Burford v. State
| Decision Date | 24 June 2021 |
| Docket Number | NO. 2019-CT-00180-SCT,2019-CT-00180-SCT |
| Citation | 320 So.3d 502 |
| Parties | Cynthia BURFORD a/k/a Cynthia Laurine Burford v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: META S. COPELAND, Jackson, ASHLEY L. SULSER, BARBARA BYRD
EN BANC.
ON WRIT OF CERTIORARI
¶1. After a jury trial, Cynthia Burford was convicted of burglary of a dwelling. The Circuit Court of Clarke County sentenced her to serve fifteen years in the custody of the Mississippi Department of Corrections and to pay a fine, restitution, and court costs. In affirming Burford's conviction, the Court of Appeals declined to review her argument that defense counsel had rendered ineffective assistance of counsel by making an untimely motion to suppress her confessions, finding that the argument was appropriate for post-conviction proceedings. Burford v. State , 2019-KA-000180-COA, 2020 WL 5094632, at *8 (Miss. Ct. App. Aug. 25, 2020). This Court granted Burford's petition for a writ of certiorari to review the issue.
¶2. We hold that Burford received ineffective assistance of counsel. A video of Burford's confession shows that a peace officer made several threats and promises to Burford. The officer acknowledged during his trial testimony that he had made the threats and promises in an effort to induce Burford's confession. Under the circumstances, defense counsel rendered deficient performance by failing to make a timely motion to suppress the video confession and a subsequent written confession. Burford was prejudiced because a reasonable probability existed that the trial court would have granted a timely motion to suppress the confessions and because the confessions were the primary evidence of Burford's guilt of burglary of a dwelling. But for the admission of Burford's confessions, the State's only evidence of her guilt of burglary was that stolen items were found at her residence and in a car registered to her relative. Because the record affirmatively shows deficient attorney performance and resulting prejudice, we reverse and remand for a new trial.
¶3. Burford and Casey Dunnigan1 were indicted for one count of burglary of a dwelling with the intent to commit grand larceny therein, and, alternatively, for the lesser-included offense of grand larceny. Burford was tried separately. At Burford's trial, Clarke County Sheriff's Deputy Eric O'Neil testified that he had investigated a burglary at the home of Katelyn Smith. The home was under renovation, but it had running water and electricity, and Smith stayed there several nights a week. Various construction supplies were located throughout the house. Smith reported that approximately fifty items, most related to the renovation, had been taken, including a window air conditioning unit, power tools, and lumber. Smith provided Deputy O'Neil a list of the missing items. Deputy O'Neil concluded that there had been no forcible entry. Smith had entered her home through the front door, not the side door. The side door, which had been open when Deputy O'Neil arrived, "had a clasp lock where you normally put a lock, and they had put a clasp and string to hold the door secure."2
¶4. Deputy O'Neil went on to testify about how Burford and Dunnigan had been developed as suspects. Two days after Smith reported the crime, Deputy Hank Gandy had been involved in a car chase with a red Chevrolet Impala near Smith's residence. Deputy Gandy pursued the Impala down a county road until his quarry wrecked into a fence located on property owned by Dunnigan's mother, Ann Robinson. The Impala's two occupants fled on foot. Dunnigan's ID card was found in the car, and the car was registered to a relative of Burford's. Smith came to the crash scene and identified items inside the Impala as having been among those taken from her home two days before. Deputy O'Neil learned that Burford and Dunnigan had been living in a shed behind Ann Robinson's house. A search of the shed revealed the rest of the items missing from Smith's home. Smith identified all the recovered items as her belongings.
¶5. Burford was arrested, and she gave a statement to Deputy O'Neil the next day. Before taking the statement, Deputy O'Neil read Burford's Miranda3 rights to her, and she signed a rights waiver form. Then O'Neil interrogated Burford and recorded the session on two DVD discs totaling approximately fifty-three minutes of interview time. Deputy Blake Bonner and a case manager, Sheila Johnson, were present. Deputy O'Neil questioned Burford about her possible involvement in the burglary and the car chase. At first, Burford said that Dunnigan had bought Smith's things from someone in Alabama and that she had not known the items had been stolen. Under continued questioning, Burford became emotional. She said that the reason she had fled during the car chase was that she was scared. Despite multiple exhortations from Deputy O'Neil, Deputy Bonner, and Johnson to tell the truth, Burford repeatedly denied any involvement in the burglary or knowledge of who was responsible. As the questioning continued, Deputy O'Neil employed the tactic of making misrepresentations calculated to lead Burford to believe that the evidence of her involvement in the burglary was stronger than it really was. But, also, Burford's interrogators made the following statements and had the following exchanges with Burford:
¶6. When Burford continued to deny any knowledge of the crime, Deputy Bonner stepped in:
Soon after this exchange, Burford admitted that Dunnigan had gone into Smith's house and removed items while she waited in the car. Burford said she had helped Dunnigan load Smith's belongings into the car. The video reflects that, after Burford confessed, Deputy O'Neil told her that he would recommend to the district attorney that she get rehabilitation instead of prison time. The video captured Deputy O'Neil calling the courthouse to get her a bond.
On cross-examination, Deputy O'Neil recognized that, although the typed statement stated that Burford had gone inside Smith's house, Burford had not said in the interview that she had gone inside. Deputy O'Neil testified that, if Burford had perceived a discrepancy between what she had said and what Johnson had written, she should not have signed the statement.
¶8. Burford did not file a pretrial motion to suppress her confessions. The trial court admitted into evidence, without objection, Burford's signed statement and two DVD discs that the State represented contained Burford's interview. After the exhibits were admitted, the State played the first DVD disc for the jury. Then, the State published the second DVD disc but, as it played, the prosecutor realized that it was a duplicate of the first disc. The State moved to substitute a third DVD disc that contained the second part of Burford's interview, in which she confessed to being an accomplice to burglary. The trial court permitted the State to withdraw the duplicated disc and to offer the third disc as another exhibit. At that point, Burford objected on the ground that her confession was involuntary:
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... ... 2006)) ... ¶79 ... The elements of burglary are: "(1) unlawful breaking and ... entering, and (2) intent to commit a crime therein." ... Brady v. State , 337 So.3d 218, 230 (Miss. 2022) ... (internal quotation marks omitted) (quoting Burford v ... State , 320 So.3d 502, 515 (Miss. 2021)). Spiers's ... theory of defense was that MM had invited him into the house ... and that he, therefore, had not unlawfully entered. The State ... conceded that Spiers was entitled to a jury instruction on ... the defense ... ...
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...burglary, the elements of which are "(1) unlawful breaking and entering, and (2) intent to commit a crime therein." Burford v. State , 320 So. 3d 502, 515 (Miss. 2021) (internal quotation marks omitted) (quoting Ward v. State , 285 So. 3d 136, 140 (Miss. 2019) ); see also Miss. Code Ann. §§......