Subject is not in custody for miranda purposes when he is secretly recorded by his girlfriend


In 2001, Troy Leon Fisackerly and Shirley Jones had lived together approximately eight years although they were not married. Three minor children, including J.J. lived with them. Fisackerly was not the father of J.J. although he was the father of one of the children.

Fisackerly and Shirley got into an argument one day and Shirley took her children to Cindy Reeves’s house. Fisackerly later picked up J.J. and her younger brother and transported them to the home of his brother, Billy Fisackerly. That night, Fisackerly slept in the same room with the children.

Initially Fisackerly shared the bed with J.J.’s brother. However, later on during the night, Fisackerly moved to the bed where J.J. was located and started feeling on her vagina. He later had intercourse with J.J. until he had an orgasm. Fisackerly then got up from the bed, looked to see if his brother was awake, and returned to the bed where J.J.’s brother was sleeping.

Shortly after this incident, Shirley heard from her sister that Fisackerly may have raped J.J. Consequently, she and her three minor children moved out of the residence with Fisackerly without informing him as to their new location. Shirley, however, continued to talk to Fisackerly by telephone.

After moving out of the residence with Fisackerly, Shirley contacted Officer Roger Miller of the Mathison Police Department and was eventually referred to the Webster County district attorney’s office. William Blackmon, the domestic violence investigator for the district attorney, met with Shirley and advised her that, based on J.J.’s statements alone, there was not enough evidence to charge Fisackerly. Investigator Blackmon further instructed Shirley that more evidence would need to be gathered, particularly tape recorded, self incriminating statements from Fisackerly.

Subsequently, Shirley produced and turned over to Blackmon a collection of micro cassette tapes which she had recorded of conversations between her and the children and Fisackerly. She later signed an affidavit charging Fisackerly with the statutory rape of J.J. who, at the time of the incident, was twelve years old.

Fisackerly was convicted of statutory rape and sentenced to 20 years. On appeal, he argued that Shirley was an agent of the government and so he should have received Miranda warnings before he made incriminating statements. MCOA affirmed.


Miranda applies to custodial interrogations or statements, and it does not apply to statements when he is not in custody and has the liberty to come and go as he pleases. The evidence does not show, nor does Fisackerly argue, that he was in the custody of the police while his girlfriend (Shirley) recorded their conversations.

He does assert, as stated earlier, that the Joneses acted as agents of the State when they produced the audiotapes. We, however, are unconvinced by this argument and do not find that Fisackerly was under “interrogative custody” when the Joneses recorded their telephone conversations with him.

Alternatively, Fisackerly argues that his giving of statements to the Joneses was not voluntary. We likewise find this contention to be meritless. While the Joneses recorded their conversations with Fisackerly, we do not see how their actions deprived Fisackerly of his freedom of action in any significant way.

Fisackerly voluntarily talked to the Joneses by telephone and gave incriminating statements which they recorded. Their motive, though not communicated to Fisackerly, is immaterial. And they certainly were not law enforcement officials. Further, Fisackerly has not alleged or shown that his statements were extracted as a result of threats or force by anyone, much less a law enforcement official.