Jackson v. State, 53905

• Decision Date: 19 October 1983
• Docket Number: No. 53905,53905
• Citation: 440 So.2d 307
• Parties: Tommy Lee JACKSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 307

440 So.2d 307

Tommy Lee JACKSON v. STATE of Mississippi.

No. 53905.

Supreme Court of Mississippi.

Oct. 19, 1983.

Rehearing Denied Nov. 16, 1983.

Don H. Evans, Jackson, for appellant.

Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, ROY NOBLE LEE and HAWKINS, JJ.

ROY NOBLE LEE, Justice, for the Court:

Tommy Lee Jackson was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, for armed robbery, and was sentenced to serve fifteen (15) years in custody of the Mississippi Department of Corrections. He has appealed here and assigns the following errors in the trial below:

(1) The court erred in denying appellant's motion to suppress and in allowing a money clip to be introduced into evidence over objection of the appellant.

(2) The court erred in refusing to direct a verdict in favor of appellant at the close of the trial and in refusing to grant appellant's request for a peremptory instruction.

(3) The court erred in denying appellant's motion for a new trial on the grounds that the verdict of the jury was against the overwhelming weight of the evidence and evinced bias and prejudice on the part of the jury against appellant and showed that the jury had a willful disregard for their duty as jurors.

(4) The court erred in declining to grant a mistrial on three occasions during closing argument when the district attorney commented on appellant's failure to testify.

I.

On March 19, 1981, Marvin W. Landis exited a bus at the Greyhound Bus Station in Jackson, Mississippi, and went to the men's washroom. He noticed a black male at the rear, who was drying his hands. Shortly, he was grabbed around the chest from the back and fell to the floor, resulting in a fracture of his right arm (Landis was 80 years of age). He was severely beaten, and, the assailant removed Landis' wallet and credit card packet from his pockets, then demanded Landis' money upon threat of killing him with a knife. Landis reached in his pants pocket and handed the man a money clip with $200.00. The robber fled, aid arrived for Landis, and the robbery was reported to the police. Landis described the black man as about thirty years old, 5 feet 10 inches tall, weighing 130-135 lbs. with a pronounced limp in his left leg, probably due to a deformity.

Mississippi State Highway Patrolman Lewis Younger was outside the bus station at the time of the robbery. He saw Tommy Lee Jackson run from the station and drive away in a white-over-blue Chevrolet automobile, probably a 1971 or 1972 model. Patrolman Younger also had seen Jackson earlier that day walking in front of the bus station occasionally looking inside. However, no arrest was made.

On March 26, 1981, during the early morning hours, a robbery, following the same pattern as that of March 19, 1981, again occurred in the men's washroom of the Greyhound Bus Station. Officer J.C. Guy answered the call and obtained a description of the robber, viz, that he had a polio affliction, walked with a limp, wore a brown pullover monogram sweater and was driving a 1973 white-over-blue Chevrolet automobile. Tommy Lee Jackson answered the description, including wearing a brown pullover monogram sweater and driving a 1973 white and blue Chevrolet automobile, and he was arrested for the crime. Officer Guy searched the automobile during the early morning hours after the robbery. He found and removed a packet of wallet photos and a tire tool from it. There was considerable litter and debris in the vehicle, and he did not detect other articles. An inventory sheet was filled out, and the articles removed were noted.

Approximately nine hours later, Officer C.M. Crisco, accompanied by another officer, went to the storage lot where the white and blue Chevrolet was locked and stored in order to photograph it. The day was bright, the sun was shining, and the conditions were excellent for taking clear pictures.

Officer Crisco had participated in the investigation of the March 19 robbery and was familiar with the similarity of the modus operandi in the two crimes. He also knew the description of the silver money clip which was taken from Marvin W. Landis during the March 19 robbery and which had never been recovered. As he prepared to take the photographs, he looked inside the Chevrolet and saw a money clip sparkling in the sunlight on the floorboard behind the driver's seat. It fit the description of the missing Landis money clip and Officer Crisco reasoned that the object was valuable and vital evidence in the March 19 robbery. He returned to the police station, obtained the automobile keys, and went back to the vehicle and, without obtaining a search warrant, opened the automobile and removed the silver money clip. On the clip were the letters "P-O-P". (The money clip had been made by Marvin W. Landis' son in the 1940s and he had engraved the letters "P-O-P" on it.) Jackson was indicted for the March 19 robbery and his attorney filed a motion to suppress the evidence of the silver money clip, contending that it was obtained from the Jackson automobile on the morning of March 26, pursuant to an unlawful search without a warrant.

Jackson does not claim here that the officers lacked probable cause to arrest him on the morning of March 26, or to search his automobile initially. He argues that the second search approximately nine hours after his arrest, while in jail, violated his constitutional rights.

In addition to having probable cause for search of the automobile initially, the officers had the right to, and did, make an inventory of the contents. Later that morning, Officer Crisco, upon seeing an object of value in the rear of the Jackson automobile, had a right to continue that inventory and retrieve the object, even though he did not note the object on the inventory sheet. Florence v. State, 397 So.2d 1105 (Miss.1981), citing South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

In Henderson v. State, 402 So.2d 325 (Miss.1981), a partial search of an automobile was conducted upon probable cause. The automobile was removed to the police department and was impounded in a garage. The next morning, Henderson, the owner, was arrested. Two officers went to the garage and resumed search of the automobile, which had been made the night before. They found incriminating evidence on the second search and motion was made to suppress the evidence on the ground that the search was in violation of the defendant's constitutional rights. This Court held that the search was lawful and that the lower court correctly overruled the motion to suppress the evidence, citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), which stated:

"In Chambers v. Maroney we held that police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. There, as here '[t]he probable-cause factor' that developed at the scene 'still obtained at the station house.' 399 U.S., at 52, 90 S.Ct., at 1981. The Court of Criminal Appeals erroneously excluded the evidence seized from the search at the station house in light of the trial judge's finding, undisturbed by the appellate court, that there was probable cause to search respondent's car." 423 U.S. at 68, 96 S.Ct. at 305, 46 L.Ed.2d at 211-12. .

In Michigan v. Thomas, --- U.S. ----, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), the defendant was convicted of possessing a concealed weapon. The conviction was reversed by the Michigan Court of Appeals, holding that the warrantless search of respondent's automobile violated the Fourth Amendment. On certiorari to the United States Supreme Court, that Court reversed and said, in a per curiam opinion:

We reverse. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), we held that when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). See also United States v. Ross, 456 U.S. 798, 807, n. 9 72 L.Ed.2d 572 (1982). It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.... [--- U.S. at ----, 102 S.Ct. at 3081, 73 L.Ed.2d at 753].

Officer Crisco went to the Jackson automobile for the purpose of photographing same. He saw the silver money clip on the rear floorboard of the vehicle and, being familiar with the facts of the March 19 robbery and having a full description of the clip, reasonably believed it to be a valuable and vital...