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DECEMBER 12, 1984




Jeff Yates was tried and convicted of murder in the Circuit Court of the First Judicial District of Jones County and sentenced to serve a term of life imprisonment. The primary issue raised on this appeal is whether or not his confession was made with a knowing and intelligent waiver of his right to counsel.

On July 29, 1981, appellant shot and killed Roger Hollingsworth. Appellant's estranged wife, who had been dating Hollingsworth, arranged this meeting. Appellant came armed with a shotgun. Hollingsworth arrived with Mrs. Yates, who had told him they were going to meet a drug dealer. Hollingsworth was armed with a .357 magnum pistol. Appellant had arrived early at the secluded rural spot, and claiming that Hollingsworth grabbed his pistol upon seeing appellant, shot him in the head with buckshot, killing him.

 Appellant put the body in the trunk of Hollingsworth's car and instructed his wife to drive the car to a nearby creek bridge. He threw the body off the bridge into the creek, and told his wife to drive the victim's car into some nearby woods. He took his wife to her home, and then returned to the bridge. He threw the victim's pistol into the creek and then burned the

 victim's car in the woods.

 The body was found two days later floating in the creek. Appellant's estranged wife made a statement to the police, and appellant was arrested on August 4, 1981, at 9 o'clock p.m. and given his Miranda rights. Four hours later, appellant was interrogated, at which time he was given his Miranda rights again, signing an acknowledgment and waiver of those rights. At this time, an attorney hired by appellant's parents to represent him arrived at the jail and requested that the sheriff allow him to meet with his client. The sheriff refused and stated that should appellant request an attorney he would be allowed to meet with him. The interrogating officers did not know of the attorney's presence.

 Appellant proceeded to give a detailed statement of the shooting. All of the law enforcement officers present testified that he did not request an attorney, having signed the waiver of rights. Appellant met with his attorney on the morning of August 5, 1981. The following afternoon, appellant was presented with his transcribed statement, given his Miranda rights again, and asked to sign the statement. Appellant signed each page of the confession. The primary issue raised on this appeal is whether or not appellant was deprived of his right to counsel.

 In considering this question, it should be noted that appellant claims that he requested an attorney when he first arrived at the jail, approximately 10 p.m. While the six law enforcement officers involved each testified at the suppression hearing that appellant made no request for an attorney, none of them was specifically asked if he requested an attorney when he arrived at the jail. Their testimony reflects that he was given his Miranda rights upon arrest and before giving the statement, at which time he signed an acknowledgment and waiver of rights. Appellant did not know there was an attorney hired to represent him and present at the jail at the time of the interrogation. He contends on appeal that the fact that he was not notified of the presence of counsel deprived him of his Sixth Amendment right to counsel.

 There are essentially three lines of cases dealing with this area of denial of access to counsel. The first of these is the so-called New York rule. Simply stated, once an attorney enters into the proceeding, the police may not question the defendant in the absence of counsel unless there is a waiver of the right to counsel in the

 presence of that attorney. People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 (1976). However, the New York rule can be readily discounted in light of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), where the United States Supreme Court ruled that the accused can validly waive his right to counsel outside the presence of the attorney.

 Another line of authority imposes upon the police who are notified of the presence, either by phone or in person, of the defendant's attorney, the obligation to inform the defendant of the fact before the defendant's waiver of right to counsel can be considered knowing and voluntary. Commonwealth v. McKenna, 244 N.E.2d 560 (Mass. 1969). This rationale is shared by several states, including Delaware, Louisiana, Oregon, Illinois and Washington.

 Another line of authority is represented by State v. Burbine, 451 A.2d 22 (R.I. 1982), which holds that the accused can knowingly and intelligently waive his right to counsel despite the fact that the police have not informed him of the presence of counsel. This view, likewise shared by several jurisdictions, both state and federal, holds that the Miranda rights of the accused person may not be extended to the point that the police are obligated to inform the accused of the presence of an attorney where the accused does not request one. Since the defendant has already been advised of his right to obtain counsel, as well as his right to not make a statement before speaking with counsel, his constitutional privileges should not hinge upon how quickly an attorney appears at or telephones the jail.

 This question has been addressed in Mississippi in several cases over the years. This Court has held the state has a burden to prove beyond a reasonable doubt a knowing and intelligent waiver when a custodial incriminating statement is made without the advice or presence of counsel, notwithstanding the fact that defendant has already been advised of his Miranda rights by authorities. Neal v. State, 451 So. 2d 743 (Miss. 1984); (retarded defendant confessed to murder without advice of counsel). The prevailing rule in Mississippi, as in most other jurisdictions, is that the appellate court should consider the totality of circumstances in passing on such questions. Depreo v. State, 407 So. 2d 102 (Miss. 1981). Thus, while there is a split of authority on this question, there is seemingly a further split within the separate jurisdictions because the cases are decided on their facts.

 Cf. United States v. Guido, 704 F. 2d 675 (C. A. 2 NY 1983) (confession admitted where there is no evidence that officers delayed defendant's request for access to an attorney hoping he might incriminate himself); People v. Winston, 106 Ill. App. 3d 673, 62 Ill. Dec. 355, 435 N. E. 2d 1327 (1982) (overruled on other grounds People v. De Simone, 108 Ill. App. 3d 1015, 64 Ill. Dec. 503, 439 N. E. 2d 1311 (1982) (confession admitted where the defendant's inquiry into the procedure of appointment of a public defender did not exhibit a present desire for an attorney to the point that all questioning should have been discontinued); State v. Harper, 430 So. 2d 627 (La. 1983) (confession admitted where defendant after initial request for attorney reinitiated contact with police). Mississippi has dealt with the denial of counsel issue on many occasions. In Holifield v. State, 275 So.2d 851 (Miss. 1973), this Court stated that:

 Being mindful of Miranda, we hold as follows. The state is not required to provide instant counsel to one suspected of crime before he can speak. However, before interrogating a suspect in custody, the state or its representatives must tell the suspect of his right not to speak without counsel. Should such suspected person state that he desires the services of a lawyer at any time, then such must be furnished him prior to interrogation. Even under those circumstances we hold that it would not be necessary to provide legal counsel" then and there, "but before interrogation ensues. Appellant herein was advised of his rights prior to confession. There was substantial evidence to the effect that he, of his own volition, chose to and did intelligently waive his right to the presence and advice of counsel. His confession was upon the record properly admitted into evidence. (275 So.2d at 855)

 Similarly, in Evans v. State, 275 So.2d 84 (Miss. 1974), this Court quoted Mayzak v. U.S. 402 F.2d 152 (5th Cir. 1968), to the effect that Miranda rights do not require that attorneys be produced on call, nor do they require the interrogating officer to declare his personal and immediate power to summon an attorney. See also Lanier v. State, 450 So. 2d 69 (Miss. 1984); Hall v. State, 427 So. 2d 957 (Miss. 1983); Ramseur v. State, 368 So. 2d 842 (Miss. 1979); Jordan v. State, 365 So.2d

 1198 (Miss. 1979); Abston v. State, 361 So. 2d 1384 (Miss. 1978); Harrell v. State, 357 So. 2d 643 (Miss. 1978); Dotson v. State, 312 So.2d 444 (Miss. 1975). The case sub judice, however, will be decided on another factual point. After several Miranda warnings, after a signed waiver of rights, after appellant confessed, and after appellant consulted with his attorney the next morning, he was again given his rights, including access to an attorney and presented with the confession to sign. Appellant signed each of the twenty typewritten pages of the confession. While appellant was young, eighteen or nineteen years old, and had limited education, he was not mentally deficient and had consulted with his attorney before signing the confession. Thus, in considering the totality of the circumstances of this case, especially the fact that the confession was signed after appellant had met with his attorney, we find that it was proper for the lower court not to suppress this confession. The situation would be entirely different had the confession not been reiterated and signed after appellant conferred with his attorney. Even though he was given all his rights, including having an attorney present at the time the oral statement was taped, the fact that an attorney, sent by his parents, was on the same floor of the building without the knowledge of appellant tainted the confession orally given. This taint was removed because of the hereinbefore related events, especially consultation with the attorney. We are forced, however, to hold that he waived that error when, after conferring with his attorney, he was again given his Miranda rights, including the right to an attorney, but chose to waive all those rights and reaffirm the confession by signing it.

 At this point it is necessary to address another decision of this Court. In Brunson v. State, 264 So.2d 817 (Miss. 1972), this Court dealt with an early Miranda issue. There, the defendant had been arrested and confessed before having been given his Miranda rights. He also told the police officers where he had hidden the stolen goods and led them to that place. Later that afternoon he was given the Miranda warnings and again confessed. An evidentiary hearing was held wherein the trial court excluded the first confession but admitted the testimony of an officer that the defendant had directed them to concealed loot. The trial court also admitted the second confession. In considering the case, this Court noted that at that point the state court was not allowed to consider the totality of circumstances in deciding on the admissibility of the confession. Of course, it has since been well established that this

 Court may consider the totality of circumstances in passing upon the issue of admissibility of a confession. The Court in Brunson specifically held that the conviction must be reversed because he confessed before his Miranda warnings had been given. The testimony of the officer with regard to the defendant leading them to the stolen goods, as well as the second confession were inadmissible since they were tainted by the first non-Miranda confession. The Court reluctantly reversed that case, deferring to the Miranda decision. Also cited was Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963), to the effect that all evidence obtained by virtue of illegal actions of the police is not" fruit of the poisonous tree ". The test is" whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality instead of by means sufficiently distinguishable to be purged of the primary taint. "(371 U.S. 487, 488)

 Brunson is distinguishable from the case at bar, in that all subsequent evidence was suppressed after it was established that the defendant confessed before being given his Miranda rights. This included the second Miranda confession, it being unduly influenced by his first illegal confession. Brunson was an early Miranda case for this Court. Now, with the Court having the ability to consider the totality of circumstances underlying the evidence, the Wong Sun test becomes more meaningful. This Court has held that the fruit of the poisonous tree doctrine is defeated where the confession is judged admissible. Wiley v. State, 449 So. 2d 756 (Miss. 1984); Hall v. State, 427 So. 2d 958 (Miss. 1982). Of course, in the case at bar, this Court is affirming the lower court's finding that the confession is admissible; as such, it is not fruit of the poisonous tree. In light of the numerous developments in case law dealing with Miranda ...

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