Mitchell v. State, 89-KA-0409

• Decision Date: 01 October 1992
• Docket Number: No. 89-KA-0409,89-KA-0409
• Citation: 609 So.2d 416
• Parties: Daries Frank MITCHELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 416

609 So.2d 416

Daries Frank MITCHELL v. STATE of Mississippi.

No. 89-KA-0409.

Supreme Court of Mississippi.

Oct. 1, 1992.

Rehearing Denied Dec. 31, 1992.

Bobby Garraway, Bassfield, William L. Ducker, Purvis, Daries Frank Mitchell, Pro Se, Leakesville, for appellant.

Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PITTMAN and McRAE, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Daries Frank Mitchell was indicted, tried and convicted of armed robbery in the Circuit Court of Pearl River County, Mississippi. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections and has appealed to this Court, presenting five issues for decision.

FACTS

On May 21, 1986, between 1:00 and 1:30 p.m., a lone gunman entered the First National Bank of Picayune in Picayune, Pearl River County, Mississippi. Mae Smith, the After she gave the money to the gunman, Smith was ordered to go down the steps leading to the kitchen and stay there. The ladies were unable to call the police from the kitchen phone but did call the main branch office, which notified the police of the robbery. An accounting of Smith's cash drawer showed $2,582.00 missing. At the time of the robbery, the bank's video camera was not working, so no pictures of the gunman were obtained. Smith described the gunman as six-feet one inch tall, weighing around 240 pounds, wearing a tan jacket, work pants, and tan boots. She stated that the gunman had very large hands and was dark complected, as if he worked outdoors. She described his voice as very coarse. She did not see the vehicle that was used in the robbery, but did say that she heard a car outside, which "sounded real rough."

branch manager, and Linda Mitchell were the only employees present at the time of the robbery. When the masked gunman entered the bank, Mae Smith was standing behind a teller window while Linda Mitchell was in the kitchen. The gunman proceeded to pull a gun out of his pocket and told Smith "Lady, I want your money. I want large bills". Frightened, Smith complied with his demands and put the money from the cash drawer into a white cloth bag which the gunman had given her. Included in this money were both "bait money" and a dye pack containing tear gas. The "bait money" consisted of ten (10) five dollar bills, whose serial numbers were recorded with the bank.

Smith was unable to forget the gunman's voice, knowing that she had heard it before. It was not until two days later, while relaxing in her bathtub, that she remembered and recognized the gunman's voice as that of Daries Frank Mitchell, who is known as "Bing." Ms. Smith contacted the police the next day to relay this information. Smith testified that she recognized the appellant's voice because when she worked at the main branch years earlier, she would handle all of his transactions. She stated that they would often drink coffee together when he was in town between jobs. Although only seeing the appellant twice in the last six years due to her promotion to branch manager, Smith stated that she recognized his distinct voice. Once Mae Smith identified the gunman's voice, the police began a search for the suspect, D.F. "Bing" Mitchell as well as a green Chrysler automobile seen fleeing the bank.

On the day of the robbery, Tommy Davis was working at a construction site next to the bank. Davis was riding in a pick-up truck on his way to lunch when he noticed something suspicious when they passed the bank. He saw a man leaving the bank who appeared to stick something under his jacket while walking to his car. At that time, Davis made the comment "he just robbed the bank" to the other two workers in the truck. Having observed the man for about five seconds, Davis described him as about six-feet two, 250 pounds, blond hair and with a mustache. The man proceeded to get into his car and immediately pull out into the street, narrowly missing another motorist. The car, by coincidence, pulled out directly behind the truck in which Davis was riding.

Davis testified that he turned around and viewed the driver of an early 1970's green Chrysler which was traveling about fifteen feet behind him. The close proximity enabled Davis to get a good look at him. The driver of the truck, in which Davis was riding, slowed down to have the driver of the green Chrysler pass so he could get the car's tag number. However, the man refused to pass, and after about thirty seconds veered off onto another road. Upon seeing police cars outside the bank while returning from lunch, Davis stopped and gave the police his information.

Sherry Hoover, the manager of "Bogie's", a lounge at the Ramada Inn in Slidell, Louisiana, testified that "Bing" Mitchell was at the lounge on Friday afternoon and evening, May 23, 1986; that Mitchell had been in the lobby lounge earlier that day but entered "Bogie's" around 5:00 p.m. when it opened; that Mitchell was visibly intoxicated and dropping money all on the floor; that Hoover and Tonja Mallory, a cocktail waitress, who was dating Mitchell Hoover testified that the only time Mitchell's money was touched in the register was to give him $50.00 later on that evening. When "Bogie's" closed at 1:00 a.m., Hoover counted the money out to Tonja Mallory in the presence of Mitchell. At that time, Tonja Mallory took two $100 bills from Mitchell's money, while in his presence, as payment for typing that she was doing for Mitchell. Both Hoover and Mallory stated that Mitchell was served Cokes, 7-UP's, and coffee in an effort to sober him up because he appeared intoxicated when he first came into the lounge. Hoover resumed serving Mitchell alcohol towards the end of the evening.

at that time, picked up Mitchell's money for him; that fearing he would either spend it all or lose it, Hoover and Mallory got the money, counted it, wrapped it in a napkin with Mitchell's name, wrote the total amount on it, and put it in a separate slot in the register; that the total amount of the money put into the register was $1,350.00 and they left $30.00 out to allow Mitchell to buy drinks.

Butch Jacobs, a Slidell policeman who also worked security for the Ramada Inn while off duty, worked in the lounge that night, following his 4-12 p.m. shift with the police department. Earlier that day, Jacobs was informed by his superiors that members of the Picayune Police Department were investigating a suspect who frequented the hotel lounge. Officer Jacobs saw the undercover policemen in the lounge that night, but avoided them, since they were observing Mitchell. At closing time, Officer Jacobs told Hoover that he was involved in an investigation and he needed to see the night's receipts from the lounge. The search of the receipts produced one $10 bill and two $5 bills with red dye on them. Issuing the manager a receipt, Officer Jacobs confiscated the bills as evidence. The serial number of one of the $5 bill's corresponded to the list of "bait" money bills that were reported stolen from the First National Bank of Picayune.

After obtaining the money from the Ramada Inn Lounge, Officer Jacobs followed Mitchell and his girlfriend Tonja Mallory to City Lights, another bar which is several hundred feet outside the city limits of Slidell. Since the bar was outside of his jurisdiction, Officer Jacobs called Detective Randy Caire of the St. Tammany Parish Sheriff's Department. While waiting for Detective Caire, Officer Jacobs observed Mitchell and Mallory leave the bar and return to room 116 at the Ramada Inn. Upon Detective Caire's arrival, Jacobs, Caire, and Picayune policeman Lee Holcomb proceeded to City Lights and asked the manager to show them that night's receipts. An inspection revealed four $10 bills tainted with red dye. Although none of the serial numbers matched the "bait" money, the bills were confiscated and a receipt was given to the manager.

Officer Jacobs called his sergeant, Joe Triolo, and informed him of the events. When Sergeant Triolo arrived at the Ramada Inn, the officers discussed the possibility of obtaining a search warrant. However, due to the early morning hour, they decided that they would try to get Mitchell to consent to a search of his room.

After several unanswered knocks on the door, Officer O'Neal went to the front desk where he instructed the operator to call room 116 and tell the occupants that the police were outside their room. Soon after, Mitchell answered, peering through a chained door. Officer Jacobs, who knew Mitchell from working security at the hotel, identified himself to Mitchell and asked him if he could talk with him. Officer Jacobs was told to "go away". However, when Officer Jacobs told Mitchell that he needed to speak with him concerning a bank robbery in Picayune, Mississippi, Mitchell responded "wait a minute", unlocked the door and came outside. Mitchell was given his Miranda rights and told he was not under arrest, but that the officers had some questions for him. After Mitchell told the officers that he was not armed, and had no firearms in the room, the conversation between them relaxed.

Officer Jacobs asked Mitchell to sign a consent form which would allow the officers to search his room and car. Mitchell contended that he never signed the consent Once Mitchell's consent was received, Officers Jacobs, Triolo, and Caire went inside the room. When Mitchell was asked if he had any money on him, he responded by pulling three $5 bills tainted with red dye out of his pants pockets. After Mitchell told the police that was all the money he had, Tonja Mallory stated that she had some money that Mitchell had given her earlier and she voluntarily retrieved her purse. An inspection of the two $100 bills which Mitchell had given her revealed the presence of red dye. Tonja stated that the rest of Mitchell's money was in the glove box of her car which was parked outside. She and Mitchell had...