McCollum v. State

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CHARLES RAY McCOLLUM a/k/a CHARLES McCOLLUM, JR. a/k/a CHARLES RAY McCULLUM v. STATE OF MISSISSIPPI

No. 2021-KA-01276-SCT

Supreme Court of Mississippi, En Banc

September 7, 2023

DATE OF JUDGMENT: 10/20/2021

SIMPSON COUNTY CIRCUIT COURT TRIAL JUDGE: HON. STANLEY ALEX SOREY

TRIAL COURT ATTORNEYS: MEGAN STUARD THORNTON WADE THOMAS UNDERWOOD CHRISTINA HOPSON HOLCOMB CHRISTOPHER DOUGLAS HENNIS WILLIAM KANNAN STUBBS W. TERRELL STUBBS

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY GEORGE T. HOLMES HUNTER NOLAN AIKENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON

DISTRICT ATTORNEY: CHRISTOPHER DOUGLAS HENNIS

COLEMAN, JUSTICE

¶1. A Simpson County jury convicted Charles Ray McCollum of one count of grand larceny for stealing several items from property owned by Brian Mangum. He appeals, claiming the trial court erred by refusing to suppress evidence obtained from the search of his residence, allowing prejudicial hearsay, and denying McCollum's motion for a mistrial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Brian Mangum owned property located at 1713 Highway 541, Magee, Mississippi, that contained a house and shed. He had inherited the property from his grandparents and did not reside there. Mangum kept cattle on the property and generally checked on his cattle each day. Mangum testified that, on or around October 14, 2019, he visited the property to check on his cattle and noticed that both the back door of the house and the door to his shop were open. Mangum then contacted the Simpson County Sheriff's Office.

¶3. Lieutenant Investigator Leon Wedgeworth, an investigator with the Simpson County Sheriff's Office at that time, testified that when he arrived at the property, he observed a broken window in the back of the house and red paint on the window sill. Mangum reported that a red ox yoke was missing from the house. Mangum also identified as missing from the house a washing machine and television set. Investigator Wedgeworth next testified that the latch and locking mechanism on the shed had been broken off. He determined that an air compressor, tool boxes containing tools, and an arc welder were missing from the shed.

¶4. After Investigator Wedgeworth left the property, Mangum testified that he installed a cellular trail camera on a car shed located in between the house and the shop. The trail camera could detect motion and send real-time pictures to an app on Mangum's cell phone. On October 15, 2019, at approximately 2:00 p.m., the trail camera transmitted a picture of a blue pickup truck with a "Vote for Toxi Allen" sticker located on the driver's side.

Mangum stated that the trail camera transmitted a picture of the truck leaving the property a short time later and that the passenger side door handle of the truck had contained duct tape.

¶5. On October 16, 2019, Investigator Wedgeworth met Mangum at L&D Scrap, where they identified items that belonged to Mangum. Investigator Wedgeworth testified that he had also obtained from L&D Scrap scale purchase tickets dated October 15, 2019. The recipient on the tickets was listed as McCollum, and a copy of his driver's license was attached. The scale purchase tickets were marked for identification purposes and were not entered into evidence at that time.

¶6. Investigator Wedgeworth testified that the sheriff's office had "had several thefts throughout the county in that area." He stated that McCollum had been identified as a suspect in those thefts. Also on October 16, Investigator Wedgeworth instructed dispatch to search the National Crime Information Center (NCIC) for McCollum's driver's license and vehicle tag information. Investigator Wedgeworth testified that the tag number listed on NCIC for McCollum matched the tag number of the vehicle that the sheriff's office had identified as belonging to McCollum. Over defense counsel's objection, the NCIC report was admitted into evidence with the words "Vehicle Used" handwritten at the top of the report. Investigator Wedgeworth testified that he had written the words "Vehicle Used" on the NCIC report because "[t]hat vehicle was identified when we used the database LeadsOnline as selling scrap to scrap yards." In a proffer, Investigator Wedgeworth explained that scrap yards and pawnshops report items that they purchase to LeadsOnline. See LeadsOnline, https://www.leadsonline.com/main/law-enforcement.php (last visited May 11, 2023).

¶7. Mangum testified that, on October 18, 2019, the trail camera again transmitted pictures of the blue pickup truck, and he proceeded to the property at that time. Mangum also notified the sheriff's department that the pickup truck was back on the property. Mangum testified that, when he arrived on the property, he observed the blue pickup truck at the edge of the woods and that the pickup truck had the same "Vote for Toxi Allen" sticker on the driver's side and that the door handle was "messed up on the passenger side." Mangum, who knew McCollum most of his life, then watched McCollum walk out of the woods toward him. Mangum testified that McCollum told him that he had been gathering acorns in the woods. Mangum held McCollum at gunpoint until law enforcement arrived. Investigator Wedgeworth testified that when he arrived at the property, he identified and arrested McCollum.

¶8. Investigator Wedgeworth filed an application for a search warrant for McCollum's residence. In the search warrant affidavit, Investigator Wedgeworth wrote, inter alia, that the "[t]he vehicle bearing Mississippi tag CV1-3557 was identified as the vehicle used in the crime. The vehicle was on camera during the commission of the crime." McCollum filed a motion to suppress the search warrant and argued that the affidavit had contained misleading and false statements to establish probable cause, but the trial court never ruled on McCollum's motion.

¶9. Investigator Wedgeworth testified that, the day the sheriff's office executed the search warrant, he had called Mangum and described items as he walked through McCollum's residence. The sheriff's office recovered the following items that Mangum had reported as stolen: a black toolbox; a black and yellow Stanley toolbox; an arc welding machine; a generator; a hand carved red ox yoke; a washing machine; and a Sanyo television set. At trial, Mangum identified the items as his.

¶10. During Investigator Wedgeworth's testimony, the State requested to approach the bench. It was determined that a witness for the State, Patsy Harper, who was an employee of L&D Scrap, had entered the courtroom without the knowledge of the trial judge or any of the attorneys. Because the sequestration rule had been invoked, defense counsel moved for a mistrial. See Miss. R. Evid. 615. The trial court determined that Harper had been in the courtroom inadvertently; therefore, the trial court denied defense counsel's motion for a mistrial but ruled that Harper would not be allowed to testify. Defense counsel expressed concerns that the contents of the scrap purchase tickets had been testified to and requested that the trial court instruct the jury to disregard any testimony involving that evidence. The trial court stated that it would instruct the jury at the close of evidence if defense counsel wished it to at that time.

¶11. At the close of their case, defense counsel conferred with McCollum regarding the L&D Scrap purchase ticket testimony. The following exchange then occurred:

DEFENSE COUNSEL: Your Honor, I just want to clarify what the instruction would be as far as excluding evidence or testimony regarding L&D. If the instruction is going to be disregard any and all testimony, evidence about L&D, wipe it out of your mind, then we want that instruction. But if it's going to be, like, receipts, real complicated and specific, we would rather just-THE COURT: I would probably just tell the jury that there may have been references to receipts at a scrap yard and they are to disregard any testimony about that, and that would be all I would say.

DEFENSE COUNSEL: Okay. We'll just let it be.

THE COURT: Let it be. Do you want me to make-

DEFENSE COUNSEL: No.

THE COURT: -that instruction?

DEFENSE COUNSEL: No, Your Honor.

¶12. The jury found McCollum not guilty of burglary of a nondwelling and guilty of grand larceny. The trial court sentenced him to serve five years as a habitual nonviolent offender.

¶13. McCollum timely appealed and raised the following three issues:

I. Whether the trial court erred by denying the motion to suppress evidence obtained from the search of McCollum's residence.

II. Whether the trial court erred by allowing inadmissible hearsay evidence.

III. Whether the trial court erred by overruling McCollum's motion for a mistrial.

STANDARD OF REVIEW

¶14. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (¶ 12) (Miss. 1999). "In determining whether evidence should be suppressed, a trial court's findings of fact will not be disturbed on appeal absent a finding the trial court 'applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.'" Crawford v. State, 192 So.3d 905, 923 (¶ 78) (Miss. 2015) (quoting Simmons v. State, 805 So.2d 452, 482 (¶ 64) (Miss. 2001)).

¶15. To evaluate whether the issuance of a warrant is based on sufficient probable cause, we use the "totality-of-the-circumstances approach" explained by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 230 (1983), and adopted by the Mississippi Supreme Court in Lee v. State, 435 So.2d 674, 676 (Miss. 1983).

The task of the issuing magistrate is simply to make a

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