Jordan v. State

• Citation: 365 So.2d 1198
• Decision Date: 22 November 1978
• Docket Number: No. 50551,50551
• Parties: Richard Gerald JORDAN v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1198

365 So.2d 1198

Richard Gerald JORDAN v. STATE of Mississippi.

No. 50551.

Supreme Court of Mississippi.

Nov. 22, 1978.

Rehearing Denied Jan. 24, 1979.

Levi, Denham & Russell, Rhett R. Russell, Ocean Springs, for appellant.

A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

BROOM, Justice, for the Court:

Capital punishment was ordered at Richard Gerald Jordan's trial upon an indictment charging him with murder while engaged in the commission of the crime of kidnapping. The Circuit Court of Jackson County, Mississippi, tried the case, venue having been changed from Harrison County. Mrs. Edwina Marter was the victim of Jordan's offenses committed on January 13, 1976, and his appeal asserts a number of grounds for reversal. We affirm.

Originally Jordan, a twenty-nine year-old white man, was prosecuted, convicted, and sentenced to death at a trial which ended July 21, 1976. He filed a motion for a new trial which was continued for a time and then sustained on October 27, 1976, for retrial under the Jackson v. State, 337 So.2d 1242 (Miss.1976) guidelines. At retrial Jordan was again sentenced to death. Jordan now prosecutes this appeal, represented by court appointed counsel who vigorously and astutely defended him below.

On or about January 10, 1976, in Baton Rouge, Louisiana, Jordan traded a shotgun for a 38-calibre revolver. Then he came to Gulfport, Mississippi, and obtained lodging at Twin Star Motel where he registered as "Jack Wilson." His signature "Jack Wilson" was shown by an expert to have been made by the same person who wrote a sample of writing known to be Jordan's. With kidnapping in his mind, and using the fictitious name of "Jack Wilson," Jordan called Gulf National Bank and expressed a desire to speak to the commercial loan officer. He was referred to Mr. Marter, whose wife was soon to be Jordan's victim. Perusal of the telephone directory revealed to Jordan only one Gulfport listing of the name "Marter" (the family Jordan made part of his plot). Having obtained the Marter address from the directory, Jordan drove by the Marter residence where several cars were parked, including a Mercedes and a sports car. After all but one of the cars was driven away, Jordan dialed the Marter residence telephone number and heard a female's (Mrs. Marter's) voice answer. Then he decided to make his move.

Dressed in a sport coat, tie and knit pants, and carrying a manilla folder, Jordan went to the Marter residence. He rang the doorbell and was greeted by Mrs. Marter whom he told that his electrical company had received information of defective circuit breakers in the area which he was investigating. Mrs. Marter admitted him inside, whereupon he kidnapped Mrs. Marter at gunpoint and took her away, leaving her three-year-old son asleep in the house. At his command, she drove him out into the sparsely settled DeSoto National Park wooded area. They traveled down a logging road to where he ordered her out of the car, telling her that she would stay there with his partner until he obtained money from her husband, after which he would release her. She became extremely fearful when she discovered there was no partner there, and as she ran for her life Jordan (a self-described marksman) shot her dead by firing a bullet from the revolver into the back of her head. He then went to a telephone and called Mr. Marter at the bank. Demanding $25,000, Jordan stated: "We have your wife . . ." and gave Marter directions how to deliver the money up on Highway 49. Marter quickly obtained the money, but his efforts to drop it where directed failed because he did not find the coat (beside the highway) upon which he was supposed to drop the money. Being fearful on account of two vehicles following Marter, Jordan had decided against putting out the coat.

Jordan then took the revolver (murder weapon) and threw it into the Big Biloxi River, from which it was later recovered after he revealed its location. Before Mr. Marter again attempted to deliver the money as directed by a second telephone call from Jordan, the money was serialized and microfilmed with FBI officers then actively investigating the matter. During this second telephone conversation (about 9:00 a. m., January 13) between Jordan and Mr. Marter, Jordan assured Marter that his wife was all right, and demanded that Marter drop the money on Interstate U.S. Highway 10. Marter proceeded as Jordan directed; this time he found the coat and dropped the money on it. Two officers, Deputy Sheriff Larkin Smith and FBI Agent Shepherd, having been made aware of what was going on, were positioned near the scene of the drop and saw Jordan place a coat there. Soon they saw him pick up the money, after which they gave chase at high speed. During the chase, Jordan rammed his car into the vehicle of the officers, running them off the road. They shot at his receding car, but Jordan continued his flight although his car was rendered partially disabled when, in the ramming episode, a bent fender came in contact with a tire. Farther on, Jordan abandoned his vehicle at a shopping center, hid the money in the woods, went to another shopping center, and, at a T. G. & Y. store, purchased a red jump-suit which he donned before he left the store. He got a taxi at the shopping center and told the driver to take him to Twin Star Motel. Not knowing that Jordan was the man for whom a large search was under way, the taxi driver told Jordan that roadblocks were up and that the officers were looking for someone. En route to the motel, the taxi was stopped and an officer identified Jordan from a picture already obtained by the FBI. The officer arrested Jordan and turned him over to the FBI. That afternoon (January 13, 1976) Mrs. Marter's body was found. On the next day a diver from the Gulfport Fire Department retrieved the murder weapon from the river.

A significant portion of the evidence upon which Jordan was convicted were statements which he made against his interest, which the state placed into evidence over his objection. Jordan did not testify except as to matters taken up outside the jury's presence. He was arrested January 13, 1976, and charged with Mrs. Marter's murder, after which he confessed to FBI Agent Watts and, later the same day, to Harrison County law officer Allbritton. Jordan argues that his confession to Allbritton was obtained and used against him in violation of his constitutional right to counsel and privilege against self-incrimination. By motion to suppress, he unsuccessfully sought to have excluded his confession made to Allbritton.

Facts pertinent to the suppression motion show that Jordan was arrested at the roadblock in the early afternoon of January 13, 1976, and taken to the FBI offices. En route, Agent Tollison advised Jordan of his rights and stated that as he read the rights to Jordan, Jordan recited them "along with me." At approximately two o'clock that afternoon, another FBI agent (Frank Watts) again advised Jordan of his rights, which Jordan stated he understood and then executed a written waiver. Up to that time Jordan made no request for counsel.

After first denying having anything to do with the kidnapping or murder, Jordan confessed (to Watts) most of his actions connected with the kidnapping and murder. He admitted that he made ransom demands by telephone, and he also furnished a map, which he made in his own handwriting, of the area where he left Mrs. Marter's corpse. His oral confession described in considerable detail his actions of January 12 and 13. Other inculpatory information which he gave at that time included his accompanying the law officers as he retraced his actions. He showed them the location of the following items: the clothing he had hidden after wearing it the day before, the weapon, the ransom money, and the automobile which he used and abandoned in the shopping center. Afterward, he was put into the custody of Harrison County Sheriff Hobbs.

Then at about 4:45 p. m. of that day, Jordan was carried before the county judge who advised Jordan that he was charged with a capital offense. Jordan expressed a desire to delay any proceedings until counsel was appointed for him, whereupon Honorable Rhett Russell (not present at these proceedings) was appointed as his counsel. Prior to the appointment of counsel, at about 2:30 p. m., one Allbritton (an investigator of the Harrison County Sheriff's Department) was given charge of the case. At about 5:30 p. m., Officer Allbritton visited Jordan at the county jail, fingerprinted and photographed him, and began to interview him, not knowing that Jordan had requested counsel or that one had been appointed. At about 6:00 p. m., Jordan was advised of his rights by Officer Sullivan, who meanwhile had arrived and who tape-recorded Jordan's statement (a typewritten transcript appears in the record), which amounted to a confession, the content of which was substantially the same as the one given FBI Agent Watts. Throughout all of the interview, according to Allbritton's unequivocal testimony, Jordan made no indication that an attorney had been appointed for him and made no request for counsel during the interview. After a transcript of the interview was made, Jordan refused to sign it. It is uncontradicted that Jordan had been advised of his rights at least five times prior to his interview with Officer Allbritton, and understood his rights. At the hearing of his motion to suppress, Jordan testified: "I feel sure that I did tell him (Allbritton) that I had an attorney appointed for me." Nevertheless, his statement, recorded with his knowledge, contains no indication that Jordan ever mentioned any attorney on the tape, and Jordan admits that Allbritton made no inducements to him such as promises, threats, or intimidations in exchange for any statement. The critical issue is: WHEN AN ACCUSED PERSON, WHO HAS REQUESTED COUNSEL AND FOR WHOM COUNSEL HAS...