Abston v. State, No. 50515

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBefore PATTERSON; PATTERSON
Citation361 So.2d 1384
Decision Date13 September 1978
Docket NumberNo. 50515
PartiesJ. D. ABSTON v. STATE of Mississippi.

Page 1384

361 So.2d 1384
J. D. ABSTON
v.
STATE of Mississippi.
No. 50515.
Supreme Court of Mississippi.
Sept. 13, 1978.

Page 1385

Cumbest & Cumbest, Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.

A. F. Summer, Atty.Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

PATTERSON, Chief Justice, for the Court:

J. D. Abston appeals from a conviction of murder and sentence of life imprisonment by the Circuit Court of Jackson County.

Appellant was indicted for murdering his ex-wife who was living with him and their four children at the time of her demise. Katherine Abston and the appellant were married for approximately fourteen years when they were divorced in 1968 and thereafter lived apart with the appellant caring for and supporting the children. In September 1975 she returned and resided in the Abston home in Gautier, Mississippi.

On the evening of July 24, 1976, Abston and his ex-wife quarreled and a vicious struggle ensued between them. During the course of the affray, the weapons at hand were used, including a knife, "coke" bottle, hammer, meat saw, razor and "grease gun." The appellant directed the children, who were either observing or in the way of the struggle, to move to another room and he

Page 1386

himself left through the back door. After waiting outside for some ten or twelve minutes, Abston reentered armed with a "grease gun" which he thought would frighten his ex-wife. Instead, according to him, she attacked him with a broken knife and he responded by striking her on the head with the "grease gun" and then with a meat saw he had obtained. Ultimately, the battle climaxed in the bathroom which the appellant had entered, according to his version, to tend a wound he had received from a knife wielded by his ex-wife when she followed and attacked him with something "shiny;" whereupon he pushed her backward and she fell into the tub and moved no more.

Mary Abston, the fourteen-year-old daughter of the couple, testified she was unaware who started the fatal fight although she did observe her father strike her mother with a glass, coke bottle, meat saw, and finally, the "grease gun" in the bathroom. At one time, she stated, her mother, bleeding from the head, came out of the bathroom and was later heard to call for help. She never saw her mother or father with a knife or razor blade in their hands. Regina, the thirteen-year-old daughter, also testified to the violence visited upon her mother by her father.

Casey Carr, a friend of the appellant, entered the Abston house that night but left after hearing loud noises. He returned to see the victim in the bathroom and it appeared to him that something was sticking from her head although he was unable to describe it. He testified that he saw the appellant enter the house with the "grease gun," go into the bathroom, close the door and heard Mrs. Abston say she "wasn't going to do it no more."

On July 27, 1976, the Jackson County Sheriff's Department first investigated a report that Katherine Abston was missing. Jackie Walker of that office talked with Abston that day after administering the Miranda warnings and explaining a "waiver of rights" form which the appellant signed. The following day several officers went to the Abston residence with a search warrant to collect evidence. Detective Cox testified he interrogated the appellant but ceased questioning when Abston asked for an attorney as well as indicated he wanted to talk to Assistant Sheriff Kennedy.

Although the testimony is confusing, it is apparent that prior to questioning by Kennedy the appellant asked other officers, and was permitted, to speak by telephone with his attorney, Arvis V. Cumbest, whom Abston beseeched to come talk with him. According to Kennedy, the Miranda "rights" were administered before the interrogation and when Abston requested an attorney, he attempted to reach Cumbest but was unable to do so. Thereafter, according to Kennedy, they continued their conversation. "We just talked in general after he told me that he wanted his attorney and I didn't question him any more after that concerning this. My independent recollection of what we discussed was politics and whatever. I didn't stay in there with him the whole time . . . He asked to speak with Mr. Cumbest, his attorney, before he made the statement to me in reference to the location of Katherine Abston." While thus engaged, Kennedy stated Abston volunteered to show him the burial site of his ex-wife and her body was recovered. Although decomposition of the body prevented ascertaining the precise reason for the cause of death, the autopsy did reveal three lacerations upon the forehead.

The following afternoon Abston agreed to give Officers Walker and Cox a statement. Officer Walker testified that the appellant was again advised of his "rights" and executed a waiver after he had it read and explained to him. The tape-recorded and transcribed statement corroborated to a great degree the other testimony concerning the struggle between Abston and his ex-wife, her death and burial. Walker testified that he read the incriminating statement to Abston who understood and signed it on August 9, 1976.

The appellant filed a motion to suppress, contending his statements, including those leading to the body, were inadmissible because they were the result of "threats,

Page 1387

promises, coercion, offer of reward and hope of leniency" and were therefore involuntarily made. He asserted also that he was deprived of counsel in violation of the Sixth Amendment, thereby invalidating both statement and confession.

The state assumed the burden of proof on the motion and offered Officers Cox and Walker as witnesses in opposition to it. The sum of Walker's testimony concerning coercion is that he gave the appellant his Miranda warnings on the first day of the investigation, which were understood by Abston, and discontinued the interrogation when Abston requested an attorney. And, the day after the body was found, he again advised Abston of his Miranda rights in the presence of Detective Cox and subsequently Abston's statement was tape-recorded, transcribed and later signed by Abston. The recorded statement was given without threats or offer of leniency by either Cox or himself and was apparently understood because it was read to Abston and signed by him. This evidence was corroborated by Cox who testified, as did Walker, that Abston's statement concerning the location of the body was given to Assistant Sheriff Kennedy in a separate room and not in their presence.

The appellant and his attorney gave evidence in support of the motion. Abston testified that he requested an attorney after he had been in jail "a couple or so days." He stated that upon being returned to the jail after going with Officers Walker and Cox to his home, Assistant Sheriff Kennedy advised him, while they were alone, that the best thing he could do, if he knew the location of the body, was to show it to him. According to Abston he then requested an attorney and Kennedy responded by telling him Cumbest did not have a home phone and that if he would reveal the whereabouts of the body, he would talk to the judge and "it would go pretty light on him;" whereupon Kennedy was directed to the construction site where the body was buried. The appellant then related that he was unable to read or write, having gone to school for only a very short time.

Attorney Cumbest, who had handled other legal matters for Abston, testified that he received a call from the sheriff's department and talked with Abston by telephone. He stated Abston did not disclose his reason for needing an attorney, but only stated he was worried, scared and needed someone with whom to talk and he replied, "I'll be right there. Give me an hour and I'll be right there." However, upon arriving at the sheriff's office at about 4:30 p.m., and within the hour, he was informed that Abston was not present, "that he had left several minutes ago with Larry Kennedy." Although he drove about in search of Abston, he was not located until approximately 10:30 that night. Cumbest testified: "I did not get to talk to him until the body had been found...

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11 practice notes
  • Stringer v. State, No. 54805
    • United States
    • United States State Supreme Court of Mississippi
    • July 16, 1986
    ...proof is on the State. See, e.g., Butler v. State, 212 So.2d 573, 577 (Miss.1968) (State's burden of proof discussed); Abston v. State, 361 So.2d 1384, 1391 (Miss.1978) (same). Cf. Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377, 387 (1984) (burden of proof on State......
  • Jones v. State, No. 54067
    • United States
    • Mississippi Supreme Court
    • November 28, 1984
    ...384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966); Neal v. State, 451 So.2d 743, 753 (Miss.1984); Abston v. State, 361 So.2d 1384, 1391 (Miss.1978). That burden is proof beyond a reasonable The trial court conducted an extensive inquiry into the facts and circumstances surr......
  • Jordan v. Epps, Civil Action No. 1:05CV260KS
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • August 30, 2010
    ...circumstances surrounding Jordan's second confession (the disputed one) are quite different from the circumstances in Abston [ v. State, 361 So.2d 1384 (Miss.1978) ]. Prior to requesting counsel, Jordan had already admitted to FBI Agent Watts everything which he subsequently admitted to All......
  • Neal v. State, No. 54739
    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1984
    ...61 L.Ed.2d 197, 212 (1979); Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966); Abston v. State, 361 So.2d 1384, 1391 In the case at bar, our primary focus is on the question whether Neal voluntarily and knowingly waived his rights on the afternoon of Sun......
  • Request a trial to view additional results
11 cases
  • Stringer v. State, No. 54805
    • United States
    • United States State Supreme Court of Mississippi
    • July 16, 1986
    ...proof is on the State. See, e.g., Butler v. State, 212 So.2d 573, 577 (Miss.1968) (State's burden of proof discussed); Abston v. State, 361 So.2d 1384, 1391 (Miss.1978) (same). Cf. Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377, 387 (1984) (burden of proof on State......
  • Jones v. State, No. 54067
    • United States
    • Mississippi Supreme Court
    • November 28, 1984
    ...384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966); Neal v. State, 451 So.2d 743, 753 (Miss.1984); Abston v. State, 361 So.2d 1384, 1391 (Miss.1978). That burden is proof beyond a reasonable The trial court conducted an extensive inquiry into the facts and circumstances surr......
  • Jordan v. Epps, Civil Action No. 1:05CV260KS
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • August 30, 2010
    ...circumstances surrounding Jordan's second confession (the disputed one) are quite different from the circumstances in Abston [ v. State, 361 So.2d 1384 (Miss.1978) ]. Prior to requesting counsel, Jordan had already admitted to FBI Agent Watts everything which he subsequently admitted to All......
  • Neal v. State, No. 54739
    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1984
    ...61 L.Ed.2d 197, 212 (1979); Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966); Abston v. State, 361 So.2d 1384, 1391 In the case at bar, our primary focus is on the question whether Neal voluntarily and knowingly waived his rights on the afternoon of Sun......
  • Request a trial to view additional results

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