Holifield v. State

Decision Date26 March 1973
Docket NumberNo. 47267,47267
PartiesJimmy Lee HOLIFIELD v. STATE of Mississippi.
CourtMississippi Supreme Court

Harry Kelley, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

BROOM, Justice.

In the Circuit Court of Rankin County, Mississippi, appellant was indicted, tried and convicted of the crime of burglary. He received a sentence of seven years in the state penitentiary and appeals to this Court. We affirm.

The indictment charges that appellant together with three others broke and entered Piggly-Wiggly store on May 23, 1971 and stole some items therefrom. Piggly-Wiggly was in Brandon, Mississippi. Appellant denied guilt saying three others, Myers, Burns and Brown, (without any participation on his part) committed the burglary. He testified that he was merely riding with the others who were transporting band members from the Soul Center in Morton. He said 'they' decided to 'hit' the store, and that he had nothing to do with said decision or the criminal act which followed. Admittance into the store was gained through a hole cut in the roof. Appellant testified that he was at the scene; that he got out of the car and 'stood around' during the commission of the burglary. State witnesses testified that appellant admitted participating in the burglary by assisting in chopping the hole in the roof and serving as lookout man on the roof while others entered.

On December 12, 1971 Investigator Jack Smith of the Mississippi Highway Patrol, who had done work on the case, learned that appellant was in jail in Tippah County. Together with other officers including Police Chief Sessums, Smith traveled to Ripley on December 14 to talk to appellant. They did not then interrogate him after Chief of Police Sessums of the Morton Police Department was told by appellant that he did not care to talk with them. Subsequently on December 19 appellant's father allegedly informed Sessums that appellant desired to talk further with him and Officers Smith and Edwards. Next day said officers went to talk to appellant and did talk to him at Ripley, Mississippi. The following facts and circumstances are shown by the record pertaining to the alleged confession of appellant. Questions related to the admissibility of said confession are paramount to all others because, absent the confession, the state's case would at best be very weak.

Before questioning appellant it appears that Investigator John Edwards read to appellant his rights. The advisory form containing the rights is as follows, and the controversial part of it with reference to appellant's right to a lawyer is underlined.

EXHIBIT NO. 1

YOUR RIGHTS

TO TESTIMONY OF

John Edwards

Place Tippah County Court House Jail

Date 20 Dec 71

Time 1200

John Edwards

MRS. RUTH A. BLACKLEDGE OFFICIAL COURT REPORTER

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the presence and advice of a lawyer even if you cannot afford to hire one. We have no Following said printed advisory of his rights was a waiver form in the following language:

way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any tme. You also have the right to stop answering at any time until you talk to a lawyer.

WAIVER

I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.

Signed Jimmy L. Holifield

After being so advised of his rights and having signed the waiver form, the testimony of the state was to the effect that appellant freely confessed orally to his participation in several burglaries including the one in question. Following his oral statement confessing his participation in the burglary, Investigator Edwards proceeded to write down the confession which was signed by appellant.

At the trial, out of the presence of the jury, an evidentiary hearing was conducted concerning admissibility of the alleged confession. After hearing opposite testimony from state and defense, the court held that the oral and written confessions were both freely and voluntarily given after appellant had been warned properly of his rights. The confession was then admitted into evidence over the objection of the appellant. Appellant contended it was induced by promises of leniency and that the words were what the officers told him to say. These contentions were denied by state witnesses who said the oral and written confessions were freely and voluntarily given. On cross-examination appellant admitted that he signed the waiver and that, to the best of his knowledge, he understood it. He was asked on cross-examination if he understood that he had a right to remain silent, to which he answered affirmatively. He also stated on cross-examination that he was aware that he had a right to see a lawyer and that anything he said might be used against him. It is further significant that on cross-examination he stated that he understood that at any time during the course of questioning at the time the confession was taken he could, if he desired, stop answering questions and consult with a lawyer. There was also testimony from him on cross-examination that he could read and that he did in fact read the advisory form and the waiver in question prior to signing it.

The chief issues in the case are as follows: (1) Was the written and oral confession properly admitted into evidence? (2) Were remarks made by state witnesses pertaining to other crimes and certain argument made to the jury by the district attorney so prejudicial as to require another trial? (3) Did the court err in improperly restricting defense counsel's cross-examination of a state witness, the Highway Patrol Investigator, Smith? (4) Was the evidence sufficient to go to the jury?

I.

Appellant contends the confession was inadmissible because the 'statement of his rights' given him prior to his waiver and confession did not adequately advise him of his rights to a lawyer as required by the historic case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Standing alone the sentence which reads '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' might fall short of and offend the requirements of Miranda. We hold that said sentence must be read and considered in the light of additional language which preceded and followed it. The language of the sentence may not be expressive of the most desired degree of exactitude. However, along with preceding and succeeding language it was not so deficient that it lacked the requirements of Miranda. Appellant was, by the sentence following the one under attack, told: 'If you wish to answer questions now without a lawyer present, you have the right to stop answering at any time until you talk to a lawyer.' This language was followed by a written waiver to the effect that appellant understood his rights and that he was freely and voluntarily making a statement; that he did not want a lawyer-'I understand and know that I am doing; and no promises or threats have been made to me.' It is obvious to us that the printed form effectively advised appellant that he had the right to counsel before and during interrogation. It told him he might waive counsel during questioning. We upheld the validity of a similar advisory in the not yet reported case of Evans v. State, 275 So.2d 83 (Miss. decision rendered March 12, 1973).

A careful scrutiny of this record convinces us and shows clearly that this is not a case where the accused person was not informed of his right to the presence of an attorney during questioning. Anyone upon reading the entire advisory concerning appellant's rights should logically conclude that he had a right not to utter one syllable until a lawyer was present with him. Further, one would have to conclude from the advisory that at any time during questioning appellant might decide to stop answering until such time as he was furnished an attorney. In other jurisdictions factual situations have existed where similar printed forms were given to people accused of crime, advising them of their rights and the same were held to be sufficient under the requirements of Miranda, supra, United States v. Lacy, 446 F.2d 511 (5th Cir. 1971); Massimo v. United States, 463 F.2d 1171 (2d Cir. 1972); People v. Williams, 131 Ill.App.2d 149, 264 N.E.2d 901 (1970); Dickerson v. State, 276 N.E.2d 845 (Ind.1972); People v. Campbell, 26 Mich.App. 196, 182 N.W.2d 4 (1970), cert. denied, 401 U.S. 945, 91 S.Ct. 960, 28 L.Ed.2d 228 (1971). To the contrary were the not so well reasoned cases of Moore v. State, 251 Ark. 436, 472 S.W.2d 940 (1971) and Schorr v. State, 499 P.2d 450 (Okl.Cr. 1972).

Being mindful of Miranda, we hold as follows. The state is not required to provide instant counsel to one suspected of crime before he can speak. However, before interrogating a suspect in custody, the state or its representatives must tell the suspect of his right not to speak without counsel. Should such suspected person state that he desires the services of a lawyer at any time, then such must be furnished him prior to interrogation. Even under those circumstances we hold that it would not be necessary to provide legal counsel 'then and there,' but before interrogation ensues. Appellant herein was advised of his rights prior...

To continue reading

Request your trial
40 cases
  • Williams v. State, 54294
    • United States
    • Mississippi Supreme Court
    • 18 Enero 1984
    ...of the trial court in sustaining defense counsel's objections to the remarks were sufficient to prevent reversible error. Holifield v. State, 275 So.2d 851 (Miss.1973). Furthermore, if counsel thought it necessary, he could have requested the trial judge to admonish the jury to disregard th......
  • Wells v. State, 95-DP-01068-SCT
    • United States
    • Mississippi Supreme Court
    • 12 Junio 1997
    ...of the trial court having sustained an objection to the argument and admonished the jury to disregard it. See also Holifield v. State, 275 So.2d 851, 856 (Miss.1973). Later in Ormond v. State, 599 So.2d 951, 961 (Miss.1992) we stretched that doctrine to cover an occasion where the court ove......
  • Flora v. State
    • United States
    • Mississippi Supreme Court
    • 19 Enero 2006
    ...otherwise shown, that the jury followed the directions of the trial judge to disregard such comment or testimony." Holifield v. State, 275 So.2d 851, 856 (Miss.1973) (emphasis added). Flora failed to show the improper testimony was not disregarded or could not have been disregarded by the j......
  • Foster v. State
    • United States
    • Mississippi Supreme Court
    • 28 Abril 1994
    ...Bullock v. State, 391 So.2d 601, 609 (Miss.1980), cert. denied 452 U.S. 931, 101 S.Ct. 3068, 69 L.Ed.2d 432 (1981); Holifield v. State, 275 So.2d 851 (Miss.1973). This assignment is XIV. INTRODUCTION OF INFLAMMATORY PHOTOGRAPHS OF THE VICTIM WITHOUT EVIDENTIARY PURPOSE OR PROBATIVE VALUE VI......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT