On January 12, 2005, the Horn Lake Police Department arrested Thomas Lee Brown, who was thirty- four years-old. After Thomas arrived at the police station, he waited approximately two hours before Detective Michael Callender and Detective Josh Zacharias began an interrogation. Thomas initialed and signed a Miranda waiver at the beginning of the interrogation. During the interrogation, Thomas confessed to fondling a minor child, Jill, after Detective Zacharias told him that a black light test conducted by the police revealed numerous semen stains within the house where Thomas was staying. Detective Zacharias wrote Thomas’s confession, and Thomas initialed and signed it.
During his suppression hearing, Thomas stated that, because he was drunk during the interrogation, he did not remember the interrogation, waiving his rights, or confessing to fondling. Thomas also stated that he did not understand anything the detectives told him or handed him to read during the interrogation because he cannot read or write. Detective Zacharias and Detective Callender both testified, however, that Thomas appeared sober, alert, and did not smell of alcohol during the interrogation. Also, they stated that Detective Callender explained the Miranda waiver form and the confession to Thomas. Furthermore, they believed that Thomas understood both documents when he signed them.
During the trial, Jill testified for the State. She testified that she would visit and stay with Thomas’s mother, Pamela Brown. Thomas lived with Pamela at this time and helped take care of her because she was very sick. Jill said she would sleep on a pallet next to Pamela’s bed, and Thomas would sleep at the foot of Pamela’s bed. Jill stated that she would wake up during the night and find Thomas caressing her feet while he masturbated. Jill initially said this activity began when she was eight, but she quickly changed this testimony and said that she was actually thirteen when Thomas started touching her.
After Pamela died, Thomas moved into Jill’s home because Jill’s stepfather and Thomas are brothers. Jill testified that Thomas continued fondling her feet and other parts of her body whenever her parents were not around. She said that Thomas’s fondling ended when she was sixteen because she threatened to report Thomas’s foot fondling. On cross examination, Jill admitted that she told the Mississippi Department of Human Services (“DHS”) that the fondling did not happen, but she testified that she said this because she was afraid the authorities would take her brothers and sisters away from her mother.
Thomas’s sisters, Viola Shanks and Vera Sanders, testified for the defense. Viola testified that Thomas lived with her after he was arrested for fondling. She said that Jill would come to her house when Thomas was present and that she did not appear to be scared of Thomas. Also, Viola said that Jill and her boyfriend wanted to stay at her house for a period of time even though Thomas lived there. Furthermore, Viola said that Jill told her that Thomas did not fondle her.
Vera also said that Jill did not seem scared when she was around Thomas. Furthermore, Vera told Jill that she did not believe that Jill should have implicated Thomas for fondling. Vera said that Jill replied that “this wasn’t her idea.” Neither, Viola nor Vera reported these statements to the police or the State.
Thomas was the last witness for the defense. He denied all of Jill’s allegations against him. He said that he would never sleep in the same room as Jill and his mother because he had his own room. Also, he said that he liked to watch television late at night. Therefore, he could not sleep in his mother’s room because the television’s noise would keep her awake. Thomas repeated his testimony from his hearing that he did not confess because he was drunk during his interrogation and that he cannot read or write.
Thomas Brown was convicted from the Desoto County Circuit Court of one count of fondling a child under the age of eighteen and sentenced to 15 years. On appeal, he argued his statement to police should have been suppressed. MCOA affirmed.
A. Was Thomas’s confession involuntary?
Thomas argues that the trial court erred when it denied his motion to suppress his confession because he was intoxicated during the interrogation, he cannot read or write, and the detectives lied to him about the evidence against him. Thomas claims that all of these factors rendered his confession involuntary.
In Carley, we noted that:
The privilege against self-incrimination secured by the Fifth and Fourteenth Amendments to the U.S. Constitution and by Article 3, § 26 of the Mississippi Constitution renders an involuntary confession inadmissible. When the voluntariness of a confession is put in issue, the burden falls on the State to prove the voluntariness of the confession beyond a reasonable doubt. The State meets that burden by offering the testimony of those individuals having knowledge of the facts that the confession was given without threats, coercion, or offer of reward.
In O’Halloran, MSC addressed a case that involved a criminal defendant who argued that his confession was involuntary because he was drunk. The court reasoned:
The voluntariness of a waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances. Further, where there is conflicting evidence on a confession’s admissibility, this Court will not disturb the court’s findings “unless it appears clearly contrary to the overwhelming weight of the evidence.” No one factor is dispositive in the totality of circumstances test. Indeed, intoxication or sickness does not automatically render a confession involuntary. The admissibility of a confession depends upon the degree of intoxication.” The court held that the trial court’s order denying O’Halloran’s motion to suppress his statement was not against the overwhelming weight of the evidence. Specifically, the court found that three officers testified that O’Halloran appeared sober and did not smell of alcohol when he gave his incriminating statements. Furthermore, the court found that O’Halloran had to wait approximately an hour and a half before he was questioned.
Like O’Halloran, Thomas waited approximately two hours before he was interrogated. Also like O’Halloran, two police officers, Detective Zacharias and Detective Callender, testified that Thomas did not smell of alcohol and appeared sober when he confessed. After applying the precedent of O’Halloran to the facts of this case, we find no reversible error because we cannot say that the trial court’s determination that Thomas was sober is against the overwhelming weight of the evidence.
Next, Thomas argues that the trial court should have suppressed his confession because he cannot read or write; therefore, his confession was involuntary because he has limited mental faculties. Thomas supports his argument with Harvey v. State, 207 So. 2d 108 (Miss. 1968). In Harvey, the MSC found that an eighteen-year-old boy’s confession was involuntary and should not have been admitted into evidence because expert testimony had shown that the defendant “had the mind of a five-year-old child,” when he became worried. The court held that “the objection to the confession should have been sustained when it became apparent that the defendant was not mentally capable of understanding the gravity of the charge against him or of understanding the meaning of a waiver of his constitutional rights.
This case is easily distinguished from Harvey and is more akin to Merrill v. State, 482 So. 2d 1147 (Miss. 1986). The Merrill court noted:
With respect to subnormal intelligence and educational level, this Court has held that mental weakness in and of itself will not invalidate a confession unless it has shown that the weak minded person has been over reached. See Williamson v. State, 330 So. 2d 272 (Miss. 1976). In each case, the totality of the circumstances must be considered to determine whether the mentally deficient defendant has been exploited. See Neal v. State, 451 So.2d 743 (Miss. 1984).
Unlike Harvey, Thomas did not submit any expert testimony that he was mentally retarded. He merely testified that he had trouble reading and writing and that he had only attended school until the sixth grade. Detective Callender fully read Thomas his Miranda rights, and Detective Zacharias wrote Thomas’s confession and explained it to him. Thomas signed both of these documents. Furthermore, Thomas and his sisters testified that Thomas was responsible for taking care of his mother before her death, and he was able to drive a car and do manual labor. While Thomas may not possess exceptional intelligence, this is not required to determine that a confession was given voluntarily under the United States Constitution or the Mississippi Constitution. The trial court determined that Thomas possessed enough mental ability to fully waive his rights and that he had not been exploited by the police. We cannot say that his determination was against the overwhelming weight of the evidence in this case.
Thomas argues that his confession was involuntary because it was obtained because Detective Zacharias lied to him. The MSC has stated that detectives’ lies to criminal defendants regarding the evidence against the defendants is a factor to be considered when reviewing the voluntariness of the confession, it should be viewed in the totality of the circumstances. See Davis v. State, 551 So. 2d 165 (Miss. 1989).
During the interrogation, Detective Zacharias lied by telling Thomas that the police had conducted a black light test of the house where Thomas was living. Detective Zacharias lied further by telling Thomas that this test uncovered traces of Thomas’s semen throughout the house. After these misrepresentations, both detectives testified that Thomas recanted his previous denial and admitted to fondling Jill between twelve to fifteen times. Looking at the totality of the circumstances, we cannot say that the trial court’s ruling that Thomas’s confession was voluntary, despite Detective Zacharias’s misrepresentation, is against the overwhelming weight of the evidence.
Finally, Thomas argues that this Court should require law enforcement to record confessions using video cameras or audio recorders. We believe this equipment may greatly assist the trial court’s fact finding and may prohibit many frivolous appeals. However, the use of such equipment is not presently required under Mississippi law, and this Court does not have the authority to mandate such a change. Therefore, this is an issue better left to the Mississippi Legislature or the Mississippi Supreme Court.
Having examined the above arguments, we find that trial court’s determination that Thomas’s confession was voluntary is not against the overwhelming weight of the evidence. Therefore, we affirm.
B. Was Thomas’s waiver of his Miranda rights proper?
Next, Thomas argues that the trial court should have suppressed his confession because he was unable to read or understand his Miranda waiver form or his written confession because he was intoxicated and is illiterate. He argues that both of these facts make his waiver improper under Miranda. Also, he asserts that the trial court did not hold the State to the proper burden of proof, which is beyond a reasonable doubt, because it did not say the words “beyond a reasonable doubt” in its holding. Thomas argues further: the State cannot be excused from meeting the required burden of proof simply because the police elected not to provide the prosecutor with a recording that would irrefutably show that the suspect in question understood his rights, knowing, intelligently, voluntarily waived them, and was not overreached by coercive tactics and lies by the police into giving a false statement.
We addressed Thomas’s arguments dealing with coercive tactics and voluntariness in the previous section. Therefore, we will only address Thomas’s Miranda arguments in this section.
Miranda demands that a waiver be made voluntarily, knowingly and intelligently. In short, a waiver is voluntary if it is the product of a free and deliberate choice rather than intimidation, coercion or deception. Moreover, a waiver is knowing and intelligent if it is made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. See Coverson v. State, 617 So. 2d 642 (Miss. 1993). The State must prove beyond a reasonable doubt that a defendant voluntarily, knowingly, and intelligently waived his or her Miranda rights.
In this case, the trial court found that Thomas’s waiver was voluntary, knowing and intelligent. After reviewing the trial court’s analysis, which it read into the record during the hearing, we find that the trial court applied the proper principles of law. Therefore, we must next analyze the trial court’s factual findings.
When determining whether or not a Miranda waiver is proper, the trial court must conduct a totality of the circumstances analysis and look at such factors as the defendant’s ‘experience with the police and familiarity with warnings; intelligence, including I.Q.; age; education; vocabulary and ability to read and write in the language in which the warnings were given; intoxication; emotional state; mental disease, disorder or retardation.
In this case, Thomas testified that he was drunk during the investigation and that he cannot read or write. However, the detectives testified that Thomas appeared sober and appeared to have full control of his faculties. Thomas’s testimony reveals that, despite being a thirty-four-year-old who is illiterate, Thomas is able to function in society. No one testified that Thomas suffered from any mental defects, diseases, or retardation. The evidence only showed that he has trouble reading and writing. During the trial, Thomas admitted that he can recognize certain words including “yes” and “no.” Also, Thomas’s testimony showed that he can understand and answer complex questions. Detective Callender also testified that he read the Miranda rights to Thomas and that Thomas appeared to fully understand these rights. We must also remember that Thomas signed and initialed a Miranda waiver form after Detective Callender read him his rights. Thus, we affirm the trial court’s determination that Thomas knowingly, voluntarily, and intelligently waived his Miranda rights because such finding was not against the overwhelming weight of the evidence.