Confession obtained in emergency room suppressed but another confession obtained the next day is admissible


In 2007, Jason Keller wrecked and abandoned a stolen truck and then set out on foot in possession of a stolen gun looking for cigarettes. He entered a convenience store and shot and killed Hat Nguyen, owner, before taking money from the cash register.

He then stole another truck and as police pulled him over, he pointed a metal object that resembled a shotgun barrel at the police to induce them to shoot him. He was shot by police and brought to an emergency room.

He was interrogated two times while in the emergency room and a third time the next day in the I.C.U. where he made a full confession. The trial judge suppressed the first two interviews as he found Keller was in a great amount of pain and could not have voluntarily provided a statement. However, he allowed the third interview to be admitted. Keller was convicted of capital murder and sentenced to death.

The MSC then ordered the trial court to go back and determine if any of the three statements were coerced as that was not in the record. The trial court had a hearing and ruled none of the statements were coerced. Keller argued the third statement should have been suppressed as fruit of the poisonous tree. MSC affirmed.


A. Third interview not fruit of poisonous tree in this case

In Byrom v. State, 863 So. 2d 836 (Miss. 2003), * this court rejected the notion that an illegally obtained confession necessarily requires the exclusion of a subsequent voluntary confession. The remedy for coercive interrogation practices is exclusion of the statements in which the coercion was present. It does not require the exclusion of all subsequent interrogations that are preceded by proper Miranda warnings and are not coercive.

The record supports the trial court’s finding that Keller intelligently, knowingly, and voluntarily confessed. Keller gave a full confession to the murder in a series of coherent, narrative responses to Investigator Michael Brown’s questions.

At no time did Keller invoke his right to remain silent or ask to confer with counsel. Also, nothing in the record supports a theory that the statements made in Keller’s two suppressed interrogations were exploited to secure a subsequent confession.

B. No coercion in any of the three interviews

It may be questionable that the police interrogate a suspect while he is being treated in an emergency room setting absent extraordinary circumstances; however, there is no evidence suggesting that the police officers did so to coerce Keller. Instead, testimony by the investigators reveals that they had a limited time to find out any information from Keller that could assist the investigation.

Additional testimony by Investigator David Perry, who was present during the first emergency room statement, demonstrated that the police officers didn’t know what was going to happen, if he was going to be in surgery, if he was going to have life threatening injuries.

The trial court found that the third statement was obtained by means sufficiently distinguishable to be purged of the primary taint. The trial court noted that the third statement was taken 14 hours after Keller’s first arrival at the hospital, away from the chaos of the emergency room.

Further, Keller gave no indication of the pain or distress he had exhibited in the emergency room. Additionally, the trial court found that Keller gave a detailed statement without coaxing by the officer and that the facts he related were verified by other independent evidence not obtained in either of the two previous statements.

C. Right to silence not violated

Keller maintains that he invoked his right to silence during an interrogation while he was being treated in the emergency room; thus, according to Keller, the police disregarded his invocation of the right to silence by approaching him a third time for another interview.

Invocation of the right to counsel is a rigid, prophylactic rule which prohibits further questioning until an attorney is made available or the defendant knowingly and voluntarily waives his right. On the other hand, invocation of the right to silence concerns whether an officer scrupulously honors a defendant’s right to cease questioning for a reasonable time, after which questioning may resume if the defendant knowingly and voluntarily waives this right.

After Investigator Craig Shows, who was present during the first statement, left the emergency room, Keller reinitiated contact with police by expressing a desire to speak with Sergeant Rick Allen about the danger faced by the officers who were en route to retrieve the murder weapon from the crack house where Keller had left it.

Brown testified that, during the course of the second interview by Brown, Keller never invoked his right to silence or to counsel but asked Brown at one point if they could talk at a later time.

Assuming Keller explicitly invoked his right to silence to Shows, the testimonial evidence shows that he reinitiated contact with Investigator Rick Allen after Shows left the emergency room. Moreover, his statement that he desired to talk with Brown at a later time cannot be said to be an invocation of his right to remain silent.

Additionally, Brown did wait for a reasonable time before conducting a third interview the following day, prior to which Keller expressed an understanding that he was knowingly and voluntarily waiving his right to silence.

D. “I understand” is an implicit waiver

Keller argues that the response “I understand” after being read Miranda rights was insufficient to convey that he was asking to waive his Miranda rights.

In Thompkins, the U.S. Supreme Court stated that in making its ruling on the admissibility of a statement made during custodial questioning, the trial court considers whether there is evidence to support the conclusion that, from the whole course of questioning, an express or implied waiver has been established.

Even if “I understand,” is not an express waiver, the demeanor and responses of Keller throughout the interview were sufficient to convey an implied waiver and willingness to confess to police.

* Byrom was reversed for other reasons