Victim recording subject is not a 5th amendment issue – also discusses when right to counsel attaches


In 2012, a group of twelve to fifteen men were playing dice at a birthday party in Benton County, Mississippi. As the game was winding down, Deldrick Carroll pulled out a gun and pointed it at Gary Patterson. Patterson dropped his money, about $2,260, and everyone fled.

Carroll then shot the gun in the air twice and left with two other unidentified men. Patterson and his brother Reggie, who was also at the party, went to pick up their father and then went to Benton County S.O. to report this crime. A few days later, Patterson returned to the S.O. and told Deputy Joe Batts that Carroll and some other guys had been trying to call him.

Batts asked him to call them back so he could record the conversation. During the phone call, Carroll admitted to robbing Patterson, but denied pulling a gun on him. Carroll also assured Patterson that he would try to return the money to him. Carroll was convicted of armed robbery and sentenced to 27 years. On appeal, Carroll argued the call should have been suppressed. MCOA affirmed.


A.  Fifth amendment

Both Deputy Batts and Patterson testified that Batts suggested recording the phone conversation. Batts also testified that he provided no advice or direction to Patterson about the phone call.

In Pierre v. State, 607 So. 2d 43 (Miss. 1992), the MSC held that the defendant, Loretta Pierre, possessed no reasonable expectation of privacy when she confessed to a crime while on the phone with her brother, as law enforcement sat nearby.

The record reflects that Carroll was not in custody when he received Patterson’s phone call, and the indictment had not yet been served. Like Pierre, Carroll did not make his inculpatory statement in response to custodial interrogation or any police action designed to elicit a response. Thus, as in Pierre, the Fifth Amendment imposed on the trial court no need to ascertain voluntariness, knowledge, and intelligence of waiver.


The Court discussed when the right to counsel attachment occurred in this case but did not have enough facts from the record to definitively say.

1. Does Mississippi’s constitution have broader protections than the U.S. constitution for right to counsel?

In Franklin, the MSC said no. As we explained in Grayson, both the Sixth Amendment of the U.S. Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee that the accused shall enjoy the right to have assistance of counsel for his or her defense. Section 26 is congruent with the right to counsel guaranteed by the Fifth and Sixth Amendments, except for the fact the right attaches earlier under Mississippi law. This exception is not because Section 26 compels so, but because Mississippi Code Section 99-1-7 prescribes it.

Johnson v. State, 631 So. 2d 185 (Miss. 1994), Gray v. State, 728 So. 2d 36 (Miss. 1998), and McGilberry v. State, 741 So. 2d 894 (Miss. 1999), erroneously advise that the Mississippi Constitution mandates when the right to counsel attaches. It does not. Section 99-1-7 does, as both Cannaday v. State, 455 So. 2d 713 (Miss. 1984) and Page v. State, 495 So. 2d 436 (Miss. 1986) instruct.

2.  What does § 99-1-7 say?

§ 99-1-7. Time limitation on prosecutions; commencement of prosecution

A prosecution may be commenced, within the meaning of Section 99-1-5 by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.

3. Did a warrant issue in this case?

Batts testified that the sheriff’s department did have a warrant for Carroll’s arrest prior to Patterson making the phone call. However, Batts stated that he did not remember the exact date that the sheriff’s department actually served the warrant for Carroll’s arrest, but he did know that the warrant was served after Patterson called Carroll.

The State argues that the statute does not mandate that when a warrant is merely drawn, prosecution is commenced. The record is not clear, whether at the time of the call the warrant had been signed by a judge and therefore issued, or if the sheriff’s department had simply drafted one preparing it to be signed by a judge.

4.  Why does this matter?

If the warrant had been issued, then Carroll would arguably at that point have a right to counsel under Mississippi law. As you can see from above, this is not because of the Mississippi Constitution but because of a Mississippi statute. Regardless of why (constitution or statute) your right to counsel attaches, the bigger point is that it has attached.

This means that if police ask Patterson to make a telephone call to Carroll after the warrant has been issued, the phone call could potentially be suppressed as his right to counsel had already attached.

You should be talking to your prosecutor if you have questions about this in your cases.