Swanier v. State, 55588

• Decision Date: 17 July 1985
• Docket Number: No. 55588,55588
• Citation: 473 So.2d 180
• Parties: Darryl J. SWANIER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 180

473 So.2d 180

Darryl J. SWANIER v. STATE of Mississippi.

No. 55588.

Supreme Court of Mississippi.

July 17, 1985.

Rehearing Denied Aug. 7, 1985.

Jimmy D. McGuire, Herman F. Cox, Gulfport, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, DAN M. LEE and ROBERTSON, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Harrison County wherein the appellant, Darryl J. Swanier, was tried and found guilty of the capital murder of Johnny Mickel, a convenience store clerk in Pass Christian, Mississippi. The jury was unable to agree on a punishment for Swanier and the trial court thereafter sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. From his conviction and sentence Swanier brings this appeal and assigns as error:

I. The Court erred when, over the defendant's objection, it allowed into evidence State's Exhibit No. 2 which consisted of a photograph of the deceased lying on his back, which disclosed gruesome aspects of the crime which were not pertinent, relevant, competent, or material on any issue in this case, and 2. The Court erred in failing to sustain the Defendant's Motion to Suppress the statement of the Defendant when the Defendant was arrested without probable cause and was not advised of the object and cause of his arrest and when his statement was obtained under conditions which were violative of the Defendant's constitutional rights as per the Miranda Decision and due to the fact that the Defendant did not knowingly and intelligently waive his Miranda Rights before making the subject statement, and due to the fact that the interrogating officer failed to make any tests to determine if the Defendant understood his Miranda Rights and did, in fact, knowingly and intelligently waive same.

was offered by the prosecution into evidence solely for the purpose of influencing and inflaming the minds of the jurors against this defendant, and furthermore that said exhibit had no probative value in view of the fact that State's Exhibit No. 1 fairly and accurately depicted the condition of the deceased on the date of the alleged murder and the location of the deceased where he was found on the date of the alleged murder, and furthermore that State's Exhibit No. 2 reflected that the deceased was wearing a deputy sheriff's badge around his belt and that said matters unduly biased and prejudiced the jury against the appellant.

3. The Court erred in granting Instruction No. C.00 and the Court further erred in refusing to grant Jury Instruction D-12.

4. The Court erred in granting Instruction No. S-1.

I.

In the early morning hours of March 13, 1982, Pass Christian Policeman Archie Seller responded to a report of a disturbance at a local convenience food store. When he arrived on the scene Patrolman Seller found Johnny Mickel, the night clerk at the Junior Food Store, lying in a pool of blood in the store's parking lot. Mickel had been stabbed to death.

Mariann Stansbury, the manager of the Junior Food Store, testified that she had placed a $2.00 bill in the cash register under the stack of $1.00 bills. The $2.00 bill's serial number had been recorded in the back of the store. This was done in order to assist the police in apprehending anyone who might rob the store. She identified a $2.00 bill presented to her by the prosecution as the one whose serial number she had recorded. Ms. Stansbury testified that approximately $140 was missing from the store's cash register and safe following Mickel's murder.

Ruth McRee testified that she worked the shift immediately before Mickel. She had seen the $2.00 bill in the cash register drawer before leaving work.

On June 16, 1982, Ruth McRee was working in the store when a man she identified as Swanier came in the store and purchased some items with the $2.00 bill. McRee's husband, Reed McRee, also happened to be in the store at that time and he corroborated the identification of Swanier as the one who passed the $2.00 bill.

Lynda Bates, a security officer for the Junior Food Stores, testified that she arrived at the Junior Food Store on March 16, just as Swanier was walking out the door. The McRee's alerted her that Swanier had passed the stolen $2.00 bill to them. Bates then telephoned the Pass Christian Police Department and gave them a description of Swanier.

Jackie Griffin testified that she worked as a store clerk for the Li'l General Store in Pass Christian. At approximately 2:40 to 2:50 in the morning of March 17, 1982, Swanier came into her store and purchased some ice cream and potato chips. Because she had been alerted by the police to watch for someone of Swanier's description, Ms. Griffin called the police as soon as Swanier left.

Officer Judy Murphy Newnum of the Pass Christian Police Department testified that she received word that the suspect in the Mickel killing had just been seen in the Li'l General Store. Moments later she began The defense called Sylvester Alexander, Swanier's grandfather, and Melvin Swanier, Swanier's father, to testify in his behalf. Their testimony was identical to their testimony at the pretrial suppression hearing and is detailed below.

driving around that neighborhood in search of him. Shortly thereafter Officer Newnum saw Swanier riding a bicycle and eating ice cream a few blocks from the Li'l General. Officer Newnum pulled Swanier over and asked him to wait for Pass Christian Police Department Investigator John Dubuisson. Officer Newnum told Swanier that they needed to talk to him about a murder. Officer Newnum gave other testimony which was consistent with her testimony at a pretrial suppression hearing which is detailed below. The state also produced the testimony of Officer John Dubuisson who testified just as he had at the pretrial suppression hearing, and that testimony is detailed below. During Officer Dubuisson's testimony a statement given to the police by Swanier, in which Swanier admitted killing Mickel, was admitted into evidence.

Darryl Swanier testified in his own defense. Swanier stated that two anonymous black males were responsible for the murder of Mickel. He stated that he was in the store at the time to purchase beer and candy. As he was getting his beer and candy he turned around and saw a fat black man and a skinny black man robbing Mickel. According to Swanier, by the time he noticed the robbery occurring, Mickel had already been stabbed. Mickel then ran out the door of the convenience store and one of the two assailants asked the other, "What are we going to do with him?" referring to Swanier. According to Swanier, they gave him some money and told him to keep his mouth shut or they would kill him. The two assailants then left the store, got in a green car and left. Swanier stated that he then left the Li'l General because he was on probation from an offense which occurred in New Jersey and he did not think anyone would believe his story. Swanier thought that Mickel was not hurt very badly and would be able to identify his assailants. The next day, after Swanier learned of Mickel's death, he did not report his knowledge of the incident to anyone because he was afraid he would not be believed.

On this evidence and other testimony, consistent with the testimony at the pretrial suppression hearing, Swanier was found guilty.

THE SUPPRESSION HEARING

At a pretrial hearing on Swanier's motion to suppress his confession, Officer Newnum testified that she had stopped Swanier because he matched a description of a person who had passed the $2.00 bill known to have been stolen from the Junior Food Mart. About a minute after she stopped him, Officer Dubuisson arrived. Officer Dubuisson asked Swanier if he would accompany them to the police station and Swanier said, "Yes." Swanier rode with Dubuisson and another officer took Swanier's bicycle in a police vehicle to the police department. Officer Newnum testified that Swanier was read his rights after they arrived at the station. She stated that she was present when his rights were read and when a consent to speak form was given to Swanier. Newnum stated that Investigator Dubuisson read the rights warning and consent to speak to Swanier and then Swanier read the form for himself and signed it. Newnum denied that any threats, force, promises or duress were used to get Swanier to speak or sign the form. Swanier's rights were read to him at 2:55 a.m., March 17. The officer initially attempted to get Swanier to explain how he came into possession of the $2.00 bill. Newnum testified that Swanier gave several different stories about how the bill came into his possession. First, he stated that he got it as change when he purchased some marijuana. Next, he stated that he had borrowed the $2.00 bill at a party. Swanier then asked to speak to a priest and his grandfather, Sylvester Alexander, a captain with the Harrison County Sheriff's Department. Both the priest and Captain Investigator Dubuisson testified that he read Swanier his rights at the police station when they arrived there. At 2:55 a.m. Swanier signed a waiver of his rights. At 5:30 a.m. the officers began taking a recorded statement from Swanier. During the time between the signing of the waiver and the statement the officers and Swanier discussed where Swanier had acquired the $2.00 bill. Dubuisson testified that at that point Swanier was not under arrest and was free to go. According to him, Swanier was not arrested until approximately 5:45 that morning, after he had given a statement confessing to the murder of Mickel. In between signing the waiver and making the statement, Swanier had requested to speak to his grandfather and a priest. He was allowed to do both prior to giving the statement.

                Alexander were called and both came to the Pass Christian Police Department immediately.  Officer Newnum testified that during the interview

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