Robinson v. State, 53257

• Citation: 418 So.2d 749
• Decision Date: 10 February 1982
• Docket Number: No. 53257,53257
• Parties: Stephen ROBINSON v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 749

418 So.2d 749

Stephen ROBINSON v. STATE of Mississippi.

No. 53257.

Supreme Court of Mississippi.

Feb. 10, 1982.

Rehearing Denied July 28, 1982.

Brewer, Deaton, Evans & Bowman, Billy B. Bowman, Greenwood, for appellant.

Bill Allain, Atty. Gen. by Carolyn B. Mills Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Leflore County wherein Stephen Robinson, defendant/appellant, was indicted, tried and convicted for the September 16,

1980, burglary of Goldberg's Store located in Greenwood, Mississippi. Upon conviction, Robinson was sentenced to serve five years in the custody of the Mississippi Department of Corrections. Aggrieved of his conviction, Robinson has appealed to this Court and assigns four errors in the trial below.

1. The verdict of the jury was contrary to the overwhelming weight of testimony and the law.

2. The court erred in not entering a directed verdict for the appellant.

3. The court erred in denying the appellant's motion to suppress, thus allowing the state to introduce into evidence the three pairs of shoes taken from the display window of Goldberg's Shoe Store.

4. The court erred in giving, over the appellant's objections, the state's requested Instruction No. 2.

Goldberg's Shoe Store, located in Greenwood, Mississippi, was burglarized sometime between 11:05 p. m. and 12:39 a. m. on September 15 and 16, 1980. A large display window was broken out, apparently with a piece of concrete, and eight pairs of shoes removed therefrom. The owner reported the shoes taken from the store were manufactured by Pierre Cardin and Florsheim.

Thomas G. Futral, detective sergeant of the Greenwood Police Department, discovered the burglary at 12:39 a. m. He was unable to obtain fingerprints from the window itself or the item used to break the glass. Futral remained on the scene for twenty or twenty-five minutes at which time he was called to investigate an automobile accident at Mabeline and Third Avenue. When Futral arrived on the scene of the accident at approximately 1:00 a. m., appellant, who stated he was driving the 1973 Monte Carlo which struck the rear of a parked pickup truck, was boisterous and smelled of alcohol. Officers investigating the accident arrested appellant for public drunkenness and summoned a wrecker to remove the Monte Carlo which was rendered inoperable by the collision. Futral, who was taking pictures of the accident, began to inventory the contents of the automobile, which was standard procedure used by the police department to avoid lawsuits. When the trunk was opened, three new pairs of shoes were discovered therein, corresponding to the brands that had been reportedly taken in the Goldberg burglary. Appellant was then advised he was also being arrested for burglary. Subsequent investigations revealed the shoes were the same as those taken in the Goldberg burglary.

Appellant denied any participation in or knowledge of the burglary. According to him, he borrowed his brother's automobile after getting off work around 6:00 or 7:00 p. m. He began drinking and riding around. Around 10:00 p. m., he picked up Milton Johnson, a cousin, rode around about forty-five minutes and then went to the Soul Train Lounge where he stayed for one and half or two hours. Around 1:00 a. m. defendant left the lounge to take Sylvester Hodges home and then returned to the lounge and left with Milton Johnson, who was injured in the accident. Johnson asserted it was around 11:00 p. m. when defendant took Hodges home and he was gone for about ten minutes. Hodges stated it was about 12:30 a. m. Both Johnson, a co-indictee, and Hodges denied any knowledge of or participation in the burglary.

The jury found appellant guilty as charged, whereupon he was sentenced to a term of five years in the penitentiary.

I. Did the trial court err in overruling defendant's motion for a directed verdict at the close of the state's case and was the verdict of the jury contrary to the overwhelming weight of the evidence?

Although appellant complains of the overruling of his motion for a directed verdict, he waived any error thereof by adducing evidence in his own behalf. In Tubbs v. State, 402 So.2d 830 (Miss.1981), this Court stated:

At the conclusion of the State's case, Tubbs moved to exclude the evidence and direct a verdict of acquittal as to the As to appellant's contention concerning the sufficiency of the evidence, he avers that the jury completely ignored the overwhelming testimony of his witnesses concerning his presence except for a brief period and therefore convicted him solely on the inference arising from possession of recently-stolen property. Evidently, appellant overlooks the fact that it was the jury's prerogative to accept the testimony it deemed to be more trustworthy and reject that it deemed was not. In Tubbs, supra, this Court said:

underlying charge of robbery, and assigns as error the action of the trial judge in overruling his motion. After the motion was overruled Tubbs presented evidence in an attempt to establish an alibi defense and is thereby precluded from raising any issue on appeal with regard to the denial of his motion for a directed verdict. Lucas v. State, 381 So.2d 140 (Miss.1980); Watts v. State, 317 So.2d 715 (Miss.1975); Hankins v. State, 288 So.2d 866 (Miss.1975). (402 So.2d at 835)

Tubbs' defense was an alibi and it is well established that a jury is not under a duty to accept an alibi defense, but must consider all of the testimony in determining the guilt or innocence of an accused. An alibi defense presents a question of fact to be resolved by the jury. In Spikes v. State, 302 So.2d 250 (Miss.1974), we stated:

"The jury was not required to accept this alibi. Its duty was to evaluate the testimony of the witnesses for the State and defendant, and to determine whether the evidence showed beyond a reasonable doubt that appellant was guilty. The State's evidence was contradictory of that of appellant concerning an alibi. It was a jury issue. Newton v. State, 1956, 229 Miss. 267, 90 So.2d 375. (Kelly v. State, 239 Miss. 683, 690, 124 So.2d 840, 842 (1960). (302 So.2d at 251)"

Accord, Johnson v. State, 359 So.2d 1371 (Miss.1978).

(402 So.2d at 834-35)

In the case at bar it is evident that the jury rejected the testimony of appellant's two witnesses. Milton Johnson, who was on parole at the time of the incident, was certainly questionable, being related to the defendant, and also charged with the same crime. Sylvester Hodges, with whom appellant left the Soul Train Lounge for a short period of time, was evidently the only other person who could have participated in the crime that night and he certainly wasn't going to implicate himself. Furthermore, appellant never asserted anyone else had control over the automobile besides himself from the time he borrowed the same until the shoes were subsequently discovered therein.

In Gray v. State, 387 So.2d 101 (Miss.1980), this Court stated:

In Carroll v. State, 196 So.2d 878 (Miss.1967), this Court said:

"In reviewing the sufficiency of the evidence to support the verdict, this Court must accept as having been established all that was proved by the evidence, as well as all that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, favorable to the theory of the prosecution.

* * *

"The jury's verdict had the effect of resolving all conflicts in the evidence against appellant, and the findings of the jury, as the trier of facts, are conclusive upon this Court. (196 So.2d at 883)."

(387 So.2d at 103)

Accepting all that was proved by the state's evidence, as well as that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, this Court finds the evidence was sufficient to support the verdict of the jury.

II. Did the trial court err in failing to suppress the shoes taken from the trunk of the automobile appellant was driving?

At the hearing on the motion to suppress, it was established that the Greenwood Police Department generally adhered The inventory of property lawfully seized falls into a different category from that of an automobile search incident to a lawful arrest or based on probable cause that the vehicle is being used to transport contraband. Jackson v. State, 261 So.2d 126 (Miss.1972). Here it was undisputed that the defendant was not suspected of any crime before the inventory was conducted and the articles discovered therein. In Jackson v. State, 243 So.2d 396 (Miss.1970), this Court discussed inventory searches:

to an unwritten policy of inventorying the contents of automobiles where the driver of the same was arrested. The inventory was a method whereby the police department sought to avoid lawsuits involving items which were subsequently alleged missing from automobiles taken into custody by the police department. Moreover, the importance of the inventory was escalated by the fact that the cars were towed to private lots due to the fact that the city did not have a garage or lot to house impounded cars.

Although not necessary to this opinion, the question will doubtless be raised on retrial that probable cause did not exist for the search of the appellant's car. After consideration, we think the trial court correctly held that the boxes and their contents should not be excluded from evidence as the result of the search. We are of the opinion the car was inventoried in accord with lawful police practices. In Wright v. State, 236 So.2d 408, 412 (Miss.1970), we held:

" * * * However, we do not here pass upon whether or not it is ordinarily the official duty of an officer to preserve the property of a person arrested--see Toliver v. State, 133 Miss. 789, 98 So. 342 (1923)--although it may be said that the trend of authorities is moving in that direction--see 32 A.L.R....