Powell v. State
| Decision Date | 12 February 1986 |
| Docket Number | No. 55294,55294 |
| Citation | 483 So.2d 363 |
| Parties | Jimmy POWELL a/k/a Jamel Hobson v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Robert R. Rester, Harrell & Rester, Brandon, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P.J., HAWKINS and ROBERTSON, JJ.
Jimmy Powell, also known as Jamel Hobson, appeals from his conviction of armed robbery in the circuit court of Rankin The only issue we discuss is whether the circuit judge erred in permitting the state to impeach Powell's testimony on cross-examination by use of confessions which the court had ruled inadmissible in the state's case-in-chief. Under the facts of this case, for the reasons stated, we deem the cross-examination proper.
County and sentence to life imprisonment. We affirm.
Powell's assignment that the verdict of the jury is contrary to the weight of the evidence does not merit discussion.
On Thursday, June 30, 1983, during the noon lunch hour, a masked gunman robbed the Richland branch of the Central Bank of Mississippi, located on Highway 49 South in Rankin County, of $27,597.00. Three bank employees were in the bank at the time. The robber left an empty pillow case. None of the employees was able to identify the robber.
On July 8 Powell gave a confession to law enforcement authorities reduced to writing, and on July 11, 1983, he gave two additional statements to the authorities, likewise reduced to writing.
On July 14, 1983, the grand jury of Rankin County indicted Powell, Arthur Sutton and one Kenny Adams, also known as Kenny Taylor, for this robbery, in violation of Miss. Code Ann. Sec. 97-3-79 (1972).
M.C. Horton testified for the state that Powell told him prior to the robbery he was going to steal a car and rob a bank, and on the evening news following the robbery, when a red and white Ford automobile used in the robbery was flashed on the television screen, Powell told him that was the car he had used. Horton's brother, Jerry, also testified to hearing Powell make the statement that the car shown on the television news program was the car that he had used in the robbery. There is no necessity to detail the evidence; there was sufficient evidence, aside from confessions to make a jury issue on the guilt of Powell.
In the state's case-in-chief, the circuit judge conducted a hearing in chambers to determine whether the confessions were freely and voluntarily given and met the conventional tests on this question.
All three confessions were made in Rankin County. The time and identity of the persons present (besides Powell) at each confession are as follows:
FIRST CONFESSION
EXHIBIT D-2
Time :
8:00 p.m., Friday, July 8, 1983 (began) Saturday, July 9, 1983 (ended)
Persons present :
(1) Kenneth Dickerson, Chief Deputy Rankin County Sheriff's Department
(2) David S. Cavanaugh, Special Agent Federal Bureau of Investigation
(3) Willie H. Covington, Special Agent Federal Bureau of Investigation
(4) Timothy Munson, Special Agent Federal Bureau of Investigation (in and out during questioning)
(5) Morris Atkinson, Chief of Police City of Richland
SECOND CONFESSION
EXHIBIT D-3
Time :
1:20 p.m., Monday, July 11, 1983
Persons present :
(1) Kenneth Dickerson, Chief Deputy Rankin County Sheriff's Department
(2) J.G. (Jimmy) Dixon, Lieutenant Jackson Police Department
(3) Jimmy D. Boxx, Investigator Bureau of Criminal Investigation Mississippi Department of Public Safety
(4) Joseph S. (Joey) Gounce, Investigator Bureau of Criminal Investigation Mississippi Department of Public Safety
EXHIBIT D-4
Time :
2:34 p.m., Monday, July 11, 1983
Persons present :
(1) Kenneth Dickerson, Chief Deputy Rankin County Sheriff's Department (in and out during questioning)
(2) Joseph S. (Joey) Gounce, Investigator Bureau of Criminal Investigation Mississippi Department of Public Safety
(3) Jimmy D. Boxx, Investigator Bureau of Criminal Investigation Mississippi Department of Public Safety
In the first two confessions Powell admitted to being the person who actually robbed the Richland branch bank. In the third and last confession, he detailed his assistance to Sutton in the robbery of another Mississippi bank, and likewise admitted robbing the Richland bank. A large portion of the third confession would have been inadmissible on the ground of relevancy, and the part confessing to robbing the Richland branch bank was simply a repetition of the first two confessions.
At the hearing in chambers, Dickerson testified all three confessions were freely and voluntarily given, and the appropriate Miranda warnings had likewise been given Powell. The state then rested on the issue.
Powell then testified that he gave the first statement because he had been abused at the Hinds County Jail before being transported to the Rankin County Jail. He testified as follows:
Q. Would you explain to the court why you signed it?
A. Well, at the time of my arrest, you know, I got picked up and I was brought first to the Jackson City Jail and where I was abused, you know.
Q. Alright [sic], would you tell the Court what abused means?
A. Well, specifically speaking, being jumped on by about four police officers.
Q. Okay, do you know who they were?
A. It was one lieutenant, I think it was Dickerson from the Jackson lieutenant [sic], the one from the Jackson Police Department, one of the county officers, the one that brought me over there, two Hinds County officers. That exactly four, right.
Q. Alright [sic]. And was it because of this that you signed that statement?
A. Yes sir. Because I was instructed that I better go over and tell these people over here whatever they wanted to know. If I didn't, you know, they threatened to bust my head and my rib cage and all that, you know, so.
Q. And had they physically struck you?
A. Yes sir. I came over here, I was really kind of hurt up, you know.
* * *
Q. Okay. By going along, what do you mean?
A. Well, just like I say, you know, I was instructed that if I didn't tell them exactly what they wanted to know and this and that and the other and go along with them, that I was going to be really hurt up, you know, so I didn't know what to think. And I asked for a lawyer and I was turned down, so.
Q. Now, to whom did you address the question for a lawyer to?
A. Chief Dickerson, and at the time of interrogation, it was the FBI man was there, Mr. Covington, I believe it was. And I don't know the other gentleman's name, but it was about five of them in the room.
Q. Alright [sic]. Now, the words written on that piece of paper, did they come out of your head?
A. No sir. No sir.
Q. Who thought those words up?
A. Just like I say, when I got arrested, they, when it come down to the statement, they was telling me how the bank is supposed to have been robbed. So, you know, they, in other words, they put the words out there.
Powell also testified he did not sign either of the last two statements.
Following Powell's testimony, the state called Covington, Cavanaugh, Munson, Gounce, Boxx, Dixon, Dickerson and S.M. McGee of the Hinds County Sheriff's Office. All these officers testified no threats had been made, Powell was not struck or abused in any manner in their presence, that he had made no complaint of being abused and showed no signs of having been injured in any manner. They denied his ever asking for an attorney in their presence. Their testimony was that the appropriate Miranda warnings had been given. Three typed Miranda warnings, all signed by Powell, were offered into evidence at the hearing.
With the presentation of this evidence, the state had produced every officer who was present during the questioning of Powell and Powell's signing all three confessions with the sole exception of Atkinson, who was present when the Federal Bureau of Investigation agents took his first confession.
The state informed the court that Atkinson was attending police school in Louisville, Kentucky. The court was informed that Atkinson had been called and offered a plane trip to Mississippi, but declined, saying he had suffered a heart attack some years previously and was afraid to fly. The court observed in chambers he had some question on the admissibility of the confessions, but on the confessions which Powell denied signing, a different question might arise.
After an overnight recess, the state informed the circuit judge that Atkinson had again been contacted, and asked to come, but Atkinson replied he was attending a chiefs of police convention and was scheduled to make a speech, and that he was bound to meet his obligation there. The state further related that Atkinson said he had discussed the matter with the mayor of Richland. The district attorney informed the court that he had related to Atkinson the gravity of the situation and the importance of his appearing as a witness. Atkinson had not been placed under subpoena prior to trial.
The state offered to put on officers who transported Powell to the Rankin County Jail. The court then ruled that it was incumbent upon the state to produce Atkinson as a witness in order to make the first confession admissible and since the second and third confessions followed so closely in time to the first one, they likewise were inadmissible. 1
The state thereupon presented its case-in-chief without the confessions, and rested.
Powell took the stand in his own defense. He testified that at the time of the robbery he was in the Capitol City Body Shop in Jackson, borrowing a car from one Billy Ray Gibson. He denied robbing the bank, as well as denied participating in any manner in the robbery. As to the automobile used in the robbery, he testified:
Q. Now, you heard some testimony on a red and white Ford automobile. Tell the jury what you know about that car.
A. I know nothing about that car. Nothing.
Q. What statements have you made to anyone...
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