Raymond Pannell and Teresa Pannell were married for 23 years. While married, the Pannells lived in a home that they personally built located in Baldwyn, Mississippi. The Pannells divorced in 2004. As part of the divorce settlement, Teresa was granted the exclusive use, possession, and control of the house until their minor children reached the age of 21. The property was vacant for a period of time after the divorce. During this time, Teresa had the locks changed on both the doors and the gate to the fence surrounding the property.
On December 4, 2004, police responded to a call that a fire had broken out on the property. When they arrived, they found that the Pannells’ house had burned down. After investigating the scene and speaking to witnesses, police identified Pannell as a suspect. Later that evening, Pannell was placed under arrest for trespass and arson. He was given an initial appearance two days later at the Prentiss County Justice Court where he was represented by his attorney, and a $50,000 bond was set.
Subsequently, during his incarceration, a meeting was arranged between Pannell and the jail administrator, Officer Brian Taylor. Taylor also happened to be the investigating officer of the alleged arson. Although it is disputed as to whom actually initiated the meeting and its purpose, it is undisputed that the meeting took place in the jail’s law library and was witnessed by fellow officer, Jeremy Pace.
At some point during the meeting, the conversation turned to the subject of the fire. Before answering any questions about the fire, Pannell notified Taylor that he did not want to talk without his attorney present. Taylor testified that he honored that wish by not explicitly questioning Pannell about the fire. However, subsequent to Pannell’s request for his attorney, Taylor notified Pannell that he had compiled strong evidence against him and proceeded to show Pannell the contents of the evidence file.
This file included photographs of the crime scene and an incriminating statement taken from Pannell’s brother, Herman Pannell. After viewing the evidence against him, Pannell decided to confess to the crime. Prior to taking the confession, the officers read Pannell his Miranda rights. Pannell then signed a Miranda waiver. Pannell’s confession was written down by Taylor and was signed by Pannell.
Pannell was convicted of arson and sentenced to 20 years. On appeal, he argued his statement was taken after he invoked counsel. MCOA agreed with Pannell and reversed.
A. Right to Counsel
In McGilberry, MSC said that an accused’s Sixth Amendment right to counsel attaches at the point in time when the initial appearance ought to have been held.
Once the accused asserts the right to an attorney, the right attaches and 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. In Edwards v. Arizona, 451 U.S. 477 (1981), the U.S. Supreme Court held that a subject who invokes counsel 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.
Clearly, Pannell’s right to counsel accrued prior to his confession to police. The record indicates that when Pannell was given an initial appearance, he appeared before the court with his attorney present. Further, it is undisputed that Pannell asserted his right to counsel prior to being questioned by police.
The circuit court held that Pannell “initiated” contact with the police, citing to disputed evidence that Pannell had asked to meet with Taylor; therefore, the court determined that Pannell’s confession was voluntary. However, both Taylor and Pace testified at the suppression hearing that Pannell requested to speak to his attorney before he answered any questions about the fire.
Therefore, even if Pannell initiated the meeting, he effectively cut off questioning by asking for his attorney. Therefore, the question of admissibility turns on whether Pannell, after asserting his right to counsel, reinitiated contact with the officers or whether his confession came in response to further interrogation by Taylor.
The MSC in Culp has applied a broad interpretation to the term “interrogation” to include not only questioning, but rather questioning and its functional equivalent. In Rhode Island v. Innis, 446 U.S. 291 (1980), the U.S Supreme Court defined functional equivalent to mean words or actions that the police should know are reasonably likely to elicit an incriminating response from the suspect.
In Haynes, MSC held that in order for a defendant to initiate a conversation, his statements must express a desire to open up a generalized discussion about the investigation. It is clear to this court that Pannell did not express a desire to open up a generalized discussion about the investigation after asserting his right to counsel. In fact, there is no evidence to show that he evinced a desire to open up any type of discussion.
After Pannell requested a lawyer, Taylor showed Pannell pictures of the burned house, as well as an incriminating statement taken from Pannell’s brother. We find, given the facts of this case, Taylor should have known that his actions were likely to elicit a confession.
In Balfour v. State, 580 So.2d 1203 (Miss. 1991), after the defendant’s initial appearance, she was approached in her cell by officers who told the defendant that her accomplice had made a statement implicating her in their criminal activity. Upon hearing this, the defendant submitted a written confession to the police. MSC held that given that the defendant had already asserted her right to counsel and that the officers’ tactics were carried out in an effort to elicit an incriminating response, the trial court’s admission of the defendant’s confession violated her rights.
In our case, similar to Balfour, the officers confronted Pannell with testimonial evidence implicating him in the crime after he asserted his right to counsel.
It is obvious that the police ignored Pannell’s right to an attorney at two different points during the meeting. Taylor knew or should have known that Pannell was represented by counsel because Pannell’s attorney appeared with him at his initial appearance. Therefore, regardless of whom initiated the meeting between the two, Taylor should have contacted Pannell’s attorney before any meeting took place. Second, once Pannell unequivocally asked to see his attorney, the interrogation should have ceased until his attorney was present.
Therefore, we conclude that confronting a suspect with the incriminating evidence compiled against him after he has invoked his right to counsel, and without any initiation on the part of the suspect, is precisely the kind of psychological ploy that definition of interrogation in Innis was designed to prohibit.