Lanier v. State

• Decision Date: 11 April 1984
• Docket Number: No. 54208,54208
• Parties: Arthur Ray LANIER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 69

450 So.2d 69

Arthur Ray LANIER v. STATE of Mississippi.

No. 54208.

Supreme Court of Mississippi.

April 11, 1984.

Rehearing Denied May 30, 1984.

Jim W. Rose, Rose & Woodfield, William Bethea, III, Gulfport, for appellant.

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

En Banc.

PATTERSON, Chief Justice, for the Court:

Arthur Ray Lanier was convicted in the Circuit Court of Forrest County upon an indictment charging him with the murder of Buford Dedeaux, a policeman of Gulfport, who was "acting in his official capacity ... (as) a peace officer ..." in violation of Mississippi Code Annotated, Sec. 97-3-19(2)(a), (Supp.1982). Lanier was sentenced to death. The homicide occurred in the First Judicial District of Harrison County but was transferred to Forrest County on a motion for change of venue. On this appeal Lanier argues (among other contentions) his arrest was illegal; videotaped inculpatory statements were improperly admitted into evidence, as was the weapon used in the homicide; erroneous selection of the jury; erroneous jury instructions; the sufficiency of the evidence to convict; the final argument of the district attorney; the lack of aggravating circumstances; and the constitutionality of the capital murder statute, Sec. 97-3-19(2)(a).

For understanding of the issues a summary of the evidence follows which will be supplemented with exact testimony where necessary for discussion.

Policeman Dedeaux was shot to death by the defendant in the first hour of June 8, 1979, in the First Judicial District of Harrison County, near the city limits of north Gulfport. After being shot Dedeaux requested Lanier stated that while riding his bicycle, he was stopped by Officer Dedeaux and directed to empty the ditty bag. In complying Lanier removed a pistol from the bag and Dedeaux drew his gun and fired at him. He stated that he fired at Dedeaux while running backwards but was not sure if any of the shots had actually struck Dedeaux, who entered the patrol car and radioed for help. Lanier then stated that he threw the gun away and returned to his grandmother's home. Following this statement, Lanier assisted the officers in locating the gun he had thrown away.

assistance by radio but died shortly after the arrival of assisting officers. When the first policeman arrived he found Dedeaux in his policeman's uniform lying mortally wounded on the driver's side of his police car. At the scene, the following evidentiary items were found: a yellow bicycle, a green ditty bag, a blue watchcap, several spent .22 calibre cartridge casings and Dedeaux' service revolver. The homicide apparently occurred about 12:30 a.m. and Lanier was arrested about 5:00 p.m. the same day at his grandmother's residence in north Gulfport. He was fully advised of his Miranda rights and at approximately 1:10 a.m. on Sunday, June 10, 1979, made a videotaped statement in which he admitted shooting Dedeaux ¹ under the circumstances hereinafter related.

THE ARREST

The first argument of the defendant is that the trial court erred in permitting the jury to view and hear the videotaped statement in which he admitted shooting Dedeaux. He filed a motion to suppress "because, among other things, there was no probable cause for arrest." The trial judge conducted a hearing on the suppression motion and overruled it. ² The defendant contends the arrest warrant for his arrest was invalid and aside from it there was not probable cause for his arrest. He argues the warrant was invalid because the affidavit of the district attorney did not set forth sufficient facts to establish probable cause for its issuance and additionally, the warrant was issued by a deputy court clerk who was neither a neutral nor detached magistrate as required by law. In responding the state urges there was probable cause for the arrest either with or without the warrant.

The following facts were established during the suppression hearing. After being shot, Dedeaux radioed other officers that he needed help, and when assistance arrived on the scene they found Dedeaux lying on the front seat of the patrol car mortally wounded. The lights of the police car were not on and Dedeaux expired without regaining consciousness.

An investigation ensued in which Prentiss Smith, an official of the Harrison County Sheriff's Department, participated. At the time his investigation began Dedeaux' body had been removed but the quest revealed a yellow bicycle with a crescent wrench and key wired to the handlebars, a blue pullover hat on the hood of the police car, and a green "ditty bag." These items were found either on or in the immediate area of the patrol car. Continued canvassing of the neighborhood adjacent to the scene yielded no further clues.

At the request of police officials, a picture of the bicycle found at the scene was displayed on local television. In response to it, Jimmy Moore contacted Officer Smith at about 1:30 p.m., June 8, 1979. Smith was informed by Moore that he and Cyril Lindsey, a companion, had been watching television and recognized the bicycle as that of Lanier. Moore explained that he and Lindsey worked at the same company with Lanier and saw him ride the bicycle to work on Thursday morning, June 7. Moore and Lindsey were brought to the police station and identified the bicycle as that of At approximately 5:00 p.m. on June 8, Officer Prentiss Smith, who had previously participated in the investigation, served the arrest warrant by informing Lanier that he had a warrant for his arrest. The warrant was served upon Lanier at his grandmother's home at which time he was informed of his "Miranda rights" by Officer J.D. Cook. When asked if he understood these rights Lanier responded that he did.

Lanier. Moore and Lindsey also stated they had observed Lanier carrying the ditty bag and wearing the watchcap. These identifications linked Lanier to the homicide. The district attorney was informed of these facts and they formed the basis for the ensuing affidavit and arrest warrant.

We are of the opinion that the arrest warrant was invalid because the deputy clerk had no authority to issue it. He was neither a judge nor a conservator of the peace as defined by Mississippi Code Annotated, Secs. 99-15-3 and 99-15-5 (1972). Moreover Mississippi Code Annotated, Sec. 9-9-27 (1972), provides that, "... any reputable citizen may make an affidavit charging crime before the judge of the county court, and such affidavit shall be filed with the clerk of the county court ...," indicating as do the previous sections that the issuance of an arrest warrant is a judicial function. Nowhere do we find authority for a clerk or deputy clerk to perform such judicial function. See Martin v. State, 190 Miss. 32, 199 So. 98 (1940), and Porter v. State, 135 Miss. 789, 100 So. 377 (1924). The arrest warrant was invalid.

The state nevertheless contends that Lanier's arrest was justified pursuant to Mississippi Code Annotated, Sec. 99-3-7 (1972) and Mississippi Uniform Criminal Rules of Circuit Court Practice 1.02 as a warrantless arrest because the arresting officer knew a felony (homicide) had been committed and reasonable grounds to believe the person arrested had committed it. As mentioned the arresting officer had participated in the investigation and had knowledge of the facts then known by the authorities. While it is true in making the arrest the officer stated that he had "a warrant" for such, we do not think this invalidates the arrest if the officer then had knowledge of facts sufficient to constitute probable cause for a warrantless arrest. See United States v. Mahoney, 712 F.2d 956 (5th Cir., 1983), and Powell v. State, 394 So.2d 326 (Miss.1981), wherein this Court discussed the requirement of probable cause:

In Evans v. State, 275 So.2d 83 (Miss.1973), p. 85, in quoting from a United States Supreme Court decision, we stated:

"The Court pointed out in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948):

'In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (338 U.S. at 175, 69 S.Ct. at 1310, 93 L.Ed. * * * at 1890).'

"It has been said that ordinarily, when the trustworthy evidence makes it clear that an offense has been committed * * * and then available evidence makes it reasonable to infer that the particular person not necessarily was, but may have been, one of the offenders, most discreet and prudent men would order that person's arrest." 394 So.2d at 328.

See also Jones v. State, 358 So.2d 414 (Miss.1978).

In Rome v. State, 348 So.2d 1026, 1027 (Miss.1977), we stated that "probable cause means more than bare suspicion, but does not necessarily require sufficient evidence to support a criminal conviction." To the same effect see Powe v. State, 235 So.2d 920 (Miss.1970).

Officer Smith had knowledge that a homicide had been committed. The critical issue is whether there was sufficient evidence to create a reasonable probability that Lanier had committed the homicide. A brief return to the scene of the crime might be helpful. When the Gulfport officers We conclude the officer had probable cause to make the arrest without a warrant. Moreover, if it be assumed arguendo, that probable cause did not exist for either the issuance of the arrest warrant or the arrest, this does not of itself necessarily invalidate the subsequent confession. In Butler v. State, 296 So.2d 673 (Miss.1974), we held:

responded to Dedeaux' distress call they found a police car with Officer Dedeaux lying near death in it with his service revolver on the ground. They also found a yellow bicycle, a blue cap, a green ditty bag and nine .22 calibre shell casings in the immediate vicinity. Later in the day they received...