In 2004, sixty-three-year-old R.B. heard a strange noise coming from her window unit air conditioner. Before R.B. could call 911, a man entered her house through the window. R.B. tried to defend herself with a knife, but the intruder disarmed her, threw her to the ground, and tore off her clothes. R.B.’s attacker raped her and forced her to perform oral sex. Before he left, the assailant tore R.B.’s phone to pieces and exited through her window.
R.B. used a tissue to collect some of the attacker’s semen. She then went to a neighbor’s house and called the Gulfport Police Department. Sergeant Christopher Parrish of the Gulfport Police Department was dispatched to the scene of a subsequent but separate burglary complaint. As Parrish made his way to the scene, he saw a dark blue sedan parked on the side of the road near the location of the burglary. The driver of that car suddenly turned on the car’s headlights and left the area at a high rate of speed. Sergeant Parrish followed the car.
After the car stopped in the parking lot adjacent to an apartment complex, Parrish approached the car and found Francisus Robinson inside. Robinson appeared to be asleep. Robinson consented to a search of his car, but Robinson was not arrested at that time.
Approximately one month later, Sergeant George Chaix conducted a follow-up interview with R.B. R.B. told Chaix that one night during the summer before she was burglarized and raped, a dark-colored full-size car drove by her house between fifteen and twenty times. Chaix remembered that Robinson was in a dark blue sedan the night Parrish encountered him near a separate burglary scene approximately two miles from R.B.’s house.
The next morning Chaix and Detective Heather Dailey went to Robinson’s house. Chaix and Dailey asked Robinson whether he would accompany them to Memorial Hospital at Gulfport (MHG) to give a blood sample. Robinson agreed. Dailey drove her car to MHG. Robinson rode in the front passenger seat, and Chaix rode in the backseat.
Once they arrived at MHG, Chaix asked Robinson to execute a voluntary consent form to indicate his consent to have his blood drawn. Chaix did not have a common “voluntary consent for body search” form. Instead, Officer Chaix used a modified “consent to search” form, which he read to Robinson verbatim. That form read as follows: I, Francisus Robinson, having been informed of my constitutional right to not have a search made of the premises hereinafter mentioned without a search warrant, and of my right to refuse to consent to such a search, hereby authorized Det. Sgt. Chaix and Det. Heather Dailey, Police Officers of the Gulfport Police Department, City of Gulfport, County of Harrison, State of Mississippi, to conduct a complete search of my body located at for blood sample.
Robinson signed the consent form and agreed to have his blood drawn. A subsequent DNA test indicated that Robinson’s DNA matched the DNA of the man who attacked and raped R.B.
Robinson was convicted of forcible sexual intercourse, sexual battery, and burglary and sentenced to 65 years. On appeal, he argued Miranda should have been given before he provided consent and that his mental retardation should have made his consent void. MCOA affirmed.
A. Miranda not always required before consent
A warrant is not required when one voluntarily consents to a search. Additionally, the familiar Miranda warnings are not required prior to a consent search unless consent is given after a detention, illegal or otherwise, such as being taken to the police station. See MSC Jones v. State, 607 So. 2d 23 (Miss. 1991).
Robinson argues that he was entitled to a Miranda warning because he was detained before he executed the voluntary consent. We disagree. It would be unrealistic to characterize every encounter between a citizen and a police officer as a seizure. Detective Dailey specifically stated that Robinson verbally consented to have his blood drawn before they went to the hospital. There was absolutely no testimony or other evidence presented at the first suppression hearing that supported a finding that Robinson was detained before he executed the consent form. Consequently, it was not necessary to give Robinson the standard Miranda warnings before he executed the voluntary consent form, and the circuit court did not commit reversible error when it declined to suppress the evidence that resulted from the blood sample.
B. Consent and mental capacity
According to Robinson, the circuit court erred when it declined to find that his diminished mental capacity precluded the possibility that he knowingly and voluntarily consented. We disagree.
Whether a person voluntarily consented to the search is a question of fact to be determined by the total circumstances. Those considerations include: whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. Other factors for consideration are the individual’s maturity, impressionability, experience and education. Additionally, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent. See Moore.
There was no evidence that Robinson was excited or that he was under the influence of drugs or alcohol. During the initial suppression hearing, there was no evidence that anyone coerced Robinson’s consent. We have already determined that the evidence presented during the first suppression hearing demonstrated that Robinson was not in custody at the time he executed the written consent form.
As for Robinson’s maturity, impressionability, experience, education, and mental competency, the circuit court was required to weigh conflicting evidence. Robinson was twenty-three years old when he was arrested, and twenty-five when Dr. Zimmermann and Dr. Gasparrini evaluated him. Robinson was married and employed. Robinson left school after an unsuccessful third attempt at the ninth grade. Additionally, Robinson had to repeat the first grade. Robinson was in special education classes for four years, but his school records indicated that he was placed in special education classes for hearing problems. Still, Dr. Gasparrini opined that Robinson’s school records were consistent with a finding that he suffered from mild developmental retardation.
In his report, Dr. Zimmermann concluded that Robinson was retarded pursuant to the three criteria detailed by the American Psychiatric Association. Dr. Zimmermann concluded that Robinson had an IQ of 68 with a five-point margin of error. Dr. Gasparrini reached a similar conclusion. Both experts opined that Robinson was mildly retarded.
A per se involuntariness finding may be appropriate in the case of moderate or severe retardation but it clearly is not appropriate where, as here, the individual is mildly mentally retarded. See MSC Neal v. State, 451 So. 2d 743 (Miss. 1984). Dr. Zimmermann testified that, in his opinion, Robinson signed the consent form because he thought he had to sign it. However, Dr. Zimmermann also testified that Robinson could understand something as simple as “you don’t have to do this if you don’t want to.” Dr. Gasparrini also testified that Robinson should have been able to understand that he had a right to refuse consent.
Sergeant Chaix and Detective Dailey both testified that Sergeant Chaix read the voluntary consent form to Robinson. Sergeant Chaix and Detective Dailey further testified that Robinson was cooperative. If the consent occurred while the defendant was being generally cooperative, the consent is more likely to be voluntary. After careful consideration, because there was substantial evidence that, based on the totality of the circumstances, Robinson knowingly and voluntarily executed the voluntary consent form, we cannot find that the circuit court was manifestly wrong when it denied Robinson’s motion for reconsideration.