DeSalvo v. State

776 So. 2d 704, 2000 WL 1054052
CourtCourt of Appeals of Mississippi
DecidedAugust 1, 2000
Docket1999-KA-00479-COA
StatusPublished
Cited by6 cases

This text of 776 So. 2d 704 (DeSalvo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeSalvo v. State, 776 So. 2d 704, 2000 WL 1054052 (Mich. Ct. App. 2000).

Opinion

776 So.2d 704 (2000)

Pete J. DeSALVO, Jr., Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-00479-COA.

Court of Appeals of Mississippi.

August 1, 2000.
Rehearing Denied October 31, 2000.
Certiorari Denied February 1, 2001.

*706 George S. Shaddock, Pascagoula, Martin E. Regan, Attorneys For Appellant.

Office of the Attorney General by Scott Stuart, Attorneys For Appellee.

BEFORE McMILLIN, C.J., LEE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Peter J. DeSalvo, Jr. appeals from a George County Circuit Court's conviction on two counts of burglary wherein he received a sentence of seven years on each count to run consecutively. DeSalvo raises the following issues as error

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING OFFICER LAMBERT, NOT QUALIFIED AS AN EXPERT, TO GIVE HIS OPINION AS TO THE APPELLANT'S GUILT.
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING WITNESS PERALTA TO TESTIFY IN VIOLATION OF RULE 615 OF THE RULES OF EVIDENCE CONCERNING THE EXCLUSION OF *707 WITNESSES AND SEQUESTRATION OF WITNESSES.
III. WHETHER THE TRIAL COURT ERRED IN CONSIDERING DESALVO'S STATUS AS A POLICE OFFICER DETERMINATIVE IN IMPOSING THE MAXIMUM SENTENCE.
IV. WHETHER THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE AND UNCONSTITUTIONAL SENTENCE.
V. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A MISTRIAL.
VI. WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR SUPPRESSION OF APPELLANT'S CONFESSION.
VII. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR SEQUESTRATION OF THE JURY IN ACCORDANCE WITH MISS. U. CRIM. R. CIR. CT. PRAC. RULE 5.07
VIII. WHETHER COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO STATES CROSS EXAMINATION OF REV. NANCE AS TO ADMISSIONS MADE BY APPELLANT SUBSEQUENT TO THE CRIME.
IX. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO STATE'S IMPROPER CROSS EXAMINATION OF DESALVO.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Peter J. DeSalvo, Jr. was indicted by the grand jury on twelve counts of burglary. The trial court granted a change of venue from George County to Hancock County, Mississippi. Two of the twelve counts were set to be tried together. The jury returned a guilty verdict on both counts, and the court sentenced DeSalvo to serve seven years on each count to run consecutively. DeSalvo, a former police officer for the City of Lucedale, appeals that decision to this court.

¶ 4. James H. Williamson testified that he saw a light in the rear of the Lucedale Appliance Store around 10:30 p.m. on December 31, 1997, so he telephoned the police station. Williamson also told the dispatcher that there was a police car, the defendant's vehicle, parked on the street but he did not see the officer. Officers Lambert and Walker, police officers with the Lucedale Police Department, were present at the police station when Williamson's call was received. They told the dispatcher they would check out the appliance store.

¶ 5. Officers Lambert and Walker testified that it only took them a few minutes to arrive at the appliance store. They testified that they noticed DeSalvo's police cruiser out front but did not see him. They stated that there was no visible damage to the front door but it was ajar. They also testified that when they walked inside the store they heard a noise in the back room, causing them to yell out, "Police, freeze." Officer Walker then yelled, "Come out with your hands up. Now." Officer Walker testified that DeSalvo came around a corner and asked if they had heard him call out. He then looked down at his radio and stated, "Oh, I was on the wrong channel." They both described DeSalvo as covered in dust and sweating. DeSalvo told them he noticed that the door was open, checked the place out, and determined that everything was all right. Officer Lambert stated that he found DeSalvo's explanation strange because the usual protocol when they do a building check is to call for assistance because it is dangerous to do it by yourself. While on the *708 stand Officer Lambert stated, over the defense's objection, "I suspected Pete DeSalvo as burglarizing the building." He also testified that he noticed a safe in the store but only saw the front and left side. He also smelled something burning and noticed dust swept into a small pile in the back room by the safe. At that time Officers Walker and Lambert received another call and left.

¶ 6. Officers Lambert and Walker also testified that DeSalvo called them back to the store stating that the store had been broken into; however, they did not return until after midnight. When the officers arrived back at Lucedale Appliance, they noticed that DeSalvo's uniform was no longer covered in dust and he was no longer wearing his gloves. They also found that the cash register had been pried open and the steel safe had been burned into, presumably with two acetylene oxygen welding torches with brazing tips used to repair various things in the store. Officer Walker related that as he was checking the perimeter he noticed a pair of gloves covered in a white dusty substance in the front seat of DeSalvo's vehicle and he took a picture of them.

¶ 7. Officer Lambert further testified that when he returned to the police department he contacted the mayor and the chief of police to arrange a meeting that night. Over DeSalvo's objection Officer Lambert related that he told the mayor, "I believe we had a dirty cop." DeSalvo moved for a mistrial, which the trial court denied but did instruct Lambert not to testify as to what anybody else said.

¶ 8. Mr. James Davis, the owner of the store, testified that he presumed his welding torches had been used to enter the safe because one tank was found empty while the other one was very low, even though his son had exchanged the tanks for full ones a day or two before. Davis testified that a couple hundred dollars used to make change was missing from the safe.

¶ 9. Sheriff Miller testified that when he was informed that DeSalvo was a suspect in the Lucedale Appliance burglary he met with Officer Lambert, and Officers Keel, Hillman, Mixon, Mitchell and Maples from the sheriff's department to set up a sting operation. He also testified that he requested federal agents and the highway patrol to meet with him at the George County High School's football field wherein he assigned teams to various stores in the city. Sheriff Miller and Officer Hillman were stationed in the George County Courthouse, which is across the street from the Tax Assessor's Office, with a clear view of the funeral home, Justice Court and the Tax Assessor's Office. Sheriff Miller testified that after he had been in position for about two and a half hours he saw DeSalvo at the front of the Tax Assessor's Office and go behind the George County Funeral home. Miller stated that he and Officer Hillman saw a flash of light in the Tax Assessor's front window so they ran down and looked in the window. Officer Hillman then testified that he saw DeSalvo in the Tax Assessor's Office with a screwdriver, prying on a closet door.

¶ 10. Tony Keel, an investigator with the George County Sheriff's Department, testified that he spoke with Sheriff Miller over the radio and was told to go to the rear of the Tax Assessor's Office.

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Cite This Page — Counsel Stack

Bluebook (online)
776 So. 2d 704, 2000 WL 1054052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desalvo-v-state-missctapp-2000.