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Police initiated interrogation after initial appearance improper


Danny Porter (a.k.a. Danny Soul) and his roommate, Carlos Stewart, were hired by Herman Saunders (a.k.a. Robert “Tricky Mickey” Marsh) to kill Bennie Brown. Porter and Stewart went to Bennie Brown’s home on the morning of October 30, 1993. Stewart rang the doorbell, and Porter hid beside the door. One of Stewart’s schoolmates, Natasha Cole, answered the door, and Stewart asked for Brown. When Brown came to the door, Porter shot him in the jaw, which caused Brown to eventually drown in his own blood. Stewart and Porter ran to their vehicle. Stewart returned to the house with the gun, and killed Cole, because she had recognized him. Saunders later paid Stewart and Porter $6,000 for killing Brown. Two weeks after the murders, Stewart and Porter were apprehended in Atlanta.

Porter was convicted of the murder of Brown and sentenced to death. On appeal, he argued his confession was improperly obtained. MSC reversed.


The record reflects that Porter gave three statements to the police. The first two statements were made November 13 and 15, 1993, and were given to the Hattiesburg police officers who retrieved Porter and Stewart from the Atlanta authorities. Porter was extremely frightened in the Fulton County Jail, and was anxious to be returned to Mississippi. In both statements, Porter admitted that he knew of Saunders’ plan to have someone killed, and that he recommended Stewart for the job. However, Porter denied actually participating in the murder. After being returned to Mississippi, Porter gave a third statement on November 18, 1993, to Lieutenant Sammy Pickens of the Mississippi Highway Patrol. In that statement, Porter confessed to shooting Brown.

Porter claims that he invoked his right to counsel at a November 16, 1993, initial appearance. As a result, Porter argues that his November 18, 1993, police-initiated statement to Lieutenant Sammy Pickens, made without counsel, should have been suppressed. The documents are signed by Porter and the Justice Court Judge, and indicate that Porter made his initial appearance on November 16, 1993, and invoked his right to counsel.

Thus, the question is — given that Porter requested an attorney at his initial appearance on November 16, 1998 — whether the November 18, 1993, statement to Officer Pickens was taken in violation of Porter’s Sixth Amendment right to counsel. On the record before us, and, under the established precedent, this Court finds that the statement to Officer Pickens was taken in violation of Porter’s Sixth Amendment right to counsel, and should not have been admitted.

Under both the United States and the Mississippi constitutions, an accused is entitled to be assisted by counsel during criminal proceedings instituted against him. These rights are identical and differ only as to the time when each attaches. The sixth amendment right to counsel attaches once the state begins criminal proceedings by any means.

Under Mississippi law, the right to counsel attaches earlier than does the sixth amendment right. This right attaches once the proceedings against the defendant reach the accusatory stage. The “accusatory stage” is defined by Mississippi law to occur when a warrant is issued or, “by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.” This right to counsel “attaches at the point in time when ‘the initial appearance under Rule 1.04 … ought to have been held….’ ” However, the defendant must be able to show some adverse effect or prejudice to his ability to conduct his defense before denial of this right to counsel constitutes reversible error. See MSC Ormond v. State, 599 So. 2d 951 (Miss. 1992).

Thus, Porter’s Sixth Amendment right to counsel attached at the initial appearance. Moreover, Porter invoked this right when he indicated that he wanted “to talk to a lawyer before or during the time [he was] questioned.” Once the right to counsel has attached and been asserted, the State must of course honor it. See MSC Crawford.

Once an accused has asserted the right to counsel at arraignment or a similar proceeding, the police may not initiate interrogation. If the police initiate interrogation after the right has been asserted, any waiver by the defendant for that interrogation is invalid. See SCOTUS Michigan v. Jackson, 475 U.S. 625 (1986). After the Sixth Amendment right to counsel attaches and is invoked, any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible. See SCOTUS McNeil v. Wisconsin, 501 U.S. 171 (1991) .

The record indicates that the Hattiesburg Police Department requested that Officer Pickens interrogate Porter. Pickens complied on November 18, 1993 — two days after Porter invoked his right to counsel at the initial appearance. There is no evidence that Porter initiated the interrogation by Pickens. Therefore, the November 18, 1993, confession is inadmissible, and this case should be reversed and remanded.

If Porter’s November 18, 1993, confession had duplicated the statements made prior to the attachment and invocation of Porter’s Sixth Amendment rights, then the admission of the later confession might have been deemed harmless. However, the improperly obtained confession was Porter’s sole admission that he actually shot Brown. Porter’s earlier statements only indicated that he knew of Saunders’ plan to have someone killed, and had recommended Stewart for the job. Therefore, the admission of the improperly obtained confession was highly prejudicial to Porter.

In sum, the documents from the initial appearance indicate that Porter’s Sixth Amendment right to counsel had attached and had been invoked prior to the November 18, 1993, interrogation by Officer Pickens. Therefore, the statement should not have been admitted. For this reason, the case is reversed and remanded.