Swinney v. State, 1999-KA-00031-SCT.

• Decision Date: 31 October 2002
• Docket Number: No. 1999-KA-00031-SCT.,1999-KA-00031-SCT.
• Citation: 829 So.2d 1225
• Court: Mississippi Supreme Court
• Parties: Vickie SWINNEY v. STATE of Mississippi.

829 So.2d 1225

Vickie SWINNEY v. STATE of Mississippi.

No. 1999-KA-00031-SCT.

Supreme Court of Mississippi.

October 31, 2002.

Thomas Henry Freeland, IV, Oxford, Attorney for Appellant.

Office Of The Attorney General By: Scott Stuart, Attorneys for Appellee.

EN BANC.

ON MOTION FOR REHEARING

SMITH, P.J., for the Court.

¶ 1. The motions for rehearing are granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Vickie Swinney appeals to this Court from the Circuit Court of Alcorn County where she was convicted of the capital murder of Thomas (Don) Harville based on the underlying felony of robbery and sentenced to life in prison without the possibility of parole.

¶ 3. She was also convicted of the aggravated assault of William Morrison and sentenced to twenty years' imprisonment, with both sentences to be served consecutively. Swinney claims that unreasonable delay in bringing her before a judicial officer for her initial appearance resulted in statements by her that were used against her at trial, allegedly in violation of her right to counsel. Swinney also claims that the circuit court erred in admitting only excerpts of these statements, allegedly out of context. Finally, Swinney argues that the State failed to prove the underlying felony of robbery, and in the alternative, that any proof of robbery consisted only of circumstantial evidence, and that the circuit court erred in failing to give a circumstantial evidence jury instruction.

¶ 4. We find the procedural bar applies to Swinney's issue of right to counsel as she did not present and argue that specific issue to the trial judge for his ruling. Alternatively, we find that Swinney knowingly and voluntarily waived that right before giving the statement. Her confession was voluntary and, therefore, admissible. As a result, the circuit court did not abuse its discretion in failing to grant a directed verdict on the charge of robbery, and it did not err in failing to grant a circumstantial evidence jury instruction. While the failure to admit her entire statements made to police officers was erroneous, Swinney has failed to show that it prejudiced the outcome of her case. For the foregoing reasons, the judgment of the circuit court is affirmed.

PROCEDURAL HISTORY

¶ 5. Vickie Swinney ("Swinney") and her brother, Nicholas Swinney ("Nicholas"), were indicted for the November 17, 1997, capital murder of Thomas Harville and aggravated assault of William Morrison on December 10, 1997. Swinney's motion for a severance, seeking a separate trial from Nicholas, was granted. ¶ 6. While waiting for her initial appearance, Swinney made a series of statements to the police. She subsequently moved to suppress these statements, claiming that they were the result of an unreasonable delay in bringing her before a judge, were taken in violation of her right to counsel, and that they were coerced by a threat that "if she did not confess to killing Don Harville then she would never see her child again."

¶ 7. Two hearings were held on this motion on July 22, 1998, and November 6, 1998. The circuit judge overruled the motion in the July 22 hearing, holding that she had an initial appearance within the forty-eight hour time period required by URCCC 6.03 and that the delay was not unreasonable. At the November 6 hearing, the judge overruled the motion to suppress Swinney's statements based on coercion without making findings of fact.

¶ 8. Swinney was tried beginning November 16, 1998, and was found guilty of capital murder and aggravated assault. She was sentenced to life imprisonment without the possibility of parole, and to twenty years' imprisonment, to be served consecutively. The court entered a judgment on the jury verdict on December 10, 1998. Swinney moved for a judgment notwithstanding the verdict or in the alternative, a new trial on December 14, 1998, which was denied the following day.

FACTS

¶ 9. Vickie Swinney ("Swinney") and her brother Nicholas ("Nicholas") entered Don's Pawn Shop at approximately 2:15 p.m. on November 17, 1997. Don Harville, the owner, and two customers were in the store at that time. One of the customers, Sandra Vincent, identified the heavier, shorter sibling as Swinney and the taller one as Nicholas. After about twenty minutes, the two customers walked out, leaving Swinney, Nicholas, and Harville alone in the store.

¶ 10. Swinney gave Harville two rings to pawn. As he turned to weigh the rings, Swinney pulled out a pistol and shot Harville in the back. William Morrison then entered the store and found Harville on the floor holding his chest. As he was attempting to call 911, he heard a loud "pow." Realizing it was gunfire, he ran for the door and was shot from behind. Morrison fell out of the doorway. One person ran from the store and jumped over him, and then a second, heavy-set person came out and stepped over him.

¶ 11. Morrison testified that he managed to crawl to the passenger side of his car, "and as I looked up, this second person that had ran out, the heavier set of the two, had got to the car and seen me still moving. And she reached into the car and pulled out a pistol." Morrison testified that he then ran into the street and another shot was fired.

¶ 12. This version of events was contradicted by other witnesses, who testified to what occurred outside the pawn shop. Teresa and Scott Crum testified that Morrison exited the store and a slender black man ran past him. They said that the man with the gun saw Morrison moving and turned back toward him. As the gunman pointed his weapon at Morrison, the Crums backed their vehicle between them in an attempt to protect Morrison. The man then ran to the passenger side of his own vehicle as a heavy set person was backing it up. Scott Crum stated unequivocally that the person outside the pawn shop with the gun was not Vickie Swinney.

¶ 13. When they were arrested at a police roadblock, Swinney was driving. A Glock 9-millimeter pistol was found on the floor near the passenger side of the car, and a clip was found where Nicholas had been sitting in the car. At the jail, an officer found two 9-millimeter bullets in Swinney's pocket.

¶ 14. While in custody, Swinney made several statements which are at the heart of this appeal. Captain Billy Clyde Burns of the Corinth Police Department testified that he interviewed her at approximately 5:00 p.m. on November 17, 1997, and obtained a tape recorded statement which was later transcribed. She said that she went to the pawn shop to pawn two rings and that Harville offered her $30.00 for them. Swinney also claimed that Nicholas was the gunman and that she at no time fired the gun. She also stated that she exited the store before Nicholas and was walking to her car when Morrison was shot.

¶ 15. Burns informed her that a gunshot residue kit would conclusively determine whether she had fired a gun recently. She then claimed to have fired a toy gun, which pops like a real gun, but has a dart in it. When told that a toy gun would not account for gunshot residue, she changed her story and said that she had fired a gun that day. She said that she was at the house of her friend, Manresa Hurd, that day and another friend had a gun that was jammed. She said that she then took the gun, "squeezed it," and it went off, putting a hole in the wall or ceiling. Hurd testified that no gun had been fired in her house that day and that she did not see Swinney with a gun. She also testified that Swinney was at her house that day and that Swinney said that she was unhappy and needed money.

¶ 16. At approximately 9:00 a.m. on November 19, 1997, an investigator for the District Attorney's office, Ralph Dance, confronted Swinney about her previous statements. She then said that she was talking to Harville about pawning the rings. When he turned to weigh the rings, she pulled the gun out, but it was jammed. When she attempted to unjam the gun, it went off and shot Harville in the back. Dance wrote this statement down, but it was not tape recorded, and Swinney refused to sign it.

DISCUSSION

I. WHETHER THE STATE UNREASONABLY DELAYED SWINNEY'S INITIAL APPEARANCE FOR THE PURPOSE OF INVESTIGATION WHERE THE DELAY RESULTED IN A CONFESSION AND SWINNEY HAD REQUESTED COUNSEL.

¶ 17. Swinney argues that URCCC 6.03 requires that defendants to be brought for an initial appearance within forty-eight hours and without unnecessary delay. Swinney was brought before a judge approximately forty-three hours after her arrest. She argues that law enforcement was prepared to go forward with her arraignment on November 18, but delayed until 2:00 p.m. November 19 at the request of the District Attorney's office for the improper reason of "investigation."

¶ 18. Swinney further argues that this delay resulted in a violation of her constitutional right to counsel under U.S. Const. amend. VI and Miss. Const. art. 3, § 26. The statements that were used to convict her were obtained during the aforementioned delay and after she had requested counsel. Therefore, she argues, they should have been suppressed.

¶ 19. The court admitted the statements at the suppression hearing of July 22, 1998, holding that the delay was necessary in order to determine what charges to bring against Swinney. "I see nothing unreasonable under the facts and circumstances of this case in not bringing this defendant before a judicial officer at an earlier time. There might very well have been two capital murder cases to result from this ... certainly the State has the right and the responsibility to investigate [what charges to bring]."

¶ 20. The watershed case on this issue is County of Riverside v. McLaughlin, 500 U.S. 44, 56-57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In McLaughlin, the United States Supreme Court held that while an initial appearance within forty-eight hours will generally suffice, it nonetheless may not pass constitutional muster "if the arrested...