Brewer v. State

704 So. 2d 70, 1997 WL 590120
CourtMississippi Supreme Court
DecidedNovember 6, 1997
Docket93-CT-00676-SCT
StatusPublished
Cited by14 cases

This text of 704 So. 2d 70 (Brewer v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewer v. State, 704 So. 2d 70, 1997 WL 590120 (Mich. 1997).

Opinion

704 So.2d 70 (1997)

Herbert L. BREWER, III
v.
STATE of Mississippi.

No. 93-CT-00676-SCT.

Supreme Court of Mississippi.

September 25, 1997.
As Modified November 6, 1997.

Joseph C. Langston, Langston Langston Michael & Bowen, Booneville, for Appellant.

Michael C. Moore, Attorney General, Deirdre McCrory, Sp. Asst. Attorney General, Jackson, for Appellee.

En Banc.

SMITH, Justice, for the Court:

¶ 1. This matter is before the Court on a petition for writ of certiorari filed by Herbert *71 L. Brewer. Certiorari review was granted by this court on March 20, 1997.

¶ 2. A Lee County Grand Jury presented a two count indictment against Herbert L. Brewer, III, on June 29, 1992. Count one charged Brewer with wilfully, unlawfully, feloniously and knowingly receiving a stolen pistol; and Count two charged Brewer with feloniously possessing dynamite caps, detonators, and explosives while not engaged in the lawful business which ordinarily requires the use thereof in the usual and ordinary course of business and of not notifying the sheriff of Lee County of said possession in violation of Miss. Code Ann. § 97-37-23(1) and § 97-37-23(3).

¶ 3. The court quashed Count I of the indictment, ruling that the property received was not "stolen" at the time the affidavit was sworn. The jury returned a verdict finding Brewer guilty as charged of possession of explosives, and the Honorable Barry Ford sentenced Brewer to a term of four years in a Mississippi State Correctional Facility.

¶ 4. Upon appeal, the Court of Appeals affirmed the lower court, McMillan, J., Fraiser, P.J., Bridges, Payne and Southwick, JJ., concurring; Diaz, J., dissenting, joined by Thomas, P.J., Barber, Coleman and King, JJ., by opinion rendered on September 17, 1996. The petition for rehearing was denied on December 3, 1996, and a petition for writ of certiorari was filed with this Court on December 17, 1996, and granted on March 20, 1997.

¶ 5. Two issues were presented to this Court for certiorari review:

I. UNDER THE FRUIT OF THE POISONOUS TREE DOCTRINE, DID THE LOWER COURT ERR IN ADMITTING EVIDENCE OF EXPLOSIVES WHICH WERE SEIZED PURSUANT TO A SEARCH TAINTED BY AN INVALID SEARCH WARRANT BASED ON AN AFFIDAVIT CONTAINING KNOWINGLY FALSE STATEMENTS; AND

II. THE STATE'S CLOSING ARGUMENT: DID THE PREJUDICIAL AND IMPROPER CONDUCT OF THE STATE BEFORE THE JURY DENY BREWER OF HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL?

¶ 6. The judgment of the lower court is affirmed without discussion as to Issue I. As to Issue II, the Court finds after thorough consideration and review of the record and the applicable law that there is no basis upon which to reverse the conviction. We therefore affirm the decision of the lower court and the Court of Appeals.

FACTS

¶ 7. Herbert L. Brewer, III, was at the time of his arrest, a state licensed chiropractor, and owner and practitioner at the Family Chiropractic Clinic of Verona, Mississippi. In addition, Brewer owned a corporation which owned the American Pawn and Gun Shop. Brewer and his now ex-wife operated the pawn shop with the help of two employees.

¶ 8. Brewer's activities in connection with his pawnshop had come under scrutiny by law enforcement authorities due to information that indicated he might be in possession of a stolen computer. An undercover police officer accompanied by a cooperative individual known to Brewer went to Brewer's pawn shop and attempted to negotiate the sale of a pistol, which was represented as stolen, to Brewer. The pistol had been stolen in a burglary in Tupelo, Mississippi, and was supplied to Chief Hansel Crane by Detective Robert Hall of the Tupelo Police Department. Officer Bean told Brewer the gun was stolen on two separate occasions. Brewer asked for no name or identification from Officer Bean, and gave Officer Bean $175 for the handgun which has a retail value of approximately $974.

¶ 9. Based on an affidavit sworn out against Brewer by Verona Police Department Agents stating that he had received stolen property, a search warrant was issued to search the pawn shop. The officers used information gained in this search to obtain a warrant for a second search, during which the explosives were recovered. On January 6, 1992, pursuant to that search warrant, the Verona Police Department discovered and seized certain unassembled explosives on the premises of the pawn shop. VPD arrested *72 Brewer at the time of the seizure, and he was indicted on June 29, 1992, in a two count indictment charging Brewer with receiving stolen property and feloniously possessing explosives while not employed in a lawful business which ordinarily requires the use thereof and failure to notify the sheriff of said possession.

¶ 10. Pursuant to a motion to quash the indictment, the court ordered Count I of the indictment stricken on the basis that the pistol in question had previously been recovered by VPD when their agents sold it to Brewer.

¶ 11. Counsel for Brewer moved to suppress introduction into evidence of the detonator caps, unmixed binary explosives and detonator cord VPD seized from the pawn shop. Counsel reasoned that since the pistol which was the subject of the search warrant leading to the discovery and seizure of the evidence had previously been ruled "not stolen," then the affidavit on which the search warrant was based contained false and misleading statements, and in turn, rendered the search warrant itself invalid.

¶ 12. Counsel further reasoned that consequently, the search of the pawnshop and seizure of the explosives found within were illegal and violated Brewer's right to be free from unreasonable searches and seizures since VPD put forth no other evidence of their probable cause for coming on the premises of the pawn shop. Counsel asserted that based upon the above facts, the evidence obtained [the explosives] was fruit of an illegal search and seizure and so tainted that the evidence should be suppressed under the fruit of the poisonous tree doctrine.

¶ 13. The court denied the motion to suppress, stating that the gun which was subject of the warrant was at one time stolen so the search warrant was valid, i.e., that the factual allegations of the affidavit, as stated to Judge Sheffield at the time they were made, were true and correct under the then existing case law.

¶ 14. Brewer was found guilty as charged of possession of explosives.

CERTIORARI REVIEW GRANTED AS TO THE FOLLOWING ISSUE:

II. THE STATE'S CLOSING ARGUMENT: DID THE PREJUDICIAL AND IMPROPER CONDUCT OF THE STATE BEFORE THE JURY DENY BREWER OF HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL?

¶ 15. Brewer claims that the prosecution improperly raised the specter of the World Trade Center bombing in closing argument for the sole purpose of exciting the passion of the jury, citing Clemons v. State, 320 So.2d 368 (Miss. 1975), and Hickson v. State, 472 So.2d 379 (Miss. 1985), in support of his argument that the prosecution's projection of a hand drawn slide of the words WORLD TRADE CENTER onto the wall during closing argument constitutes reversible error.

¶ 16. In Clemons, this Court held that:

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Cite This Page — Counsel Stack

Bluebook (online)
704 So. 2d 70, 1997 WL 590120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-state-miss-1997.