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IN THE COURT OF APPEALS 10/01/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-00536 COA

LAMONT EVANS AND KENNETH A. RAMSEY APPELLANTS v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. MELVIN KEITH STARRETT COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT ATTORNEY(S) FOR APPELLANT: WILLIAM E. GOODWIN, JOHN P. PRICE ATTORNEY(S) FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOLENE M. LOWRY DISTRICT ATTORNEY(S): DANNY SMITH, JERRY RUSHING NATURE OF THE CASE: CRIMINAL - ARMED ROBBERY TRIAL COURT DISPOSITION: EVANS CONVICTED AND SENTENCED TO SERVE TWENTY (20) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; RAMSEY CONVICTED AND SENTENCED TO TWENTY-FIVE (25) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.

BEFORE THOMAS, P.J., BARBER, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: Lamont Evans and Kenneth A. Ramsey were indicted for the armed robbery of a convenience store. The jury subsequently convicted both men of armed robbery, and the court sentenced them to serve twenty and twenty-five years, respectively, in the custody of the Mississippi Department of Corrections. We find that their issues on appeal have no merit and therefore affirm.

FACTS Gloria Taylor, a clerk at a McComb convenience store, became the victim of an armed robbery on the evening of January 5, 1993. Evans and Ramsey were arrested, indicted, and tried for the crime. Taylor identified both men from a photograph lineup prior to trial. She also testified for the State and again identified both men as they sat in the trial audience. Darrin Bahm testified that he saw two black men run out of the store and jump into a car, which he then chased at high speed until he turned around because he thought his own car would run out of gas. Jennifer Wilkinson testified that she knew both Evans and Ramsey. She said that the two men visited her house unexpectedly that evening and parked their car behind her house. She testified that they both sat at her living room table and counted money. She stated that she then went with them to another house to call a cab because the men said that their car was "running hot." Robert Gatlin testified that Jennifer and two men came to his home that evening. He identified Evans and Ramsey as the two men who accompanied her. Gatlin said that Jennifer asked if he would take her two friends back to McComb. He stated that he told her that he did not know them and would not take them, but that she could use his telephone to call a cab. He said that she made a telephone call, left his house, and walked back down the street with the two men. Perry Ashley of the McComb Police Department testified that he received good physical descriptions of the men who robbed Taylor and of the getaway car. He also received information that led him and other officers to the Continental Motel. The motel clerk sent them to Room 121 where, after knocking and identifying themselves, they heard people shuffling and moving around inside. The officers subsequently entered the room with a pass key and talked with a woman named Katrina Perkins. They asked her where the man was that had been with her, and she responded that he had gone into an adjoining room. The officers then knocked on that door, did not get a response, and subsequently entered with a pass key. There they found Terrance Ramsey, Sanovia Isaac, and Lamont Evans, who was under a bed. The officers found a tile missing in the ceiling above and, after searching above the ceiling, discovered a .25-caliber automatic handgun. They also found a picture of Vanessa Miller, who was Kenneth Ramsey's girlfriend, in plain view on the furniture in the room. Ramsey himself was later apprehended at Vanessa Miller's apartment. Both men presented alibi defenses through friends who testified as to where the men were that evening around the time of the robbery. Evans did not testify in his defense, while Ramsey did testify. Both were found guilty--Evans was sentenced to twenty years, and Ramsey was sentenced to twentyfive years, both in the custody of the Mississippi Department of Corrections. Their motions for JNOV or, in the alternative, a new trial were subsequently denied, and both men appeal on the issues below.

Issue IV is only applicable to Evans, while Issues I through III apply to both Appellants. ISSUES AND ANALYSIS I. DID THE TRIAL COURT ERR IN ITS RULING ON THE MOTION TO SUPPRESS EVIDENCE FOUND AS A RESULT OF THE SEARCH OF THE MOTEL ROOM?

Evans and Ramsey contend that the court erred by denying their motion to suppress the evidence, i.e, the gun, found in the motel room where Evans was arrested. They argue that the officers' entry was improper without a warrant, and that the search was unreasonable. Regarding admissibility of evidence issues within a criminal case, the Mississippi Supreme Court has stated that admissibility rests within the sound discretion of the trial court, and reversal of a conviction is appropriate only when the trial court abused that discretion. Peterson v. State, 671 So. 2d 647, 655 (Miss. 1996) (citations omitted). However, an appellate court must determine if the trial court utilized the proper legal standards in its fact findings regarding the admissibility of evidence. Id. at 656 (citation omitted). Finally, any trial court error regarding this issue must have affected a substantial right of the defendant to warrant reversal on this point. Id.; see also Johnson v. State, 655 So. 2d 37, 42 (Miss. 1995) (relevancy and admissibility of evidence issues are within the discretion of the trial court, and reversal may only be based on abuse of that discretion). The court has also stated that an appellate court must determine from the entire record, i.e., the suppression hearing as well as the trial itself, whether the fact finding is supported by substantial evidence. Holland v. State, 587 So. 2d 848, 855 (Miss. 1991) (citations omitted); see also Nathan v. State, 552 So. 2d 99, 103 (Miss. 1989) (court will not reverse a finding of fact unless it is clearly erroneous). ENTRY INTO THE MOTEL ROOM A warrantless search or seizure is per se unreasonable unless the arresting officer can show that either falls within an exception to the warrant requirement which is based on the existence of exigent circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1981). The Mississippi Supreme Court has held that officers may make a warrantless premises search under the exigent circumstances exception to the warrant requirement. Smith v. State, 419 So. 2d 563, 570 (Miss. 1982), vacated on other grounds, Smith v. Black, 503 U.S. 930 (1992). The elements of this exception are: (1) the officers must have reasonable grounds to believe an emergency exists, and that an immediate need for assistance for protection of life of property exists; (2) the search must not be primarily motivated by intent to arrest and seize evidence; and (3) some reasonable basis approximating probable cause to connect the emergency with the premises to be searched must exist. Id. In the present case, the trial court found that the entry into the motel room was properly based on exigent circumstances. We believe that finding was correct because the officers clearly had reasonable grounds to believe either one or both men were inside the motel room. They had received information that the men frequented the motel, and the clerk ultimately led them to the room in which he believed they were staying. The officers announced themselves at the door, and they heard shuffling and moving around inside. Once inside, they found one of the two men they were looking for underneath a bed. The trial court found that the officers had a reasonable belief that at least one of the men who

had robbed the convenience store was inside the room. It also correctly found that the officers were justified in entering the room after hearing shuffling around that indicated possible attempts to either escape or hide themselves, or to secure or destroy evidence. ARREST AND SEARCH AND SEIZURE OF EVIDENCE The Mississippi Supreme Court has held that "[t]he existence of `probable cause' or `reasonable grounds' justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act." Abram v. State, 606 So. 2d 1015, 1026 (Miss. 1992); see also Gandy v. State, 438 So. 2d 279, 283 (Miss. 1983) (to justify warrantless arrest, officers must only entertain a reasonable belief, which rises above mere unfounded suspicion, that a suspect is involved in an offense). Probable cause or reasonable grounds that justify an arrest without a warrant exists where the facts and circumstances within an arresting officer's knowledge and of which the officer had reasonable trustworthy information are justification enough to warrant a person of reasonable caution to believe that an offense has been committed. Florence v. State, 397 So. 2d 1105, 1107 (Miss. 1981) (citation omitted). A combination of information and personal knowledge may raise the inference beyond suspicion to reasonable grounds. Id. Finally, an officer or private person may arrest any person without a warrant when that person has committed a felony not in the arrestor's presence if the arrestor has reasonable ground to suspect that the arrestee committed the offense. Miss. Code Ann.

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