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HOWARD MONTEVILLE NEAL v. STATE OF MISSISSIPPI

MAY 23, 1984

HOWARD MONTEVILLE NEAL
v.
STATE OF MISSISSIPPI



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

Howard Monteville Neal has been indicted, tried and convicted of the capital murder of his 13-year-old half-niece, Amanda Joy Neal. The jury subsequently decreed that for his crime he must die.

At the core of this appeal is Neal's challenge to the admissibility into evidence at his trial of a full confession he gave law enforcement officers following his arrest. To be sure, if the confession be excluded Neal would go free. There is no other probative evidence in the record sufficient to sustain a conviction (or obtain a new one). After a careful scrutiny, we have concluded that the trial judge correctly allowed the confession to be used against Neal.

 Finding no other errors requiring reversal, our duty becomes clear: the affirmance of the conviction of Howard Monteville Neal of the crime of capital murder and his consequent sentence of death.

 II.

 The victim of this tragic crime was Amanda Joy Neal, a 13-year-old girl. Amanda Joy lived with her mother in Hattiesburg, as her parents were divorced. On January 23, 1981, Amanda Joy left to spend the weekend with her father, Bobby Neal, the defendant's half-brother on his farm near Monticello in Lawrence County, Mississippi .

 On the evening of January 24, 1981, Amanda Joy and her father drove to the home of her aunt, Betty Sue Langston, to pick up Mrs. Langston's daughter, Amanda Joy's cousin and close friend, Melanie Sue Polk. The two girls had planned to spend the night together at Amanda's father's home and then attend church together the next morning. Bobby Neal and the two girls left the Langston home at approximately 10:00 o'clock on Saturday night. This was the last anyone saw any of the three alive.

 On Sunday evening, January 25, Melanie Sue did not return home. As the evening wore on, Mrs. Langston became concerned. At 10:00 p.m. she went to Bobby Neal's home. She found his truck in the driveway and let herself into the house, which was unlocked. There was no evidence of anything being amiss, but she noticed that Bobby Neal's glasses, which he wore everywhere, were lying on a table in his room. Alarmed, Mrs. Langston called the Lawrence County Sheriff's office, which in turn organized a search effort for the missing trio. For ten days there was no evidence of their whereabouts.

 On February 6, 1981, a man on his way to a fishing hole discovered Amanda Joy's body. It was lying approximately ten feet away from a logging road branching off old highway 27 in Lawrence County. The area where the body lay was not visible from the main road because it was down in a hollow.

 Amanda Joy's body was clothed in a tee-shirt and pants that were either pajamas or the bottoms of a warmup suit. She was wearing no shoes. There was a gunshot wound in the area of her abdomen, bruises about her face and head, evidence of manual strangulation, and bruises and lacerations about her left wrist. The State pathologist testified that her wound would not have caused instant death and that she could have lived between five minutes and one-half hour after being shot.

 On the date the body was found, investigating officers, in an attempt to find leads in the case, showed a picture of the defendant to Kenneth Hoffman, who owned Della's Motel in Brookhaven. Hoffman told the officers that the man looked familiar. He then looked through his registration file and found a card that he had filled out for the defendant between 6:45 and 7:00 A.M. on January 24, 1981. Hoffman told the officers that Neal was driving a green Ford Torino.

 On March 6, 1981, Howard Monteville Neal was arrested for shoplifting in Stockton, California. Police officials there ran a routine teletype check on Neal. They discovered that Neal was wanted in Mississippi for questioning in connection with the homicides of Bobby Neal, Amanda Joy Neal, and Melanie Sue Polk.

 After substantial interrogation (which will be described in more detail in connection with the issue regarding the suppression of the confession), Neal told Stockton Police Sergeant Wilson Stewart what had happened. In Stewart's words: Mr. Neal said that he drove to Brookhaven from Texas where he lived, and he said that he got into Brookhaven on a Sunday morning, maybe about 6 o'clock in the morning, and he stopped at this little motel and left his wife there, and that he went on over to his brother, Bobby's place. He said that he got over there maybe around 9 o'clock, and he said that he was there at the house for maybe a little over an hour; that when he got to the house, that Bobby was there, and that Bobby's daughter Amanda Joy was there, and then there was a niece, a younger girl that was there. He said that he left that place with Bobby and the two girls to go for a ride in his car, which was a little green Ford that he was driving, and that's the one that he was driving at the time that he was in Stockton. He said that when he left the house with them that they were accompanying him of their own free will; that Bobby rode in the back seat, and the two girls rode in the front seat of the car with him. He said that he started driving in the car, and that Bobby got upset because he started playing with the leg of one of the girls, Amanda joy, and he said when Bobby got upset that he stopped the car. He at first told me that he was in a tree area, and that the two girls stayed in the car, and he got out with Bobby and went for a walk, and he had this gun with him. He later changed that to the fact that he was at a gravel pit area, and that he left the girls in the car, and he walked

 a short distance with Bobby. He said that he shot Bobby, and -

 . . . .

 A. He said that he had left the car with Bobby; that he had left the two girls in the car, and I asked him at that time if the two girls had been restrained in any way or for what reason would they have stayed in the car, and he said that he didn't restrain them in any way; that he told them that he was going for a walk with Bobby. He said that after he shot Bobby and returned to the car--I asked him ;f the girls had said anything about hearing the shot, and he said that they did say they had heard the shot, and he explained to them that he had shot the gun into the air. He explained that he had shot the gun into the air; that Bobby had been told by him to go on home, and he said the girls seemed to accept that. I asked him why they would believe that

 Since Bobby was so far from home, and he said," Well, I thought they did believe, and I left that area with them in the car. "He said that--I asked them were they upset about the fact that Bobby would have had his hands tied, and he said Bobby didn't have his hands tied at any time, and he didn't tie them, and they were not tied, and that the girls didn't see his hands tied. He then said that he went on to this other area with the girls, and that he parked his car off the roadway in this tree area; that he put a blanket out along side the ground and that he was on the blanket with Amanda Joy. He said that he was playing around with her a little bit; that he had sexual intercourse with her; that she was cooperative with him, and I asked him where the other girl was at this time, if she was being restrained in any way, and he said that she sat in the car, and just sat in the car on her own. He said that when he got through having sexual intercourse with Amanda Joy,

 that she put her clothes on and got back in the car, and he told her that he was going to have sexual intercourse with the smaller girl, and that she sat in the car while he got out on the blanket with the other girl. He said that he started to do this, and then stopped and let the girl put her clothes back on, and then he had both girls get out of the car. He said that he shot Amanda Joy in what he thought was in the area of the chest, that she was standing up right by the other little girl. He said that when he did this, that the other little girl screamed and so he turned toward her and shot her. I asked him if both girls were together at this time, and he said yes. I told him that my understanding was that the--one of the girls was a little distance away, and he said the only way that that little girl could have gotten away from the other one was is if she had crawled away on her own because they were together at the time that he shot them. He said that he got back in the car and then he drove back to the motel and picked up his family at the motel and drove back through Jackson and across the stateline on the Interstate from Jackson and went back to Texas.

 On August 3, 1981, Howard Monteville Neal, defendant below and appellant here, was formally charged with the capital murder of Amanda Joy Neal while he was engaged in the kidnapping of Amanda Joy Neal contrary to Miss. Code Ann 97-3-19 (2)(e) (Supp. 1983). Neal entered a plea of not guilty. On October 30, 1981, the Circuit Court ordered venue changed from Lawrence County to Lamar County.

 On the morning of February 2, 1982, the case was called for trial in the Circuit Court of Lamar County, Mississippi. The trial lasted for two days. On February 4, 1982, the jury returned a unanimous verdict that Neal was guilty as charged in the indictment.

 Thereafter, on the same day, Howard Monteville Neal was put to trial on the question of sentence. The jury by its verdict found that the aggravating circumstances outweighed the mitigating circumstances and that Neal should be put to death in the manner prescribed by law. From this conviction and sentence, Neal appeals.

 III.

 We reaffirm at the outset our commitment to heightened scrutiny on appeal in cases where the sentence of death has been imposed. Concurring in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972), Justice Stewart wrote:

 The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

 408 U.S. at 306, 96 S. Ct. at 2760, 33 L.Ed.2d at 388.

 This theme, the unique nature of the death penalty, has been repeated time and time again. See, e.g., Furman v. Georgia, supra, 408 U.S. at 287-289, 92 S. Ct. at 2751, 3752, 33 L.Ed.2d at 376-378 (Brennan, J., concurring); Gregg v. Georgia, 428 U.S. 153, 187-188, 96 S. Ct. 2909, 2931, 49 L.Ed.2d 859, 882, 883 (1976); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); Gardner v. Florida, 430 U.S. 349, 357-358, 97 S. Ct. 1197, 1204-05, 51 L.Ed.2d 393, 402 (1977); Coker v. Georgia, 433 U.S. 584, 598, 97 S. Ct. 2861, 2869, 53 L.Ed.2d 982 (1977); Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S. Ct. 2954, 2964-65, 57 L.Ed.2d 973, 989-990 (1978); Beck v. Alabama, 447 U.S. 625, 638, 100 S. Ct. 2382, 2390, 65 L.Ed.2d 392, 403 (1980); and California v. Ramos, ___ U.S. ___, ___, 103 S. Ct. 3446, 3451, 77 L.Ed.2d 1171, 1179 (1983).

 This Court has repeatedly recognized that appellate review in capital cases is different from that in other cases. Irving v. State, 361 So.2d 1360 (Miss. 1978) observes:

 We recognize that thoroughness and intensity of review are heightened in cases where the death penalty has been imposed. [Citation omitted] What may be harmless error in a case with less at stake becomes reversible error when the penalty is death. [Citations omitted].

 361 So.2d at 1363.

 See also, Laney v. State, 421 So.2d 1216, 1217 (Miss. 1982), and Williams v. State, ___ So.2d ___, ___ (Miss. 1984) (No. 54,294, released January 18, 1984, slip opinion, pages 19-20, not yet reported).

 GUILT PHASE

 IV.

 A.

 Neal complains of the trial court's ruling allowing Detective Sergeant Wilson Stewart to relate to the jury the confession given by Neal on March 8, 1981. Neal charges that this confession was, as a matter of law, involuntary given the facts of this case. If this be so, the confession, of course, would be inadmissible, for such is the long-established constitutional elaboration upon the privilege against self-incrimination secured to all persons, first, by the Constitution of the United States in the Fifth and Fourteenth Amendments and, second, by the Mississippi Constitution of 1890, Art. III, 26.

 For the reasons set forth below, this assignment of error is not well taken. B.

 Well prior to trial, Neal filed a motion to suppress his confession. The motion was carried with the case. When the state sought to introduce the confession at trial, an extensive in-chambers hearing was held regarding its admissibility.

 The evidence at the suppression hearing, reflected that on March 6, 1981, Neal was detained in the New Deal Grocery Store in Stockton, California, for shoplifting. A routine teletype check by Stockton law enforcement authorities revealed that Neal was wanted for questioning in Mississippi. Neal was taken to the police station and first given his Miranda *fn1 warnings by Officer Mike Ries. Ries then questioned Neal briefly. Neal made no inculpatory statements.

 Later that day, Detective Sergeant Wilson Stewart questioned Neal. In the presence of Ries, Stewart again advised Neal of his privilege against self-incrimination as elaborated in Miranda. Neal remained in custody at the

 Stockton Police Station from approximately 2:30 p.m. until 11:30 p.m. on March 6. Stewart questioned Neal intermittently but only for an aggregate of approximately 1 1/2 hours. Stewart spent most of the time in communication with officers in Mississippi and in connection with other duties. Neal made no inculpatory statements to anyone on March 6th.

 On the night of March 6th, Neal was taken to the county jail about ten miles out of Stockton where he remained for the evening. Stewart came to the jail shortly after noon on Saturday, March 7th, and once again interviewed Neal. Prior to this interview session, Stewart once again advised Neal of his Miranda rights. As he had done the day before, Neal initially denied that he had been in Mississippi at any time in the past two or three years. Subsequently during questioning Neal admitted that he knew the authorities could prove he was in Mississippi, but he wasn't going to admit it because if he did they would kill him. At approximately 9:30 p.m. on March 7, 1981, after approximately an hour of questioning, Neal told Detective Sergeant Stewart that he had gone to Bobby Neal's house in Mississippi on January 25, 1981. He then told Stewart he wanted to think about it some more before he talked any further about what had happened. Neal made no further inculpatory statements on Saturday, March 7.

 On Sunday, March 8, Detective Sergeant Stewart arrived to resume questioning of Neal at approximately 12:45 p.m.. He again advised Neal fully of his rights under Miranda. At this time Neal gave the confession described in section II (A) of this opinion, which, of course, contained the admission that he had killed Amanda Joy Neal.

 There is no evidence that any threats, promises, or any form of physical abuse or coercion were used on Neal at any time. At no time did he request the assistance of counsel. There is no evidence that on any occasion during the questioning Neal was under the influence of drugs or liquor. The record of the suppression hearing is replete with the inference that Detective Sergeant Stewart was courteous, considerate, patient and persistent. He testified unequivocally that the statement given by Neal was knowingly and voluntarily given, that it was given at a time when Neal understood and appreciated the gravity of the charges against him, and that it was given at a time when Neal was fully aware of his constitutional privilege against self-incrimination and his right to counsel.

 Neal did not testify at the suppression hearing.

 Rather, the defense offered was that Neal was mentally retarded and that, under the circumstances in question, he was incapable as a matter of law of giving a voluntary confession.

 By way of background to this point, defense counsel cites Neal's personal history. Neal was born on September 14, 1953. When he was ten years old, he was sent to the Ellisville State School. Neal had been unable to advance beyond the second grade in public schools. Ellisville State School is a school operated by the State of Mississippi for mentally retarded youth. Miss. Code Ann. 41-19-101, et seq. (1972). Neal remained at Ellisville until he was sixteen. He was then transferred to a unit for retarded persons at the Mississippi State Hospital at Whitfield, where he remained until he was eighteen.

 Defendant called Dr. Dana Alexander, a clinical psychologist who had examined Neal at the Court's request. Dr. Alexander testified that she had administered a valid and standardized I. Q. test to Neal which had revealed that Neal had a full scale I. Q. of approximately 54. *fn2 This would place Neal at the low end of the mild mental retardation range. *fn3

 Dr. Alexander's testing also revealed that Neal suffered from an organic brain syndrome known as dementia. This is a disease that typically affects one's memory and one's ability to control his impulses. After describing Neal's other personality traits, Dr. Alexander was given a hypothetical question concerning whether Neal understood the Miranda warnings as they were given. She gave her opinion that he could not understand them unless they were explained carefully and in extremely simple terms.

 Dr. Charlton Stanley, a forensic phychologist then associated with the Mississippi State Hospital at Whitfield, testified for the State at the suppression hearing. The I.Q. test administered at Whitfield had produced a full scale I.Q. score of 60. *fn4 Dr. Stanley gave his opinion that Neal was to some degree faking on his I.Q. test. He further explained that the Whitfield team had found no evidence of an organic brain syndrome, although he did not give the test which would have revealed it. Significantly, Dr. Stanley testified that he had read to Neal the standard Miranda warning before administering the I.Q. test. He gave his opinion that Neal understood the Miranda warnings at that time and that he was perfectly capable of understanding the Miranda warnings under the circumstances existing in Stockton, California on March 8, 1981.

 Other facts in the record are that Neal was married and had a child, that he traveled around the country a good bit, that he had worked as an oil field worker though for the most part he was a drifter, and that on the day of the murders he had checked his family into a motel in Brookhaven. The facts and circumstances regarding Neal's mode of living and experiences seem to suggest that he possessed a minimal capacity to function in society and to understand and communicate with others regarding the basic necessities of interdependent living.

 After hearing all of the evidence, the trial judge held that the confession was admissible and could be presented to the jury. Specifically, the trial judge announced:

 BY THE COURT:

 All right, let the record show that the Court having heard the testimony on the Motion to Suppress the Confession or Statement of the Defendant and the Court now being ready to rule on said motion; does find that the statement made to Sargent Wilson Stewart was made by the Defendant voluntarily and after he knowingly waived his rights under the Miranda Warning and that the same was free and voluntarily given. Therefore, the Motion to Suppress the Statement, be and the same is hereby overruled.

 In challenging this ruling on appeal, Neal is necessarily restricted by established limits upon our scope of review. We are concerned here in substantial part with a finding of fact. So long as the trial court applies the correct legal standards, we will not overturn a finding of fact made by a trial judge unless it be clearly erroneous. See, e.g., Ratliff v. State, 317 So.2d 403, 405 (Miss. 1975); Hall ...


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