Burge v. State

• Decision Date: 29 June 1973
• Docket Number: No. 47234,47234
• Parties: Charles BURGE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 223

282 So.2d 223

Charles BURGE v. STATE of Mississippi.

No. 47234.

Supreme Court of Mississippi.

June 29, 1973.

Rehearing Denied Sept. 24, 1973.

James T. Bridges, Belzoni, for appellant.

A. F. Summer, Atty. Gen., by T. E. Childs, Jr., Special Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice, for the Court:

Charles Burge and George Burge, his father, were indicted in Humphreys County for the March 12, 1972, murder of James Gilmer. The causes were consolidated on the motions to suppress, but a severance was granted for trial and Charles Burge was convicted and sentenced to life in the state penitentiary.

On March 21, 1972, Herbert McRaney, while driving on Townsend Lake Road in Humphreys County, observed a body lying in Alligator Slough near Gunn Bayou. He notified the sheriff's office and the ensuing investigation revealed it to be that of James Gilmer. A search of the area near the bayou disclosed two expended shotgun shells.

An autopsy was performed by Dr. Kenneth Collins, a licensed physician and pathologist. He testified that the deceased was a large man approximately 45 to 50 years of age, and that a superficial examination of his body disclosed a large cut on the left shoulder as well as a circular penetrating wound in the left lower back just below the rib cage. The latter wound, upon being probed, disclosed shotgun pellets. It was the doctor's opinion that Gilmer's death was the result of the loss of blood and trauma from the deep wound.

On March 13, 1972, prior to the discovery of Gilmer's body, Charles Burge, then 17 years of age, was taken into custody by the police of Belzoni for driving an automobile without a license and having beer in his possession. The following day Honorable James T. Bridges of the Humphreys County Bar was appointed to represent him on these charges. The trial was conducted on March 21 and Charles Burge, hereinafter Burge, was adjudged to be a delinquent youth. He was released, however, upon his own recognizance until the youth court judge could ascertain whether a vacancy existed at Oakley Training School so he could be sent there for rehabilitation.

About the time of the delinquency hearing the body of James Gilmer was found in Gunn Bayou and Burge, just released on his own recognizance, was picked up by the sheriff. He was informed that he was under investigation for Gilmer's death and prior to questioning was advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This consisted of the warnings necessary under the decision, but concluded with the statement, 'We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court.' Burge acknowledged this warning by, 'I signed a paper to my right.', and by testifying that he was advised of his rights.

This inquiry revealed that previous to the time that Burge was charged with being a delinquent Gilmer had been reported missing from his usual haunts and an investigation concerning his whereabouts was being conducted by the sheriff. A deputy, James Everett, being advised that Gilmer's automobile was in the possession of Burge, questioned him concerning the whereabouts of Gilmer. He testified on the motions to suppress, as well as the trial in chief, that Burge told him that Gilmer had stated he was going to Arkansas since he was 'so deep in debt.' He also stated that Burge was in possession of Gilmer's automobile.

On a later occasion Burge was again questioned concerning the absence of Gilmer. This produced the following testimony by Everett:

The second time he told me, he said, 'Have you been down on the Snake Creek Road?' I said 'No.' He said, 'Well you might find him in some of those sloughs or woods out there on Snake Creek Road.'

Thereafter, though doubtless other officers were present, he was interrogated by Patrolman Pressgrove, a criminal investigator of the Mississippi Highway Patrol. The investigation began March 22, included the 23rd, and culminated on the 24th when Burge was transported to the city of Jackson by Pressgrove to undergo a lie detector test.

Pressgrove testified on these motions that he aided the sheriff in the investigation concerning the death of Gilmer. He stated that on the evening of March 21 the sheriff requested his assistance and the following day he interrogated George Burge, the father of the appellant, who told him that he did not presently own a shotgun, but that he had four or five shotgun shells in his house and that he had no objection to Pressgrove's examining them, giving permission for his wife to show the shells to him. He testified that he then went to the home and obtained the written consent of Mrs. Burge to search the entire house. Though a search was conducted pursuant to this deception, apparently no clues were discovered since no mention is made thereof.

He stated that he interrogated the appellant on March 22, 23 and 24. On the last date he transferred Burge to Jackson for a lie detector test and returned him to Belzoni. Thereafter, on April 4, while conveying Burge, a prospective witness in the preliminary hearing of his father for the murder of Gilmer, from Oakley Training School to Belzoni, he testified the following voluntary conversation occurred:

Q. All right, in transporting this Charles Burge from Oakley to the City of Belzoni, would you please relate what happened?

A. Well, we left Oakley coming back to Belzoni, and just north of Oakley there was a little small country store. I asked Charles if he had any cigarettes, and he said, 'No, sir.' I asked him if he wanted me to buy him a pack of cigarettes and he said that he did, and I stopped and bought him a package of cigarettes. We left and started to Belzoni. We were talking about farming and all. He told me about how much he liked to drive tractors, how much he liked to be in a field, and just general discussion, and north of Vicksubrg, Mississippi, he told me, he said, 'Mr. Pressgrove, the gun is up under the house, up under the house where I live with my mother and daddy.' I brought him straight on to the Humphreys County Sheriff's Department. He, along with Deputy Jim Everett went up and knocked on the door and his mother, Rosie Mae Burge, came out to the car. We asked her if she would mind if we looked under the corner of the house to see if there was a gun under there. She said that she did not care whatsoever. At that time, she signed another Search by Consent, which is on a form. ¹

Pressgrove then testified that Burge pointed to the corner of the house underneath which the gun was found in a dismantled condition. Upon questioning, he repeated that the statement of Burge concerning the gun was volunteered and was not the product of interrogation. On the other hand, Burge testified that he recalled the statement to have been made in the office of the sheriff and that it was in response to questioning. He was not used as a witness in the preliminary hearing and was later indicted with his father for murder.

Though Attorney Bridge had been appointed to represent Burge in the youth court proceeding resulting in the adjudication of delinquency on March 21, he was not notified that his client was, almost immediately thereafter, incarcerated for investigation of murder; neither was he notified of any of the subsequent interrogations and only on the day of Burge's arraignment for murder did he learn of these investigations. There is nothing in the record to reflect when the attorney's services for Burge in the youth court case were to terminate though it does show that the sheriff's office was aware of his appointment although Pressgrove was not. The testimony of Burge discloses that he was notified of his right to an attorney, but that he did not request one nor did he notify Pressgrove of his representation by Attorney Bridges.

The motions of George and Charles Burge to suppress the statement relating to the location of the gun and its introduction were heard together and at its conclusion the lower court sustained the motion of George Burge, the father, but overruled that of Charles. A severance was then granted for the trial.

Burge presently contends in support of his motion that the Miranda warning given him which concluded with the words 'We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court', was insufficient and ineffective since it left the impression with him that he was entitled to an attorney only upon his trial, but not during interrogation. In isolation, this argument is persuasive, but when considered in context with the remainder of the related warning, a part of which advised of the right to an attorney before responding to questioning, the plausibility disappears. In the recent cases of Holifield v. State, 275 So.2d 851 (Miss.1973) and Evans v. State, 275 So.2d 83 (Miss.1973), we held this type of warning not to be error, relying primarily upon Mayzak v. United States, 402 F.2d 152 (5th Cir. 1968).

Moreover, a volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to the warning and of course if it were voluntarily and spontaneously made subsequent thereto, it would remain admissible in evidence. Fabian v. State, 267 So.2d 294 (Miss.1972); Boyles v. State, 223 So.2d 651 (Miss.1969); Spurlin v. State, 218 So.2d 876 (Miss.1969); and Nevels v. State, 216 So.2d 529 (Miss.1968). Officers in the presence of a suspect, either prior to arrest or thereafter, are not required to turn a deaf ear to the voluntary utterances of such person and they are not rendered inadmissible by Miranda. We conclude the warning given to be sufficient to meet the standards set forth in Miranda, but even if this were not so, the lower court found the statement of Burge relating to the location of the gun to have been voluntarily made and since this finding is supported by...