13 year old statement was admissible despite mental infirmities


In 1995, Charlie’s One Stop, a neighborhood grocery store in Columbus, Mississippi, was robbed. The owner of the store, Blanche Welch, suffered multiple stab wounds and died of a fatal wound to the neck and chest. Two days following the murder, officers of the Columbus Police Department were canvassing the neighborhood in hopes of finding suspects.

One such officer, Commander Donald Freshour, was walking when he saw an older woman with a group of young boys working on a lawn mower in her yard. Freshour asked the woman if she had any information regarding the murder. She did not know anything. As he was about to leave, Freshour asked the group of boys whether they knew anything about the crime. One of the boys answered yes. He then proceeded to tell the officer that he was riding by the store on his bike when it happened.

The boy was named Lee Floyd Dancer, Jr. Freshour called Dancer off to the side and asked him was he sure about witnessing the murder. The boy replied, “Yes,” and he then told the uniformed officer he saw two white men in a green Malibu with an Alabama license plate drive up in front of the store, shoot through the door, run inside, stab the woman, take potato chips, candy and money, run out, jump in their car and leave the scene.

Believing the boy knew something about the murder because his story showed that he had obviously been at the store as there was a very old bullet hole in the door, because he said the woman had been stabbed when that information had not been made public and because he had correctly identified the items that were actually missing from the store, Freshour asked Dancer if he would come to the station and give his information to the investigators. Dancer agreed.

A uniformed officer came and picked Dancer up. His bike was placed in the back of the patrol car and he sat up front with the officer. He was not handcuffed as he was being taken in as a witness and not a suspect. He was not under arrest at that point.

At the station, Investigator Turner and Dancer began to talk. Dancer repeated his story about the two white men in the green Malibu. Turner noticed a stain on Dancer’s shoes. He asked him if it was blood. Dancer replied, “No.” He then said, “I didn’t kill that woman. I didn’t stab her.”

Believing the manner of Welch’s death was not public information, the officers viewed Dancer as a suspect. As such, Turner read him his waiver of rights form, which Dancer said he understood. After several hours of telling the officers the same story about the white men, Dancer finally confessed to his involvement.

This statement was recorded. Dancer was approached by 17 year-old Uron Bush who told him that he was going to rob Charlie’s. Bush asked Dancer to be a lookout. Dancer “just left.” He went to Charlie’s One Stop a couple of hours later, but not as part of a plan with Bush. As he was paying for chips and a popsicle, Bush, “O” and a guy from the north side “busted into” the store. Dancer “got scared, jumped up against the wall and just froze.” Bush began to stab Mrs. Charlie. The interrogating officer asked Dancer if he “forgot” to be the lookout, Dancer replied, “Naw, I wasn’t going to be the look out.”

After taking the money from the register and various items of food, Bush, “O” and the other guy left. Dancer remained in the store for about two minutes after they left. He was crying and almost fainted. He then grabbed his purchase as well as a Butterfinger and cola that he did not pay for and left. Dancer ran to a nearby friend’s house. The other guys went to an abandoned flower shop. He saw Bush at some point later. Dancer told Bush that he (Bush) was going down big time. Bush threatened to kill Dancer if he told anybody what happened.

According to Dancer, he fabricated the story about the white men in the green Malibu because “they” would have been after him. At the end of the interrogation, Dancer acknowledged that the officers had not threatened or coerced him or promised him anything — that he was making the statement voluntarily and knowingly.

The next day the investigators interrogated Dancer again. According to the investigators, they were seeking the names of the other boys previously mentioned. In this statement, Dancer said he was a decoy in the store and that Bush was only supposed to rob Mrs. Charlie, not kill her.

Dancer was convicted of armed robbery and murder and sentenced to life. On appeal, he argued he was in custody when taken to the police station and that his confession should have been suppressed because of his mental infirmities. MSC affirmed.


A. Not Mirandized until he made incriminating statement

The first issue that must be addressed is whether Dancer was under arrest when he told the officers the “white men from Alabama” story. An arrest within the meaning of the criminal law is the taking into custody of another person by an officer or a private person for the purpose of holding him to answer for an alleged or suspected crime. One who voluntarily accompanies an officer to a place where he may be interviewed is not under arrest.

Here, Commander Freshour asked Dancer while canvassing the neighborhood if he would go to the police station for an interview. Dancer agreed. As Freshour testified, he did not think that Dancer had anything to do with the crime. He did believe, based upon Dancer correctly naming the items that were stolen from the store and that the victim had been stabbed, that the teenager witnessed the crime.

Thus, he was asked to give a statement as a witness. Dancer was not handcuffed, and he rode in the front of the patrol car — all of which indicates that he was not under arrest or even a suspect. In addition, his bike was taken to the station as well so that after the investigators took his statement he could go home.

Dancer repeated his story about the two white men in the green Malibu. One of the investigators then noticed a stain on Dancer’s tennis shoes. He asked if it was blood. In response to this query, Dancer made his first incriminating statement — that he did not kill Welch, that he did not stab her. It was at this point that Dancer was Mirandized.

We conclude that before the incriminating statement Dancer was not under arrest. He volunteered to go to the police station for an interview. In fact in one of his confessions he stated that he made up the “white men from Alabama” story because he feared for his life. Not until he incriminated himself was Dancer suspected in the crime, and when he made the comments he was properly given his rights. Thus, his contention that he was under arrest from the moment he agreed to give a statement is without merit.

B. Mental Capacity

We said in McGowan that there is no per se rule that mental retardation renders a confession involuntary and inadmissible. Instead, the mental abilities of an accused are but one factor to be considered in determining whether the confession was knowingly, intelligently and voluntarily made.

Dancer was 13 years-old at the time of the confession, he could read and write, and he had completed the sixth grade. All of the officers testified that Dancer was not threatened, coerced or promised anything.

Regarding Dancer’s claim of mental infirmities that affected his ability to understand what was happening, McGowan is instructive. There, the defendant put on evidence that his reading level was somewhere between the fourth and fifth grade, that his overall IQ was 55, that he was afraid if he did not talk the death penalty would be imposed on him, that he was told to sign the statement and waiver form without it being read to him and that he could not read the statement himself.

We rejected McGowan’s involuntary claim, finding that the “sparse information” regarding his mental capacity did not underscore any manifest error in the trial court’s decision-making process. In short, we concluded there was no overwhelming evidence that McGowan could not effectively waive his Miranda rights.

Such is the case here. There was no evidence or testimony presented at the suppression hearing regarding Dancer’s mental weakness.

During trial, Dr. Hudson testified that Dancer fell “somewhat below average” on the overall Iowa Test in 1994. However, Hudson conceded the tests did not indicate whether Dancer could function in society, that he was not “street smart” or that he could not relate the truth of events he witnessed or experienced.

The State brought up different parts of the test. On the evaluation reading or interpretation section, Dancer scored 57%, which was above the national average of 46%. Likewise, in spelling, Dancer scored 60%, while the national average was 55%. In the expression category, Dancer scored 40%, and the national average was only 51%. In math skills, Dancer scored within the national average. In the remembering section, Dancer scored right at the national average with 50%.

The State introduced Dancer’s cumulative school records, which showed that from first to fourth grade his scores were satisfactory — in the mid to lower eighties. It was only in the fifth grade that his scores decreased. It was also pointed out that Dancer had missed many school days in the fifth and sixth grade.

Considering the evidence presented regarding Dancer’s intelligence, we simply find no overwhelming evidence that Dancer could not effectively waive his Miranda rights.