Weed v. State
| Decision Date | 04 November 1981 |
| Docket Number | No. 52875,52875 |
| Citation | 406 So.2d 24 |
| Parties | Jerry Brady WEED v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Neblett, Bobo & Chapman, Ralph E. Chapman, Clarksdale, for appellant.
Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
Jerry Brady Weed appeals from a conviction of manslaughter in the Circuit Court of Washington County and a sentence of twelve (12) years with the State Department of Corrections. We affirm.
The assignments of error raised on his appeal which we address are:
(1) Failure of the circuit judge to sustain Weed's motion to suppress his oral statement given to officers of the Greenville Police Department.
(2) Failure of the circuit judge to order sequestration of the entire panel summoned for the special venire.
(3) Refusal of the circuit judge to grant Weed's motion for mistrial following comment by the special prosecutor during an opening statement to the jury as to what the jury would hear from the defendant.
(4) The trial court's error in sustaining the State's objection to evidence pertaining to decedent's use of drugs.
Weed, age 36 at trial, is a disabled Vietnam Veteran, having suffered the loss of one leg and one eye. At the time of the shooting, Weed had been married three times, had six children, and was separated from his third wife.
Weed had known Jerry Pearce, the victim, for 15 years. On October 18, 1979, Weed shot Pearce three times at the home of Weed's parents, and Pearce died three days later.
On January 21, 1980, Weed was indicted for the crime of murder. It is not necessary to detail the evidence at this point
since there was ample proof to sustain his conviction; the assignment of error to the contrary does not warrant discussion. Rather, the facts surrounding each assignment of error shall be related upon discussion of the error.
Should the trial court have sustained Weed's motion to suppress oral statements he made to the police officers?
When the officers arrived at the home of Weed's parents, they found Pearce lying in the carport mortally wounded. Pearce was taken to the hospital, and Weed was given the Miranda warnings. Weed acknowledged shooting Pearce, and the admissibility of these statements is not contested. Weed contends, however, that statements made after his arrest at the Greenville Police Department should have been suppressed. At the hearing on the motion to suppress these statements, only Sergeant Ronald W. Nance testified; Weed offered no testimony to rebut this.
Nance testified he first saw Weed in the booking area. After Weed was taken to the office of Major Charles Cochran of the Greenville Police Department by Officer David Froman, Nance advised Weed of his constitutional rights, using the standard form for criminal cases. As he read the form, Nance stopped at the end of each sentence to ask Weed if he understood, and Weed replied that he did. The form fully complied with the warnings required under the state and federal constitutions to be given suspects in criminal cases.
When Nance completed reading the form, Weed asked if he could call his lawyer, Murray Akers. He was advised that he could. Weed called Aker's office, and stated, He then paused, and stated further, Weed then hung up the telephone and told Officers Nance and Froman that Akers was in a meeting and could not talk with him.
Nance then handed Weed the rights form for Weed to read before signing. At first Weed said that he didn't need to read it, but then stated, "I guess I'd better read it before I sign it." He examined the form, and signed it. Nance and Froman then signed the form as witnesses. 1
Nance again asked Weed if he understood his rights, and he replied that he did. Nance then asked Weed if he wanted to tell him what happened. Weed replied that he wanted his lawyer and Nance responded that it was all right for them to wait until his lawyer was present.
There was no further suggestion from the officers. Then, according to Officer Nance:
Weed sat there for a minute, then he started talking about the incident that resulted in the charge, and what had happened prior to that, the night before. (R. 58).
After he had given the oral statement, Weed said he wanted his lawyer. The officers wrote out his statement in their own handwriting.
Weed offered no testimony at the hearing to suppress, and the testimony of Officer Well, it's true he asked for a lawyer. I believe the record shows he asked for a lawyer three times. He was given an opportunity to call a lawyer and he wasn't able to get him, and from what I heard, then he just voluntarily made this statement. I don't think they asked him any other questions-that's what the evidence is today. If they had asked him some further questions, I certainly would rule in favor of the defendant, but when he just volunteers a statement, I don't feel that the police are called on to say, "Just a minute-you said you wanted a lawyer and I'm not going to listen to you." So I'm going to overrule your Motion to Suppress." (R. 67).
Nance stands uncontradicted in the record. Following the suppression hearing, the circuit judge stated as follows:
At trial, both Officers Froman and Nance testified about the circumstances that occurred when Weed gave the oral statement at the Greenville Police Department. Their testimony, which was substantially the same as the account given by Officer Nance at the suppression hearing, was not contradicted. Weed took the stand and denied making any incriminating statements to the officers, calling their statements "lies."
If Weed had any disagreement whatsoever as to the circumstances under which he gave the statement to the officers at the Greenville Police Department, he had had two opportunities to present his version: once at the suppression hearing and again during trial by requesting a hearing on the competency of the statement before its submission to the jury. He did neither. The uncontradicted testimony must therefore be accepted by this Court.
Counsel for Weed further argues that the State failed to make a prima facie showing of the admissibility of the statement. We disagree.
He argues that it was necessary for all officers present to testify on a hearing to test the competency of the statement. This is without merit, however, since Weed did not contradict Nance's testimony at the hearing on the motion, or Nance's and Froman's testimony when the statement was offered at the trial. Agee v. State, 185 So.2d 671 (Miss.1966).
The United States Supreme Court has announced guidelines on the admissibility of statements given by an accused following his request for an attorney. The first consideration is whether there was an "interrogation" following the defendant's request for an attorney. Under the holding of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), we find, as did the trial judge in the present case there was no further interrogation of Weed following his request for his lawyer. He simply sat there a few moments and then voluntarily began to relate to the officers present what had happened.
Even if Officer Nance's inquiry was deemed an "interrogation" the officers scrupulously honored the defendant's right to remain silent when he requested his attorney. Weed intentionally waived his right to counsel during questioning when he chose to speak.
The officers did not engage in the type of conduct condemned in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The officers did not persist in their questioning nor exert pressure of any kind toward Weed in an effort to compel him to make a statement. See also Mansell v. State, 403 So.2d 871 (Miss.1981). Therefore, the statements given by Weed to the officers were competent and properly admitted into evidence to be considered by the jury.
In addition to the regular panel, upon motion by Weed, a special venire of 125 citizens was summoned. The defendant argues in his brief that two of the decedent's sisters were seen talking to a prospective juror summoned for the special venire and this caused him prejudice in his defense. This juror denied that he even saw these women, and absolutely no misconduct on the part of any prospective juror was shown to the trial judge that would have resulted in prejudice towards the defendant. His The only reason we address this assignment is to put to rest any future contention by trial attorneys that a circuit judge is under any duty to sequester a panel of prospective jurors before their selection as members of the trial panel. Circuit judges do the best they can with the great number of people being summoned for jury duty. It would require a platoon of the local national guard to keep them sequestered from the time they first appear in court under a summons until the jury panel is completely selected. It would cause needless and great expense to the county. If we agreed with imaginative defense counsel, the next request we could expect of a circuit judge would be to have prospective jurors placed into custody when a subpoena was handed them.
main argument is addressed to the supposed duty of a circuit judge to sequester the entire panel of a special venire, and presumably, the regular panel as well, (it being well known the special venire is oft-times exhausted) in a capital case prior to their being selected as jurors for the trial of the case.
The law requires no such measures.
Of course, it is well established that after their selection as jurors to try a capital case, the trial panel must be sequestered. McQuillen v. State, 16 Miss. 587 (1847); Clark v. State, 209 Miss. 586, 48 So.2d 127 (1950); Grimsley v. State, 212 Miss. 229, 54 So.2d 277 (1951).
Was ...
To continue reading
Request your trial
-
Yates v. State
...to adopt the New York rule, inasmuch as the U.S. Supreme Court in Brewer v. Williams, supra, as well as this Court in Weed v. State, 406 So.2d 24 (Miss.1981), have held that an accused need not notify his attorney in order to effectively waive any right to The majority opinion's recognition......
-
Weeks v. State
...the issue of murder was not submitted to the jury only the issue of manslaughter. Self-defense was not before the jury. Weed v. State, 406 So.2d 24 (Miss.1981); Fournet v. State, 392 So.2d 1154, 1156 (Miss.1981); McDonald v. State, 218 So.2d 21, 22 Clearly a trial judge has considerable dis......
-
McDowell v. State
...as a violent and dangerous man when under the influence is competent, relevant evidence on the issue of self-defense. Weed v. State, 406 So.2d 24, 29 (Miss.1981). It is relevant to the honesty of the accused's belief that her own life was in imminent peril. Id. If such fact was known by the......