Norman v. State

• Decision Date: 28 October 1974
• Docket Number: No. 48096,48096
• Parties: Thomas Edward NORMAN, a/k/a Hekima Ana v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 254

302 So.2d 254

Thomas Edward NORMAN, a/k/a Hekima Ana v. STATE of Mississippi.

No. 48096.

Supreme Court of Mississippi.

Oct. 28, 1974.

Anderson, Banks, Nichols & Leventhal, Jackson, Jonathan Shapiro, Boston, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy and John C. Underwood, Jr., Special Asst. Attys. Gen., Jackson, for appellee.

BROOM, Justice:

A guilty verdict and sentence of life imprisonment resulted from appellant's murder trial in the Circuit Court of the First Judicial District of Hinds County. We affirm.

The chief propositions before us deal with the law pertinent to arrest, search and seizure, admissibility of evidence, sufficiency of evidence to establish a jury issue as to murder, and alleged erroneous cross-examination of defense witnesses.

A 'shoot-out' occurred at a dwelling house at 1148 Lewis Street in Jackson, Mississippi, where officers arrested appellant after he shot Jackson Police Lieutenant Skinner. Approximately thirty FBI agents and city policemen surrounded the house on August 18, 1971 to arrest Jerry Steiner, Henry Hatches, Jesse Nicholson and Larry (last name unknown). The Jackson FBI office received from its Detroit office a teletype that a federal arrest warrant had been issued for Steiner. A confidential informant advised the Jackson FBI that Steiner was seen at the Lewis Street house on August 17, 1971. Arrest warrants for Hatches, Nicholson and Larry had been issued by the Jackson authorities and were in possession of the lawmen.

The armed lawmen were equipped with tear gas guns, bulletproof vests, gas masks, and had available an armored vehicle parked nearby. Shortly after their arrival at the house, FBI Special Agent Sammon, using an electronic megaphone, announced that the lawmen were armed FBI agents and policemen, and had the house surrounded. He also announced that they had warrants for house occupants, and ordered them to come out unarmed within sixty seconds. Then he counted down the time at ten second intervals. When the sixty seconds period expired, Sammon announced that gas would be used if no one came out. After waiting an additional time interval, FBI Agent Linberg gave the order to fire gas into the building. Two FBI agents then fired gas into the house from opposite sides, and the response was gunfire which came from the front area of the house.

Officer Taylor, stationed in front of the house, saw Lieutenant Skinner fall (mortally wounded) immediately following the gunfire from inside the house. The lawmen returned the fire and within twenty minutes or less seven persons (including appellant) came out from under the rear of the house. They were arrested, searched, and asked general on the scene security type questions. After being advised of their rights, they were questioned in detail as further discussed in this opinion.

After shooting tear gas into the house, Officers Agnew, Amann, and Addy entered and found several weapons (including a partially concealed .35 caliber lever action rifle) which they removed. Appellant's fingerprint was found on and removed from the rifle. While inside the house, discovery of what appeared to be two bombs caused the lawmen to delay further search and required a call for the bomb squad to deal with the bombs. The house was kept under constant guard while an army bomb squad came and removed the bomb devices. Officer Copeland then resumed search of the house and found inside various articles subsequently introduced into evidence. From inside he made certain sightings and observations which led to the recovery of a slug and bullet across the street.

Before the raid was made, the FBI had information: That weapons and ammunition were kept at the house by its occupants and that the weapons on occasion had been pointed at police officers; that Steiner was wanted for murder and believed to be dangerous; and, that the 1148 Lewis Street address was headquarters of a black separatist organization, the Republic of New Africa (RNA). After the shooting episode was over, none of the subjects were found there except Larry Jackson, for whom the police had a warrant for assault and battery.

Appellant's version was that he and his wife were simply on an overnight visit at 1148 Lewis Street. He testified that they were abruptly awakened, and that he fired because he 'just generally felt that I was gonna be killed. . . .' Appellant also told the jury that, along with the other occupants of the house, they all surrendered, after which they were abused, gassed, and threatened.

I.

Appellant challenges the admission into evidence of items which were seized by the officers at 1148 Lewis Street. He argues that the seizure was in violation of rights guaranteed him by section 23 of the Mississippi Constitution, and by the Fourth and Fourteenth Amendments to the United States Constitution.

A substantial part of the state's case against appellant was based upon evidence that resulted from a search of 1148 Lewis Street following the arrest of appellant and the other occupants. This search yielded the .35 caliber Marlin rifle upon which appellant's palm print was found (which the state contended was the weapon which fired the fatal bullet), and the two Remington-Peters shell casings from which .35 caliber bullets had been fired. Testimony also resulted from the search that there was no other .35 caliber rifle in the house, that two .35 caliber bullets had been fired from a window in the southeast corner of the house, and that the shots fired from this position had caused two nickel-sized holes in the screen on the porch. Observations made by state's witnesses in the course of the search led directly to the discovery of a bullet in the wall and one on the window-sill of the house at 1143 Lewis Street, one of which was a .35 caliber bullet which the state contended was the fatal one.

Appellant sought by written motion to suppress 'any and all items' seized at the house on August 18, 1971. His motion charged that the items were seized without a warrant in connection with his unlawful arrest. The motion was not properly before the court because appellant did not enumerate or describe or particularize the articles which he desired to suppress as evidence, and he failed to identify the objects at the evidentiary hearing on the motion. In this posture the trial judge properly denied the motion. O'Neal v. United States, 95 U.S.App.D.C. 386, 222 F.2d 411 (1955). Obviously some of the articles of evidence were clearly admissible. For example, the alleged murder weapon (picked up by the officers) was observed and in plain view of the officers during their initial precautionary search of the house. In this situation the trial judge was put in a position which called for the suppression of either all of the articles seized at Lewis Street or none of them. He correctly overruled the motion.

The general rule is that searches conducted without a warrant are unreasonable in the law even though a subsequent assessment of the situation may reveal that there was probable cause for the search. Nevertheless, a search may be made as an incident to an arrest, or items may be seized as a result of a cursory viewing of the area for persons or weapons which might present a security risk to the officers. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Looney, 481 F.2d 31 (5th Cir. 1973); Carlton v. Estelle, 480 F.2d 759 (5th Cir. 1973); Creighton v. United States, 132 U.S.App.D.C. 115, 406 F.2d 651 (1969); Hall v. State, Miss., 288 So.2d 850 (1974). In the case before us, the .35 caliber lever action rifle was seized during the officers' initial inspection of the house and was admissible as an exception to the general rule. Harris, supra; Looney, supra; Carlton, supra; Hall, supra. As said in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Fourth Amendment does not require a police officer to delay in the course of an investigation if to do so would gravely endanger his life or the lives of others.

Several of the items in controversy here were not seized by the officers when they initially entered the house, but were seized sometime later that day after the subjects had been arrested. Ordinarily, a subsequent reentry and seizure of items after the lapse of unreasonable time renders such items inadmissible in evidence. However, in this case, the delay was occasioned by discovery of bomb devices, at which time the search was not completed until the bomb squad came and removed the bombs. While waiting for the bomb squad, officers maintained a status quo by keeping the house under constant guard and surveillance. Then the search incident to the arrest was completed and other evidentiary items taken. There was not shown any unreasonable lapse of time between the arrest of the appellant (and the immediate search incidental to the arrest), and completion of the search after removal of the bombs. The final portion of the search after reentry was merely a continuation of the original search, and cannot be considered unreasonable in any legal sense. Voss v. State, 198 Tenn. 135, 278 S.W.2d 667 (1955), cert. denied, 348 U.S. 965, 75 S.Ct. 526, 99 L.Ed. 752 (1955). Our holding here is not in conflict with our decision rendered in the case of Page v. State, 208 Miss. 347, 44 So.2d 459 (1950). In the present case none of the evidence seized on the following day, August 19, 1971, was offered or placed in evidence against the appellant.

As stated by the court in Pendergraft v. State, 213 So.2d 560 (Miss.1968), appeal dismissed, 394 U.S. 715, 89 S.Ct. 1453, 22 L.Ed.2d 671 (1969), investigating officers 'would have been derelict in their duty if they had not been alert and observant in investigating' a homicide, and it was their duty to follow 'up every lead they ran across.' The question of whether a search is reasonable cannot be determined by any fixed formula and the Constitution does not...