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Requesting that subject take a gun shot residue test after he requested counsel was not a violation of miranda

Facts

On August 12, 2017, Jason Youngblood was driving in his car with Frederick Shannon. As they drove past Oliver Brown’s house on Beasley Road in Hazlehurst, Youngblood saw a garbage bin that he thought belonged to him. Youngblood turned his car around and parked on the road in front of Brown’s house.

Youngblood walked up to the house while Shannon remained in the car. Youngblood knocked on the front door, and Brown’s wife, Dara, came to the door. Youngblood told Dara that they had his garbage bin. Dara told him that the garbage bin was theirs, but Youngblood insisted that it belonged to him. Dara told Youngblood that she would call Brown about the bin. Dara called Brown, and Brown “told [Dara] to tell [Youngblood] that [Youngblood’s] bin [was] gone.” He also told Dara, “Tell [Youngblood] I bought that bin from Kenny Beacham.” Brown then told Dara to just stay inside the house. He stated that he was on his way home and would talk to Youngblood himself. Dara told Youngblood that Brown would be home soon, and Youngblood said he would wait in his car. Dara testified that Youngblood was angry and cursing and “looked like he was maybe a little high or something.”

Youngblood walked back to the road and sat down in his car. About that time, Brown drove up in his truck and parked directly in front of and facing Youngblood’s car. Shannon testified that Youngblood got out of his car and walked back to the rear of his car. Brown then got out of his truck and walked past Shannon to meet Youngblood at the rear of Youngblood’s car.

Shannon, who was still sitting in the passenger seat of Youngblood’s car, heard Brown “hollering and screaming” at Youngblood “to get away from the front of his house.” Shannon could not hear what Youngblood said because Youngblood was not talking loudly. Dara was standing at the front door of the house. Shannon heard Dara scream, “No, Little Oliver,” followed immediately by a gunshot. Shannon got out of the car, and Brown said to him, “Well, you can get it too.” Shannon saw Youngblood lying in the road. He said to Brown, “Man, I didn’t have nothing to do with this. I didn’t come here for that.”

Brown told Shannon to get Youngblood “away from in front of [Brown’s] house.” Shannon responded, “Man, he’s dead, bro.” Brown then got in his truck and drove off. Shannon did not have a phone to call anyone, so he drove Youngblood’s car to Youngblood’s cousin’s house. Shannon did not see a gun at any time prior to, during, or after the shooting.

Dara’s testimony about the shooting differed from Shannon’s testimony. Dara testified that Brown parked his truck in their driveway and started walking toward their house. She testified that Youngblood got out of his car and “kind of cut [Brown] off” in their yard and that the two men began arguing about the garbage bin. Youngblood claimed that it belonged to him, while Brown insisted that it was his. According to Dara, Youngblood became “irate” and began to insult and curse Brown. She testified that Brown told her to go back in the house and told Youngblood to get out of their yard. Dara testified that as she went back inside the house, she heard a gunshot. She looked back and saw Youngblood fall to the ground and Brown “jump back like he was looking at himself.” Dara claimed that Brown and Youngblood were in the yard when she turned to go back inside the house. She did not know how they ended up in the road before Youngblood was shot. After Youngblood was shot, Dara called 911, and Brown got in his truck and left. Dara also testified that she never saw either man with a gun.

Dara testified that after Brown left, Shannon stepped out of Youngblood’s car and stated, “I told [Youngblood] not to come over here and start messing with y’all about a garbage bin.” Dara was surprised because she had not known that anyone else was in Youngblood’s car. She testified that Shannon checked on Youngblood and then said that he needed to go because he was “already on papers.”

On cross-examination, Dara acknowledged that she later told police officers, “I didn’t see [Brown] actually pull a gun. If I had, I would have told him, ‘Don’t shoot the boy.’” Dara testified that she called 911 twice because her first call was disconnected. In between the two calls, Brown called her, and she was concerned because he seemed “delusional.” During the second 911 call, she told the operator, “I just pray he [(i.e., Brown)] don’t do nothing else.” When police officers responded to the scene, Dara did not tell them that Brown and Youngblood had struggled prior to the shooting or that she was ever in fear of Youngblood. The gun used to kill Youngblood was never found.

Dr. Mark LeVaughn, the chief medical examiner for the State, testified that the shooter was standing directly in front of Youngblood and that the wound was a “close-range wound,” meaning that the gun’s muzzle was two to four feet from Youngblood’s face. Youngblood’s only injury was the single gunshot wound. LeVaughn also testified that Youngblood’s blood alcohol concentration was .13% and that marijuana was present in his system at the time of his death.

Brown turned himself in at the Hazlehurst Police Department later on the day of the shooting. He was taken to an interview room and given a Miranda warning. Brown asked for a lawyer, and questioning ceased. Brown was sent to the booking area of the jail. A short time later, Brown was called back to the interview room, and Investigator Al Farrish asked him if he would consent to a gunshot residue (GSR) test. In response, Brown stated that there no need to waste time and money on a GSR test because he shot Youngblood. Brown stated, “[I] killed the mother f****r.”

Two days later, Officer Reginald Robinson transported Brown to court for his initial appearance in Brookhaven. Robinson had known Brown “just about all [his] life,” and on the way back to the jail, they engaged in casual conversation about their families and “old times.” During their conversation, Brown spontaneously told Robinson that he shot Youngblood with a “revolver” and “got rid of it before [he] turned [him]self in.”

Jason Burchfield, an analyst from the Mississippi Forensics Laboratory, testified that Youngblood’s GSR test was negative as to his right palm, left palm, and the back of his right hand. There were “particles indicative of gunshot residue . . . present on the back of [Youngblood’s] left hand.” This meant that Youngblood was “in the environment of a discharged weapon,” probably “within two to three feet” of the discharged weapon. On cross-examination, Burchfield testified that particles could have ended up on the back of Youngblood’s left hand even if Youngblood’s hands were down at his side when Brown shot him in the face.

Brown was convicted of manslaughter and sentenced to life. On appeal, he argued his confession was improperly admitted. MCOA affirmed.

Analysis

Brown first argues that his confessions to police should have been excluded because they were obtained after he had invoked his right to counsel.

Once an accused invokes his right to counsel, the accused is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. See SCOTUS Edwards v. Arizona, 451 U.S. 477 (1981).

The term “interrogation” refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. See SCOTUS Rhode Island v. Innis, 446 U.S. 291 (1980). In this case, Brown’s confessions were properly admitted because neither was the product of “further interrogation by the authorities.” Brown first confessed after Farrish asked him for consent to a GSR test.

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.

Similarly, 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. Therefore, Farrish did not “interrogate” Brown or violate his right to counsel, and Brown’s confession to Farrish was properly admitted at trial.

Brown later confessed to Robinson while they made small talk about their families and “old times” during the car ride back to the jail from Brown’s preliminary hearing. Ordinary small talk or polite conversation is not “interrogation.” See, e.g., Mickey v. Ayers, 606 F.3d 1223 (9th Cir. 2010) (holding that “small talk” and “casual conversation” was not interrogation); United States v. Tail, 459 F.3d 854 (8th Cir. 2006) (“Polite conversation is not the functional equivalent of interrogation.”). Again, there is no evidence that Robinson said or did anything that was reasonably likely to elicit an incriminating response from Brown.

Accordingly, Robinson also did not interrogate Brown or violate his right to counsel, and Brown’s confession to Robinson was also properly admitted at trial.

 

https://courts.ms.gov/images/Opinions/CO150108.pdf