During the day of November 9, 1994, Joseph Daniel Burns and Phillip Hale went to the Town House Motel on Gloster Street in Tupelo, Mississippi where Mike McBride was the hotel manager. Phillip Hale testified that he and McBride were friends, and that he introduced Burns to McBride on November 9, 1994. Phillip Hale testified that he went in and asked McBride if they could stay there three or four days. McBride said sure, and Phillip went out to the truck, got his bag and asked Burns to come inside.
Phillip Hale testified that they then “hung out for awhile” with McBride. Burns and Phillip Hale then went to get something to eat and watched a movie before returning to the motel office. McBride asked Burns and Phillip Hale if they wanted to help him count $30,000. They agreed and while they were counting the money, the two decided to rob McBride. Burns and Phillip Hale agreed that Hale would hit McBride and Burns would take the money. Phillip Hale further testified that he hit McBride and knocked him down and left the room to make sure nobody was coming. When he returned to the room, Burns was stabbing McBride in the back of the neck with a knife, a fork, and a phillip’s head screwdriver. When Hale asked Burns what he was doing, Burns stabbed Hale in the foot. Hale testified that McBride was repeating “why me” while he was being stabbed to death. After the stabbing, Burns and Hale wiped fingerprints, got the money and left. The record reflects that $3,000 was taken from a tin safe in McBride’s office. Burns broke the lock off of the safe with a pair of pliers.
After the stabbing, Burns and Phillip Hale returned to the trailer in Verona where they were living with Janie Taylor and Brandi Sides. Burns went into Janie Taylor’s room, whom he was dating at the time, woke her up, told her what they had done, counted the money, and divided the money between himself and Hale ($1,500 each).
Phillip Hale then went to his brother, Jeff’s, shop. His brother was out of town. Burns showed up later and informed Phillip Hale that he had thrown the “stuff” behind the trailer park where they lived. The testimony of State’s witness, Carrie Cryder, revealed that on December 24, 1994 he and Burns were riding around, and Burns retrieved the weapons from behind the trailer and threw them off of the bridge on Brewer Road.
Later that day, on November 10, 1994, Phillip Hale parked the truck the two had driven to the Town House Motel behind Jeff’s house because he was fearful that someone had seen the truck and could identify Burns and Hale by the truck. Jeff Hale had loaned his brother the truck several weeks before McBride was killed. When Jeff Hale returned to town, he was suspicious about why Phillip had parked the truck behind the house. Also, Phillip paid his brother, Jeff, $600 he owed him, and this too made Jeff suspicious about where Phillip got the money. When Jeff first asked Phillip where the money came from, Phillip lied to him. Phillip testified that he ultimately told his brother that he and Burns killed McBride, although there is some question about when he told him. Burns also told Jeff Hale what happened. The following weekend, on November 12, 1994, Burns, Phillip Hale and his brother, Jeff went to Tunica to the casinos and spent the money they had stolen from the Town House Motel returning to Tupelo with $100 or $200.
A guest of the Town House Motel testified that he remembered seeing two men arrive at the motel in a tan truck that fit the description of the truck belonging to Jeff Hale that Phillip Hale was driving on the day of the murder. The guest testified that they arrived about 8:00 p.m. and left around 10:00 or 10:30 p.m. McBride’s body was found by another employee of the motel around 7:00 a.m. the next morning.
Phillip Hale and Burns were not arrested until August of 1995 concerning this crime. The Tupelo Police Department arrested them pursuant to an investigation that ensued after two anonymous phone calls were received by the Crime Stoppers.
While Burns was in jail in Lee County, he began corresponding with a female prisoner, Contina Kohlheim. In the letters Burns sent Kohlheim, he talks about killing a man. “Look about the guy I killed, me and Phillip were dealing with a lot of dope and Phillip was giving our dope to this guy. He owed us $58,000. I told Phillip to ask him one more time to pay us but he never did. So that night we went to the town house and I killed his a**.” In the other letter Burns sent Kohlheim, he wrote, “I took a man’s life now I’m looking at the Death Penalty.” Testimony at trial revealed that Burns was not charged with any other murder, and there had been no other murders at the Town House Motel.
The letters were signed from “JoJo,” or “Love JoJo.” Burns gave the letters to a male trustee who in turn gave them to the jailer who then gave them to a female trustee to deliver since the male prisoners were not allowed to go to the female side of the jail. Kohlheim turned the letters over to the police after being asked to do so.
Following a request by the district attorney’s office, Officer Buddy Bell obtained a handwriting sample from Burns under the pretense of having him write down who would be allowed to visit him in jail. A comparison was then made between the letters written to Kohlheim and the known writing sample of Burns. The state’s expert determined that there was a strong probability that the signatures on both letters were Burns’. He further determined that the content of both letters was probably written by Burns. There was also a fingerprint analysis done on the letters. Burns’ fingerprints were found on both letters obtained from Tina Kohlheim.
Burns was convicted of murder and sentenced to death. On appeal, he argued the written handwriting exemplars was unconstitutional. MSC affirmed.
This particular issue is relatively new to Mississippi. However, the United States Supreme Court and various State Supreme Courts have addressed this same issue. The taking of handwriting exemplars is treated in much the same manner as blood samples, hair samples, etc. in that it is not a critical stage requiring presence of counsel and that there is no privacy expectation in handwriting samples taken from a prisoner.
A. Fourth Amendment
Burns argues that because the handwriting exemplars were obtained through trickery, his Fourth Amendment rights were violated. SCOTUS has held that handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Mara, 410 U.S. 19 (1973).
While we do not condone acts of trickery committed by the State in criminal cases, we find that there is no privacy interest in handwriting. Burns’ handwriting was obtained for the narrowly tailored purpose of comparing a known sample of his writing to the letters that the district attorney believed he wrote to Kohlheim – letters in which he discusses killing McBride.
If there is no Fourth Amendment privacy expectation in handwriting, there is no constitutional violation involved in not being entirely truthful in obtaining it. SCOTUS said in Moran v. Burbine, 475 U.S. 412 (1986), that “we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.” Officer Bell was under no constitutional duty to inform Burns why he wanted the handwriting exemplar. Thus this Court finds that if Officer Bell believed that telling Burns why the handwriting was being taken would have caused him to refuse or at the very least alter his writing style, his Fourth Amendment rights were not violated.
This Court recognizes that the handwriting exemplars could have been obtained by court order; and although we doubt that trickery was the best way to obtain said exemplars, we cannot ignore the findings of the United States Supreme Court that there is no Fourth Amendment privacy expectation in handwriting exemplars. We, therefore conclude, that when there is no expectation of privacy concern, using trickery as a method for obtaining handwriting exemplars is at worst bad practice.
B. Fifth Amendment
A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. See SCOTUS Gilbert v. California, 388 U.S. 263 (1967).
The Supreme Court further said in Gilbert that the taking of exemplars did not violate petitioner’s Fifth Amendment privilege against self- incrimination. The privilege reaches only compulsion of an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not compulsion which makes a suspect or accused the source of real or physical evidence. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. Applying this reasoning to the case at bar, Burns argument that his Fifth Amendment rights were violated is without merit.
Furthermore, this Court adopted SCOTUS reasoning in Gilbert in Baylor v. State, 246 So. 2d 516 (Miss. 1971) finding the Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself, that is, to provide evidence of a testimonial or communicative nature, but does not extend to the securing of real or physical evidence. Burns’ handwriting exemplars were not of a testimonial or communicative nature, but rather were taken for the purpose of comparing them to letters Burns wrote to Kohlheim.
C. Sixth Amendment
He claims that because his counsel was not present, he was deprived of the assistance of counsel for his defense. In Gilbert v. California, 388 U.S. 263 (1967), SCOTUS held that the taking of the exemplars was not a critical stage of the criminal proceedings entitling petitioner to the assistance of counsel.
While this Court has not addressed this specific issue, similar issues have been addressed regarding when the right to counsel attaches. We have said that failure to provide counsel at non-critical stages such as scientific analysis of fingerprints, blood samples, hair and clothing is not a constitutional violation. See Baylor, 246 So. 2d at 519. We have reiterated the same holding several times since Baylor. See, e.g., Magee v. State, 542 So. 2d 228 (Miss. 1989)(photographic lineup not critical stage); Newton v. State, 321 So. 2d 298 (Miss. 1975)(fingerprinting not critical stage); Ewing v. State, 300 So. 2d 916 (Miss. 1974) (chemical test for intoxication not critical stage).
Critical stage has been defined by this Court as any confrontation in which the results might affect the course of the later trial and in which the presence of counsel might avert prejudice at trial. See Ormond v. State, 599 So. 2d 951 (Miss. 1992). Ormond dictates that as long as there is an opportunity for counsel to cross-examine at trial or otherwise confront witnesses, there is no constitutional violation for not having counsel present during non-critical stages. Therefore, because counsel for Burns had the opportunity to cross-examine witnesses in regard to the handwriting exemplar, as well as, the letters written to Kohlheim to which they were compared, he was able to “avert prejudice at trial” thus meeting the standard set forth in Ormond.
It is clear to us that there has not been a violation of Burns’ Fourth, Fifth or Sixth Amendment rights. There is no privacy expectation in handwriting, thus no Fourth Amendment violation. The taking of a handwriting exemplar is not communicative and does not force the defendant to incriminate himself. It is nothing more than a method of identification, thus there has been no Fifth Amendment violation. Finally, because the taking of the handwriting exemplar was not a critical stage, there was no right to have counsel present; therefore, Burns did not suffer a Sixth Amendment constitutional violation. For these reasons, this issue is without merit.