Facts
Robert Peterson returned to his home in east Columbus after fourteen hours at work in September, 2006. He found his house ransacked “like a tornado had gone through” and called 911. Officers from the Columbus Police Department (CPD) arrived twenty to thirty minutes later. They observed splintered wood and broken glass at the back-door entry. Missing from the house were two jars of change containing between $60 and $80.
Subsequently, Peterson received a telephone call from a friend that Edward Neal (a person unknown to the victim) had been seen near the victim’s home carrying a jar of coins. Peterson furnished the CPD this information. Detective Samuel Jackson was called to the scene and found blood in the house and on the cabinets and floors. He recovered a sample to obtain DNA evidence.
Neal was later observed by another CPD officer with a bandage on his hand. Neal was stopped and asked how he got cut. He replied “broken glass.” Neal, who was on probation, also became a suspect in the December 2006, robbery and shooting of an 83 year-old man. Lieutenant Wayne McLemore asked Neal to come to the CPD. Neal, along with his mother, voluntarily appeared at the CPD per the officer’s request. He was questioned regarding the December robbery and shooting.
Jackson also was at the CPD that day. Jackson advised Neal that DNA evidence could either implicate or exclude him as a suspect in the burglary. Neal did not claim the officers made any promises or threats to him. Neal agreed to provide a cheek swab and gave written and videotaped consent. After providing the swab, Neal left the police station with his mother.
The record is silent as to what transpired, other than that Neal escaped from the custody of a Mississippi Department of Corrections officer and was later charged with felony escape. The felony escape warrant was served on him on January 19, 2007. In the interim, the DNA report had been returned, confirming that the DNA from the blood at the scene matched the swab obtained from Neal.
Neal’s initial appearance on felony escape was January 19, 2007 and he was then returned to jail.
On January 24, 2007, Neal was moved from the Lowndes Detention Center (jail) to the CPD for questioning on the burglary, robbery and shooting, and to be served with arrest warrants for those crimes. A video showed that Neal was taken to an interview room. The video began with Neal demanding to be taken back to jail. Neal was left alone in the room, where he sang to himself for a while. Then a police officer entered, asking Neal, “What’s up?” Neal repeatedly replied, “Nothing, nothing.”
Neal asked, “Why you lock me up, what did I do?” The police officer advised him that he was in jail because of felony escape. Neal replied, “I’ll beat that charge, maybe serve a couple of years.” Then Neal said, “The reason I ran was that you have me locked up for no reason. I’ve been locked up on bogus charges. I may need a lawyer. Matter of fact, I’ve got one.” After the police officer reminded Neal that he had been charged with felony escape the following exchange took place:
Neal: I can call my lawyer for to come up here while we talk?
McLemore: You can talk to me if you want to. It doesn’t matter.
Neal: I want to call my lawyer.
McLemore: You want to call your lawyer?
Neal: Yes, sir.
The police officer then left the room for a little more than a minute. When he returned, Neal stated, “I won’t sign no papers.” The police officer replied, “Well get your lawyer and we’ll talk in court.” He then showed Neal warrants for burglary, kidnaping, and aggravated assault with a weapon, and stated that the two years Neal was talking about was going to go to forty. Neal replied that he wanted to see the evidence. At the conclusion of this approximately two-minute conversation, Neal requested to be taken back to jail.
The officer then stated, “We’re going to get you in front of the judge, set bond and a court date. Any questions?” Neal shrugged his shoulders. The officer left then reentered and said, “Come on, let’s go across.” Later evidence showed that “let’s go across” meant going from the interview room through a long hallway over to the municipal court. Neal was again advised of his rights by the municipal court judge. Neal was formally charged with the three crimes (burglary, kidnaping, and aggravated assault).
The police officers stated that, after coming out of the court hearing, Neal saw Eric Lewis, a narcotics-unit officer, in the hallway and asked to speak with him. Also in the hallway was Lewis’s supervisor, Commander John Pevey. Lewis was advised by McLemore that Neal had invoked his rights.
Neither Lewis nor Pevey initiated the conversation. Neither knew the facts of the charged crimes. Both testified they only responded to Neal’s questions. Neal spoke for a short time with Lewis, and was then returned to the custody of McLemore and Criddle. The three exited the building and got in a car to return to the jail. The officers testified that Neal then said he wanted to talk to them.
They returned inside, and another video, more than an hour long, recorded those discussions. The tape opened with Neal talking about the robbery. The officers asked no questions, but they repeatedly interrupted Neal, stating they needed to Mirandize him. After stating his rights, they obtained an oral waiver and a signed waiver.
Before the waiver, the officers had asked no questions, and Neal had made no statements related to the burglary of Peterson’s home. Immediately after signing the waiver, Neal volunteered, “And where that burglary was in east Columbus, I plead guilty to that burglary. I did that burglary.” Later in the video, Neal discussed the details of the burglary.
Neal was convicted of burglary of a dwelling and sentenced to 25 years. On appeal, he argued he had 6th amendment protection after his initial appearance so any confession should have been suppressed. MSC affirmed.
Analysis
Unquestionably, Neal was in custody on a felony-escape charge, and, by the time he confessed to the burglary, he had been arrested for burglary and had made his first appearance before a judicial officer, where, once again, he had been informed of his rights. He was not served with warrants for the September and December 2006 crimes until after his first custodial interrogation had begun that day. He expressed early on that he wanted to see his lawyer and that he had a lawyer, before receiving warrants on the new charges. Had Neal been asked any questions regarding the offense of felony escape, his Sixth Amendment right to counsel would have been violated, but he was not.
In McNeil v, Wisconsin, 501 U.S. 171 (1991), the U.S. Supreme Court held that a request for counsel at an initial appearance on a charged offense does not constitute an invocation of a Fifth Amendment right to counsel for police-initiated interrogation on unrelated, uncharged offenses.
The Sixth Amendment specific charge application was reaffirmed by us in Mack v. State, 650 So.2d 1289 (Miss. 1995), in which we said as the U.S. Supreme Court did in McNeil v. Wisconsin, 501 U.S. 171 (1991), that a defendant’s Sixth Amendment right to counsel is offense specific. It is clear under the court’s holding in McNeil that Mack’s invocation of his Sixth Amendment right to counsel on the burglary charge did not extend to the capital murder charge.
Nonetheless, the U.S. Supreme Court attached a right to counsel to the Fifth Amendment right to remain silent, a rule created in Miranda. Thus, Neal had a Fifth Amendment right neither to sign anything nor to speak without an attorney, which he initially asserted, only to waive later.
We find that Neal has not offered any credible evidence of coercion, threat, or promise to secure his confession. Neal gave a confession that was not the product of interrogation, for the police had not even questioned him regarding the burglary at the time he confessed guilt to the burglary. The confession has every appearance of being the product of his own free will.
Following Neal’s earlier assertion of his Miranda right to counsel and his right not to sign anything, the questioning was discontinued. Neal was left alone, and when the police officer returned, Neal was served with arrest warrants on the three separate crimes. No further questions were asked at that time. The officer did reveal the penalties for the three crimes and told Neal to return with his lawyer to discuss those crimes. Again, Neal was left alone before he was escorted to appear before the municipal judge for his first appearance on the new charges.
Neal asserts that, en route to the CPD, the police officers promised him that, if he would plead guilty to the burglary, he would get special treatment for serving up another suspect; an offer he testified he first refused.
The trial court conducted a suppression hearing and concluded after receiving the evidence that Neal had initiated the subsequent contact with officers Lewis, Pevey, Criddle, and McLemore, by requesting to speak to them, fully aware that counsel was not present. The second video opened with Neal freely discussing the Livingston robbery and aggravated assault with Officers Criddle and McLemore.
The officers interrupted Neal to read his Miranda rights to him, and the video revealed that Neal signed a waiver. It was not until after Neal had initiated contact with the officers, and then had waived his Fifth and Sixth Amendment rights, that he admitted guilt of the burglary.
There is no dispute that Neal was in custody throughout these events. The precise issue presented to the trial court for a finding of fact was whether or not Neal initiated contact with the officers after having invoked his right. The trial court concluded that Neal had initiated the contacts. We discern no basis to overrule the court’s factual finding.
In Davis v State, 406 So. 2d 795 (1981), we cited U.S. Supreme Court case Edwards v Arizona, 451 U.S. 477 (1981), for the proposition that after invoking counsel, an 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.
Thoughts
This may read convoluted but there are two important things to take away:
- If a person’s 6th amendment rights attach for crime A (initial appearance, warrant issued to them, etc.), that does not stop you from attempting to talk to them about crime B, an offense for which they do not have 6th amendment protection;
- The suspect is always able to waive all protections they have (5th amendment and/or 6th amendment) and re-initiate contact with you after they have invoked counsel or had an initial appearance.