Facts
Stephen McGilberry, who was 16 years of age at the time, lived at the home of his stepfather and mother, Kenneth and Patricia Purifoy. McGilberry’s half-sister, Kimberly Self, and her son, Kristopher Self, also lived in the Purifoy home.
McGilberry and Meyer Shawn Ashley initially planned only to steal his half sister’s green GEO Storm and sell it for cash or drugs in New Orleans. One week prior to the murders, McGilberry approached Ashley about killing his family. Ashley withdrew from the plot the Friday night before the murders when things didn’t sound right. On Saturday, McGilberry then discussed the murders with Chris Johnson, who was 14 years of age. That Saturday night, McGilberry had a dream in which he visualized killing his parents. It was after this dream that he went down the street to Johnson’s house where the plan to murder his family evolved.
McGilberry and Johnson returned to McGilberry’s residence sometime around 10:30 a.m. on Sunday morning, October 23, 1994. They originally considered slitting his parents’ throats with a utility knife which police later found under a box in the attic of the Purifoy’s home. This changed when they realized that it would be impossible to cut their throats because of the way Kenneth was sleeping.
McGilberry and Johnson were in the garage smoking cigarettes when Johnson picked up a baseball bat and suggested that they knock their victims unconscious. They decided to hit the victims in the head with the baseball bat, drag them into the garage, weight the bodies and dump them off the pier. Due to the fact that McGilberry’s mother was awake, the two were unable to execute their plan immediately. They placed the bats outside McGilberry’s bedroom window and went back inside the house.
McGilberry later told Detective Ken McClenic that he had hit his stepfather and half-sister Kimberly, while Johnson had hit McGilberry’s mother and three-year old nephew. McGilberry also confessed to striking his mother once on top of the head with the baseball bat because she was suffering.
On Sunday, October 23, 1994, police received a 911 call regarding a medical emergency at the Dewberry Street residence. At approximately 10:59 p.m., James D. McArthur, a Jackson County Sheriff’s Deputy on patrol, was instructed to investigate. Upon arrival, he found several people standing in the driveway of the residence.
Michael Petranglo, later determined to be the boyfriend of one of the victims, approached McArthur and said “I think they’re dead.” Confused, and still thinking that this was only a medical emergency, McArthur secured Petranglo in the back of his patrol car. McArthur entered the house through the front door and eventually found the bodies of four persons.
Found dead inside the house were: Kenneth Purifoy, a 44 year-old technical sergeant at Keesler Air Force Base; his wife, 44 year-old Patricia Purifoy; her daughter, 24 year-old Kimberly Self; and Kimberly’s 3 year-old son, Kristopher Self. From Petranglo, who was Kimberly’s boyfriend, police learned that there was a fifth family member, McGilberry, whose whereabouts were unknown.
After committing the murders, McGilberry and Johnson drove Kimberly’s GEO Storm to some friends’ house in Vancleave, Mississippi, where the two spent the night at the home of Mrs. Brenda Smith Saucier, the friends’ mother. Upon learning that something was wrong at the Purifoy home, Brenda drove McGilberry and Johnson back to the scene the morning after the murders.
McGilberry and Johnson were taken by officers to the Jackson County Sheriff’s Office in Pascagoula. The pair were subsequently transported to the Criminal Investigation Department, also located in Pascagoula. After McGilberry was read his Miranda rights, he signed a waiver form and indicated that he understood his rights.
The first part of the initial interview between McClenic, the chief investigator on the case, and McGilberry was not recorded. Thereafter, McClenic videotaped the remaining parts of the interview with McGilberry. On videotape, McGilberry confessed to bludgeoning his family to death and also to taking cash, a money order, a credit card, and Patricia’s drivers license after the murders had taken place.
It appears that McGilberry had been disciplined by his parents for skipping school and for losing his job. Particularly disturbing to McGilberry was the fact that his privilege of driving the family Bronco had been taken away, and he was embarrassed for his friends to see his mother driving him to school.
While being interviewed, McGilberry told police where to find the murder weapons and other pertinent evidence. McGilberry was convicted of murder and sentenced to death. On appeal, he argued there was no probable cause for the arrest and therefore the statement should have been suppressed. MSC affirmed.
Analysis
At the time McGilberry gave his confession, he was not under arrest. He was only a suspect brought in for questioning. Furthermore, McGilberry was sought for questioning because police had learned that he was the only surviving family member, he was missing and Petranglo had told police to look for McGilberry because Kimberly’s GEO Storm was not at the Dewberry residence and McGilberry’s Bronco was there.
In Johnson v. State, 631 So. 2d 185 (Miss. 1994), we said that under the Mississippi Constitution, the right to counsel attaches once the proceedings reach the accusatory stage. The right to counsel, at both the federal and state level, attaches at the point in time when the initial appearance ought to have been held. Like the Fifth Amendment right to counsel, a defendant’s Sixth Amendment rights are not violated by questioning in the absence of his attorney unless the defendant has asserted his right to have an attorney present.
There is no of evidence suggesting that McGilberry asserted his right to counsel during the questioning. At the point his confession was obtained, McGilberry was a suspect who had been brought in for questioning. There was no violation of his Sixth Amendment right to counsel.
McGilberry is left with only a Fifth Amendment challenge to the admissibility of his confession. Given that he had knowingly, voluntarily and intelligently waived his rights, McGilberry’s challenge rests on the allegation of police misconduct. Specifically, McGilberry argues that his confession is inadmissible due to the refusal of law enforcement officers to allow Ross Simons, the Jackson County Public Defender, an opportunity to speak with the defendant.
Once McGilberry arrived at the murder scene, Jackson County Sheriff’s Deputies took him to the Sheriff’s Department located in Pascagoula, approximately 20-30 minutes away. Shortly thereafter, he was transported to the Criminal Investigation Department, also in Pascagoula. Deputy McClenic began interviewing McGilberry about 11:55 a.m., approximately three hours after his arrival.
During the interview, Simons arrived at the Criminal Investigation Division. Simons testified that he told the police officers that he came down there to see the child that they were questioning about this capital murder case. Simons also gave one of the officers a business card which had written on the back “10/24/94-12:05. Antonio, your attorneys are here.”
Simons represented a client named Antonio McGilberry, not the same person as the defendant herein. The officers refused to give the card to McGilberry or to allow Simons to speak with him. At this point, Simons was under the impression that it was Antonio McGilberry whom the police were questioning. He later expanded his testimony to say that he was there to see the child or children that were charged with the four counts of capital murder which he read about in the newspaper that morning. He further testified that no one, including McGilberry, had called him or asked him to represent McGilberry.
The United States Supreme Court in Moran v. Burbine, 475 U.S. 412 (1986), has held that events, such as those set out above, which occur outside the presence and knowledge of a defendant, can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. The Constitution has never been interpreted to require that law enforcement provide a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.
Mississippi has not departed from the reasoning of Moran. In Hunt, we noted that even though a lawyer had been retained by family members, it was of no consequence because the defendant was unaware of the efforts of the family or the lawyer.
In Lee v. State, 631 So.2d 824 (Miss. 1994), the defendant’s sister made a statement to the effect that she was going to obtain a lawyer to represent the defendant. We noted that under Moran attempts by others to procure counsel are not sufficient to invoke the Fifth Amendment right to counsel where the defendant is unaware of such attempts.
It is not asserted that McGilberry sought to terminate the interview or exercise any of his rights, including the right to counsel. According to Simons’s testimony, he went to the Criminal Investigation Division looking for Antonio McGilberry. He later explained to the trial court that he was there to see the person charged with four counts of capital murder. That he was looking for Antonio McGilberry is of no consequence.
Nowhere does Mississippi law, statutory, judicial, or otherwise, require law enforcement personnel to cease with a lawful interview and re-advise the defendant that he has the right to a lawyer or inform him that there is a lawyer outside, where the defendant himself has not requested or otherwise indicated that he wished to speak with an attorney before further questioning.
For the foregoing reasons, McGilberry’s arguments on this issue are without merit. In Mississippi, the right to counsel must be invoked by the defendant and not by third parties acting outside the knowledge of the defendant.