Jackson v. State

• Citation: 418 So.2d 827
• Decision Date: 25 August 1982
• Docket Number: No. 53606,53606
• Parties: Kirby Cortez JACKSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 827

418 So.2d 827

Kirby Cortez JACKSON v. STATE of Mississippi.

No. 53606.

Supreme Court of Mississippi.

Aug. 25, 1982.

Kenneth C. O'Neal, Grenada, for appellant.

Bill Allain, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

PRATHER, Justice, for the Court:

The appellant, Kirby Cortez Jackson, was found guilty by jury trial in the Circuit Court of Grenada County of burglary of a dwelling house. Since Jackson had previously been convicted and sentenced to serve terms of more than one year each for manslaughter and robbery, he was sentenced pursuant to the habitual criminal statute, Mississippi Code Annotated section 99-19-81 (Supp.1981) for the maximum term of imprisonment prescribed for the felony of burglary, without parole or probation.

Jackson assigns as errors, the following:

(1) That the circuit court erred by overruling the appellant's motion to suppress all evidence concerning certain items seized pursuant to a warrantless search and incriminating statements made after the warrantless search;

(2) That the circuit court erred in sentencing the appellant pursuant to Mississippi Code Annotated section 99-19-81 (Supp.1981) when one of the appellant's prior felony convictions was not final, but was on appeal at the time of sentencing.

On June 26, 1981 the house of Carter Bugg was broken into by thieves, who stole a Winchester shotgun and a television set. Bugg and his family were temporarily living with Bugg's parents, approximately nine miles away, at the time of the burglary and there were no witnesses to the crime. Bugg did testify, however, that Kirby Cortez Jackson telephoned to his parents' home after midnight on the day of the crime to ask Bugg, who was his prior employer, for work. Bugg advised him that he had no work for him to do at the time, and Jackson then remarked that he planned to make a trip to Chicago. When Bugg checked on his home later that night he discovered that a small back window had been broken into which enabled the thieves to unlock the back door.

Gerald Tilgham was one of two officers who investigated the scene of the crime, and he noticed two sets of shoe prints at the gate in front of the house. The larger set of prints had one set of circles in the sole of the shoe; the smaller prints had a V-mark impression down the sole of the shoe. Tilgham also observed tire impressions at the gate in front of the house. Officer Robert Shields testified that his investigation and discussions with neighbors near the scene of the crime indicated that a car with a "Continental looking deal on it" was seen pulling away from Carter Bugg's home. Following the investigation of the scene of the crime Tilgham and Shields traveled to Jackson's grandmother's house in Tie Plant.

When they arrived they noticed tire impressions on a Lincoln Continental in front of the house which were similar to those seen at Bugg's house. The time was approximately 3:30 to 3:45 a. m., but the lights in the house were still on. Tilgham stated in the suppression hearing that the officer's purpose in visiting Jackson's grandmother's house was to investigate Jackson's phone call to Bugg. The grandmother permitted the officers into the house. Thereafter they claimed to have seen two sets of shoes with prints comparable to those found at the gate. The officers asked Jackson and his wife, Myrtle, to step outside so that they could answer some questions. When outside, Jackson was asked to open the trunk of his car, which he did voluntarily. Inside the trunk of the car was Bugg's shotgun. The two officers testified that they had in no way coerced Jackson to consent to this search but that it was purely voluntary on his part. During the suppression hearing Officer Tilgham stated that Jackson and his wife, Myrtle, appeared to be fairly drunk. Officer Shields added at the suppression hearing that Jackson claimed to know nothing about the gun and stated that he had loaned his car earlier that day to a friend. Jackson and his wife, Myrtle, were then read their rights and placed under arrest. The two defendants were placed in the officers' cars separately to be transported to the Grenada County Sheriff's office. About one mile down the road Myrtle Jackson told Officer Tilgham that she had seen Kirby take the television set behind the house. Officer Shields and Jackson were radioed to come back, and Jackson subsequently retrieved the television set from under a raincoat in a cornpatch behind his grandmother's house. Jackson and his wife were taken to the sheriff's office where they again were read their rights and where Jackson signed a waiver of rights form and a voluntary statement admitting that he had broken into Bugg's home and stolen the property.

There was a motion to suppress evidence received by virtue of this warrantless search and at that hearing Kirby Jackson testified with regard to those matters only. His testimony was that he was offered a deal by the officers if he signed the statements and that he did so on their promise. He also claimed that he signed the statements before they were filled in and that he in fact did not consent to the search of his car.

Kirby Cortez Jackson was tried on July 29, 1981, and the jury returned a verdict of guilty of burglary. At the sentence enhancement hearing the Circuit Clerk of Grenada County introduced court records showing that Kirby Jackson had been convicted and sentenced to a term of three years in the state penitentiary for manslaughter and that he had been convicted and sentenced to a term of seven years in the state penitentiary for robbery. The appellant objected to the introduction of the latter record since the conviction at that time was still on appeal to the Mississippi Supreme Court. The sheriff of Grenada County testified that he had known Jackson for practically all of Jackson's life and that Jackson had been convicted and sentenced to the two above felony crimes and was the person identified in the judgments. The circuit court at that point sentenced the appellant to ten years in the state penitentiary and further ordered that the sentence should neither be reduced nor should the defendant be put on parole.

I.

The appellant's first contention is that the circuit court erred in overruling the defendant's motion to suppress all evidence seized pursuant to a warrantless search and any incriminating statements made thereafter. All searches without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Loper v. State, 330 So.2d 265 (Miss.1976), and the burden is on the officer to show that the search comes within one of the exceptions. Cutchens v. State, 310 So.2d 273 (Miss.1975); Luton v. State, 287 So.2d 269 (Miss.1973).

If a search is deemed unreasonable, then all evidence seized during that search is inadmissible for the jury or court to consider as evidence of the defendant's guilt. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Joyce v. State, 227 Miss. 854, 87 So.2d 92 (1956). Furthermore, this exclusionary rule extends beyond the evidence directly seized in the unreasonable search to preclude consideration of subsequently acquired evidence which was gained indirectly as the result of the unreasonable search. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (confessions obtained during illegal detention inadmissible even if Miranda warnings given unless there is a sufficient break in causal connection between illegality and confession); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (information gained during illegal arrest led to discovery of evidence elsewhere); Vanderlin v. State, 267 So.2d 311 (Miss.1972) (error to admit in evidence admission of defendant when confronted with results of search that marijuana found as result of unlawful search belonged to him); Thompson v. State, 206 So.2d 195 (Miss.1968) (defendant's confession which was a direct consequence of an unlawful search of her house was inadmissible as one of the fruits of the unlawful search). Thus, if the search of the appellant's car trunk is held to be unreasonable, the shotgun, as well as the subsequently obtained television set and confessions, would be inadmissible.

The prosecution offers as justification for the warrantless search the fact that the appellant consented to the search of his car trunk. One of the specifically established exceptions to the requirements of both a warrant and probable cause to permit a search is a search conducted pursuant to consent. Matthews v. State, 394 So.2d 304 (Miss.1981); Brown v. State, 281 So.2d 924 (Miss.1973). When the prosecution attempts to justify a search on the basis of consent, it must demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Such voluntariness is to be determined from considering the totality of the circumstances surrounding the alleged consent.

In the instant case, both officers testified that Kirby Jackson not only consented to the search, but actually opened the car trunk himself. The officers further testified that there was no coercion of Jackson to force the consent to search. However, Officer Tilgham, during the pretrial suppression hearing, stated that both Kirby and Myrtle appeared to be fairly drunk, and during the hearing on motion to suppress the voluntary statement, Kirby Jackson denied that he gave the alleged consent to search the trunk. Myrtle Jackson, who was present at the time of the search, did not testify on...