On March 4, 1994, Biloxi P.D. took a missing person report filed by D.C. Tolbert regarding the missing status of her husband Kenneth Tolbert. D.C. Tolbert reported her last contact with Kenneth was February 24, 1994. Further, D.C. requested the media not be advised of the missing person report.
On March 20, 1994, a couple of people notified the Sheriff’s Department that they had discovered what they thought was a body wrapped in blue packaging protruding from the water near Hurricane Bridge off Highway 15. Upon analysis of dental records, the body was identified as that of Kenneth Tolbert. Expert Paul McGarry, a forensic pathologist, testified that the autopsy diagnosed four gunshot wounds from which Tolbert died, one of which was a contact wound to the head.
The investigation yielded that William O’Halloran and Tolbert’s widow transported Tolbert’s body to one location. Then, the very night of the murder, Mrs. Tolbert apparently told others of the body’s location, such that those others likely moved the body to the river. O’Halloran was not present when Tolbert’s body was deposited in the river.
O’Halloran was arrested at 10:00 p.m. on March 23, 1994. At 11:30 p.m. the same evening, Investigator Calvanese took a taped statement from O’Halloran. In that taped statement, O’Halloran was charged with murder and admitted shooting Kenneth Tolbert, regarding which he stated it (the shooting) happened so fast. O’Halloran also admitted he had a record of drinking and maintained a high tolerance.
O’Halloran was convicted of murder and sentenced to life. On appeal, he argued the statement should have been suppressed since he was intoxicated. MSC affirmed.
The voluntariness of a waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances. In Johnson v. State, 511 So. 2d 1360 (Miss. 1987), we said that no one factor is dispositive in the totality of circumstances test. Indeed, intoxication or sickness does not automatically render a confession involuntary. The admissibility of a confession depends upon the degree of intoxication.
In MSC case Kemp v. State, 352 So. 2d 446 (Miss. 1977), law officers testified that the defendant had been drinking heavily but that he was in control of his faculties, justifying admission of the confession. Other cases hold that intoxication must produce “mania” to be a defense. See MSC case State v. Williams, 208 So. 2d 172 (Miss. 1968).
In Moore v. State, 237 So. 2d 844 (Miss. 1970), we decided there was ample evidence to justify the finding that the defendant, although intoxicated, was in full command of his faculties, that his intoxication was less than mania, that he fully understood and appreciated what he was saying, and that his statements were free and voluntary.
Investigator Calvanese of the Harrison County Sheriff’s Department testified in the suppression hearing that O’Halloran, at the time of the statements, did not appear to have been drinking nor did he smell of intoxicants. Thus, Investigator Calvanese deemed it unnecessary to ask O’Halloran if he had consumed any alcohol that day and regarded O’Halloran’s statement as voluntary.
Investigator LaBlanc of the Biloxi Police Department testified at the hearing that O’Halloran did not appear impaired by or under the influence of any intoxicants at the time of the statement. Investigator LaBlanc also stated that while it is Biloxi Police Department standard procedure to ask the last time the accused has consumed alcohol and, if so, how much, Calvanese did not have the Biloxi Police Department forms and was acting pursuant to the Harrison County questioning procedure.
Inspector Burriss of the Biloxi Police Department testified that he fingerprinted and photographed O’Halloran prior to O’Halloran’s statement. During this time, Burriss detected neither intoxicants on nor intoxication of O’Halloran.
The testimony of the law enforcement officers demonstrates that O’Halloran was not impaired by intoxicants. Hence, there is no evidence that the trial court’s ruling is contrary to the overwhelming weight of the evidence.