Facts
Brothers Dustin Gray and Austin Brookshire were driving in a car with their friend Willie Jones in the early morning hours of July 6, 2020, when Brookshire turned around from the front passenger seat and fatally shot Willie, who was sitting in the backseat listening to music with headphones. Earlier that evening, on July 5, all three had been at the house of Dietrich McGill in Picayune, along with Willie’s cousin Dakeyvion Jones. Willie kept a large amount of cash in an orange Nike shoebox that he would sometimes display and count. Dietrich and Dakeyvion testified that Willie had been displaying and counting the money that evening at Dietrich’s house.
When Dietrich went to bed after midnight, Willie, Gray, and Dakeyvion were still in the living room. Gray told Dietrich that Brookshire had gone outside. Dakeyvion testified that Brookshire had been inside the house at some point, and that the last person he saw Willie with was Dustin Gray. Dakeyvion also testified that he saw Gray’s car return later, around 3:30 a.m. Dakeyvion testified that Willie was dressed well and would typically wear a ring, chain, gold Rolex, and diamond earrings.
The Picayune Police Department began an investigation after Willie’s family reported him missing. Detective Rhonda Johnson learned that Brookshire’s brother, Gray, had been one of the last people seen with Willie Jones, and she received information that Gray had brought his car to a local detail shop mid-morning on July 6. Detective Johnson interviewed Willie McCormick, the proprietor of the detail shop, and an employee. She separately showed them a six-person photo line-up, and they each identified Gray as the person who had brought in the car. McCormick had refused to detail Gray’s car after he discovered blood and a bullet casing in the backseat. The car was eventually found at a house on the Gulf Coast where Gray and Brookshire’s other brother Andrew was staying.
The police executed a search warrant on Gray’s house and discovered stolen firearms. Gray was added to the NCIC database and ultimately apprehended in Colorado on July 16. Detective Johnson flew to Colorado and interviewed Gray, who told her the location of Willie’s body. The body was located in a shallow grave off of Texas Flat Road in a heavily wooded hunting-club area. After Willie was shot, Gray and Brookshire retrieved the shoebox of money from where Willie had stowed it. They then threw the gun and Willie’s clothes into Lake Pontchartrain before going to Lowe’s in Slidell when it opened at 6:00 a.m. At Lowe’s, they purchased two shovels, a container bin with rolling wheels, and bleach. The jury was shown surveillance video footage of the two brothers making the purchases at Lowe’s. Because the location of the body was outside the city limits, the Pearl River County Sheriff’s Department took over the investigation. As a result of Gray’s conversation with Detective Johnson, Brookshire was developed as a suspect.
Gray and Brookshire’s younger brother Andrew testified at trial. Andrew testified that he met with Brookshire at a friend’s house in Rankin County several days after the shooting. Brookshire told Andrew that Gray told him to shoot Willie, and he did. Brookshire also told Andrew that he and Gray went to Lowe’s. A few days after that conversation, Andrew and Brookshire met again at a Waffle House in Florence. Brookshire gave Andrew a large amount of cash and told him that Gray was on the run and if he got caught, Andrew needed to get him a lawyer. Andrew hid the cash on a family member’s property.
Brookshire was arrested in Rankin County on Friday, July 17, 2020, by Investigator Richard Gulledge of the Pearl River County Sheriff’s Department. At the time of the arrest, Brookshire invoked his Fifth Amendment right to counsel and declined to be interviewed. On Sunday, July 19, 2020, Gulledge had Brookshire brought from his cell to an interview room. Brookshire had not been arraigned or appointed counsel. In the first minute of the interaction, Gulledge asked Brookshire how he was doing, saying things like, “[H]ow you making it? . . . I can understand you being overwhelmed . . . . You probably got a lot of stuff swirling around in your mind. Probably playing the ‘what if’ game.” Gulledge then told Brookshire that the purpose of his visit was to ask for a voluntary DNA sample. Around the 3:00 minute mark of the interview, Gulledge told Brookshire that he had talked to Brookshire’s parents on the night of the arrest and again on the morning of the interview. He said, “They’re worried about you man.” He said that Brookshire’s parents seem like good people and “they’re struggling with it, that’s for sure.” Brookshire responded, “I’m struggling with it myself. It’s not me.” Gulledge responded, “I believe that. I believe that whatever happened, is not what you would normally do.” Brookshire then began crying and said, “That’s not me at all.”
Then, after a long silence, Gulledge said, “I believe you when you tell me that that’s not normally you and that’s not in your nature . . . . I will say this. I’m not trying to get you to talk to me.” Brookshire responded, “I’ve been wanting to talk to you it’s just, I didn’t want to do it without a lawyer. I wanted to talk to a lawyer first my legal rights [sic].” Gulledge responded, “I think you wanted to talk to me the other night.” Brookshire replied, “[I]t wouldn’t be smart without a lawyer. Anything I say could be used.”
At this point in the interview (around the 8:00 minute mark), Gulledge said, “[P]rotection. I get that. I don’t fault you for that. I will say this, from Friday night on, until this is all over, it’s not about me helping you, it’s about you helping yourself. Do you understand me? Do you understand the difference? You have to be willing to step up and help yourself before anyone else can do anything for you. I think you’ve been wanting to do that. I think you realize that that is probably the only play you have right now.”
Around the 9:00 minute mark, Gulledge presented Brookshire with the DNA sample consent form and read it out loud to him. Brookshire signed the form at the 13:00 minute mark. Gulledge left the room to get the testing kit and then took the sample at the 17:00 minute mark. Around the 20:00 minute mark, Gulledge explained the bond process and the factors the judge would take into consideration. He told Brookshire, “I don’t know what the judge is going to set your bond at.”
Brookshire asked Gulledge what his brother had said. Gulledge said, “[T]hat’s stuff that we can’t talk about right now,” but then he went on to say that Gray had “talked at length.” Gulledge said, “[I]t’s out. We know. . . . [U]s talking to you is just merely giving you the opportunity to get your side of the story out.” Brookshire then said, “I want to talk,” and, “I know my brother hasn’t told y’all the truth.” Gulledge confirmed that Brookshire wanted to talk without an attorney. Brookshire signed a Miranda waiver form and then gave an inculpatory statement.
On July 20, Gulledge interviewed Gray and Brookshire’s younger brother Andrew Brookshire. On July 21, Gulledge returned to interview Brookshire again. Brookshire had still not had an initial appearance or been appointed an attorney. Brookshire signed a Miranda waiver form and made further inculpatory statements. Brookshire spoke again with Gulledge without an attorney present several months later. In that interview, which Brookshire had requested, Brookshire changed his version of the events to say that Gray had been the one to pull the trigger.
Brookshire filed a pretrial motion to suppress the inculpatory statements made following his three interviews with Gulledge. The trial judge denied the motion after conducting a suppression hearing, listening to Gulledge’s testimony, and viewing the video recordings of the interviews. At trial, the witnesses included Andrew, Dietrich, Dakeyvion, Detective Johnson, McCormick, Investigator Gulledge, other investigators, including the dive team leader who retrieved two shovels and the bleach can from the creek near the shallow grave, three forensic experts, and others.
The jury convicted Brookshire of first-degree murder. The court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. He now appeals, arguing that his inculpatory statements should have been excluded from the evidence. MCOA affirmed.
Analysis
Brookshire argues that Investigator Gulledge’s conversation with him while obtaining the DNA sample was the functional equivalent of a custodial interrogation and violated his invoked right to counsel. An accused having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. See SCOTUS Edwards v. Arizona, 451 U.S. 477 (1981).
This Court has held that a simple request for physical evidence is not reasonably likely to elicit an incriminating response and does not necessarily rise to the level of an interrogation. See MCOA Brown. However, we have also described as improper officer-initiated contact that was made for the purpose of obtaining a DNA sample. See MCOA Forrest. Similar to our case, in Forrest, officers reinitiated contact with a suspect in custody after he invoked his right to an attorney but before his initial appearance and appointment of counsel. The suspect was asked to consent to a bodily search to procure DNA samples for testing. While finding that Forrest had consented to giving the DNA sample, we stated that Forrest’s assertion that the officer’s re-initiating questioning was improper is clearly meritorious. However, Forrest’s request to suppress the DNA sample failed because the seizure of evidence that is of a scientific nature, and that is not of a communicative nature, is not protected by the right against self-incrimination.
Here, Gulledge’s interviews with Brookshire contained the hallmarks of a custodial interrogation. Gulledge initiated and re-initiated communication with Brookshire, both times deliberately guiding the scope of the conversation to the crime and investigation. Gulledge referenced Brookshire’s parents, his belief that what happened was not in Brookshire’s nature, that Brookshire’s need to “help himself” was his “only play,” and that Gray had told them everything. The conversation went beyond small talk incidental to the requested and obtained DNA sample.
A functional equivalent of a custodial interrogation means words or actions that the police should know are reasonably likely to elicit an incriminating response from the suspect. See MCOA Pannell. Here, during Gulledge’s first two interviews with Brookshire, who had invoked his right to counsel and who had not yet been arraigned, that threshold clearly was crossed.
(Although the court found a violation, they went onto cite harmless error. Brookshire confessed on two separate occasions to his brother Andrew and gave Andrew the cash he and Gray had stolen from Willie. The jury heard Andrew’s testimony that Brookshire confessed that he had shot Willie and that he went to Lowe’s to buy supplies to bury the body. The jury saw a surveillance video of Brookshire and Gray at Lowe’s buying supplies used to bury the body. In light of the overwhelming evidence against Brookshire, we find that any error in the trial court’s failure to suppress Brookshire’s inculpatory statements is harmless. Therefore, no reversible error occurred).