Willie v. State, 89-DP-1285

• Decision Date: 24 July 1991
• Docket Number: No. 89-DP-1285,89-DP-1285
• Citation: 585 So.2d 660
• Parties: Michael Warren WILLIE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 660

585 So.2d 660

Michael Warren WILLIE v. STATE of Mississippi.

No. 89-DP-1285.

Supreme Court of Mississippi.

July 24, 1991.

Travis Buckley, Ellisville, John Paul Moore, Starkville, James W. Craig, Jane Tucker Lambert, Jackson, for appellant.

Mike C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

SULLIVAN, Justice, for the Court:

This cause comes on appeal from the Circuit Court of Oktibbeha County, Mississippi, Harvey S. Buck presiding. On July 31, 1989, Michael Warren Willie was tried for capital murder for committing the murder of Joe Clardy while engaged in the commission of a robbery. In a bifurcated jury trial, the jury first found Willie guilty of capital murder, and then sentenced Willie to death by lethal injection. Willie appeals his conviction and sentence assigning eighteen errors. We affirm the jury's verdict of guilty, but vacate the sentence of death and remand this action for a new trial on sentencing only.

THE FACTS

On the morning of January 20, 1989, a customer at Joe's Package Store in Maben, Oktibbeha County, Mississippi discovered the body of Joe Clardy, the store owner, lying on the floor near an empty cash register. Clardy had been shot three times--once in the head, once in the chest, and once in the stomach.

Upon investigation, the authorities learned that a black man driving an unlicensed light colored hatchback-type car with a maroon or red hood had been seen near Joe's Package Store that morning. Michael Warren Willie, who had been arrested that same morning by the Eupora police for driving an unlicensed vehicle, became a suspect in the shooting and robbery Willie's statements showed that prior to this incident, he was charged with grand larceny. Willie was to make an initial appearance at the Webster County Courthouse on this charge on January 20, 1989, and Willie's attorney told him that he would need approximately $1,500.00 or he would go to jail. On the eve before Willie was to make his appearance, he did not have $1,500.00, so he decided to rob some place.

when authorities noticed that the car Willie had been driving was a light blue Chevy with a maroon hood. After a short period of questioning by a Webster County Sheriff and an Oktibbeha County Sheriff, Willie confessed.

The next morning, Willie drove in his girlfriend's car to Joe's Package Store intending to commit robbery. Willie entered the liquor store armed with a .38-caliber pistol and told Clardy to give him all the money. Clardy put the money and some checks on the counter. Willie, seeing a video camera which could have recorded the robbery, told Clardy to give him the tape from the camera. As Clardy handed Willie the tape, Clardy allegedly reached for Willie's gun. The gun fired hitting Clardy in the chest. Willie panicked and pulled the trigger twice more hitting Clardy once in the abdomen and once in the head. Willie grabbed the money and checks, ran out of the store, and drove north on Highway 15 towards Walthall. While driving, Willie threw the checks out the window. A short time later, Willie stopped to throw his pistol in a creek. He also smashed the tape from the video recorder on the steering wheel and threw the pieces onto a gravel road. Willie received approximately $850.00 from the robbery.

Willie took the money to the Webster County Courthouse to make his appearance on the grand larceny charge. While he was there he saw Sheriff Middleton run out of the courtroom. Willie assumed the sheriff left to investigate the robbery. Willie waited a few minutes and then left to get a sandwich at his girlfriend's house. She was not at home, so Willie left and drove towards Walthall. While driving, Willie was stopped by the Eupora police for driving an unlicensed car. He was arrested and taken to the Webster County Jail. While in custody, Willie heard a description of the car believed to have been involved in the shooting and robbery come over the radio. Willie was questioned about the shooting shortly thereafter.

LEGAL DISCUSSION

THE GUILT PHASE

I.

DID THE LOWER COURT ERR IN ADMITTING WILLIE'S CONFESSIONS

INTO EVIDENCE?

The trial court overruled Willie's motion to suppress the statements obtained from Willie by the authorities. Willie contends that the trial court erred in overruling his motion because (1) Willie previously had asserted his fifth amendment right to counsel on a charge of grand larceny, and therefore, under the guidelines of Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), Willie could not be interrogated on any charge in the absence of counsel, and (2) the initial confession was involuntary because it was obtained by promises of benefit or leniency, and therefore it and all subsequent confessions were inadmissible.

The determination of whether a confession is admissable is a finding of fact. Berry v. State, 575 So.2d 1, 4 (Miss.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2042, 114 L.Ed.2d 126 (1991). We will not reverse a trial judge's finding on this issue as long as the judge applied the correct legal standard, did not commit manifest error, and the decision is not contrary to the overwhelming weight of the evidence. Berry, 575 So.2d at 4.

a) Arizona v. Roberson

We take notice that Willie did not raise the Arizona v. Roberson argument in his motion to suppress at the pre-trial suppression hearing or at trial. Generally, we will not review an objection raised for the first time on appeal. Thornhill v. State Prior to Willie's arrest for robbery and murder, Willie had been charged with grand larceny. Counsel was appointed for Willie on this charge. Willie is mistaken in his assertion that this appointment of counsel was an assertion of his fifth amendment right to counsel. The appointment of counsel was an assertion of his Sixth Amendment right. See McNeil v. Wisconsin, --- U.S. ----, ----, 111 S.Ct. 2204, 2206, 115 L.Ed.2d 158 (1991).

561 So.2d 1025, 1029 (Miss.1990). Despite this general rule, we address this issue as it affects Willie's fundamental rights. See Gray v. State, 549 So.2d 1316, 1321 (Miss.1989).

In McNeil v. Wisconsin, --- U.S. at ----, 111 S.Ct. at 2207-09, the United States Supreme Court found that the Sixth Amendment right was offense-specific and could not be invoked once for all future prosecutions. McNeil, --- U.S. at ----, 111 S.Ct. at 2207-09. The Court noted that the purpose of the Sixth Amendment counsel guarantee "is to 'protect[ing] the unaided layman at critical controntations' with his 'expert adversary,' the government, after 'the adverse positions of government and defendant have solidified' with respect to a particular alleged crime. United States v. Gouveia, 467 U.S. , at 189 [104 S.Ct. 2292 at 2298, 81 L.Ed.2d 146]. The purpose of the Miranda- Edwards guarantee, on the other hand ... is to protect ... the suspect's 'desire to deal with the police only through counsel.' Edwards v. Arizona, 451 U.S. , at 484 [101 S.Ct. 1880, at 1885, 68 L.Ed.2d 378]." McNeil, --- U.S. at ----, 111 S.Ct. at 2207-09. The Court then found that requesting the assistance of counsel at arraignment is not the equivalent of expressing "a desire for the assistance of an attorney in dealing with custodial interrogation by the police." McNeil, --- U.S. at ----, 111 S.Ct. at 2209.

We agree. If a defendant has not asserted his Fifth Amendment right to counsel, the fact that he is appointed counsel to protect his Sixth Amendment right does not preclude interrogation on unrelated offenses. As long as the defendant is given his Miranda warnings and makes a knowing and voluntary waiver, then any statements obtained during the interrogation are admissable.

Willie has not shown that he asserted his Fifth Amendment right to counsel while he was in custody on the charge of grand larceny. Therefore, we conclude that his Sixth Amendment appointment of counsel was not an assertion of his Fifth Amendment right, and this assignment is without merit.

Assuming a prior assertion of Willie's Fifth Amendment right to counsel, if Willie had remained in continuous custody on the grand larceny charge, the authorities could not have interrogated Willie about the unrelated murder and robbery in the absence of counsel, unless Willie initiated the communications, exchanges or conversations with the police. Minnick v. Mississippi, --- U.S. ----, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1991); Arizona v. Roberson, 486 U.S. 675, 680-81, 108 S.Ct. 2093, 2097, 100 L.Ed.2d 704 (1988); see also, Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).

A problem would then arise in Willie's argument because Willie was not in continuous custody. Willie had been released from custody on the grand larceny charge, and he did not request counsel when he was taken into custody for driving an unlicensed vehicle. While in custody for the vehicle violation, Willie was questioned by authorities about the murder and robbery after waiving his Miranda rights.

We have not heretofore considered whether the rule in Edwards v. Arizona, supra, or Arizona v. Roberson, supra, applies when an accused does not remain in continuous custody. A number of foreign jurisdictions have considered this issue, and virtually all have concluded that Edwards and Roberson do not apply when custody has not been continuous. See, e.g., Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir.1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989); McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir.1987); United States v. Fairman, 813 Willie argues that Minnick expanded Edwards and Roberson such that once an accused asserts his right to counsel, the accused may not be interrogated on any matter in the absence of counsel until the case is adjudicated, unless the accused initiates the communications or conversations, regardless of whether the accused is no longer in custody. We disagree.

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