Brooks v. State, No. 2001-CT-01826-SCT.

• Citation: 903 So.2d 691
• Decision Date: 24 March 2005
• Docket Number: No. 2001-CT-01826-SCT.
• Parties: Blaine BROOKS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

903 So.2d 691

Blaine BROOKS v. STATE of Mississippi.

No. 2001-CT-01826-SCT.

Supreme Court of Mississippi.

March 24, 2005.

Richard M. Goldwasser, and Paul McGerald Luckett, McComb, attorneys for appellant.

Office of the Attorney General by W. Glenn Watts, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

DICKINSON, Justice, for the Court.

¶ 1. The following testimony was provided by Detective Robert Holmes in the murder prosecution of Blaine Brooks:

I felt I had just a limited amount of time, before he was appointed an attorney, to try to conduct a lineup. And that's what I did.... Because ... you're going to be appointed an attorney sooner or later.

[H]e informed me ... he did not have an attorney. So at that point in time, I used my advantage. I conducted a physical lineup ... before he was appointed an attorney.... I asked him if he'd like to speak with me? And he said, no, he did not. He wanted to wait until he [sic] have an attorney for him.

¶ 2. This testimony, together with other errors discussed below, requires us to reverse this murder conviction (which the Court of Appeals has previously affirmed) and to remand this case for a new trial.

BACKGROUND FACTS AND PROCEEDINGS

¶ 3. We borrow from the Court of Appeals' opinion the following recitation of facts:

On May 17, 1999, Merry Wilson was found dead in her home. Wilson died as a result of multiple stab wounds inflicted by a two-pronged fork which was recovered from her throat. The pathologist testified that Wilson had probably died sometime between the twelfth and the fifteenth of May. Wilson had also recently inherited $10,000 and her bed and mattress had been ransacked.

A neighbor, Sandra Graham, stated that she had seen an African American male leaving the victim's home in the early morning of May 13. During a photographic lineup, Graham identified Brooks as the man leaving Wilson's home that morning. Prior to this, Brooks's mother, Towanda Nobles, had told her half-sister, Sherry Maxine Hodges Smith, that Brooks told her that he had stabbed Wilson. After Smith reported this statement to the police, neither Brooks nor Nobles could be located. Brooks had taken a bus to Chicago on May 14th. Brooks was arrested in Chicago in July 2000 and extradited to Mississippi in February 2001. There was a lineup at the jail, where Graham again identified Brooks as the man she had seen leaving Wilson's home the morning of May 13th.

Brooks v. State, 905 So.2d 678, 2004 WL 1516503 (¶¶ 2-3) (Miss.Ct.App.2004).

¶ 4. Because Brooks did not have counsel when he participated in the lineup, his trial counsel moved to suppress the identification, and the testimony recited above was provided at the hearing on that motion. After the trial court denied Brooks's motion to suppress the identification at the lineup, Brooks was convicted of murder and sentenced to serve life in prison. On appeal to this Court, Brooks raises the following issues:

I. Whether a defendant, who has invoked his right to counsel, later waives his Sixth Amendment right to have counsel present at his lineup when he subsequently participates in a lineup purposefully held before the defendant is appointed counsel.

II. Whether a defendant who has been denied his right to counsel at a lineup has the burden of demonstrating that the lineup was impermissibly suggestive in order to exclude evidence of the lineup identification at trial.

III. Whether an utterance made two to three days after a startling event is properly admitted into evidence under the excited utterance exception to rule against hearsay.

IV. Whether Rap Lyrics extolling murder were properly read to the jury where there was not foundation laid for their introduction into evidence.

Because issues I and II are closely related, we will discuss them together.

DISCUSSION

I. Whether a defendant, who has invoked his right to counsel, later waives his Sixth Amendment right to have counsel present at his lineup when he subsequently participates in a lineup purposefully held before the defendant is appointed counsel.

II. Whether a defendant who has been denied his right to counsel at a lineup has the burden of demonstrating that the lineup was impermissibly suggestive in order to exclude evidence of the lineup identification at trial.

¶ 5. Although not precisely stated in the issues, the crux of Brooks's argument to this Court concerning the lineup identification is that Graham's in-court identification was tainted because she had previously identified him at a physical lineup without the presence of counsel after adversarial proceedings against him had begun. We therefore will review both the in-court and lineup identifications.

¶ 6. A participant in a lineup has a constitutional right to have a lawyer present if the lineup is held after adversarial proceedings had been initiated against him. Jimpson v. State, 532 So.2d 985, 988 (Miss.1988); York v. State, 413 So.2d 1372, 1383 (Miss.1982).

¶ 7. In Coleman v. State, 592 So.2d 517 (Miss.1991), this Court held:

As a matter of the law of this state, the right to counsel attaches once the accused is in custody (a fact generating the legal conclusion that the individual is under arrest) and all reasonable security measures (of evidence and persons) have been completed. At all critical stages thereafter, the accused is of right entitled to access to counsel, absent a specific knowing and intelligent waiver tied to that stage.

Id. at 520.

¶ 8. Adversarial proceedings had certainly commenced against Brooks prior to the lineup. An arrest warrant had been issued, and he had been extradited from Illinois. Furthermore, Brooks had signed a document indicating that he did not want to speak to any law enforcement authorities either in Illinois or Mississippi for any investigation.

¶ 9. In United States v. Wade, 388 U.S. 218, 236-37, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the United States Supreme Court held:

Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was as much entitled to such aid (of counsel) as at the trial itself. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an intelligent waiver.

Id. (citations & quotations omitted).

¶ 10. It is undisputed that adversarial proceedings had begun against Brooks at the time of the physical lineup. He had not been arraigned; and he was not represented by counsel. Accepting as true Detective Holmes's testimony, he informed Brooks that he did not have to participate in the lineup (although Brooks took the stand and denied the assertion), but he also testified that Brooks did not respond and participated in the lineup. The Court of Appeals found this lack of response to be an intelligent waiver. We disagree. This Court will "indulge every reasonable presumption against the waiver of a constitutional right." Vickery v. State, 535 So.2d 1371, 1377 (Miss.1988) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937)). Furthermore, silence can never be an intelligent waiver where a defendant has invoked the constitutional right to have an attorney present. This Court has held: "Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis." Balfour v. State, 598 So.2d 731, 742 (Miss.1992). If a written waiver is insufficient, then even more so is silence.

¶ 11. We find that the physical lineup was conducted in violation of Brooks's constitutional right to counsel. Graham and Detective Holmes should not have been permitted to testify that Graham identified Brooks at the physical lineup. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the United States Supreme Court held:

The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which inhere in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence.

Id. at 272-73, 87 S.Ct. 1951 (emphasis added).

¶ 12. Trial error does not always require reversal. In Nicholson v. State, 523 So.2d 68, 74 (Miss.1988), this Court held that:

The record in this case is unclear as to whether or not Nicholson was even under arrest at the time of the voice lineup. However, even if the voice lineup was conducted in violation of Nicholson's right to counsel, use of the voice lineup identification testimony at trial was harmless constitutional error. In so holding, we note that the voice lineup was not the first confrontation of the victim and defendant. Ms. McKinion had previously identified Nicholson as her assailant in a photo identification and an inadvertent voice showup, both of which she was able to make because of the substantial amount of time she spent in intimate contact with her assailant. Had this voice lineup been the first confrontation, and in violation of Nicholson's right to counsel, under the rationale of Moore and Gilbert, testimony of any subsequent pre-trial identifications would also have been inadmissible

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