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 supress a written statement 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
W. 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, 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 ...