In 1997, Ellis Spann, nineteen years old, and Jerrian Horne, fourteen years old, entered Uncle Guy’s Quick Stop in Hattiesburg, Mississippi. Spann was armed with a .38 caliber revolver, and Horne with a .22 caliber rifle. The third member of the trio, Terry McLaurin, remained outside the store.
Myong Ja Son (commonly referred to as “Ms. Su”), an employee of the Quick Stop, and her brother, Myong Cheon Son (“Son”), were behind the counter watching television. Both Ms. Su and Son were shot. Ms. Su, who was shot in the wrist and in the chest, survived her injuries. Son was killed by a gunshot wound to his head. A bullet also grazed his right shoulder. Spann, Horne, and McLaurin fled the scene immediately. The crime was recorded by a video surveillance camera located behind the counter.
At trial, Ms. Su testified that she recognized Horne and Spann, who regularly came into the store. She stated that on the day of the crime, they came into the store three or four times. In court, Ms. Su identified Spann as the man who shot her. Officers of the Hattiesburg Police Department interviewed Ms. Su at the hospital, and she gave them a description of Horne, a black male with red hair and blue eyes. She told them where Horne lived.
Upon arriving at Horne’s residence, Lieutenant Charles DeJarnett found Horne, who told DeJarnett that he had been at a friend’s house on Claiborne Avenue that evening. Officers went to the house on Claiborne Avenue, the home of Essie Ellis, where they retrieved the .22 rifle from beneath the house. Ellis testified that her nephews, Terry McLaurin and Tony McLaurin, were living with her at the time.
She stated that on the day of the crime, Horne and Spann were at the house visiting the McLaurin boys. She stated that Spann lived with his grandmother across from the Ellis house. Ellis testified that between 8 p.m. and 9 p.m. the evening of the crime, she heard a noise outside. She stated that she had corrugated metal around the house and heard it rattling. She stated that she went to the bathroom window and asked who was there.
She testified that Horne identified himself and said he was taking a pee and had knocked the metal down. Behind the metal, police officers recovered the .22 rifle. Ellis testified that the following day, police officers returned to the house, and Ellis signed a written consent form for search of the house. Under a bed in the house, the officers recovered the .38 revolver.
Horne and McLaurin were taken into custody. Warrants were issued for the arrest of Spann, who could not be located the evening of the crime. Spann’s father brought Spann to the police station the following afternoon. Detective Rusty Keyes interviewed Spann at the police station. Keyes stated that before talking to Spann, he read Spann his Miranda rights and waiver, which Spann signed. Spann confessed to the murder.
He was convicted of capital murder and sentenced to life. On appeal, he argued his confession should have been suppressed. MSC affirmed.
Spann argues that, never having been previously arrested for a felony conviction, he was unfamiliar with police procedures.
At the suppression hearing, the State offered the testimony of Detective Rusty Keyes, the officer who took Spann’s statement and the only officer present at the time the statement was made. Keyes testified that Spann’s father brought him to the police station and that Spann came to the station voluntarily. Keyes stated that he told Spann and Spann’s father that he would like to talk to Spann and that Spann and his father said that was fine.
Keyes testified that Spann’s father stated that he would like to be present at the interview, but that he denied the request because Spann was an adult and Keyes wanted to interview him on a one-on-one basis. Keyes testified that when he took Spann into his office, he read him his rights and waiver of rights. At that time, Spann signed the waiver. Keyes stated that Spann signed the waiver freely and voluntarily, that he did not promise Spann anything in return for Spann’s signature, that Spann did not appear to be under any kind of mental disability, and that Spann appeared to understand fully what he was doing.
Keyes testified that he advised Spann of his rights a second time during the course of Spann’s statement. Keyes testified that at the time Spann made his statement, he was very calm and collected, did not appear to be under the influence of alcohol or drugs, was able to talk to Keyes in an intelligent, reasonable, and rational manner, had no problem understanding or responding to anything Keyes asked him, and was promised nothing in return for his statement. When asked by Spann’s attorney whether it was possible that Spann did not understand the magnitude of what was going on, Keyes responded that Spann fully understood what was happening.
Spann’s statement was reduced to writing and signed by Spann. Keyes testified that, after typing Spann’s statement, he read the statement back to Spann at Spann’s request, after which Spann signed the statement. The statement also bears the signature of a desk clerk from the police station to whom Spann swore that he was telling the truth and that the document contained his statement and his signature.
Spann complains that because of his age, limited intelligence, and lack of experience in police procedure, the trial court should have found that, considering the totality of the circumstances, his statement was not given voluntarily and that he did not knowingly waive his rights. This court has stated that age and intelligence factors are to be considered in determining whether a waiver and a confession are free and voluntary, but that they are not controlling. See Coleman v. State, 378 So. 2d 640 (Miss. 1979).
There was no testimony offered by Spann at the hearing regarding the effect of his age, which was nineteen at the time of the confession, or of his alleged limited intelligence on the voluntariness of his confession. This court has stated that the youth factor is seldom per se conclusive that a confession was not freely and voluntarily given. In re W.R.A., 481 So. 2d 280 (Miss. 1985). Furthermore, it should be noted that, at least according to the Youth Court Act, Spann is not a youth. See Miss. Code Ann. § 43-21-105(d) (defining youth as a person who has not yet reached his eighteenth birthday).
Regarding Spann’s assertion that his intellectual capacity hindered his ability to understand the waiver of rights and to voluntarily make a statement, though this court has held inadmissible the confession of a defendant with an IQ of 60, see Dover v. State, 227 So. 2d 296 (Miss. 1969), Spann made no demonstration before the trial court that he had any diminished intellectual capacity. The only evidence that Spann might have limited intellectual capabilities was presented during the penalty phase of the trial, where the defense offered evidence that Spann has an IQ of 85. Spann offered no such evidence at the suppression hearing.
Spann also asserts that, because his father was not present during his interrogation, his understanding of his rights was diminished and the interrogation was coercive. Spann’s assertion that he should have been allowed to have his father present during the interrogation is without merit. In Blue v. State, 674 So. 2d 1184 (Miss. 1996), we said where the crime is such that circuit court has original jurisdiction, age had no special bearing on defendant’s ability to be questioned without a parent and voluntarily waive his rights.
At the suppression hearing, defense counsel raised the inference, through its questioning of Keyes, that an attorney was called while Spann was at the station and that the attorney was on his way to the station at the time the statement was made. Keyes stated that Spann never asked for a lawyer at the time he made his statement and that Keyes knew of no lawyer that had called the station before the statement was made or during the time the statement was being made.
Keyes testified that after Spann was taken to the jail, he was advised that Spann’s uncle sent a message up to talk with Tracy Klein, an attorney, and that he did not know that an attorney was on the way to the station until after Spann was in jail, which was subsequent to the time the statement was taken.
Other than the questions asked of Keyes on cross-examination, the defense put on no evidence that an attorney had been called by any member of Spann’s family, that an attorney called the station, or that an attorney was on the way to the station. In fact, Spann states in his brief to this court that his confession took place without a lawyer present, who may have contacted the police department prior to the statement being given.
Based on the failure of defense counsel to make anything more than tentative allegations regarding this issue, it is the conclusion of this court that Spann’s right to counsel was not violated.