Polk v. State, 90-KA-0308

• Decision Date: 31 December 1992
• Docket Number: No. 90-KA-0308,90-KA-0308
• Citation: 612 So.2d 381
• Parties: Willie James POLK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 381

612 So.2d 381

Willie James POLK v. STATE of Mississippi.

No. 90-KA-0308.

Supreme Court of Mississippi.

Dec. 31, 1992.

Clarence Whitaker, Vicksburg, for appellant.

Michael C. Moore, Atty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and PITTMAN and ROBERTS, JJ.

HAWKINS, Presiding Justice, for the Court:

Following a change of venue from Claiborne County, Willie James Polk was convicted in the circuit court of Warren County of the murders of Mary Belle Simmons and Georgia Mae Thomas and sentenced to two consecutive terms of life imprisonment. On this appeal we address the validity of a search warrant, speedy trial, and admissibility of DNA identification. Finding no error, we affirm.

FACTS

On February 12, 1989, around 5:30 p.m., Freddie and Dorothy Alexander went to the Port Gibson Police Department and asked an officer to accompany them to 1413 Vine Street, where Mrs. Alexander's mother lived with one of Dorothy's sisters. The Alexanders had been unable to get a response from Mary Belle Simmons or her daughter, Georgia Mae Thomas, by knocking on the door, and the front door of the house was apparently locked. All the curtains in the house, which usually were open, were closed.

Police Officer Willie Hamberlin returned to the Vine Street house with the Alexanders. This time they found the front door unlocked, and upon entering, they found the partially nude bodies of the two women. Blood was on the bodies, floor, and several large knives nearby. While they were in the front of the house, they heard a noise toward the back as if someone else was there.

Hamberlin called his chief, Buddy Miller, and the Claiborne County Sheriff's Department. The officers saw that the screen on the back porch had been torn or cut, and one side pulled loose, leaving a hole large enough for someone to go through.

Tracks led from behind the house down to a bridge which spanned a creek. Tracks were found both going into and coming out of the water. The tracks led from the back of the Thomas house to the creek and across the creek to a point near Polk's house. Port Gibson Mayor James Beesley suggested getting bloodhounds, and dogs were brought in and did follow the trial. However, no reference to their actions was admitted at trial.

A crowd gathered at the Thomas home, and Mayor Beesley talked with some of the family members in an attempt to calm things down. The mayor left around nine o'clock, after telling Chief Miller that he would sign a warrant when they felt that The officers learned from neighbors that Polk had been seen going to the Thomas house earlier that afternoon. No one had seen him leave. After officers followed the tracks toward Polk's house, Hamberlin went to Polk's house and looked through a window. He saw Polk, wet and with muddy blue jeans and shoes nearby, lying in bed.

they had sufficient evidence to indicate the identity of the perpetrator of the crime.

Hamberlin reported to Chief Miller at the Thomas home, who then began proceedings to obtain a search warrant. Officer Cupit wrote out the affidavit; Chief Miller read it, signed it, and then, around 10:00 p.m., went to the mayor's house.

Chief Miller and the mayor discussed the evidence. The mayor then asked the chief if the affidavit was a true reflection of the facts, and Chief Miller said that it was. Beasley then signed the warrant.

The officers returned to Polk's residence, obtained the evidence listed on the warrant, and arrested Polk. Polk was taken to the local doctor's office for testing with a rape assault kit. Although there was blood on the sheets of Polk's bed, as well as on some of his clothing, there was no evidence of any cut on Polk's body.

Blood samples were taken from Polk, and blood was also taken from the victims and from Polk's clothing. Both Polk and Mary Belle Simmons had type O blood; Georgia Mae Thomas had type B blood. Polk's blue jeans were found to be stained with both type O and type B blood. One of Polk's socks was also stained with type B blood. DNA testing was done on the blood samples from both of the victims, as well as on the blood found on the waistband of Polk's underwear and on his blue jeans. The DNA from Georgia Mae Thomas's blood was found to match the DNA from the blood from Polk's underwear. Polk's fingerprints were also found on several objects in the victims' home.

Following a change of venue to Warren County, Polk was tried and convicted of both homicides, and sentenced to two consecutive life sentences.

Polk has appealed.

LAW

I. VALIDITY OF SEARCH WARRANT?

Polk argues Mayor Beesley was not a neutral and detached magistrate because the mayor actively participated in the investigation of the crimes by suggesting that the law enforcement officers get the bloodhounds from Simpson County and by "interviewing" witnesses. We find the search warrant was valid.

The mayor did view the scene and suggested that the officers get the bloodhounds from Simpson County. He and Police Chief Miller testified at the pre-trial suppression hearing that he did not participate in the investigation. He had left when the bloodhounds were brought to the scene.

Chief Miller testified that he asked Mayor Beesley to come to the crime scene because there had been a very serious crime committed, and neighbors and family members who had gathered at the Thomas home were aroused. Beesley talked to them in an effort to "calm things down." He denied that he "interviewed" anyone.

In his brief Polk also alleges that the only reason the mayor issued the warrant was because the crowd was chanting, "Get Willie Polk." The record supports no such charge. Mayor Beesley testified that he left the Thomas house around 9:00 p.m., after informing the chief he would be glad to sign a warrant when they had sufficient evidence to identify the perpetrator of the crime.

The United States Supreme Court has said that "[p]rior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights." United States v. United States District Court, 407 U.S. 297 at 318, 92 S.Ct. 2125 at 2137, 32 L.Ed.2d 752 at 767 (1972). We have reiterated that the individual issuing the search warrant must be a neutral and detached magistrate. Lockett v. State, 517 So.2d 1317, 1323 (Miss.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858 Polk avers that Beesley acted merely as a "rubber stamp" for the police, in direct violation of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Polk argues that Mayor Beesley had never denied Chief Miller a warrant when requested to issue one. Mayor Beesley had issued approximately ten warrants over a nine-year period. He said that he had never refused to issue a warrant because the chief "was usually pretty thorough" and that they would "discuss it pretty thoroughly."

101 L.Ed.2d 895 (1988); McCommon v. State, 467 So.2d 940 (Miss.1985), cert. denied, 474 U.S. 984, 106 S.Ct. 393, 88 L.Ed.2d 345 (1985); Birchfield v. State, 412 So.2d 1181 (Miss.1982).

The record shows that the chief went to the mayor's house at 10:00 p.m., told Mayor Beesley about the tracks leading from the back of the Thomas house to the creek and then to a point near Polk's house; about Officer Hamberlin seeing Polk lying in bed; and about Hamberlin seeing the wet, muddy clothing in Polk's bedroom. Mayor Beesley read the affidavit, and put Miller under oath; Miller swore to the truthfulness of the facts in the affidavit and warrant. Mayor Beesley determined that the police had probable cause, and signed the search warrant. The trial judge correctly found at Polk's suppression hearing that "any neutral and detached magistrate being presented with the evidence herein would have issued a search warrant...."

Law enforcement officers must act in the world in which we live, frequently far from ideal. In Bevill v. State, 556 So.2d 699, 713 (Miss.1990), a circuit judge who had gone to the crime scene and saw the victim subsequently issued a search warrant. The crime in that case occurred in one of our state's more populous cities, and while we cautioned trial judges to avoid any appearance of partiality, especially when another magistrate could be easily found, we nevertheless saw no reason that the judge's view of the scene and victim, and nothing more, prevented his being a neutral and detached magistrate. Nor is there anything in this record other than the supposition of Polk to support any conclusion but that Mayor Beesley was impartial, and that he required Chief Miller to give reasonable cause before executing the warrant.

Polk finally argues Beesley could not act, because a mayor as part of the executive branch of government cannot serve in a judicial function, namely as a magistrate. Port Gibson is a municipality of less than 10,000 population. Beesley as mayor had the statutory authority to act under both Miss.Code Ann. Secs. 21-25-5 (1972), and 21-23-7(3) (Supp.1991).

Moreover, Miss.Code Ann. Sec. 25-1-37 (1972), states in pertinent part:

The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby....

See Upchurch v. Oxford, 196 Miss. 339, 17 So.2d 204 (1944); Bird v. State, 154 Miss. 493, 122 So. 539 (1929); Powers v. State, 83 Miss. 691, 36 So. 6 (1904).

The issuance of the search warrant in this case was a valid and lawful act.

II. SPEEDY TRIAL?

Polk was arrested on February 13, 1989, arraigned May 5, 1989, and his trial began March 5, 1990. Polk contends that the 385 days he spent in jail violated his constitutional right to a speedy trial.

For constitutional purposes, the right to a speedy trial attaches at the "time of a formal indictment or information or else the actual restraints imposed by arrest...." Lightsey v. State, 493 So.2d 375, 378 (Miss.1986). See also, Smith v. State, 550 So.2d...