Charlie McGowan, along with three other individuals, conspired to rob the Fabra Care Cleaners located on Nakoma Drive near Hanging Moss in Jackson. The individuals entered the cleaners from the rear and ordered three employees to the floor. One of the individuals assumed command and proceeded to the front of the store where he emptied the cash drawer.
The robbers next took the employees’ purses and commenced to flee, but not before one of the robbers, Frederick Burton, shot the three employees laying on the floor. The gunshot to one of the employees, Mrs. Sheila Johnson, caused her death.
Subsequently, police obtained information that Charlie McGowan may have been involved in the robbery. Police arrested McGowan on a separate arrest warrant for armed robbery and took him to the police station. While at the police station, McGowan was given his Miranda warnings, signed a waiver form, and confessed to his involvement in the Fabra Care robbery.
McGowan pled guilty in return for cooperation and testimony but later refused to cooperate so the guilty plea was vacated. Before trial, McGowan made a motion to suppress statements given to an investigator for the district attorney’s office after the guilty plea was entered on the grounds that the statements were part of the plea bargain. This was denied by the trial court.
McGowan was convicted of murder, armed robbery, and aggravated assault and sentenced to life. On appeal, he argued the statement should have been suppressed because of his youth, mental weakness, and low I.Q. MSC affirmed.
A. Statement to police
We said in Blue v. State, 674 So. 2d 1184 (Miss. 1996), that there is no per se rule that mental retardation renders a confession involuntary and inadmissible. Instead, the mental abilities of an accused are but one factor to be considered in determining whether the confession was knowingly, intelligently and voluntarily made.
The U.S. Supreme Court in Fare v. Michael C., 442 U.S. 707 (1979), held that an inquiry into the totality of the circumstances is necessary when determining if the statement of a juvenile during custodial interrogation is admissible. The Court stated:
This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. The totality approach permits–indeed, it mandates– inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.
McGowan presented testimony at the suppression hearing that he had a reading level somewhere between the fourth and fifth grade and an overall IQ of 55. McGowan testified that he was afraid that if he did not talk that the death penalty would be imposed on him at that time. McGowan also testified that he was told to sign the statement and waiver form, that the form was not read to him, and that he did not, and could not, read the warning statement himself.
The interviewing officers stated that McGowan was advised of his Miranda warnings and that he responded that he understood them. The officers also read the waiver form to McGowan and stated that McGowan responded that he understood the form and subsequently signed the waiver. Detective Gerald Jones testified that there was nothing about McGowan’s appearance, expressions, or statements that indicated that he did not understand what he was doing. The officers further testified that no promises of leniency, threats, or coercive measures were exerted against McGowan. The State additionally entered into evidence the typewritten confession signed by McGowan.
This court has also held in Coverson v. State, 617 So. 2d 642 (Miss. 1993), that when faced with an accused of limited intelligence, the trial court must inquire into the mental capacity of the accused to determine whether the accused even had the mental capacity to understand and waive his Miranda warnings.
Two of McGowan’s teachers Faye Hollingsworth and Catherine Johnson testified about his mental capacity. Faye Hollingsworth taught McGowan in the seventh and eighth grades, from about 1990 to 1992. During that time, she assessed his abilities and concluded in an assessment report that he could read on a second to third grade level. This assessment was done in 1992, approximately two years before the commission of the crime.
Catherine Johnson taught McGowan from middle school to the tenth grade. Referring to the 1989 and 1992 assessment reports, Johnson stated that in 1989 McGowan was assessed to be “SLD, ” specific learning disabled, which generally means that he has an average or above average intelligence with problems in math or English. The 1992 assessment report concluded that McGowan was “EMR,” educable mentally retarded.
McGowan testified at the hearing as well. He claimed that, on the morning of the arrest, he had smoked marijuana laced with crack cocaine and that when he was arrested he was still high. He further stated that he confessed only after the detective told him that he was going to get the death sentence right then if he did not. He asserted that he did not understand his rights and that none of the officers informed him of his rights. Similarly, he maintained that he only signed the form because the officer told him to just sign it and that none of the officers read his confession of the crime to him.
During cross-examination, McGowan admitted that he had been “arrested” and sent to detention centers several times (three or four) before the arrest that led to the instant conviction; however, he asserted that they had never mirandized him at the detention center. He argued that the officers made up the substance of the confession (contrary to his previous testimony that he had confessed after being threatened with the death penalty) and that the only information that he provided to the officers was his name. He told the court that he could read “some things” and that he could write his name.
The trial court denied the motion to suppress, finding that McGowan has a selective memory and that the police officers were more credible. However, the trial court’s ruling fails to explicitly address the question whether McGowan had the mental capacity to understand and waive his rights before giving the confession.
After reviewing the record evidence, we do not have any sufficient evidence to suggest otherwise. There was no mental examination done of McGowan. The trial court ordered a mental examination, and if an exam was done, it was not made a part of the record. Our only information regarding McGowan’s mental capacity comes from the assessment reports.
The 1992 report showed that McGowan had a full scale IQ of 55; verbal IQ of 57; and performance IQ of 63. It was concluded in this report that McGowan had no problem with “language characteristics,” but that he did not do well in activities which required reading instructions. The report further noted that McGowan had no problems with auditory perceptual difficulties. Moreover, the assessment report indicated that McGowan had no health-related problems that would interfere with or that should be considered when conducting intelligence and educational testing.
His reading and reading comprehension were at a second grade, fifth month level. His English, Social Studies, Science, and Writing skills were those of a fourth grader. He could recognize basic sight words, recognize and use antonyms, and identify selected abbreviations. On the other hand, it was noted that he could not interpret reading material, classify words in content area, or analyze materials that he read. Still, the assessor indicated that he could read simple sentences, and written directions, and locate facts from given materials.
The 1992 assessment was conducted when McGowan was fourteen years old. He participated in the armed robbery when he was seventeen. The fact is that we have nothing before us which indicates what McGowan’s mental capacity was at or around the time the crime was committed.
Based upon the sparse information regarding McGowan’s mental capacity, we find no manifest error in the trial court’s denying the motion to suppress the confession. There is simply no overwhelming evidence that McGowan could not effectively waive his Miranda rights. Moreover, his testimony at the suppression hearing, in which he did in fact appear to selectively remember favorable details and forget unfavorable ones, demonstrated that he could focus on and comprehend what was happening, a conclusion noted by the trial court after the sentencing phase of the trial:
In any capital murder case I’m required by law to observe the defendant throughout the trial so that I can make a comment on his appearance and his reactions to the trial on the report that I’m required to prepare in the event of a death penalty. So I observed the defendant throughout the trial.
He’s been alert, obviously understood the proceedings. He was conversing and cooperating with his attorneys. In spite of the testimony of his IQ, it’s obvious that the defendant is well aware of his actions and understands the nature of his actions and is in the position to control those if desired. . . . Even at a young age he displays a callous total disregard for the rights of other human beings.
Based upon the trial court’s observations of McGowan throughout the trial and the fact that the jury also passed upon McGowan’s capacity to validly waive his rights and confess (obviously finding that he had done so), along with the facts set out above, we conclude that the trial court did not err in denying McGowan’s motion to suppress the statements given by him to the police.
B. Statement to DA’s office
This court finds that the trial court did not err by allowing the statements given by McGowan to the district attorney’s office into evidence. In addition, we adopt the view that where a defendant willfully breaches a plea bargain agreement, statements made by the defendant after a valid plea agreement has been entered be admissible at the later trial of the defendant if voluntarily made.