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CHARLIE W. GAVIN v. STATE OF MISSISSIPPI

JULY 31, 1985

CHARLIE W. GAVIN
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J.; DAN M. LEE & ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This murder-turned-manslaughter case presents little in the way of novel questions of law. Charlie W. Gavin shot and killed Eula Mae Reece and the only question from the outset has been whether the killing was murder, manslaughter or justifiable homicide. We cannot say that the jury departed from its responsibilities under the law when it found Gavin guilty of manslaughter.

 Beyond this, Gavin challenges the admissibility of his confession, saying that it was given when he was in the hospital and under sedation and hence incapable of a voluntary waiver of his privilege against self-incrimination. The uncontradicted record, however, shows the contrary, that at the time of the confession Gavin was experiencing no impairment of his mental faculties. Under these circumstances we have no alternative but to affirm.

 II.

 On July 2, 1983, between 4:00 and 5:00 p.m., Charlie W. Gavin, the defendant below and the appellant here, went to Bostich's Cafe in Grenada, Mississippi. Eula Mae Reece was an employee at the cafe. Without apparent authorization Gavin took a six pack of beer from behind the counter, whereupon Reece immediately jumped up and struck Gavin in the head with a beer bottle. Within moments blood was dripping onto the floor from Gavin's head.

 Apparently stunned, Gavin attended to his wound, and as he could not see it, asked how badly he was hurt. He apologized to Reece for not paying for the beer. The record reflects that Reece had been teasing Gavin and playing around with him before all of this had occurred.

 A few minutes thereafter, Reese went to the cash register and started counting money. She was apparently getting ready to close the cafe for the day. There is no evidence at this time that Gavin was under any threat of serious bodily harm. At that point, apparently without warning, Gavin whirled and started shooting, fatally wounding Reece. An autopsy revealed that Reece died from bleeding in her chest cavity and in her lungs. She had four bullet wounds all from bullets that had entered the left side of her body.

 After the shooting, Gavin left the cafe and walked a little over a hundred yards when he apparently lost consciousness. He was taken to the Grenada County Hospital where the next day he gave a statement to the law enforcement officers admitting that he shot Reece.

 On July 15, 1983, Gavin was charged with the murder of Eula Mae Reece in an indictment returned by the Grenada County Grand Jury. Miss. Code Ann., 97-3-19 (1)(a) (Supp. 1984). He entered a plea of not guilty. On February 1, 1984, the case against Gavin was called for trial, at the conclusion of which the jury acquitted Gavin of the crime of murder but found him guilty of the lesser included offense of manslaughter. Miss. Code Ann., 97-3-35 (1972). Upon this conviction, on February 2, 1984, the Circuit Court sentenced Gavin to the custody of the Mississippi Department of Corrections for a period of eighteen years.

 In due course thereafter Gavin filed a motion for a new trial challenging both the weight and the sufficiency of the evidence. On February 10, 1984, the Circuit Court entered its order overruling this motion. Gavin now appeals to this Court.

 III.

 Gavin's first assignment of error challenges the trial judge's overruling of his motion to suppress his inculpatory statement. The record reflects that on July 3, 1983, the day following the homicide, Gavin gave a statement to law enforcement authorities at a time when he was a patient at the Grenada County Hospital. In this statement Gavin admitted that he shot Eula Mae Reece. At trial Gavin objected to the State's use of this statement against him on grounds that at the time the statement was given he was under sedation and medication and was experiencing pain and accordingly had a" diminished capacity "to give a voluntary statement.

 Here there is no question but that the warnings required under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966), were given. The giving of the Miranda warnings, however, is only the first step. To render a subsequent inculpatory statement admissible the State must take the second step and prove that the rights of which the accused has been Miranda-warned were thereafter waived - intelligently, knowingly and voluntarily. Jones v. State, 461 So. 2d 686, 696 (Miss. 1984); Neal v. State, 451 So.2d 743, 753 (Miss. 1984). In this regard, the State correctly acknowledges that, where a criminal defendant challenges the voluntariness of a confession, he has a due process right to a reliable determination that the ...


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