Ware v. State

• Decision Date: 17 March 1982
• Docket Number: No. 53439,53439
• Parties: Donald WARE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1330

410 So.2d 1330

Donald WARE v. STATE of Mississippi.

No. 53439.

Supreme Court of Mississippi.

March 17, 1982.

Moore, Royals & Taylor, Robert H. Taylor, Jr., Jackson, for appellant.

Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

BOWLING, Justice, for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County of the crime of armed robbery and sentenced to serve forty years in the custody of the Department of Corrections. On appeal appellant alleges the following assignments of error:

I. The Court erred in overruling the defendant's motion for a directed verdict of not guilty at the close of the state's case.

II. The court erred in allowing the .32 caliber handgun into evidence, which was state's exhibit No. 2, as it was the product of an illegal search and seizure.

III. The lower court erred in sentencing appellant to a term of forty years in the custody of the Mississippi Department of Corrections as it is disproportionate to the offense for which the appellant stands convicted and as can amount to a life sentence, which the jury refused and opposed.

On July 7, 1980, at about 11 p. m. there was a robbery of LeFleur's Restaurant located on the east side of Interstate 55 in Jackson, Mississippi. Mrs. Frazier was checking her cash register when a tall black male came up and asked for change. He then walked away and a short black male wearing a white sailor cap came around behind the counter with a pistol in his hand. He began to take money out of the cash register, grabbed Mrs. Frazier's purse and started to leave. A customer in the restaurant heard Mrs. Frazier's screaming and ran to the scene. He caught the robber, who was a small man, in his arms and was attempting to hold him when he discovered the robber's pistol. The customer then shoved the robber away. The robber started running through the door and in doing so, lost his cap.

An employee of the restaurant testified he noticed two black males, one tall and the other short, enter the restaurant shortly before the robbery and noticed the short man was wearing a white Navy cap.

Two restaurant employees were unloading garbage outside the restaurant at the loading dock just prior to the robbery when they saw a white and blue Thunderbird automobile drive slowly by the dock. The car stopped adjacent to the restaurant. The two employees then walked toward the car to inspect it more closely. They noticed either a short man or a man bending over on the passenger side of the car who was wearing a white cap pulled down on his head. A few minutes later, the two employees heard the noise from the robbery going on inside the restaurant and saw the blue and white Thunderbird speed away shortly thereafter.

Police Officers Ainsworth and Smith immediately went to the restaurant and secured all the information they could, including the white cap. About thirty minutes after the robbery the officers were driving along Mill Street when they noticed a blue and white Thunderbird run a stop sign. The car was stopped and the driver was requested to produce identification. He produced a driver's license in the name of a resident of Colorado. A radio check, unfortunately for the driver of the car, showed that the person with that name and license number was wanted in Colorado for a number of crimes, including armed robbery and assault. The driver of the car immediately thought it necessary to change his name and said his name really was James Fleming.

The officers, recognizing the description of the automobile and the two men, placed the men under arrest and made an inventory search of the car. In the rear compartment in a pasteboard box they found a .32 Smith & Wesson revolver with two cartridges therein.

Mrs. Frazier positively identified appellant as the short black male with the white Navy cap who had a gun, took the money from the cash register and grabbed her purse. The customer in the restaurant, who was understandably more concerned with the gun at his stomach rather than inspecting the face of the short man, identified the .32 Smith & Wesson revolver taken from the Thunderbird as the one that was held on him. This identification was through a large white spot that was on the top of the gun.

From the foregoing discussion, it is clear without citing the numerous applicable authorities that there was an abundance of testimony that required the lower court to overrule appellant's motion for a directed verdict. He clearly was identified as the short man with the gun with the white spot on top of it. This was in addition to the other restaurant employees regarding identification of the car.

Upon the state offering the .32 caliber revolver into evidence, there was an objection on the ground that it was secured from the car by an illegal search and contrary to appellant's Fourth Amendment rights. This argument may be disposed of by stating that appellant did not show any standing whatever to contend for such right. He was a passenger in the car driven by another. He did not testify, nor was there any other testimony introduced on the contention regarding the alleged illegal search. Appellant is attempting to assert a Fourth Amendment right that was a personal right which cannot be asserted vicariously. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court stated:

We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners. As we stated in Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969); "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." See Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Simmons v. United...