Luton v. State

• Decision Date: 17 December 1973
• Docket Number: Nos. 47568 and 47569,s. 47568 and 47569
• Citation: 287 So.2d 269
• Parties: L. J. LUTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 269

287 So.2d 269

L. J. LUTON v. STATE of Mississippi.

Nos. 47568 and 47569.

Supreme Court of Mississippi.

Dec. 17, 1973.

Rehearing Denied Jan. 14, 1974.

James T. Bridges, Belzoni, for appellant.

A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., and Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

BROOM, Justice:

On February 8, 1973, the appellant Luton was indicted for burglary of a retail establishment known as 'The Bird Cage.' The indictment was numbered 2062. On the same date another indictment numbered 2063 was returned charging him with the offense of burglary of an establishment known as 'C. R. Anthony Company,' a corporation. The indictment and trials transpired in the Circuit Court of Humphreys County. Cause No. 2063 was the first to be tried. Appellant was found guilty and sentenced to a term of five years in the state penitentiary. Next he was tried in Cause No. 2062, found guilty and given an identical sentence which would run consecutively with the sentence imposed in Cause No. 2063. The two causes are consolidated by agreement on this appeal. We affirm.

The only issue before us is the contention that there was erroneously admitted into evidence fruits of a warrantless, unconstitutional and illegal search of appellant's automobile.

On January 13, 1973, two business houses in Belzoni, Mississippi were burglarized. One was the retail store 'C. R. Anthony Company, Inc,' and the other was an art and gift shop called 'The Bird Cage.' Mrs. Hughes, Manager of C. R. Anthony Company, Inc., upon the opening of Anthony's for business, discovered that it had been burglarized and merchandise misarranged. On the floor she discovered a payroll 'check stub' with appellant's name thereon. She called Officer Jones of the Belzoni Police Department, who detected that the payroll 'check stub' was from the Standard Transformer Company, the employer of the appellant. Officer Jones enlisted the assistance of Deputy Sheriff Dalton, and the two officers went to the justice of the peace where they formally charged the appellant with burglary of Anthony's. They were issued an arrest warrant for Luton and went to the Middle South Transformer Company in order to arrest him.

According to the testimony of the officers, they arrested the appellant inside the plant of his employer, where he was searched on the spot for weapons. In making this search of his person, they found some small items of merchandise. Subsequently and without any warrant they searched the appellant's automobile on a nearby parking lot.

Prior to the trial on the merits, the appellant filed in each case a 'Motion to Suppress Evidence.' The trial court conducted (in the absence of the jury) an evidentiary hearing on said motion, the two cases being consolidated for the hearing. The motion to suppress the evidence was overruled. Separate trials were conducted on each charge. At each trial the fruits of the warrantless search of the trunk of appellant's automobile were allowed to be considered by the jury. By this means appellant was connected with the burglaries. All of this evidence was objected to in the proper manner by the appellant, whose objections were overruled.

In order to preserve legal points related to the admissibility of the evidence, the appellant made timely objections, moved for a directed verdict, requested a peremptory instruction, moved for a judgment notwithstanding the evidence, and made the proper motion for a new trial, all of which were overruled by the trial court. Then appellant requested the consolidation of both cases upon this appeal and stated in his brief that the assignments of error are all based upon the failure of the trial court to suppress the evidence obtained by the warrantless search of his automobile.

The appellant contends that the warrantless search was unreasonable, without probable cause, without consent of the appellant, and not as an incident to a lawful arrest. He says that he was thereby deprived of rights and privileges guaranteed him by the Fourth Amendment of the United States Constitution and by section 23 of the Mississippi Constitution of 1890.

Both officers who investigated the two burglaries testified that appellant was arrested pursuant to a valid arrest warrant, searched, taken outside and advised of his rights. Their testimony further indicates without equivocation that appellant, while under arrest, in answer to the request of Officer Jones, gave permission for the officers to search his car. It was also testified to by the officers that they took the appellant to his car where the keys were removed and given to the appellant, after which he opened the trunk of the car which resulted in identification and confiscation of merchandise stolen in the burglary. Other testimony of the officers was to the effect that they advised appellant 'you have the right to remain silent; anything you say can and will be used against you in a court of law; you have whe right to have an attorney with you while you are being questioned; if you can't afford to hire an attorney one will be appointed to represent you . . ..' Testimony indicated that Officer Dalton advised the appellant of his rights, by reading them from a card, before appellant consented to the search.

At the evidentiary hearing the appellant testified in his own behalf and categorically denied that he was advised of his rights before the search. He also denied that he consented to the search but indicated that he opened the trunk of the car upon the direction of the officer without consenting in any manner.

After hearing the testimony of the officers who arrested the appellant and made the search, and after hearing the appellant himself testify, it was the finding of the trial court that 'this defendant freely and voluntarily gave his consent for his automobile to be searched, and I therefore find that the search of the automobile was lawful, and the motions to suppress will be overruled.'

Clearly in this case the appellant followed the requirements of our decision in Henry v. State, 253 Miss. 263, 154 So.2d 289, 174 So.2d 348 (1965), wherein the court approved the testing of the admissibility of evidence by a motion to suppress after indictment and prior to the trial. It was ruled in Canning v. State, 226 So.2d 747 (Miss.1969) that those who assert an affirmative defense have a burden to establish their thesis, and that the burden is upon the state to show that search and seizure of property (admitted into evidence) were done lawfully.

The record here clearly shown that there was presented to the court adequate testimony of the arresting officers that they read to the appellant his rights as defined in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This was done before the search of the automobile. The only two officers present at the time of the arrest appeared and testified during the trial. We are of the opinion that the requirements set forth in Jenkins v. State, 214 So.2d 470 (Miss.1968) were complied with and that there was ample testimony before the court to justify the finding of the court that the 'accused understood that he could avail himself of these rights, without or prior to or during the course of any interrogation by the officers.' There was adequate testimony before the court to establish that the appellant was lawfully arrested for the offense of burglary. Also, the evidence made an issue of fact as to whether or not the appellant voluntarily consented to the warrantless search of his automobile.

As held in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d...