Facts
In 1991, Junior Dean Franks was found lying in the street in Tupelo. Tupelo Police Officer Preston Irving discovered that Franks had been shot in the neck. Franks was transported to the hospital but later died as a result of his gunshot injury.
Meanwhile, 16-year-old Daryl Leonard Morgan was being held in the Lee County jail for a burglary that had been committed in Mooreville. Tupelo Police Detective Robert Hall approached Morgan and asked if he had heard anything about Franks’ murder.
Apparently, Morgan had given the police reliable information in the past regarding another criminal matter, and Hall hoped that Morgan might have heard something about the Franks’ shooting. During the course of his conversation with Morgan, Hall testified that Morgan stated something about the Franks murder that was not widely known. That is, Morgan apparently indicated that Franks was shot with a “six spinner,” i.e., a revolver. At this point in time, Hall ceased his conversation with Morgan because he then became a suspect in the Franks murder.
Hall received information a few days later from a confidential informant who stated that Christopher Thomas was going around saying Daryl Morgan was the one that shot the man at Crosstown. Thomas originally lied but through subsequent police investigation, Hall returned and confronted Thomas, who admitted he had information on the murder and provided a videotaped confession.
As a result of Thomas’ statements made to Detective Hall, Morgan was arrested by warrant for the murder of Franks. The next morning Morgan was questioned by Detective Hall, Detective Cliff Hardy and Detective Bart Aquirre. Also present during this questioning was Morgan’s mother, Carolyn. Morgan was informed of his Miranda rights, and his rights were individually explained to him and his mother. Thereafter, Morgan signed a waiver of rights form.
Morgan gave a videotaped confession in which he admitted shooting Franks during a botched robbery attempt at a Tupelo laundromat. After giving the videotaped confession, Morgan was taken to another part of the police station where he gave an oral statement that was typed by Detective Aquirre. Morgan signed and initialed the written statement.
Morgan was convicted of murder and armed robbery and sentenced to life. On appeal, he argued the confession was involuntarily obtained. MSC affirmed.
Analysis
A. Confession induced
The general rule is that for a confession to be admissible it must have been given voluntarily and not given as a result of promises, threats or inducements. Morgan argues that his confession was unlawfully induced by Detective Aquirre’s comment that Morgan should tell the truth and that “the truth shall set you free.”
Morgan relies on Miller v. State, 243 So. 2d 558 (Miss. 1971), and Dunn v. State, 547 So. 2d 42 (Miss. 1989), to support his argument that Aquirre’s statement was improper and tainted the “voluntariness” of his confession.
In Miller, we reversed the trial court’s determination that the defendant’s confession was voluntary when the defendant was told by the sheriff that “it would be better for him to tell the truth about the thing.”
In Dunn, the defendant was induced to confess by a police officer with whom the defendant was personally acquainted and whom the defendant had great trust and confidence in. The officer told the defendant that he “would do what ever was legal with [sic] my realms to help.”
In our case, Morgan, like the defendants in Miller and Dunn, was young when he confessed. However, unlike the defendant in Miller and Dunn, Morgan had a history of legal problems and has had an opportunity to become familiar with the criminal justice system. Furthermore, Morgan, unlike the defendant in Dunn, did not know the detective [Aquirre] he confessed to and there was no testimony to indicate that Morgan placed trust or confidence in Aquirre.
Moreover, and most importantly, Morgan testified that he was not offered any promises or inducements to make the written or videotaped confessions. In this case, the questionable remark made by Detective Aquirre came well after Morgan had confessed to shooting Franks. Accordingly, the trial judge’s finding that Aquirre’s statement did not lead to Morgan’s confession is supported by Morgan’s own testimony and, thus, Miller and Dunn are not dispositive to this case.
B. Did not understand Miranda rights
Morgan claims that he did not understand the meaning of the word “silent.” Notwithstanding Morgan’s claim, during cross-examination Morgan stated that he understood that he had the right to stop answering questions but that right was not read to him. A check of Morgan’s videotaped confession indicates that Aquirre did explain to Morgan that he could stop answering questions at any time and have an attorney appointed.
Morgan indicated on the tape that he understood this right. The trial judge, confronted with this and several discrepancies in Morgan’s testimony as to which rights were read to him and which ones were not, apparently chose to disbelieve much if not all of Morgan’s testimony. The trial judge found that Morgan’s videotaped and written confessions were admissible. We find that the trial judge’s findings were supported by substantial evidence and are thus not reversible.
C. He was threatened
Morgan claims that his confessions were the result of a threat he received from Detective Hall and thus were not made voluntarily. Morgan claims that this threat was made in the presence of Detective Cliff Hardy and Detective Sammy Green. Morgan testified that in the presence of Detectives Hardy and Green, Hall made the alleged threat to hit him with his blackjack. Hardy and Green denied Morgan’s claim that Hall had threatened Morgan.
In this case there was conflicting testimony as to the alleged threat visited upon Morgan by Detective Hall. Morgan claims that the threat was made, and the detectives all deny that the threat was made.
We have held that the resolution of conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial judge at the suppression hearing. Therefore, Morgan merits no relief on this claim.
D. Right to counsel (6th amendment)
In Mississippi, “the right to counsel, both federal and state varieties, attaches at the point in time when ‘the initial appearance under Rule 1.04 . . . ought to have been held . . . .'” Veal, 585 So. 2d at 699 (Miss. 1991).
In this case, Morgan’s right to counsel attached on July 11, 1991, when he was arrested by warrant for Franks’ murder. Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance.
In Veal v. State, 585 So. 2d 693 (Miss. 1991), we were confronted with a similar such situation, and we hold that the precedent therein contained dictates today’s result. Veal, like Morgan, had been arrested by warrant before he confessed. Veal, like Morgan, was informed of his Miranda rights and he waived those rights. Veal, like Morgan, argued on appeal that the lower court erred in refusing to suppress his confession because the State had unnecessarily delayed his initial appearance to gain a confession.
On appeal we rejected Veal’s argument and held that he had been promptly advised of his attached right to counsel, and he clearly and promptly waived that right. Accordingly, we found no error in the use of Veal’s post-initial appearance confession.
In this case, Morgan admitted that he was not questioned at all by detectives on the night of his arrest. He did claim that he had asked for an attorney on that night, but Detective Hall denied that he had ever made such a request. The trial judge did not find that Morgan had asked for the appointment of counsel on the murder charge.
The videotape and the various witnesses’ testimony amply support the trial judge’s finding that Morgan was fully advised of his Rule 1.04 (Miranda) rights and he promptly waived those rights. The trial judge found that Morgan’s July 12, 1991, confessions were admissible because Morgan had been advised of his right to counsel and that he knowingly, intelligently and voluntarily waived this right.