jug's recovery. Taken from Watts's vehicle were the spraying device containing a little more than a gallon of gasoline, gloves, and other items. Holbrook's yard in Senatobia Lakes was found to be burned in one area. A test was conducted that established gasoline was used to start the fire. Mrs. Watts's account of the notes left at her home and the conversation she witnessed between her husband and Holbrook corroborated her husband's account of events.

¶ 8. One of Holbrook's fellow Panola County Jail inmates, Jerry Brimmer, testified that Holbrook told him of his plans for robbery and arson. Brimmer quoted Holbrook as admitting that he planned to burn down the Holbrook and Beard homes. Holbrook was found guilty of attempted burglary, attempted arson, and attempted murder. He was sentenced as an habitual offender to life imprisonment without parole.

DISCUSSION

1. Evidence seized by law enforcement officers

¶ 9. Holbrook argues that there was error when the trial court denied his motion to suppress evidence seized by law enforcement officers. Two separate searches of his home were conducted. Holbrook contends that the actual search warrants contained numerous mistakes. He further contends that there was no probable cause for issuance of the search warrants.

¶ 10. At the hearing on the motion, the justice court judges who issued the warrants testified. They had been told in sworn statements by officers about the underlying facts and circumstances, and from these determined that there was probable cause. However, the warrants that were issued were not completely accurate. Some of the blanks on the form warrant were left blank.

¶ 11. The errors in the search warrants are clerical and do not rise to the level necessary to invalidate them. Williams v. State, 583 So.2d 620, 625 (Miss.1991). These warrants were issued after sworn statements were made to impartial judges; the judges found that probable cause existed. There was no confusion or prejudice to Holbrook caused by these clerical errors.

¶ 12. Holbrook claims that probable cause did not exist to support the issuance of the warrants. "Probable cause for issuance of a search warrant is present when facts and circumstance within the officer's knowledge, or of which he had reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it." Hall v. State, 455 So.2d 1303, 1304 (Miss.1984). An appellate court determines whether the issuing magistrate had a substantial factual basis for the conclusion that probable cause existed. Lee v. State, 435 So.2d 674, 676 (Miss.1983).

¶ 13. Law enforcement officers first obtained a warrant to search for and seize a videotape of a conversation between Holbrook and his former wife, a tape that the defendant had played for Mr. and Mrs. Watts. We have little doubt that probable cause existed to believe that this tape existed, but regardless, the items seized as a result of that search warrant were never offered into evidence. A second warrant was obtained in order to search the Holbrook home concerning conviction records from Tennessee. Ms. Holbrook informed officers that she had seen these papers at her home during her marriage. This was probable cause for issuance of the second warrant.

2. Venue in Panola County

¶ 14. The most significant issue on this appeal is the proper venue for an attempt to commit a crime when all the overt acts occur in one county and the planned but never completed crime was to occur in another county. Here, Holbrook resided in and was arrested in Tate County. However, the site of the fires he planned to start and the store at which the robbery was to occur were in Panola County. While venue would have been proper in Tate County, the State brought the case in Panola County. As we will explain, we conclude that, in most cases, charges may be brought in either the county in which the overt acts for an attempt occur or the county in which completion of the crime had been intended.

Constitutional provisions

¶ 15. The authors of the United States Constitution were sufficiently concerned about the location in which criminal charges are to be brought that the matter was addressed in two different sections:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

U.S. Const. art. III, § 2, cl. 3. This provision applies only to the operation of the federal judicial power under Article III. However, the Sixth Amendment to the Constitution also provides this:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law....

U.S. Const. amend. VI. Most of the Sixth Amendment has been found applicable to the states through the effect of the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)

(jury trial); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (compulsory process and public trial); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (speedy trial); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (confront witnesses); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (counsel). The venue (locale for charges and trial) and vicinage (locale from which jurors drawn) provision has not been found to be fundamental and has not been incorporated into state process.

¶ 16. Even so, the Mississippi Supreme Court held that the Sixth Amendment's venue requirement applies to state prosecutions. Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1165 (Miss.1987) (citing principally Gideon, 372 U.S. at 342, 83 S.Ct. 792, which only incorporated the right to counsel). The Mississippi court cannot make this part of the Sixth Amendment...