After invoking counsel, police can’t encourage parent to pressure 14 year old to further interrogation


In 2008, Michael and Linda Porter were traveling to Pascagoula to watch Linda’s grandson play football. They stopped at a Conoco gas station in Moss Point to ask for directions to the football stadium. Michael exited the car to go into the gas station, and Linda stayed in the car. She saw three young men standing in front of the car, one with a white towel over his head. She looked through the rear window and saw two of the men attacking Michael, while the third man with the white towel kept watch on her.

Michael wrestled with the men and managed to get inside the car. Michael then held the door shut with his right hand and attempted to work the gear shift with his left hand. The man with the white towel approached the car, aimed a gun at Linda, and then at Michael, and fired. The bullet struck Michael in the chest. The assailants fled. Michael managed to get the car in gear and drive away, but quickly succumbed to the bullet wound. Linda was unable to identify the assailants, whom she described as black males in their early twenties.

The police arrested Tevin Benjamin, Darwin Wells, Terry Hye, and Alonzo Kelly in connection with the crime. It was determined that Wells had fired the fatal shot. The police searched Wells’s home and found a handgun.

Kelly, who pleaded guilty as an accessory after the fact, testified that the morning of the crime, Hye and Benjamin had come to his house. Hye talked to Wells on the phone about “hitting a lick” to get money to go to the county fair. Wells wanted to “hit a lick” at the Conoco. On the walk to the Conoco, Wells showed the other individuals that he had a gun. Kelly refused to participate and waited at the intersection while the others proceeded down Peters Street toward the Conoco. He testified that he saw Benjamin and Hye standing near the end of the street. He turned around, and about ten seconds later, he heard a gunshot and saw Benjamin, Hye, and Wells running back toward him. Kelly ran with them to Wells’s house, and then they split up. The next day, they met at Wells’s house and discussed what to say if they were caught. Kelly testified that Benjamin planned to say he was at the fair at the time of the crime.

Benjamin told the police that he, Kelly, and Hye were at the fair at the time of the crime. He claimed to know nothing about the shooting.

Benjamin was convicted of murder and sentenced to life. On appeal, he argued his statement was taken in violation of Miranda. MSC agreed and reversed.


Benjamin was fourteen years old at the time of the crime. A few days after the shooting, Officer Miller questioned Benjamin in the presence of his mother and a second, unidentified police officer. The conversation was recorded on audio and video. Officer Miller read Benjamin his Miranda rights, but Benjamin asked for his youth-court attorney.

At that point, Miller looked at Benjamin’s mother and said “The only way that anything will change is if he request a, you know, request it. And uh, I can’t, I can’t pressure him into changing his tune about wanting a lawyer, you know, and that kind of stuff. So, if you want to speak to him for a few minutes then, you know, we’ll go from there.” Miller and the officer exited the room, leaving Benjamin alone with his mother.

Benjamin’s mother immediately began pressuring Benjamin into relinquishing his request for an attorney and talking to the police. After a few minutes, Miller returned to the room. When Miller said that Benjamin would stay the night in jail, he looked directly at Benjamin. Miller said he was trying to get Benjamin’s side of the story, but that they had no problems with it if he wanted to work through it with an attorney.  Miller then said, “so you can probably uh, go ahead and say your goodbyes I guess and he’ll be in the big boy jail tonight.” Miller and the officer again left Benjamin alone with his mother. Their further conversation was not recorded.

Miller testified at the suppression hearing that Benjamin’s mother emerged from the interview room and said that Benjamin wanted to talk. The police recorded his subsequent interview with Officers Miller and Roberts. At the beginning of the interview, Miller said “What’s the deal? You want to talk to us?” Benjamin responded, “I just want to let you know sir, I don’t, you said ya’ll charge me.” Miller read Benjamin his Miranda rights, and Benjamin said he understood. Then, Miller continued questioning Benjamin about whether he wanted to talk. Benjamin said that he wanted to talk and had requested to talk to the police.

Then, the following occurred:

Benjamin: Can I say something right quick sir?

Miller: You can say anything you want to buddy, it’s your interview.

Benjamin: So uh, when we get done am I still gonna be getting locked up?

Miller: Well that has a lot to do with what you talk about and everything. Uh, that has a lot to do with that dude.

Miller testified that, although he told Benjamin that whether he stayed in jail depended on what he said to the police, in fact it was a virtual certainty that Benjamin would be incarcerated that night no matter what he told the police. Benjamin gave a statement in which he claimed that he was at the fair on the night of the shooting. This statement corroborated Kelly’s testimony that Benjamin and the others had concocted alibis after the shooting, and that Benjamin had planned on saying he was at the fair. Although the officers and Benjamin’s mother continued to pressure Benjamin to “tell the truth,” Benjamin did not depart from his statement that he had been at the fair, and the interview concluded. At the end of the interview, Officer Miller thanked Benjamin’s mother “for your help.” He also said “Thank you ma’am, we appreciate ya.”

Edwards rule

If the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. See SCOTUS Edwards v. Arizona, 451 U.S. 477 (1981). When an accused has invoked his right to counsel a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.

It is undisputed that Benjamin was in custody and invoked his right to counsel. He contends that, after he invoked his right to counsel, he was subjected to further interrogation by the police and that his mother acted as an agent for the police for the purpose of extracting his statement.

Interrogation is not limited to express questioning of a suspect while in custody. The concept also embraces any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. See SCOTUS Rhode Island v Innis, 446 U.S. 291 (1980). This Court has held that a private third party may, without realizing that he or she doing so, act as an agent for the police to induce a defendant’s statement. See MSC Abram v. State, 606 So. 2d 1015  (Miss. 1992)

After Benjamin invoked his right to counsel, interrogation had to cease until an attorney was present. Instead, the police continued to interact with Benjamin and with his mother, who repeatedly expressed the desire that Benjamin forego an attorney and talk to the police. Officer Miller announced that Benjamin was being charged with capital murder and that Benjamin was going to spend the night in jail. Although Benjamin repeatedly requested confirmation of his erroneous belief that if he talked, he would not have to spend the night in jail, Officer Miller never corrected Benjamin’s false assumption that he could avoid spending the night in jail by talking.

Then, with knowledge that Benjamin’s mother wanted Benjamin to waive his right to counsel and talk, Officer Miller informed Benjamin’s mother exactly what Benjamin would have to do in order to reinitiate questioning, and left her alone with Benjamin. Officer Miller explained that he could not “pressure him into changing his tune about wanting a lawyer,” and allowed his mother to speak with Benjamin “for a few minutes,” and “we’ll go from there.” Predictably, Benjamin’s mother used her time alone with Benjamin to pressure him to talk. Then, Officer Miller returned to the interview room to assess the situation, and Benjamin’s mother asked for clarification on what Benjamin had to do to talk. When Benjamin did not relent, officers readied him for incarceration and again left him with his mother to say goodbye. After that conversation, Benjamin announced that he was ready to talk.

Benjamin’s immaturity is revealed by the fact that his main concern at being charged with capital murder was avoiding a night in jail. When the police encourage a parent to pressure a fourteen-year-old suspect to talk, and the police foster the suspect’s mistaken belief that talking would allow him to avoid a night in jail, the police should know their conduct is reasonably likely to elicit an incriminating response. By encouraging Benjamin’s belief that, by talking to the police, he could avoid a night in jail, and by allowing Benjamin’s mother to speak with him after instructing her on how Benjamin could reinitiate questioning, the police used psychological ploys and compelling influences to elicit Benjamin’s statement. These tactics constituted the functional equivalent of interrogation, because they were reasonably likely to elicit an incriminating response from fourteen-year-old Benjamin. We find that Benjamin was subjected to interrogation after invoking his right to counsel in violation of Edwards v. Arizona.

Under Edwards, Benjamin’s waiver was presumptively involuntary because it was made in response to interrogation after Benjamin had invoked his right to counsel. Further, the facts condemn any notion that the prosecution proved beyond a reasonable doubt that Benjamin’s waiver was knowing and intelligent. A knowing and intelligent waiver must be made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.

Benjamin’s mother was under the false impression that it would be helpful to Benjamin to cooperate and waive his rights. She also communicated that he should talk to the police because they could not afford an attorney. It is manifestly apparent that Benjamin conceded to pressure from his mother and to his desire to avoid a night in jail in deciding to waive his rights. Benjamin’s youth rendered him particularly susceptible to parental pressure. Under these circumstances, we cannot say that the record demonstrates that Benjamin’s waiver was made with full awareness of the nature of the right and the consequences of abandoning it.