
    George KING, Jr. v. STATE of Mississippi.
    No. 54763.
    Supreme Court of Mississippi.
    May 23, 1984.
    
      Thomas L. Kesler, Sams & Kesler, Columbus, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   PATTERSON, Chief Justice,

For The COURT:

In the Circuit Court of Lowndes County, George King, Jr., was tried on a charge of arson, convicted and sentenced as an habitual offender to serve a term of ten (10) years in the custody of the Mississippi Department of Corrections without reduction, suspension or eligibility for probation or parole.

King appeals, contending that the trial court erred:

I. In overruling King’s motion to suppress a written statement given June 22, 1982;

II. In refusing Defendant’s Instructions D-l, D-1B and D-4;

III. In sentencing King as an habitual offender without allowing him to be heard and because Mississippi Code Annotated, § 99-19-81, is unconstitutional; and

IV.By allowing the District Attorney to appear as counsel for the State and also to testify as a witness for the State.

This case arises from a series of fires on May 12, 1981, which destroyed two lounges in Columbus and another outside the city limits. All three night clubs were the property of George Derden. While arson was obvious in all three cases, investigation by city and county detectives proved fruitless for thirteen (13) months.

On June 21, 1982, George King, Jr., who had been working as an informer in the fire cases, phoned Columbus Police Officer Pete Bowen. King told Bowen he was afraid he was becoming known as an informer and that he wanted to be protected. King’s agitation prompted Bowen to use an outstanding warrant to arrest King on a simple assault charge. This was done for King’s protection only.

The next morning King conferred with his attorney, Darrell Reeves. Reeves then told Bowen, Lowndes County Investigator Max Blanton, and Columbus Chief of Detectives Bud Walters that King wanted to “strike a deal” concerning the fire cases with the district attorney.

The detectives then questioned King, who verified what Reeves had said. However, King insisted on dealing with the district attorney in person.

King’s insistence led Officers Bowen and Blanton to drive King and his girlfriend Debra Hayes to Hattiesburg, where District Attorney John Montgomery was attending National Guard camp. King, Hayes and the officers spent the night in a hotel and the next morning met Reeves and Montgomery at the sheriff’s office. There Montgomery told King that he would not have to serve any time if he would give a truthful statement implicating those responsible for the fires and further if he would testify against those persons in court. Montgomery also warned King that if at any point after giving the statement King reneged on the agreement, he would be prosecuted.

After King agreed to these terms, Montgomery left the office. Bowen then advised King of his Miranda rights in the presence of Blanton and Reeves, and King signed a rights waiver. He then gave a statement which Bowen reduced to writing.

The essence of the statement is George Derden offered King $1500 to burn the three bars. On May 12, 1981, Derden and King put a mixture of gasoline and lighter fluid into some gas cans and put the cans inside each of the three lounges. Later that night King and Richard Dismuke set the bars on fire.

After recanting the statement and refusing to testify against Derden, King was prosecuted for and convicted of arson.

On this appeal King argues first that the trial court erred in overruling his motion to suppress the statement.

After hearing evidence on the motion to suppress the statement, the court overruled the motion, stating:

... It seems that the entire deal was concocted and initiated by the defendant. ... It appears throughout that the defendant was calling the shots. I say I don’t think it’s any question about the freeness and voluntariness of the statement because his attorney was present at all times. His attorney was present when he was given the Miranda warning, and, in fact, signed the warning as a witness, and also the statement that was given at that time as a witness, and not only the officers present, but his own attorney testified the statement was freely and voluntarily given as a result of a bargain the defendant had extracted from the state. The court feels that the statement was certainly freely, voluntarily, knowingly and intelligently given; that the defendant knew exactly what he was doing; he knows now what he was doing ... and he was advised that if he reneged that he would be prosecuted; he understood that, and to go make an agreement with the state such as this, and then renege on it and escape any prosecution or punishment would appear to me that most every defendant would begin striking a bargain with the state... Therefore, it is the opinion of the court that the motion should be and it is hereby overruled. (R. 249-251)

We are of the opinion that the trial court ruled correctly. In reaching this conclusion we are mindful of the general rule that to be admissible a confession “must be free and voluntary, that is, not produced by inducements engendering either hope or fear ...” Bram v. United States, 168 U.S. 532, 557-58, 18 S.Ct. 183, 192-93, 42 L.Ed. 568, 578 (1897). We are cognizant of the long line of federal and Mississippi cases adhering to this rule. However, we conclude the facts of those cases distinguish them from the present case.

King relies heavily on Miller v. State, 250 So.2d 624 (Miss.1971). That case involved a defendant, incarcerated pending appeal of her conviction of attempted kidnapping, who insinuated that she could give information about an unsolved murder. Her attorney discussed the matter with the circuit judge and “departed the conference believing that his client had been offered immunity from prosecution if she cooperated with the state in its effort to solve the murder.” 250 So.2d at 625. Defense counsel communicated this belief to Miller, who later gave a statement implicating herself and Houston Evans. Shortly thereafter Miller was called by the state as a witness at the preliminary hearing of Evans. There she gave testimony which clearly labeled her as an accomplice to the murder, for which she was later indicted and tried.

At Miller’s murder trial both her statement and the transcript of her testimony in Evans’ hearing were introduced into evidence, and Miller was convicted. We reversed, holding in part that the statement was the result of an offer of immunity and was therefore inadmissible.

We conclude the foregoing facts differentiate Miller from the present case on a crucial point. Miller followed her attorney’s advice to cooperate with the state by giving a statement. By “cooperating” she bought herself a murder trial with the fruits of her “cooperation” as the main piece of evidence against her. Therefore in Miller it was the defendant who, through misunderstanding or otherwise, was left in a disadvantaged position. Stated simply, it was the defendant who was aggrieved when the state did not comply with the terms of the bargain as she' understood it.

In this case, however, it is the defendant who did not fulfill his part of the agreement; it is the state who is aggrieved. Had King testified against Derden and not recanted his statement, and if the state had subsequently prosecuted King for arson, then this case would be more analogous to Miller, but those facts are not before us. We are confronted instead by a defendant who in the presence of his attorney was clearly advised that he would be prosecuted should he repudiate the agreement.

We also distinguish Sanders v. State, 435 So.2d 1177 (Miss.1983), wherein we held inadmissible a confession attached to a guilty plea offered and later withdrawn. Unlike Sanders, King had not been indicted at the time he made his statement; therefore, the coercive effect arising from an arraignment, trial, and possible imprisonment does not exist in this case as it did in Sanders. Sanders thus does not require reversal here.

In holding that King’s statement was made voluntarily and is thus admissible, we find it useful to consider the reasons behind the exclusion of involuntary confessions as stated in United States v. Powe, 591 F.2d 833, 839-41 (D.C.Cir.1978). We observe none of the reasons apply to this case.

The first rationale is the unreliability of statements obtained by coercion or improper influence. United States v. Powe, 591 F.2d at 840. We find no coercion or improper influence where the giver of the statement made the initial contact with the police and initiated an agreement containing his own terms.

Secondly, due process forbids use of involuntary statements whether or not they are true. Due process is offended where “an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.” Blackburn v. Alabama, 361 U.S. 199, 206-07, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, 248 (1960), cited in United States v. Powe, 591 F.2d at 840. At the time King gave his statement he was not an “accused”; nor was anyone attempting to “wring” a confession out of him.

A third concern is respect for the individual’s freedom of will. Again, nothing in the record indicates the statement was anything other than a manifestation of King’s free will.

Fourthly, the courts are interested in deterring improper police conduct. As the United States Supreme Court has stated:

Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.

Brady v. United States, 397 U.S. 742, 754, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 759 (1970), cited in United States v. Powe, 591 F.2d at 841. (Emphasis added.)

King was not in such a vulnerable position when he gave the statement. He was not under arrest for arson; further, his attorney was present throughout the procedure.

Finally, it has been stated that “the very integrity of the criminal justice system is compromised when it operates to take advantage of a person whose volitional capacity is seriously impaired.” United States v. Powe, 591 F.2d at 841. From the facts in this case we cannot conclude that anyone took advantage of King while his “volitional capacity” was impaired. Rather, we agree with the circuit judge that King initiated the agreement; he insisted that his own terms be followed; that he was represented by counsel at all times during the process; that he was warned of the result of reneging on the agreement; and that he freely and voluntarily gave a statement as part of the agreement that he later chose to reject. For these reasons, we are of the opinion the motion to suppress was properly overruled.

King’s second argument is that the court erroneously refused three instructions which would have put before the jury the issue of whether King’s statement was voluntarily given.

Craft v. State, 380 So.2d 251 (Miss.1980), involved the refusal of a similar instruction. In that case we held, “We ... decline to put a trial court in error for refusing an instruction which sets forth an incorrect principle of law. In brief, the trial court rules upon the admissibility of a statement; the jury determines its weight just as it considers the weight and worth of other relevant evidence.’’ 380 So.2d at 255.

While the trial court refused to allow the jury to rule on the admissibility of the confession, it did instruct the jury as follows:

You are the sole judges of the facts in this case. Your exclusive province is to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case. You are required and expected to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness who has testified in this case.

By this instruction the jury was informed that their function was to determine the weight and credibility of the evidence, including the confession which had been ruled admissible by the court. We are of the opinion this was a proper application of the law and that no error was committed here.

In his third proposition King makes two arguments relating to the court’s sentencing him as an habitual offender. He argues first that he was not given an opportunity to be heard on the issue of his prior convictions. However, this contention ignores King’s stipulation that he had twice been convicted of assault. The court based its enhanced sentence both on this stipulation and on certified copies of King’s prior felony convictions. In view of the record, this argument is without merit.

King’s second ground for reversal of sentence is based on the recent United States Supreme Court case of Solem v. Helm, — U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). King argues this case renders Mississippi Code Annotated, § 99-19-81 (Supp.1983), unconstitutional. We reject this contention. A cursory look at Helm reveals it did not purport to declare all recidivists’ statutes such as § 99-19-81 unconstitutional; rather, it held the Eighth Amendment prohibits a life sentence without parole for a seventh non-violent felony. We do not think the case goes so far as to make unconstitutional a sentence of ten years for arson where the defendant has prior felony convictions for aggravated assault and assault with intent to murder. Therefore we are of the opinion Helm does not require resentencing in this case.

Lastly, King contends the court improperly allowed the district attorney to appear as counsel for the state and also to testify as a witness for the state.

We encountered this issue in Jenkins v. State, 242 Miss. 646, 136 So.2d 580 (1962):

As to the eligibility of a district attorney to be a witness for the State, in a case he is prosecuting, the general rule is that “Although a prosecuting attorney is competent to testify, his testifying is not approved by the courts except where it is made necessary by the circumstances of the case, and, if he knows before the trial that he will be a necessary witness, he should withdraw and have other counsel prosecute the case. The propriety of allowing the prosecutor to testify is a matter largely within the trial court’s discretion.” (Emphasis added.) 242 Miss, at 654, 136 So.2d at 583.

The record divulges “other counsel” Forrest Allgood did prosecute this case; Montgomery did not. While Montgomery made one objection during the hearing on the motion to suppress, this was outside the presence of the jury. We conclude District Attorney Montgomery followed the course of action prescribed by Jenkins: he withdrew and allowed other counsel to try the case. We find no merit in this assignment of error.

Finding no reversible error in the record, we conclude King’s conviction and sentence should be affirmed.

AFFIRMED.

WALKER and ROY NOBLE LEE, P. JJ., and BOWLING, HAWKINS, and PRATHER, JJ., concur.

DAN M. LEE, ROBERTSON, and SULLIVAN, JJ., dissent.

DAN M. LEE, Justice,

dissenting:

I am deeply disturbed by the Court’s holding that King’s confession is admissible. Both the United States Supreme Court and this Court have previously addressed the admissibility of statements given in exchange for offers of leniency or immunity. Those cases uniformly hold that such statements are inadmissible because they lack the requisite element of voluntariness. The majority ignores the wisdom of those decisions and instead journeys down a wholly irrelevant tangent, drawing meaningless distinctions and disregarding essential facts. I believe that the majority’s attempt to distinguish this case because the agreement was initiated by the defendant is a distinction without a difference, I respectfully dissent.

The United States Supreme Court has repeatedly held that a statement or confession which is obtained by a promise of leniency or immunity is inadmissible. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357, reh. den. 372 U.S. 950, 83 S.Ct. 931, 9 L.Ed.2d 975 (1963); Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

In the Shotwell case the Supreme Court restated the controlling test: “Did the governmental conduct complained of “bring about” a confession not freely self-determined?” In order to be freely self-determined the statement must not be “obtained by any direct or implied promises, however slight.”

Prior to today’s decision Mississippi has consistently adhered to this rule. Sanders v. State, 435 So.2d 1177 (Miss.1983); Miller v. State, 250 So.2d 624 (Miss.1971); Agee v. State, 185 So.2d 671 (Miss.1966).

In Sanders, the defendant completed a form required by the circuit judge prior to entering a guilty plea. A part of the form contained a paragraph which required that Sanders confess his guilt to the crime to which he was pleading guilty. Sanders later changed his mind and withdrew his guilty plea. Subsequently, the confession portion of the guilty plea was admitted at his trial. Although we held that the case was controlled by Rule 3.03 of the Unifirm Criminal Rules of Circuit Court Practice which governs admissibility of a withdrawn guilty plea, we also held that the rule “precludes use against the defendant at trial of statements made with and inextricably bound up with a plea offered but never finally accepted.” 435 So.2d at 1180. Undoubtedly King’s statement was “inextricably bound up” with an offer to plead guilty and testify in exchange for leniency.

In Miller, a misunderstanding between the defense attorney and the circuit judge resulted in Miller thinking that she had been offered immunity from prosecution if she agreed to cooperate with the State. This misunderstanding resulted in her giving a statement implicating herself. Thereafter Miller was tried for the crime and the statement was admitted into evidence against her. We reversed her conviction and held that because the statement was the product of Miller’s belief, mistaken or not, that she was under immunity it was not voluntary and was therefore inadmissible. In arriving at this conclusion, we quoted another ease styled Miller v. State and cited a number of other decisions of this Court:

In the recent case of Miller v. State, 243 So.2d 558, 559 (Miss.1971), we held:
The trial court found the appellant’s statement to have been freely and voluntarily made. It did not, however, rule upon the statement of the sheriff with regard to whether it was an inducement or offer of leniency to the appellant if he would confess. In Robinson v. State, 247 Miss. 609, 613, 157 So.2d 49, 51 (1963), we stated “ * * ⅜ a mere exhortation or adjuration to speak the truth will not exclude a confession, but where such adjuration is accompanied by an expression that it would be better for the accused to tell the truth, some courts have refused to admit such confession. * * ⅜ ”, citing Mathews v. State, 102 Miss. 549, 59 So. 842 (1912) and Frazier v. State, 107 So.2d 16 (Fla.1958). We held in Robinson that the statement or confession made subsequent to an exhortation to “square with the State, or the City, whoever the crime was against” and with the “ ‘man upstairs’ and that if he didn’t, he wasn't trying to help himself” was the equivalent of an inducement, rendering the statement inadmissible in evidence as being involuntarily made.
In Mitchell v. State, 24 So. 312 (Miss.1898), we held that a confession given by the defendant was not voluntarily made subsequent to the defendant’s being advised by the sheriff that it would be better for him to tell all about it.
In view of these authorities and the facts before us, we are of the opinion that the lower court erred in admitting the confession into evidence.
250 So.2d at 626, 627. (emphasis added).

In Agee, we held that a confession was inadmissible because one of the defendant’s professors had admonished him that “It would be lighter on him if he’d tell the truth.” In that case we held:

We are also of the opinion that the confession was inadmissible because the testimony showed that the officers called to the courthouse J.H. Harvey, a professor who had taught the defendant, and who testified that he did not threaten defendant but said, ‘I told him to tell the truth and I believe it would be lighter on him if he’d tell the truth.’ This conversation between Professor Harvey and the defendant was in private some hours before the confession was signed.
A confession made after the accused has been offered some hope of reward if he will confess or tell the truth cannot be said to be voluntary. This Court has long adhered to the rule that when the offer of reward or hope of leniency is made by a private individual the same rule applies. In Clash v. State, 146 Miss. 811, 112 So. 370 (1927) a confession was held inadmissible when it was signed by the accused after a private individual had told him that, “ * * * ‘If he would tell us about the money, and return it, we would let him out of jail on bond.’ ” In Johnson v. State, 89 Miss. 773, 42 So. 606 (1906) private citizens told the accused that, “ * * * it would be better for him to confess, as it would go lighter with him if he told the truth.” The confession that followed these statements by private citizens was held inadmissible.

185 So.2d at 674. (emphasis added).

The element of this ease which apparently has misguided the majority is the fact that King initiated the deal with the district attorney and then backed out. This factor is wholly irrelevant and should not alter application of the rule regarding inadmissibility of statements made in reliance upon immunity or leniency. This is so because the key to this rule is the defendant’s frame of mind at the time of making the statement. Plainly, under the decisions of both the United States Supreme Court and this Court a statement is involuntary if it is obtained through an offer of immunity or leniency. Voluntariness is relevant only to the time of the actual making of the statement. If the statement was involuntary at the time it was made, subsequent actions cannot change its character. Voluntariness cannot be added ex post facto. Of course, King’s refusal to testify revoked the granting of immunity from prosecution; however, it does not logically follow that such refusal negates the fact that his testimony was made under an offer of immunity and was therefore involuntary.

Even assuming that King’s statement was voluntary, does it constitute a voluntary waiver of the Fifth Amendment guarantee of freedom from self incrimination? The answer should be obvious that it does not. It is undisputed that this statement was made in contemplation of freedom from penalty. In fact, it is only as a result of the condition, i.e., freedom from penalty, that the statement was made. In essence, King and the district attorney had a contract whereby King agreed to make a statement and testify against the co-conspirator in exchange for which the district attorney agreed that King would not have to spend any time in jail. Therefore, because he believed that he was free from the possibility that his statement would be used against him, it cannot be said that he waived his right against self incrimination. That this assessment is correct becomes even more obvious when viewed in light of an essential fact which the majority chooses to ignore. The day after making his statement, King was interviewed by an agent of the Federal Bureau of Alcohol, Tobacco and Firearms. That agent informed him that King had no immunity from federal prosecution. Following King’s interview with the agent he became concerned that he was still subject to federal prosecution. It is for that reason that he rescinded the agreement. Therefore, King did not simply change his mind and refuse to cooperate, he feared that he would incriminate himself in a federal crime from which he had no immunity. His refusal to testify therefore, lends even greater weight to the argument that he did not voluntarily waive his Fifth Amendment rights. Indeed, he never gave a statement to the ATF agent.

Because it is obvious King’s statement was induced through an offer of leniency, regardless of who initiated the offer, that statement was inadmissible. Because I believe that it was error to allow that statement to be used in a prosecution against King I would reverse this case.

ROBERTSON and SULLIVAN, JJ., join this opinion.  