Lee v. State

Decision Date10 February 1994
Docket NumberNo. 91-KA-0514,91-KA-0514
Citation631 So.2d 824
PartiesDale Joshua LEE v. STATE of Mississippi.
CourtMississippi Supreme Court

James G. Tucker, III, Bay St. Louis, for appellant.

Michael C. Moore, Atty., Gen., Kenneth C. O'Neal, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ.

DAN M. LEE, Presiding Justice, for the Court:

STATEMENT OF THE CASE

Dale Lee, the appellant, was indicted in Hancock County on July 25, 1990, for unlawfully Lee moved to suppress certain inculpatory statements made by him following his arrest. The basis of the motion was that Lee and his sister had asserted his right to counsel and thus, his statement was obtained in violation of his constitutional rights. Judge James E. Thomas denied the motion and the case proceeded to trial before a jury. At trial, the statements were admitted into evidence and the jury found Dale Joshua Lee guilty. Judge Thomas sentenced him to ten years in the custody of the Mississippi Department of Corrections. On appeal, Lee assigns the following as error:

touching, for lustful purposes, a child under the age of fourteen in violation of Sec. 97-5-23 Miss.Code Ann. (1972). The child was a nine year old female.

THE LOWER COURT INCORRECTLY RULED THAT DALE JOSHUA LEE WAIVED HIS RIGHT TO COUNSEL DURING POLICE QUESTIONING.

STATEMENT OF THE FACTS

As the appellant presents a strictly legal question on appeal, there is no need for a prolix review of the facts underlying his conviction. In brief, Dale Lee was present on a camping trip in Hancock County on May 5, 1990. The nine year old stepdaughter of Lee's first cousin was also present. While the other adults were napping on that day, Lee and the child took a walk on a nature trail. At some point during the walk, Lee touched the child's genitals. After returning to the camp, he announced that he had to leave due to severe sunburn. The next day, the child told her mother what had occurred.

In response to an anonymous telephone call, Investigator Nathan Hoda of the Hancock County Sheriff's Department began an investigation of the incident. He spoke with the victim and obtained a statement indicating that Dale Lee had fondled her. Hoda proceeded to arrest Lee on May 16, 1990. During the course of an emotional arrest scene, Lee's sister spoke of obtaining an attorney.

Lee was advised of his Miranda rights while en route to the Sheriff's office. About thirty minutes later in Hoda's office, he was again advised of his rights. At that point, a tape recording of the victim's statement was played and Lee was asked if he wanted to talk about the incident. Lee agreed to talk and signed a waiver of his rights. A tape recording was initiated and Lee was once again advised of his rights and he orally waived them. The substance of Lee's statement was that he placed his hand in the victim's pants exactly as she stated and that he voluntarily stopped less than a minute later but that it was "too late." He also stated that he wanted psychiatric help because he did not want to hurt anyone else.

Ultimately, Lee was found guilty and sentenced to ten years. He duly perfected his appeal to this Court.

DISCUSSION

THE LOWER COURT INCORRECTLY RULED THAT DALE JOSHUA LEE WAIVED HIS RIGHT TO COUNSEL DURING POLICE QUESTIONING.

As mentioned above, Dale Lee made certain incriminating comments to law enforcement officers prior to consulting with an attorney. In a pretrial motion, Lee asserted that the otherwise valid waiver of his rights was ineffective because he personally had invoked his Fifth Amendment right to counsel at the time of his arrest. Judge Thomas, however, ruled that:

[U]nder a totality of the circumstances I find and find beyond all reasonable doubt that the defendant here was in fact advised of his Miranda rights, did in fact understand and freely and voluntarily waive his Miranda rights, particularly the right to counsel, and gave a statement which I find to be free and voluntarily given without any threats, force or coercion.

The manner of request of counsel in my mind, viewing the testimony as a whole and the surrounding circumstances of the arrest, I think what probably happened is during the trauma and emotional background of the arrest, that I think probably what happened was his sister was making comments about she was going to get him an attorney, that those emanated from her, not from him.

On appeal, Lee does not challenge the lower court's ruling that he did not invoke his right to counsel but instead argues that the statements that "emanated" from his sister were sufficient to trigger his right to counsel and to preclude any subsequent waiver on his part. The record shows that two of the three arresting officers heard Lee's sister mention something about getting an attorney. Lee also testified that his sister specifically said she was going to get an attorney. Other witnesses to the arrest did not recall such remarks. Lee's sister did not appear at trial to explain her remarks.

Standard of Review.

"Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence." Balfour v. State, 598 So.2d 731, 742 (Miss.1992). There was evidence in the record to support the trial judge's factual findings that Lee did not request an attorney but that his sister did state that she intended to get one. Accordingly, these conclusions should not be disturbed on appeal. The lower court's implicit holding that the sister's statement was insufficient to preclude a subsequent waiver of the right to counsel necessarily involves a legal question and is thus not entitled to any deference on appeal.

LAW

If the statements of Lee's sister were sufficient to invoke his right to counsel, then no valid waiver of the right could subsequently be effectuated in the context of police initiated questioning. Balfour v. State, 598 So.2d 731 (Miss.1992). Thus, the critical issue for determining the outcome of this appeal is whether the statements made by Lee's sister were sufficient to invoke his Fifth Amendment right to counsel.

The U.S. Supreme Court has recently addressed a similar factual scenario. In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the Court was faced with a case where a relative of the defendant Burbine retained an attorney to represent him. The attorney contacted the police and informed them that she would act as Burbine's legal counsel if questioning was imminent. The attorney was told that the detectives were through with Burbine for the night. Shortly after the attorney attempted...

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