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Requesting a blood test from subject is not interrogation for miranda purposes


On January 4, 2020, Mashayla Harper, who was eight months pregnant, was traveling westbound on Welch Road in Jones County, Mississippi. James Cory Gilbert was traveling eastbound on Welch Road when his vehicle veered into the westbound lane and collided with Harper’s vehicle. Harper was severely injured and was transported to a hospital where her baby was stillborn.

The first person on the scene of the accident was Brad Thompson. Thompson had been hunting in the area until it got dark. While he was unloading his rifle and preparing to go home, he heard a loud boom, which he believed to be a car wreck. Thompson lived on Welch Road, and on his way home he came upon the scene of the accident. Thompson indicated his arrival was about five minutes after he heard the loud boom. There was debris on the road, and Thompson saw a pickup truck facing the wrong way on the shoulder of the westbound lane. Thompson stopped, approached the truck, and using only his cell phone light, saw that the truck had heavy damage to the left front area. He noted that all the doors to the truck were closed, but there was no occupant in the truck. He did not attempt to enter the truck at that time. When Thompson did not see anyone lying near the truck, he called out, but no one responded.

At that point, Thompson went back to where he encountered the debris in the road and saw another vehicle about fifty to seventy-five yards from the truck. He stressed how dark it was and the difficulty he was having seeing without the aid of any other light source. When he came within twenty-five or thirty yards of the second vehicle, he could see a silver car in what Thompson described as a “dirt drive” area. Thompson testified, “There was bumpers, glass, maybe—maybe even a tire or a rim. There—it was just a bunch of stuff in the road.” He could see the whole left side of Harper’s car was heavily damaged.

As he got within fifteen to twenty feet of the car, Thompson could see Harper lying on her back beside the car. He could tell she was pregnant. Thompson said Harper was not making any sounds, but he could see some movement. He called 911 and tried to talk with Harper, but she was incoherent. Thompson was advised by the 911 operator to roll Harper onto her left side. He described the difficulty he had getting Harper on her side due to her many injuries. An ambulance and deputies arrived a few minutes later.

Jones County Deputy Sheriff Johnel Rogers arrived at the scene and began his investigation. Rogers ran the tag number of the truck and found that it was registered to Gilbert and his wife, Autumn Gilbert (Autumn). Rogers began to inventory the contents of the truck before it was towed from the scene. He located a cell phone in the truck and was able to contact Autumn, who advised him that her husband had been in possession of the truck. Rogers testified that he was on the scene for about two hours and never saw Gilbert at the scene of the accident. During his inventory of the truck, Rogers found a small bag of marijuana and some paraphernalia. Rogers stated that he turned over all the evidence he collected to Jones County Investigator J.D. Carter.

Deputy Patrick Oster, who arrived on the scene with Rogers, took photographs of both vehicles. After about thirty minutes, Oster left the scene and drove around the area looking for someone on foot but never found anyone. Rogers contacted Oster later that night and informed him that the driver of the truck was Gilbert and that Gilbert was at his father’s house on Ira Gilbert Road. According to Oster, Gilbert’s father’s house was roughly fifteen minutes from the scene of the accident. While Oster was en route to Ira Gilbert Road, the sheriff’s office central dispatch advised him that Gilbert’s father had called and stated that Gilbert’s wife had picked him up and they were headed to their home on Jessie Byrd Road. Oster finally made contact with Gilbert around 9:18 p.m. that night and put him in custody. Oster asked Gilbert for a blood sample, but Gilbert refused, telling Oster the only things that would show up would be THC and alcohol.

After Gilbert refused to provide a blood sample, Rogers contacted Carter. Carter testified that he had already been advised about the accident and that one of the drivers had fled the scene. Oster informed Carter that Gilbert had refused the Intoxilyzer 8000 and had also refused to consent to a blood test. As a result, Carter obtained a search warrant to draw Gilbert’s blood. A deputy transported Gilbert to South Central Regional Medical Center where Gilbert’s blood was drawn. The blood was drawn at 11:45 p.m. on the night of the accident. David Lockley, the toxicology section chief with the Mississippi Forensics Laboratory, testified that an analysis of Gilbert’s blood found it to contain an ethyl alcohol concentration of 0.104 percent.

Carter, along with the district attorney’s investigator Brad Gruning, conducted a video interview with Gilbert on January 6, 2020, at the Jones County jail. Prior to the interview, Gilbert signed a waiver of his Miranda rights. During the interview, Gilbert told Carter he had been drinking and should not have been driving. He told Carter that he ran into the woods after the collision because he was afraid of getting a DUI. Gilbert began to cry when he learned that Harper’s baby had died. When asked to walk them through the day of the accident, Gilbert told them he had gone to his father’s house where he consumed three beers. After that, he went to “Blue’s” and bought two twenty-four-ounce beers, which he consumed. Gilbert admitted that he had also “smoked weed” just before the accident.

Gilbert told Carter that he was not speeding down Welch Road and did not remember exactly how the accident happened; he just remembered a “boom.” Gilbert stated that he only had one headlight on his truck and admitted that he probably swerved into the wrong side of the road. After the collision, Gilbert said that he lay down in the woods and “hid like a coward.” Later, he ran to his father’s house where his wife picked him up and took him home. According to Gilbert, he did not consume any more alcohol or marijuana after the accident.

Gilbert was convicted of leaving the scene of an accident that caused mutilation, disfigurement, and/or destruction of a limb or organ of Mashayla Harper (Count I); aggravated driving under the influence (DUI) (Count II); and the DUI-related death of an unborn child (Count III) and was sentenced to 52 years in MDOC. On appeal, Gilbert argued his recorded statement was involuntary. He also argued his statement to Oster, wherein he said that THC and alcohol would be found in his blood, was an improper interrogation. MCOA affirmed.

A. Video statement was voluntary

Gilbert’s counsel argues that because no one witnessed the accident or who was actually driving the truck, “it would seem elementary that Gilbert’s confession should have been thoroughly scrutinized for its voluntariness and admissibility.” He argues that the admission of an involuntary confession into evidence is barred by the Fifth Amendment to the United States Constitution. Gilbert’s interview by law enforcement was videotaped and introduced as evidence at trial. Appellate counsel points to nothing in the video to support his claim that Gilbert’s statement was not voluntarily, made freely without threat or promise.

After being advised of his Miranda rights, Gilbert agreed to give a statement. Without any evidence of intimidation or coercion, Gilbert outlined his actions on the night of the accident. He admitted that he was driving under the influence and most likely crossed the center line. Gilbert was quite remorseful upon learning that Harper’s baby did not survive. There is nothing apparent from the video, and Gilbert has pointed to nothing to indicate that he did not knowingly, intelligently, and voluntarily waive his Fifth Amendment rights and give the recorded statement.

B. Custodial statement made by Gilbert without advisement of his Miranda rights

(custody + interrogation = Miranda)

According to Oster’s testimony, his exchange with Gilbert went as follows:

Q. And when you took him into custody, did you ask him a question – –

A. I did.

Q. –atall?

A. I did. I asked him if he would consent to a blood draw.

Q. And what did he say to that?

A. He asked, For what? And I told him it would be for any substance in his system. And he said the only thing that would show up would be THC and alcohol.

In Brown, a case where the defendant was asked to consent to a gunshot residue test (GSR), we explained: Brown first confessed after Farrish asked him for consent to a GSR test. Farrish only asked Brown for consent to a GSR test. We cannot say that Farrish should have anticipated that his simple request for physical evidence was reasonably likely to elicit an incriminating response from Brown (interrogation). See SCOTUS Rhode Island v. Innis, 446 U.S. 291. Therefore, Farrish did not “interrogate” Brown or violate his right to counsel, and Brown’s confession to Farrish was properly admitted at trial.

In Hubbert, this Court reasoned that an officer’s request that the defendant submit to a GSR test was not an “interrogation.” In addition, in Smith, we held that an officer’s request for and taking of a blood sample cannot be considered custodial interrogation under the law.

We find that Oster’s question as to whether Gilbert would consent to a blood draw was not a custodial interrogation (thus, Miranda not required before requesting that Gilbert submit to a blood test). Oster could not have anticipated that Gilbert would respond as he did.