Miller v. State, 45773
| Decision Date | 13 April 1970 |
| Docket Number | No. 45773,45773 |
| Citation | 234 So.2d 297 |
| Parties | Lynda MILLER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Albert S. Johnston, III, Pascagoula, for appellant.
A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Wade H. Creekmore, Jr., and James H. Creekmore, Special Asst. Attys. Gen., Jackson, for appellee.
This is an appeal from a judgment of the Circuit Court of Jackson County wherein Lynda Miller was found guilty of attempted kidnapping and sentenced to serve ten years in the state penitentiary. She assigns and argues the following for reversal.
1. The trial court erred in overruling the appellant's motion for a directed verdict on the defense of entrapment.
2. Appellant was denied due process of law in that her Fifth and Fourteenth Amendment rights under the United States Constitution was violated when the State failed to correct its chief witness's false testimony, such testimony being essential to the conviction of the appellant.
3. The trial court erred when it refused appellant's motion for a new trial on newly discovered evidence.
The State's witnesses were James Files, an agent of the Federal Bureau of Investigation, Charles Barber, the Chief of Police of Moss Point, Houston 'Sonny' Evans, an accomplice, Ben D. Navarette, the Sheriff of Jackson County, John J. Whitehead, Jr., the husband of the intended kidnap victim, and Matt Cox, Chief Deputy of the county.
The testimony of James Files was that he received a telephone call about six o'clock on the evening of March 16, 1969, advising him a kidnapping was to take place in Pascagoula the following day. He did not know the intended victim, but was given the name of Leo Miller as the person who was to carry out the plot. This name was passed on to the Chief of Police of Moss Point.
Chief Barber testified that he received a call on the night of March 16 from Files regarding a planned kidnapping. He was given the names of Leo Miller and Sonny Evans as the kidnapping conspirators. The following morning he obtained a warrant for Miller's arrest on a bad check charge. He testified that upon arriving at Miller's hohe he was advised by Miller's wife, the appellant here, that Miller was away in New York, but after conducting a search of the residence, he found Miller hiding under the insulation in the attic, whereupon he arrested and incarcerated him in the city jail. Chief Barber stated that several times during the course of the day the appellant talked with her husband in the jail. Meanwhile he was advised by Evans that the defendant intended to go through with the kidnap plot even though her husband was incarcerated. Chief Barber also testified that he learned that Mrs. John Whitehead, Jr., was the intended kidnap victim and was later in a conference with the district attorney and others in which Evans was requested by the officials to go along with the plot.
The next morning, prior to the time the kidnapping was to occur, Barber concealed himself in the woods near the home of Whitehead. Shortly thereafter, an automobile driven by Sonny Evans, who was accompanied by the appellant, came into the driveway and stopped in the carport, whereupon the defendant and Evans got out of the car and knocked on the door of the residence. It was immediately opened by Sheriff Navarette and the appellant and Evans were arrested.
Houston 'Sonny' Evans testified the appellant was present and participated in the planning of the kidnapping prior to Miller's arrest, the details of which were that the witness and Miller were to go to the Whitehead home the next morning after Mr. Whitehead and his children had departed for work and school. Upon entering the home they would seize her, tape her hands and mouth and then place her in one of the Whitehead automobiles and transport her to a designated area where she would be shot. Miller would then call the victim's husband and direct him to bring the ransom money to them at the Alabama-Mississippi state line. When this was done, Miller and the witness would then fly from Mobile, Alabama to Chicago or New York with the money where it would be exchanged for other money in case the serial numbers of that obtained had been recorded. Thereafter, the proceeds would be sent to the appellant so that she might pay Miller's debts.
That night, however, according to Evans, he contacted the Federal authorities and told them of the plan, thereby disrupting it. Later, however, when the appellant and Evans visited Miller in the Moss Point jail, the appellant told him that she intended to go through with the plan since that was the only way she could secure her husband's release. He thereupon informed Chief Barber that the appellant intended to follow through with the plot.
Subsequently, Evans attended a meeting of law enforcement officials in the office of the district attorney. After conferring, it was determined that the Whitehead family should be moved from their home and that the sheriff and other law officers would wait at the house or nearby for the appellant and the witness to carry out their plan.
The following morning, according to Evans, he called for the appellant at her house and they proceeded toward the Whitehead residence. As they approached she suggested that they go by the office of the victim's husband to see if his car was there. However, after proceeding some two or three blocks, it was decided that since the car of Mr. Whitehead was not at the house they might as well return and complete their mission. They then drove to the Whitehead residence, got out of the automobile, and both Evans and the appellant knocked on the door at which time it was opened by the sheriff and they were arrested.
On cross-examination the witness was interrogated with regard to his release under bond which is significant on both the question of reversal as well as on motion for a new trial.
'A. $5,000.00.
On redirect examination by the district attorney the witness Evans was asked:
Sheriff Navarette, the next witness, testified that he first became aware of the plan on the evening of March 17 and that he was in conference with the district attorney and others concerning the matter. The following day he and Chief Deputy Cox secreted themselves in the Whitehead home. Thereafter, at about 8:30 a.m., the vehicle driven by Evans, who was accompanied by the appellant, approached the Whitehead home, decreased its speed, and drove on, but later returned and came into the carport, whereupon Evans and the defendant alighted, came to the door and knocked. He opened it and immediately arrested and searched the defendant and took from her purse a loaded and cocked .32 caliber pistol.
On cross-examination he testified that Evans was requested to go through with the kidnap plan, but that Evans was promised no immunity.
Whitehead testified that he was advised by the authorities that he and his wife were the intended victims of a kidnap plot. He thereafter conferred with the law enforcement officers with regard thereto, and the following morning he removed his wife and children from the home, leaving the officers to apprehend the conspirators.
Chief Deputy Cox's testimony was virtually that of the sheriff except it was his testimony that the knock at the door was that of the defendant rather than Evans. He then explained, upon questioning, that they both knocked on the door.
Leo Miller, defendant's husband, testified that only he and Evans made plans for the kidnapping and that his wife was totally unaware of it. He additionally testified that while he was in jail, he advised his wife not to do anything that Evans might ask of her. He admitted on cross-examination that he had pled guilty to a charge of conspiracy to kidnap during the term of court.
The defendant gave evidence in her own behalf. She denied any knowledge of the plan. She admitted visiting her husband while he was in jail, but denied telling Evans that she intended to go through with the plan. She testified that Evans called her the following morning and requested her to don a wig and accompany him on a drive, but that she did not know its purpose. She further stated that she complied with Evans' request and explained that she wore the wig since she did not feel it becoming for her to be riding in an automobile with Evans while her husband was confined in jail and that she did not desire to be recognized. She also testified that she did not obtain the pistol, explaining that Evans obtained it from a drawer...
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