Nealy v. State, 50165

• Decision Date: 01 February 1978
• Docket Number: No. 50165,50165
• Citation: 354 So.2d 788
• Court: Mississippi Supreme Court
• Parties: James E. NEALY v. STATE of Mississippi.

Page 788

354 So.2d 788

James E. NEALY v. STATE of Mississippi.

No. 50165.

Supreme Court of Mississippi.

Feb. 1, 1978.

Richard E. Burdine, Columbus, for appellant.

A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, ROBERTSON and LEE, JJ.

SMITH, Presiding Justice, for the Court:

James E. Nealy, Wiley Ewing, Jr., and T. L. Cunningham were indicted for capital murder. Nealy was tried separately, and, following his conviction, was sentenced to life imprisonment. He appeals.

The facts and circumstances reflected by the record and relied upon by the State may be summarized as follows:

At about 9:00 on the evening of January 13, 1976, three men robbed the store of Leo Davis. In the course of the robbery they killed Davis. According to testimony of witnesses for the State, these men were Nealy, Ewing and Cunningham. Cunningham entered the store first and engaged the attention of Davis by pretending to wish to make a purchase. As Davis turned away, Nealy and Ewing came in. Nealy was armed with a sawed-off shotgun and Ewing carried a knife. Nealy hit Davis across the face with the gun, knocking him to the floor, and Ewing began stabbing him with the knife. Davis managed to say "Go ahead, get what you want to get." Thereupon Nealy hit Davis across the top of his head with the gun and Ewing cut Davis' throat with the knife.

Ewing extracted two $100 bills from Davis' wallet and Cunningham cleaned out the cash register. They then left the store and returned to Nealy's automobile. They drove to a poolroom and before going in, Nealy put the two $100 bills in the right front hubcap and hid the shotgun. They went in and played a game of pool, staying there about twenty or thirty minutes. When they left, they again got in Nealy's automobile and Nealy drove Cunningham home, then drove himself home where he got out and turned his automobile over to Ewing in order that Ewing might drive home.

Next day, in the course of their investigation of the robbery, the Clay County Sheriff and two of his deputies, accompanied by a member of the Mississippi Highway Patrol, went to Ewing's home. Nealy was there. One of the deputies found the bloody clothes and boots Ewing had worn the night before. Ewing asked one of the officers if he would drive him down the road in his car. The officer consented, and Ewing and the officer left together and were gone for a short while. Upon their return, the officer asked Nealy if he might search the Nealy automobile. The officer testified, "I asked him, I said I've got some information there is money in the hubcaps of this car, do you mind me looking? He (Nealy) said, 'No, help yourself.' " Whereupon the officers discovered two $100 bills in the right front hubcap of Nealy's automobile. Ewing was arrested but, at that time, he had not implicated Nealy, and Nealy was not arrested until several days later.

Nealy assigns as error, requiring reversal, two alleged errors:

(1) The court erred in permitting the introduction of two one-hundred dollar bills, obtained as a result of an unlawful search and seizure.

(2) The court erred in refusing to force the State to disclose any deal or promise it made with the co-defendant who testified for the State.

The trial court conducted a preliminary hearing upon Nealy's pretrial motion to suppress evidence relating to (1) the two $100 bills found in the hubcap of Nealy's automobile and (2) two shotgun shells found on premises occupied by Nealy. At the conclusion of the hearing, the trial court sustained the motion to suppress as to the shotgun shells and overruled it as to the two $100 bills.

All of the officers present at the time and place of the search of Nealy's automobile testified on the hearing of Nealy's motion to suppress. All four testified that there were no threats or force employed to obtain Nealy's consent to the search. They testified that, at the time of the search, appellant was not under arrest, (one testifying that Nealy was not then a suspect) and that he had voluntarily consented to the search of the hubcaps of his automobile.

Nealy testified in his own behalf at the hearing and denied that he had given Officer Middleton permission to search his car, saving that Middleton had not asked for permission. He also denied that Officer McNeel asked for permission to search. However, he admitted that Officer Hollingsworth had asked for and had been given permission to look inside the car. Nealy testified further that the officers did not force or threaten him in any way and that he had not experienced any feeling of pressure or of influence exerted upon him on account of the presence of the officers. He testified that he had not been arrested or charged with the crime at the time of the search. He also said that he was twenty-four years of age and had ten and one-half years of school.

At the time of the search, Ewing was the object of the investigation. Nealy was not arrested or a suspect. Under the totality of the circumstances the trial court's conclusion that Nealy had consented and that his consent had been freely and voluntarily given meets the requirements prescribed by the United States Supreme Court. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), Cutchens v. State, 310 So.2d 273 (Miss.1975).

Nealy's second contention is that the trial court erred "in refusing to force the State to disclose any deal or promise it made with the co-defendant (Ewing) who testified for the State." To support this contention Nealy appears to rely upon Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

In a pretrial motion styled "motion to Disclose Information" Nealy requested disclosure of the following:

What promises have been made by the District Attorney, his assistants or agents, or any other governmental official or their agents in exchange for the testimony of Wiley Ewing, at trial of this case?

The district attorney responded in writing, answering "none" to the above question as what promises had been made to Ewing for his testimony.

On cross-examination Ewing was interrogated by counsel about the matter:

Q. Have you been told, Wiley, that they would be lighter on you if you testified against Nealy?

A. No.

Q. Has your father or the man your father works for talked to you?

A. No.

Q. He...