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Phone call between victim’s mother and subject is properly admitted

Facts

V.B. lived with Jimmy Brown, her grandfather, between the ages of eight and thirteen and again between the ages of sixteen and nineteen. VB eventually told her family that Brown had sexually abused her on numerous occasions for years. VB went to DeSoto County S.O. and VB’s mother then made a phone call to Brown in the presence of Detective Jerry Owensby.

In that call, Brown confirmed that he had made inappropriate contact with V.B. at his home while Brown’s wife was at work. Though Brown initially denied having sexual intercourse with V.B., he eventually admitted that he had done so to V.B.’s mother.

Brown was arrested, Mirandized, and stated he had touched her approximately four or five times but never had sex with her. He was convicted of gratification of lust and sentenced to 10 years. On appeal, he argued the call with VB’s mother was illegally obtained without Miranda. MCOA affirmed.

Analysis

We find that Brown had no reasonable expectation of privacy in the phone conversation between himself and V.B.’s mother. In Bankston, this court stated: The Mississippi Supreme Court has held that electronic surveillance, “bugging,” does not tread upon the constitutional rights of the Fourth Amendment when the consent of one of the parties is first obtained. The expectation of privacy, though perhaps shaken by the mistaken belief that a person to whom one voluntarily confides will not reveal the conversation, does not reach constitutional proportions.

Applying this long-held principle to the present matter, the record clearly reflects that V.B.’s mother consented to the recording of her phone conversation with Brown. Brown assumed—albeit mistakenly—that V.B.’s mother would not convey the details of their conversation to law-enforcement officers. Therefore, we hold that Brown did not have a reasonable expectation of privacy during his incriminating conversation with V.B.’s mother.

In addition, Brown was not entitled to be informed of his right to remain silent at the outset of the phone call. Under Miranda, the accused must be warned of the right to remain silent and the right to an attorney before any custodial interrogation may occur. To be subject to custodial interrogation, one must be both in custody and undergoing interrogation.

Here, Brown was neither in custody nor being interrogated during his conversation with V.B.’s mother. Therefore, Brown’s fundamental rights were not violated, and this issue is without merit.

 

https://courts.ms.gov/Images/Opinions/CO119456.pdf