Moore v. State, 2005-KA-00610-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Dickinson, Justice
• Citation: 933 So.2d 910
• Parties: Charles MOORE, Jr. v. STATE of Mississippi.
• Docket Number: No. 2005-KA-00610-SCT.,2005-KA-00610-SCT.
• Decision Date: 27 April 2006

933 So.2d 910

Charles MOORE, Jr. v. STATE of Mississippi.

No. 2005-KA-00610-SCT.

Supreme Court of Mississippi.

April 27, 2006.

Rehearing Denied July 27, 2006.

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Lori Nail Basham, attorney for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

Before SMITH, C.J., CARLSON and DICKINSON, JJ.

DICKINSON, Justice, for the Court.

¶ 1. Following his conviction of Aggravated Assault, Burglary of a Dwelling, and Rape, Appellant presents three suggestions of error for our careful review. The first is whether he knowingly and voluntarily waived his Miranda¹ rights and his right to refuse a search of his home. The second is whether evidence collected from his home after he was arrested (allegedly without a warrant) on an unrelated charge should be excluded as "fruit of the poisonous tree." The final issue raised is whether the convictions were against the overwhelming weight of the evidence.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Sometime around 4:30 p.m. on June 21, 2003, Charles Moore, Jr., ("Moore") unsuccessfully attempted to call the home of his friend Chris Parker ("Parker"). At 5:00 p.m., Moore reached Parker on his cell phone. Parker informed Moore that he was in Atlanta and would be staying overnight. That evening at 10:30 p.m., Moore, Shane McCowin ("McCowin") and Andy Vail ("Vail") arrived at a club in Tupelo and started drinking heavily. After the club closed at 2:00 a.m., the three men and two women from the club went to Vail's trailer where they drank for approximately two hours. Moore left at 4:30 a.m. and claims he drove to his home in Fulton, Mississippi, sat in his car for half an hour drinking whiskey and smoking cigarettes, and then went to bed.

¶ 3. On that same evening, L.D.T. ("the victim" or "L.D.T."), spent the night at Parker's house where two of her friends, Jennifer Bass ("Bass") and Janie Goff ("Goff") were babysitting Parker's children. At approximately 2:30 a.m., L.D.T. went to bed on the living room couch. Some time around daylight, she was awakened by someone who was suffocating her. Her attacker was saying, "Die, bitch, die." When L.D.T. clawed her attacker's neck, the man stabbed her with an unidentified tool on both sides of her neck. The attacker told her he would kill her and the children in the house if she continued resisting. The man then vaginally and anally raped L.D.T., often talking to her during the attack.

¶ 4. When the attacker grabbed L.D.T.'s throat from behind to facilitate penetrating her orally, his hand slipped on the blood. He slammed L.D.T. onto the couch, recovered her with the comforter, and told her that if she peeked out from beneath the covers, he would kill everyone in the house. The attacker then left.

¶ 5. Bass and Goff drove L.D.T. to the hospital where the medical staff treated her stab wounds and prepared a rape kit. The Mississippi Crime Laboratory later tested the seminal fluids found on vaginal swabs from L.D.T., but the findings were inconclusive as to whether Moore was the source. L.D.T. was discharged from the hospital that evening.

¶ 6. When law enforcement officers found a phone number on Parker's caller ID which indicated a June 21, 2003 call from Moore's phone, they questioned Moore on the evening of June 22, 2003. Eight days later, Officer Scotty Reedy ("Officer Reedy") and Officer Truman Carter ("Officer Carter") arrested Moore at his workplace on a misdemeanor warrant for a bad check written in 1996. The officers drove Moore to his house, had Moore sign a consent to search form, and retrieved a set of clothes and a belt from Moore's bedroom. The Mississippi Crime Lab later conducted DNA testing on blood found on this belt and determined the stains were uniquely consistent with L.D.T.'s blood.

¶ 7. Upon completion of the search, the officers transported Moore to the Lee County Sheriff's Department and booked him on the bad check charge. In the initial interview with the officers at the station, Moore signed a paper waiving his Miranda rights, but he made no confession. Although Moore provided a statement during a second interview in which he admitted raping L.D.T., he now argues he was simply repeating information about the rape told to him by his friends McCowin and Vail. Moore claims he confessed only because Officer Terry Jones ("Officer Jones") threatened him after he gave the first statement.

¶ 8. On February 4, 2005, a Lee County jury found Moore guilty of Aggravated Assault, Burglary of a Dwelling, and Rape. He was sentenced to serve twenty years on the aggravated assault conviction, ten years on the burglary of a dwelling conviction, and forty years on the rape conviction, with the three sentences to run consecutively. Following denial of his Motion for Judgement of Acquittal JNOV or in the Alternative for a New Trial, Moore timely filed this appeal.

DISCUSSION

I. Whether the trial court improperly denied Moore's motion to suppress evidence.

¶ 9. In reviewing the denial of a motion to suppress, we must determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence. Price v. State, 752 So.2d 1070(¶ 9) (Miss. Ct.App.1999) (citing Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986)). Where supported by substantial credible evidence, this Court shall not disturb those findings. Ray, 503 So.2d at 223-24.

1. Legality of the Misdemeanor Arrest

¶ 10. Moore argues that, at the time of the search, he was in custody following an illegal arrest. As such, he argues, any evidence collected during that search was "fruit of the poisonous tree" and should have been suppressed.

¶ 11. Officers Reedy and Carter, who claim they had a warrant, arrested Moore on a misdemeanor charge of writing a $4.19 bad check to Wal-Mart in 1996. The officers discovered the outstanding warrant by running Moore's name through the Justice Court database. The officers went to Moore's place of employment and informed him that he was being arrested on a warrant for a bad check. After arresting Moore, the officers transported him to his apartment where the search took place.

¶ 12. On January 10, 2005, Moore filed a Motion to Compel Discovery in which he requested a copy of the misdemeanor warrant. At a January 28, 2005, pre-trial hearing, Moore again requested that the State produce the original misdemeanor arrest warrant. The Justice Court file included an Affidavit, a copy of the $4.19 check to Wal-Mart, a computerized arrest form, and a disposition sheet — but no warrant. Because the State could not produce a copy of the misdemeanor warrant upon request, Moore claims that under Mississippi Code Annotated Section 99-3-7(1) and (2) (1972), his arrest was illegal. Section 99-3-7 provides:

(1) An officer or private person may arrest any person without a warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable grounds to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrest without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.

(2) Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person's arrest. In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor. If the person arrested so requests, the warrant shall be shown to him as soon as practicable.

Miss.Code Ann. § 99-3-7(1) and (2) (1972) (emphasis added).

¶ 13. The statute clearly requires a warrant for the misdemeanor arrest. Thus, the Circuit Court was presented with a question of fact, that is, whether the officers had a warrant when they arrested Moore. The fact that the warrant could not later be produced is not conclusive proof that no warrant existed, nor does it necessarily mean the officers were not in possession of the warrant when they arrested Moore. See Torrence v. State, 283 So.2d 595, 597 (Miss.1973).

¶ 14. The Circuit Court was required to weigh the evidence that no warrant existed against other evidence that it did. Moore claims he never saw a warrant, and, when requested in discovery, no warrant could be produced. On the other hand, the officers testified they had an arrest warrant in their possession at the time of the arrest. According to Officer Reedy, after running a routine check of the Justice Court database, he located the physical misdemeanor warrant for Moore in the police department's file at the jail. Officers Reedy and Carter claim that, with warrant in hand, they went to Moore's workplace, informed him he was being arrested because of the bad check, and showed him the actual warrant.

¶ 15. Additionally, the Justice Court file included a Justice Affidavit concerning the bad check charge, a copy of the $4.19 check signed by Moore and issued to Wal-Mart, and a computerized arrest form. The arrest form indicated in two places that a warrant had been issued for Moore's arrest on the bad check charge. This evidence, along with the testimony of Officers Reedy and Carter, constitutes substantial credible evidence which supports the Circuit Court's findings.

¶ 16. Poor record keeping does not erase the existence of the warrant. The trial court's denial of Moore's motion to exclude the items seized from his home was supported by substantial credible evidence, and we will...