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Telling the D.A. that a subject cooperated is discouraged but it takes more to get confession overturned

Facts

On February 19, 1997, four year old J.G. slept overnight with her grandparents. J.G. slept in the bed with her grandmother, while her grandfather, Albert Mullins, slept in a separate room. The next morning, after the grandmother had gone to work, Mullins summonsed J.G. to his room. According to J.G., Mullins pulled down her underpants and “stuck his finger in my tomcat,” a term determined to mean her vagina. When J.G.’s mother picked her up from the Mullins’s home, J.G. told her mother that her “tomcat” hurt. On examination, J.G.’s mother noticed redness and apparent irritation and took the child to a physician. The examining physician noted irritation and redness and testified that the child told him that her grandfather had put his finger in her “tomcat.”

Gulfport police were contacted, and Investigator Glenn Strong questioned Mullins who admitted to sexually battering J.G. An indictment followed to which Mullins pled not guilty. After a jury trial, Mullins was convicted of one count of sexual battery. On appeal, Mullins argued his confession should have been suppressed. MCOA affirmed.

Analysis

Mullins claims that his statement to Investigator Strong was not freely and voluntarily given because he requested counsel prior to giving the statement. Further, Mullins maintains that Strong and Investigator Hurt coerced him into giving the statement by force and promise of reward for his cooperation. Finally, Mullins asserts that his original statement was altered by law enforcement authorities. The circuit court held a suppression hearing regarding the statement given by Mullins to Investigator Strong.

Testifying on behalf of the State at the suppression hearing was Investigator Glenn Strong of the Hancock County Sheriff’s Department. Strong testified that Mullins was advised of his Miranda rights prior to giving the statement at issue. According to Strong, Mullins appeared coherent, did not appear to be intoxicated, and freely waived his right to counsel before giving the statement. According to Strong, and contrary to Mullins’s assertion, Mullins never requested the assistance of an attorney. Strong testified that no force was employed nor was there any intimidation of Mullins in the process of taking his statement, denying Mullins’s claims that Strong struck him with a phone book, that Strong shoved his head down in front of the desk, that Strong kicked Mullins’s chair out from under him causing his head to hit the wall, that Strong invited Mullins to put himself out of his misery and commit suicide, that Strong displayed weapons before Mullins in a coercive and threatening manner, and that Strong told Mullins that he would be taken care of at Parchman, one of three State penitentiaries.

Strong did testify that after J.G. and her mother arrived at police headquarters and J.G. had refused to say anything to Strong in Mullins’s presence. Mullins executed a voluntary waiver of rights form prior to giving his statement. This voluntary waiver of rights form is read on the tape-recorded statement given by Mullins. On the tape of the interview, Strong, when advising Mullins of his right to an appointed attorney, advises Mullins that if he desires counsel but cannot afford one, then one will be appointed by the proper authority, which happens to be me, referring to Strong. Also, Strong promised Mullins that the district attorney and the trial court would be made aware of his cooperation in giving a statement. Kenneth Hurt corroborated Strong’s recollection of events. Hurt denied Mullins’s accusation that Hurt threatened to slap him.

Mullins’s wife testified that on the evening of her husband’s interrogation, her husband looked like “a semi-trailer” had hit him, and he looked “wild.” She testified that he did not look that way when he left their home to go to the sheriff’s office earlier that day.

At the conclusion of the suppression hearing, the trial court made a factual finding that, based on the totality of the circumstances, Mullins’s statement was freely, voluntarily, and intelligently given. Aside from Mullins’s assertions and his wife’s testimony that he looked substantially different at the police station that evening than when he left their home in the late afternoon, Mullins offers no other support for his allegations of physical, verbal, and psychological abuse by Strong and Hurt.

Mullins relies on one of this Court’s cases, Harper, in support of his position that promises of leniency made to a suspect constitute reversible error. However, we find Harper is clearly distinguishable from the case at bar. In Harper, we reversed the conviction of a marijuana trafficker because of a coerced statement given to the police by Harper. In that case, Harper asked the officers what he could do to stay out of jail. The officers responded that if Harper helped them by providing the source of his marijuana, he would not be arrested at that point. Harper testified that he gave his statement based on that promise of assistance. In Harper, we noted that it was a pretty close case but found sufficient evidence to render Harper’s statement involuntary.

As in Harper, this case is a close case, though one we resolve against Mullins. Strong’s promise to Mullins to share with the district attorney and the trial court Mullins’s cooperation with law enforcement was not coercive. Our supreme court has discouraged law enforcement authorities from advising in-custody suspects that their cooperation will be relayed to the prosecuting authority and trial court:

It is hard to imagine any reason why the officers would tell Mullins that they would advise the district attorney of his cooperation other than to induce Mullins to waive his rights and confess. Such tactics in the course of custodial interrogation comes perilously close to infecting further prosecution of the accused with reversible error. See MSC Layne v. State, 542 So. 2d 237 (Miss. 1989). We reiterate this caution today. Nevertheless, such advice is not necessarily fatal to a suspect’s otherwise voluntary statement. The Layne rule requires more: suspects must demonstrate that the promise by law enforcement was the proximate cause of the statement in issue.

In this case, the tape-recorded statement reveals that Investigator Strong did indeed tell Mullins that if he cooperated, the district attorney and the trial judge would be informed that he had cooperated by giving a statement. During the taped discussion of rights, Mullins initially said that Strong had promised him that he would get Mullins mental treatment. However, Strong stopped the discussion with Mullins and clarified that Strong did not make such a promise about mental health treatment nor any other promises other than his promise to inform the district attorney and the trial court that Mullins had cooperated. Strong also indicated to Mullins that he (Strong) was the authority who would appoint him counsel if he so desired. However, after listening to the taped statement, Mullins acknowledges that the court would appoint him counsel if he desired. Further, Strong explained to Mullins on the tape recording that if Mullins desired to seek the assistance of counsel, Strong would cease questioning at that point or at any point when Mullins decided he wanted to speak to an attorney. Mullins acknowledged his understanding of his right to counsel. While Strong’s words in this regard were less than desirable, it is clear that Mullins was not misled by that statement.

Finally, Mullins suggests that the statement is faulty because Strong altered it after the statement was concluded. Strong did admit writing in the word “tape” on the voluntary statement form to indicate that the statement was taped and not written. In the recording, Mullins acknowledges that the statement is being recorded and not written. This assignment of error is without merit. We find that Mullins voluntarily, knowingly, and intelligently gave the statement in issue. Accordingly, this assignment of error has no merit.

 

https://courts.ms.gov/images/Opinions/Conv8775.pdf