Brymon Hamp, Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-00539-COA

BRYMON HAMP, JR. A/K/A BRYMON SHIELD APPELLANT
HAMP, JR. A/K/A BOOJACK A/K/A BRYMON
HAMP A/K/A BRYMON A. HAMP A/K/A
BRYMON S. HAMP A/K/A BRYMON SHILED
HAMP A/K/A BRYMON SHIELD HAMP

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/23/2014
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: R. STEWART SMITH JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, CAPITAL
MURDER, AND SENTENCED AS A
HABITUAL OFFENDER TO LIFE; AND
COUNT II, FELONY FLEEING, AND
SENTENCED AS A HABITUAL OFFENDER
TO FIVE YEARS, TO RUN
CONSECUTIVELY TO THE SENTENCE IN
COUNT I, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY
FOR PAROLE OR PROBATION
DISPOSITION: AFFIRMED - 12/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., JAMES AND GREENLEE, JJ.

LEE, C.J., FOR THE COURT:
¶1. In this appeal, we must decide whether the Circuit Court of Coahoma County erred

in denying Brymon Hamp Jr.’s motion to suppress.

FACTS AND PROCEDURAL HISTORY

¶2. On July 29, 2010, a concerned citizen reported that something had happened to Gerald

Simmons at his nearby liquor store in Friars Point, Mississippi. The chief of police of Friars

Point, Tracy Vance, went to the store and found the door open, Simmons lying on the floor

semi-conscious and with gashes to his head, and blood spatter throughout the store. The cash

register was open, and no bills were in the cash-register drawer. Shortly thereafter, Simmons

was transported to the hospital.

¶3. While Chief Vance was at Simmons’s store, he received a phone call from an

anonymous caller. The caller stated Jerry Carr and another person “supposed to been hit [sic]

Simmons,” and they were driving a “black box Chevy.” Chief Vance relayed this

information to the Coahoma County dispatcher and Investigator Neal Mitchell with the

Coahoma County Sheriff’s Department.

¶4. Investigator Mitchell went to the hospital, where he attempted to interview Simmons,

who was in and out of consciousness. According to Investigator Mitchell, Simmons’s son

was present during the interview and suggested that two individuals assaulted Simmons.

Then Simmons, during a moment of consciousness, stated that possibly two young, black

males had assaulted him.

¶5. Investigator Herbert Thomas was at the hospital while Investigator Mitchell

interviewed Simmons. Investigator Thomas also received a phone call from an anonymous

2
caller. According to Investigator Thomas, the caller stated: “The people y’all are looking

for [are] BooJack, Bootchie[,] and Yount. They’re going to be in a black faded box Chevy

headed toward . . . Clarksdale.” Investigator Thomas knew Bootchie and Yount were

nicknames for Carr and Tyonda Tenner, respectively. At the time, Investigator Thomas did

not know that BooJack was Hamp’s nickname. Investigator Thomas relayed the information

to Sergeant Oliver Mitchell. And a be-on-the-lookout (“BOLO”) was issued.

¶6. Deputy Dewayne Harvey with the Coahoma County Sheriff’s Department spotted a

vehicle matching the description in the BOLO, with Carr in the passenger seat and another

person driving. Deputy Harvey intended to stop the vehicle as soon as it reached a more

populated area. As Deputy Harvey began following the vehicle, the driver—later determined

to be Hamp—increased speed. Deputy Harvey testified that the vehicle “got up to a high rate

of speed[,] . . . maybe 60, 65 [miles per hour,]” before he turned his blue lights on. At that

point, Deputy Harvey turned on his blue lights and attempted to pull the vehicle over. A

pursuit ensued, which lasted approximately ten minutes. According to Deputy Harvey, the

vehicle reached speeds as high as 85 miles per hour on a two-lane road. However, Deputy

Harvey did not have a radar in his vehicle. The vehicle also ran several stop signs and nearly

collided with another vehicle. After Deputy Harvey called for backup, the vehicle was

eventually pulled over. The officers detained Hamp and Carr and recovered $304 from

Hamp and $282 from Carr. Investigator Thomas noticed a blood stain on Hamp’s shoe, so

Hamp’s shoes and later his clothes were seized. In the vehicle, a bottle of vodka was on the

front seat and a case of gin was on the back seat.

3
¶7. Hamp filed a pretrial motion to exclude the physical evidence that was obtained as a

result of the investigatory stop on July 29. Defense counsel argued that the investigatory stop

was based on information from anonymous informants, that the tips bore no indicia of

reliability, and that the officers did not investigate the veracity of the information. After a

hearing on the motion, the trial court found that the circumstances surrounding the

investigatory stop did not warrant suppression of the items that were seized.

¶8. At trial, Dr. Feng Li testified that Simmons died on August 6, 2010. According to Dr.

Li, Simmons’s death was caused by blunt force trauma to the head, and the manner of death

was homicide. The items seized during the investigatory stop were then introduced into

evidence. Expert testimony established that Hamp’s shoe and shorts tested positive for

blood, and the blood samples matched Simmons’s DNA profile.

¶9. Tenner testified that Hamp lived in her apartment, and as part of their living

arrangement, Hamp was responsible for paying the gas bill. Tenner testified that, on July 29,

Hamp promised that he would get the money to pay the bill. Later that afternoon, Hamp and

Carr returned with $900 and a case of gin. Hamp gave Tenner $300 for the gas bill. And

Hamp stated that he and Carr hit Simmons in the back of the head with a gun and robbed his

liquor store.

¶10. Hamp was convicted of Count I, capital murder, and Count II, felony fleeing. Hamp

was sentenced as a habitual offender to life for Count I and five years for Count II, to run

consecutively to the sentence in Count I, without the possibility of parole or probation, all

in the custody of the Mississippi Department of Corrections. Hamp filed a motion for a new

4
trial or, in the alternative, a judgment notwithstanding the verdict, which was denied. Hamp

appeals.

STANDARD OF REVIEW

¶11. A mixed standard of review is applied to Fourth Amendment suppression-of-evidence

inquiries. Cooper v. State, 145 So. 3d 1219, 1224 (¶15) (Miss. Ct. App. 2013).

Determinations of reasonable suspicion and probable cause should be
reviewed de novo. However, this Court is restricted to a de novo review of the
trial judge’s decision based on historical facts reviewed under the substantial
evidence and clearly erroneous standards. Further, the Court reviews a trial
court’s decision to admit or exclude evidence following a motion to suppress
under the abuse-of-discretion standard.

Id. (internal quotations and citations omitted).

DISCUSSION

¶12. The Fourth Amendment to the United States Constitution and Article 3, Section 23

of the Mississippi Constitution protect individuals from unreasonable searches and seizures.

U.S. Const. amend. IV; Miss. Const. art. 3, § 23.

¶13. The Mississippi Supreme Court has held that “before conducting an investigatory, or

Terry[1] stop, officers are required to have ‘reasonable suspicion, grounded in specific and

articulable facts, that a person they encounter was involved in a felony or some objective

manifestation that the person stopped is[,] or is about to be[,] engaged in criminal activity.’”

Cooper v. State, 145 So. 3d 1164, 1168 (¶11) (Miss. 2014) (emphasis in original) (quoting

Williamson v. State, 876 So. 2d 353, 355 (¶12) (Miss. 2004)). “Reasonable suspicion can

arise from an officer’s personal observations, a tip by a trusted police informant, or by

1
Terry v. Ohio, 392 U.S. 1 (1968).

5
anonymous tip.” Id. (citing Florida v. J.L., 529 U.S. 266, 270-71 (2000)). But information

by anonymous tip must have some indication that it is reliable. Id.

¶14. The United States Supreme Court has previously stated that “an anonymous tip alone

seldom demonstrates the informant’s basis of knowledge or veracity.” Id. at (¶12) (quoting

Alabama v. White, 496 U.S. 325, 328-29 (1990)). However, the United States Supreme

Court has also stated that “there are situations in which an anonymous tip suitably

corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to

make the investigatory stop.” Id. (emphasis in orginal) (quoting J.L., 529 U.S. at 270).

“Reasonable suspicion is dependent upon the content of the information possessed by the

detaining officer as well as its degree of reliability. Both factors—quantity and quality—are

considered in the ‘totality of the circumstances.’” Williamson, 876 So. 2d at 355 (¶11)

(quoting Floyd v. State, 749 So. 2d 110, 118 (¶30) (Miss. 1999)).

¶15. Hamp cites to J.L. for support. In J.L., law enforcement received a tip that a “young

black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.”

J.L., 529 U.S. at 268. Upon arriving at the bus stop, officers observed three black males, and

one—J.L.—was wearing a plaid shirt. Id. The officers frisked J.L. and recovered a gun. Id.

In determining that the officers did not have reasonable suspicion to make the initial stop, the

United States Supreme Court stated: “All the police had to go on in this case was the bare

report of an unknown, unaccountable informant who neither explained how he knew about

the gun nor supplied any basis for believing he had inside information about J.L.” Id. at 271.

¶16. In contrast, in White, 496 U.S. at 327, the police received an anonymous tip that a

6
specific individual would be traveling in a vehicle matching a specific description and

heading to a specific location. And that the individual possessed cocaine. Id. After

corroborating certain details, the police officer stopped the vehicle and discovered the

cocaine. Id. at 331. The United States Supreme Court noted that the tip accurately described

the future behavior of the specific individual, thereby demonstrating “a special familiarity

with [the] respondent’s affairs,” implying that the tipster “had access to reliable information

about that individual’s illegal activities.” Id. at 332.

¶17. Here, the tips received stated that certain named individuals would be traveling in a

specific car heading to a particular location. And that these individuals were involved in the

robbery. Deputy Harvey was patrolling an area where he thought he might see the car in

question. When Deputy Harvey saw the car matching the description in the BOLO, he

noticed Carr in the passenger seat. And Deputy Harvey testified that he was familiar with

Carr. Considering the totality of the circumstances, we find that the tips demonstrated the

tipsters’ reliability and basis of knowledge to support a finding of reasonable suspicion

before Deputy Harvey stopped Hamp.

¶18. When a crime has been committed, the supreme court has acknowledged that a police

officer has a duty to seek out those who commit reported crimes and investigate complaints

made of purported illegal activity. Dies v. State, 926 So. 2d 910, 919 (¶24) (Miss. 2006)

(citation omitted). “The Fourth Amendment does not require police who lack the

information necessary for probable cause to simply shrug their shoulders and allow a crime

or a criminal escape to occur. Rather, it allows for investigatory stops to encourage the

7
police to pursue their reasonable suspicions.” Id. (citation omitted).

¶19. We further find that Hamp’s flight gave rise to reasonable suspicion sufficient for

Deputy Harvey to follow in pursuit. See Cooper, 145 So. 3d at 1172 (¶29). “[H]eadlong

flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative

of wrongdoing, but it is certainly suggestive of such.” Id. (quoting Illinois v. Wardlow, 528

U.S. 119, 124 (2000)). “Furthermore, nervous, evasive behavior is a pertinent factor in

determining reasonable suspicion.” Id. at 1172-73 (¶29).

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF
CONVICTION OF COUNT I, CAPITAL MURDER, AND SENTENCE AS A
HABITUAL OFFENDER OF LIFE; AND COUNT II, FELONY FLEEING, AND
SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS, WITH THE
SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

GRIFFIS, P.J., ISHEE, CARLTON, FAIR, JAMES AND GREENLEE, JJ.,
CONCUR. IRVING, P.J., BARNES AND WILSON, JJ., CONCUR IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

8