Facts
In 2006, Horn Lake seventh-grader L.Q. ate lunch with an older family friend, Alexandria Christie. She gave Christie a handwritten note that said her father, Timmy Harden, had raped her. Christie reported the information to L.Q.’s mother, Towanda Conley. The same day, Conley, L.Q., Christie, and Harden gave statements at the police station.
During Harden’s tape-recorded interview, Detective Josh Zacharias informed Harden he was not under arrest and then administered his Miranda rights. Because Harden said he could not read, Zacharias went over these rights verbally, and Harden indicated that he understood the rights.
During the reading of his rights, Harden repeated the third right, concerning the right to the appointment of counsel. During the interview, Harden repeatedly denied that he had done anything inappropriate with L.Q. But Harden ultimately admitted that he had had sexual intercourse with L.Q. in his bedroom.
Conley testified that Harden was a little bit slower than the average person, and that he sometimes did not understand things as a normal person would. However, around the house, Harden got the kids ready for school and helped them with their homework, including reading. She testified that, previously, Harden had been employed by Wal-Mart as a cart pusher and by Popeye’s as a prep cook.
Sandra Harden, Tim Harden’s mother, testified that Harden was born with hydrocephalus and that he is equipped with a tube and valve that pumps fluid from his brain to his chest. He has been on Social Security disability since age eleven.
She testified that Harden had a nervous breakdown at age 11 after a surgery and was institutionalized for six months. Sandra stated that Harden has trouble understanding things that are explained to him. She said that, throughout school, he was in special education and had to be taught one on one. Sandra stated that Harden had lived with her until his marriage to Conley.
Harden was convicted of statutory rape and sentenced to 20 years. On appeal, he argued his confession should have been suppressed. MSC affirmed.
Analysis
A. Voluntariness
In Scott, we said that for a confession to be voluntary, it must have been freely given and must not be the product of coercion by threats, promises, or inducements.
In Bell, we said that voluntariness may be established through testimony from officers or those who may have specific knowledge of the facts that the confession was made without any threats, offers of reward, or coercion.
We also said in Neal v. State, 451 So. 2d 743 (Miss. 1984) that the mild mental retardation of the defendant does not render a confession per se involuntary; rather, the defendant’s mental abilities are but one factor to be considered.
Harden contends that Zacharias’s mention of spiritual matters during the interrogation coerced his confession. However, a mere exhortation to tell the truth is not an improper inducement that will result in an inadmissible confession. Harden cites Johnson v. State, 107 Miss. 196 (Miss. 1914), and Abram v. State, 606 So. 2d 1015 (Miss. 1992) (overruled on other grounds), in support of his coercion argument.
In Johnson, a man working for a newspaper acquired a confession by making continuous visits to Johnson in jail. The man told the defendant he had a special connection with the spirit world. He implied he had a hidden power of occultism and was a spiritual medium who could divine the thoughts of defendant.
The interrogations occurred while defendant was sick with fever, taking medication, and under fear of being lynched. The court found from the totality of the circumstances that the confession had not been freely and voluntarily given.
In Abram, we found that the defendant’s confession was inadmissible because it had been induced by the sheriff’s promises that he could avoid the death penalty and by a reverend’s statement that he would help the defendant attain the forgiveness of God for the crime.
In our case, Harden was 34 years old. Although he was not familiar with the criminal justice system, nothing showed he had a specific relationship with or trust in Zacharias. During the interview, Zacharias repeatedly encouraged Harden to own up to his actions.
He did not tell Harden that he would receive forgiveness from the criminal justice system, but instead told him he would receive forgiveness from God according to Harden’s own expressed belief that God forgives all.
Unlike the defendants in Johnson and Abram, Harden had no reason to believe Zacharias had any elevated status concerning religious matters. In Johnson, the person who took the confession had professed to be a spiritualist who could see into the defendant’s heart and detect guilt. In Abram, the inquisitor was a reverend who told the defendant he would help the defendant attain the forgiveness of God if he confessed.
Harden did not confess until after Zacharias had told him that forensic evidence would prove Harden’s guilt. We find that the trial court did not manifestly err by holding, from the totality of the circumstances, that Zacharias’s statements did not induce Harden’s confession.
B. Right to counsel
Harden asserts he invoked his right to counsel by repeating that right after it was read to him by Zacharias. At one point when Zacharias asked Harden if he understood his rights, Harden stated “You said I can have a lawyer appointed to me. I can’t afford no lawyer.”
The evidence before the trial court was that Harden did not invoke his right to counsel. Harden asserts that his invocation of the right to counsel paralleled that in Holland v. State, 587 So. 2d 848 (Miss. 1991). However, in Holland, the defendant asked during interrogation, “Don’t you think I need a lawyer?”
This court ruled this question in Holland was an ambiguous invocation of the right to counsel and questioned then whether the police detective responded within constitutional parameters.
But Harden merely repeated one of his rights after it was read to him, then stated he could not afford counsel. He did not ask for counsel; nor did he even ambiguously ask for counsel. At no time did Harden expressly request the presence of counsel.
Thoughts
MSC has since decided Saddler wherein they said that it is still good police practice to ask clarifying questions when the subject makes ambiguous requests to remain silent and/or to obtain an attorney. However, they have said they will now follow U.S. Supreme Court case Davis v. United States, 512 U.S. 452 (1994), which holds that the right to counsel can only be legally asserted by an unambiguous or unequivocal request for counsel.