Wiley v. State, 54642
| Decision Date | 04 January 1984 |
| Docket Number | No. 54642,54642 |
| Citation | 449 So.2d 756 |
| Parties | William WILEY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
James D. Franks, Hernando, for appellant.
Bill Allain, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.
EN BANC.
GUILT PHASE
William Wiley was indicted and tried in the Circuit Court of DeSoto County, Honorable Andrew C. Baker, presiding, on a charge of capital murder. In a bifurcated trial, he was found guilty of capital murder and was sentenced by the jury to suffer the death penalty. He has appealed to this Court, assigning seven (7) errors in the trial below.
J.B. Turner operated a small convenience store in rural DeSoto County, Mississippi, usually keeping the store open from 7 a.m. until 12 p.m. Shortly after closing the store on August 21, 1981, Mr. Turner and his daughter were outside the store when they were both shot at close range with a .20-gauge shotgun. Mr. Turner was shot once in the chest and once in the back with small shotgun pellets and his daughter, Mrs. Patricia Harvey, was shot about the head and upper chest, but survived.
Mr. Turner had a money sack in which he carried $350 to $400. The money was taken by the assailant. Deputy Sheriff B.A. Herron arrived at the scene shortly after the shooting. Mr. Turner was lying near the building on his back, face up, and was dead. Mrs. Harvey was in a sitting position nearby, bleeding about the face and was blinded and seriously injured. Subsequently, an investigation at the scene disclosed three spent .20-gauge shotgun shells and one unfired, live round. A green army fatigue cap was discovered near the scene. Four days later, a .20-gauge pump shotgun was found by Max Wallace, a personal friend of the victim, in the weeds and bushes behind the convenience store. He did not remove the shotgun, but summoned officers from the sheriff's office who took possession of the gun.
Two and one-half weeks later, William Wiley was arrested in Memphis, Tennessee. He confessed to the robbery and murder. Wiley led officers to a place where he threw away the money bag after taking the money from it. He then took them to an old Pontiac automobile near his girlfriend's house and showed them where he kept the shotgun hidden prior to the robbery-murder.
Were comments of the trial judge during the cross-examination of B.A. Herron prejudicial?
During the cross-examination of Deputy Sheriff B.A. Herron, the appellant's attorney interrogated him as to whether or not Q. That is not what I'm asking you. I'm asking you what you told the Jury, made up of people just like this, last week, under questioning by Mr. Kelly?
it was normal procedure to tape the interrogation of someone suspected of committing a crime. Mr. Herron had recorded the interrogation of appellant. Five pages of the record were consumed in the cross-examination on that particular point and questions were asked him as to whether or not he remembered testifying a week previous in another case that he taped the interrogation of a defendant. His answers were "probably no" and that "he did not remember." Finally, the district attorney objected and the following colloquy ensued
A. I don't remember.
Q. You don't remember?
A. No, sir.
Q. You don't remember back last week? You remember the questioning. Is that correct?
A. I remember he asked a similar question.
Q. Well, you just got through stating that you remembered the question. Do you remember the question or not?
A. Well, he asked about a tape recorder, but I don't remember what I answered.
Q. Do you remember him asking you if it was your normal procedure to tape record interrogation of a person who was suspected of a crime? Do you remember him asking you that?
A. Yes, sir.
Q. You remember the question. Is that correct?
A. Yes, sir. He asked me that question.
Q. But, you don't remember your own answer. Is that correct?
A. I don't normally do it.
Q. I'm not asking you that. I'm asking you whether you know your answer or not.
A. No, sir. I don't know exactly what I told him that morning.
Q. Do you know approximately what you told him that morning? Did you tell him "yes" or "no?"
A. I told him "no" probably.
Q. You told him "no probably" or you probably told him "no?"
A. Either way. I don't normally tape a--use a tape recorder.
Q. Are you trying to be evasive, Mr. Herron?
A. No, sir. I just don't normally use a tape recorder.
ASSISTANT DISTRICT ATTORNEY (Mr. Williams):
Your Honor, he's doing his dead level best to answer the question.
THE COURT: He's answered it, I think, five or six times, and I don't think it's going to be any different, Mr. Franks, and we'll move on to something that might be a little bit more beneficial to the Jury.
COUNSEL FOR DEFENDANT (Mr. Franks): I'm sorry, Your Honor, I'll move on but I wasn't aware that.
THE COURT: Well, if I thought that you could ever get him to change his mind, I'd let you go on all day, but I think, Mr. Herron has answered the question just the way he remembers it and I don't see any point in dwelling any longer.
COUNSEL FOR DEFENDANT (Mr. Franks): Well, was his answer "yes" or "no" or he didn't remember. I honestly do not know what his answer was.
THE COURT: Well, let him repeat it one more time.
A. I don't normally take a statement--take a tape recording.
COUNSEL FOR DEFENDANT (Mr. Franks): Your Honor, that's what I'm getting at. That's not the question I asked him.
THE COURT: Well, do you have anything to refresh the witness's memory with, Mr. Franks? I sat here in this box and conduct the trial and I swear before God I don't know what his answer was, nor whether he does or not COUNSEL FOR DEFENDANT (Mr. Franks): Your Honor, all I want is to get a definitive answer. There's certainly plenty of impeachment proof.
I don't know. Have you got anything to impeach his testimony with, fine, but, just as far as verbal argument, I don't think you're going anywhere.
THE COURT: Well, if you have something, let's go with it. If you've got something, you know, impeachment--this is cross examination--that's the purpose of it.
It is understood how the trial judge became worn and probably provoked at such a long cross-examination of the witness on a matter which, in our opinion, was immaterial and irrelevant. Appellant's counsel apparently was trying to impeach the witness on an immaterial matter, which is not permitted under our trial procedure. Carlisle v. State, 348 So.2d 765 (Miss.1977); Sims v. State, 313 So.2d 388 (Miss.1975).
We do not think the trial judge's remarks prejudiced the jury and they did not constitute reversible error. In addition, no record was made of any objection to the statement of the trial judge. Therefore, the point was not preserved and, consequently, was waived. Smith v. State, 434 So.2d 212 (Miss.1983). It is the duty and responsibility of the trial judge to control and channel the interrogation and arguments of attorneys so as to insure an efficient and orderly trial. Carr v. State, 208 So.2d 886 (Miss.1968).
Did the lower court err in allowing into evidence, over appellant's objection, testimony and documentary evidence of the defendant's confession?
The trial court granted appellant a suppression hearing upon a challenge by him that the confessions were not admissible because appellant had requested an attorney during the Miranda warnings. 1 Appellant further claims a violation of his Miranda rights.
Appellant was advised of his Miranda rights on September 4, 1981, by Memphis Police Officer Williams; September 7, 1981, by Investigator Radford, at which time he filed a waiver of rights; twice on September 10, 1981, by Officer Stewart prior to giving the confession; and last on September 11, 1981, by Deputy Riley before leading officers to the money bag and automobile in which he had hidden the shotgun.
Appellant testified that, at the outset of the Miranda warning given him by Officer Stewart on September 10, he stated he wanted an attorney. However, all the officers present testified that appellant did not ask for an attorney and that, if he had so indicated, they immediately would have ceased questioning and would have provided him with the opportunity to obtain counsel. The cross-examination of appellant reflects positively and emphatically that he was aware of his constitutional rights and his right to an attorney and that he did not ask for or want an attorney during that time.
The trial judge found that the appellant was properly advised of his constitutional rights under Miranda and that the confession was free and voluntary. The evidence overwhelmingly supports the finding of the trial judge and there is no merit in this assignment of error. Harrigill v. State, 381 So.2d 619 (Miss.1980); Curry v. State, 328 So.2d 328 (Miss.1976); and Clemons v. State, 316 So.2d 252 (Miss.1975).
Did the lower court err in admitting into evidence, over timely objection, certain items claimed to be "fruit of the poisonous tree?"
The appellant contends that the evidence found by the officers as a result of the confession and appellant's leading them to it, was "fruit of the poisonous tree," citing Wong Sun v. United States, 371 U.S. 471, Since we hold that the confession was admissible and there is no merit in Assignment II, this assignment likewise is without merit.
83 S.Ct. 407, 9 L.Ed.2d 441 (1963), because the confession was inadmissible.
Was the testimony of Coroner Roger Jones as to the findings of the coroner's jury prejudicial?
Appellant contends that the court erred in admitting certain testimony of Coroner Roger Jones as to the cause of Mr. Turner's death. That testimony follows:
Q. You held a Coroner's Inquest?
A. Yes, sir.
Q. Was the cause of death determined?
A. Cause of death was determined by the Jurors. It was a gunshot wound to the chest.
Q. Did you as County Coroner sign the Certificate of Death of J.B. Turner?
A. Yes, sir....
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...such photographs were prejudicial because the photographs indicated that the defendants were dangerous and guilty. In Wiley v. State, 449 So.2d 756, 760 (Miss.1984), the defendant, handcuffed and in chains, led police to where he had discarded a money bag. He was photographed as he pointed ......
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