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Sheriff answering arrestee is not interrogation in this case


Bobby Batiste, Andreas Galanis and Daewoo Joo were students at Mississippi State University who shared a four bedroom apartment. Each tenant had a key that opened the front door of the apartment and that particular tenant’s bedroom door. One suite was empty.

In 2008, Galanis and Batiste went to a bank where Galanis was shocked to learn there were a lot of debit card transactions on his account. Galanis left the bank but returned later that day and told them that Batiste had admitted that his girlfriend had been using Galanis’s debit card. Galanis and Batiste were later seen arguing outside of the bank.

The next day, Galanis mother called police and asked for someone to check on her son as she had not heard from him. Batiste, who was about to leave on spring break, told Deputy Charlie McVey that Galanis was his roommate and had left that morning.

Batiste let McVey into the apartment but Galanis’ apartment door was locked so police went to get a pass key. Batiste asked McVey if he was a suspect and was told no. McVey then entered Galanis apartment with Batiste behind him and saw a large pool of blood. Batiste was arrested at this point.

The body of Galanis was discovered in the empty apartment suite. His body was wrapped in blankets in a wheelbarrow and there were cleaning agents found as well. Search warrants were then obtained for the apartment and Batiste’s car.

Batiste was Mirandized and stated that he was a criminal justice major and he understood his rights and wanted to waive them. He said that he used Galanis debit card with his permission for almost every charge. Galanis then started a fight with Batiste and Batiste hit him three or four times with a rim adaptor that he got from his car. He was going to call 911 when Galanis wasn’t breathing but got scared.

Batiste then gave a second statement that was videotaped and essentially said the same thing. He was convicted of murder and sentenced to death. On appeal, he argued 1) his statement should have been suppressed, 2) the warrant for the apartment lacked probable cause, and 3) the photo lineups were overly suggestive. MSC affirmed.


A. Statements to police

Batiste said when Sheriff Dolph Bryan arrived at the scene, he walked up to a patrol car, and Batiste was inside. Batiste asked Bryan what was going on. Bryan replied that “he had killed his roommate, that we were not here playing a game, that he was probably fixing to go to the penitentiary for the rest of his life if he didn’t get the death penalty.”

He also told Batiste “that I had a lot of questions to ask him when I got time to ask them.” Bryan testified that he said this to Batiste just after 6:00 p.m., and Batiste gave his first statement at 9:35 p.m. Batiste argued that the sheriff’s statements had induced his Miranda waiver.

Batiste cited Seibert, a U.S. Supreme Court case which held that police may not fail to warn, question the suspect, and obtain a confession, and then administer Miranda warnings in hopes of having the accused repeat the confession given prior to the warnings. The facts of this case differ from Seibert.

Bryan testified that he spoke to Batiste only after Batiste had asked him what was going on. Bryan did not ask Batiste any questions, nor did Batiste volunteer any information. Also, Batiste said nothing in response to Bryan’s comments.

Approximately three hours later, Batiste confessed to Bryan after having been administered the Miranda warnings and waiving his rights. Prior to waiving his rights, Batiste assured Bryan that he understood his rights; for further emphasis on that point, he stated that he was a criminal justice major. We find Batiste knowingly, intelligently, and voluntarily waived his rights.

Batiste also argues that his second, videotaped statement was taken without an explicit waiver of rights. Before taking the statement, Deputy Arthur Sallis advised Batiste of his Miranda rights and asked Batiste if he understood. In response, Batiste nodded. Sallis read his waiver of rights, and asked if Batiste understood. Batiste nodded. Then, Sallis asked Batiste to sign the rights waiver form, and Batiste complied. McVey testified that Batiste was behaving very cooperatively. A person may waive his rights without expressly saying so.

B. Search warrants

Batiste argues that the facts conveyed by McVey to the trial court did not establish probable cause because they did not link him, personally, to the crime. Although Batiste contends that the facts were insufficient to link him to the crime, McVey told Judge Mills that the police had found a body in Batiste’s apartment, and that Batiste had behaved suspiciously.

He reported that it was a very bloody crime scene, a fact which increased the likelihood that evidence would be found on the person of the perpetrator. He also provided facts that raised a reasonable inference that the vehicle registered to Batiste had been readied for loading the body. This issue has no merit.

C. Photo Lineups

A pretrial identification is impermissibly suggestive if the lineup or series of photographs conspicuously singles out the accused in some manner from the others, either by appearance, or by statements of the officer conducting the lineup or show-up. See MSC York v. State, 413 So. 2d at 1372 (Miss. 1982).

However, under Neil v. Biggers, 409 U.S. 188 (1972), the U.S. Supreme Court said that the central question is whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. An impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless from the totality of the circumstances surrounding it the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

The factors to be considered in determining the likelihood of misidentification are:

(1) the opportunity of the witness to view the criminal at the time of the crime,
(2) the witness’s degree of attention,
(3) the accuracy of the witness’s prior description of the criminal,
(4) the level of certainty demonstrated by the witness at the confrontation, and
(5) and the length of time between the crime and the confrontation.

Batiste complains that the photo array shown to Dailey was impermissibly suggestive because Dailey had said that Galanis was accompanied to the bank by one Asian person and one black person, but all the persons in Dailey’s photo array were black. The trial court found that the photo array was not impermissibly suggestive, noting that the array had been created using a computer that matched certain characteristics, like height, weight, and skin color.

We find that the inclusion of only African-American persons was proper. Although Dailey had said that an Asian person and an African-American person had accompanied Galanis to the bank, the purpose of the lineup was to determine whether Galanis’s African-American companion had been Batiste. The purpose of a photo lineup is to provide witnesses a set of individuals who are similar in physical characteristics so that only someone who was actually familiar with the accused would be able to identify them.

Batiste also objected to the Rogers identification because the background of Batiste’s photo was lighter than the backgrounds of the other images, rendering the lineup impermissibly suggestive. The trial court overruled the objection, finding that the difference in color did not render the lineup impermissibly suggestive. In general, courts will find a lineup to be impermissibly suggestive if the defendant is the only one depicted with distinctive features. See Butler.

But minor differences with the suspects or differences in the photograph backgrounds will not render a lineup impermissibly suggestive. In Anderson, MCOA found that the use of a different photographic technique and a white background around the suspect’s photo were minor differences that did not create a very substantial likelihood of irreparable misidentification. As in Anderson, the lighter background of Batiste’s photo was a minor difference that did not render the lineup impermissibly suggestive.

But even if the lineup was impermissibly suggestive, applying the five-prong test from Biggers, the identification was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Rogers had a good opportunity to view and pay attention to Batiste as he interacted with Batiste as a customer at Sherwin-Williams. While there is no evidence regarding Rogers’s prior description of Batiste, the officer testified that Rogers did not hesitate when identifying Batiste, displaying certainty. No evidence established the exact length of time between the crime and the identification, but we know that the identification took place sometime during the year and a half between the crime and the trial. Considering the totality of the circumstances, the identification was reliable. We find no error in the trial court’s admission of Rogers’s identification testimony.