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JULY 09, 1986





At the core of this appeal is the question whether law enforcement officials may, consistent with an accused's constitutional right to counsel, conceal a body microphone on a co-defendant and thereby obtain from the accused substantial incriminating statements - and use those statements against the accused at his trial.

 Here, the trial judge denied defendant's objection to the State's offer of such an incriminating tape recorded conversation as evidence. This was error, for incriminating statements emanating from such circumstances are inadmissible at the accused's trial. Because in this arson prosecution this tape recording formed a major part of the State's case in chief, we reverse and remand.


 On October 26, 1982, shortly after midnight, Gary Hargrove, a lieutenant paramedic with the Gulfport Fire Department, was called to a fire at Charlie's Antiques on 25th Avenue in Gulfport. Upon breaking into the locked building Hargrove and accompanying firemen found two areas that were burning, one in the bottom floor garage area and another on the second floor. Both fires were extinguished within approximately 19 minutes.

 Steven Baudier, captain with the Gulfport Fire Department, participated in the subsequent investigation and discovered two vans in the building in which were found containers of gasoline. The containers had no tops on them and had holes punched in them to allow the gas to run out. Lying next to the containers were books of matches into which cigarettes had been inserted and secured under the matches so that when the burning cigarette got to the match heads it would ignite the box of matches. Four setups of this type

 were located. Two of these devices had not ignited, one had extinguished itself for lack of oxygen, and the other for unknown reasons.

 Roy Necaise, Fire Marshall with the Gulfport Fire Department, was called to the scene. Photographs were taken and the owner of the buildings was identified as Charles Ditcharo. Investigation revealed that Ditcharo had approximately $60,000 structural insurance on the building.

 Herbert Hawk and Dewayne Necaise were identified as employees of Ditcharo. Hawk lived in a trailer with Ricky R.

 Page and Darlene Ellzey, the Defendants below and Appellants

 here. *fn1 When he was questioned by Necaise and Wayne Payne, Hawk first claimed that he did not know what the officers were talking about but then admitted his involvement and implicated Ricky and Darlene. The prosecution's theory of the case ultimately was that Ditcharo had hired Ricky to burn the building so he could collect the insurance proceeds. Darlene is said to have assisted Ricky in this incendiary adventure.

 Hawk talked with Ricky Page several times after this admission. Some of these conversations were before he and Ricky were arrested and some were after. In the conversations before the arrest Ricky just told him to keep quiet and there would be no evidence and everything would be all right. Hawk said that Ricky offered him $500 and a car to leave town. This is confirmed in the tape recording challenged on this appeal.

 After Ricky and Darlene's arrest, and after Ricky's release from custody on $25,000.00 bond, Detective Payne "armed" Hawk with a concealed body microphone and sent him off to talk with Ricky. Thereafter, while the two were watching T.V. at Ricky's house, Hawk engaged Ricky in conversations, the preserved contents of which are the subject of the dispositive assignment of error discussed below. Hawk was at this time under arrest for burglary but not yet for the arson. Detective Payne acknowledged that he had put the mike on Hawk and along with Inspector Necaise monitored the conversation. Ricky made substantial inculpatory statements about this and other crimes.

 On October 28, 1983, Ricky Page, Darlene Ellzey and Herbert Hawk were charged with arson of the premises known as Charlie's Antiques in an indictment returned by the Harrison County Grand Jury. Miss. Code Ann. 97-17-5 (1972). Each entered a plea of not guilty. The charges against Hawk were severed and the case against Ricky and Darlene was called for trial on January 23, 1984.

 Laura Ditcharo, sister of Herbert Hawk and wife of Charles Ditcharo (the owner of the antique store) testified that her brother, Herbert, had had a severe drug problem for 13 or 14 years. She had made various arrangements over the years for mental help for him, but the problem was still prevalent. Laura testified that Hawk had called her in January crying about the statement he had given Roy Necaise (implicating Ricky and Darlene in the arson), saying that it wasn't true and that he had put a lot of people in trouble and wanted to get out of what he had done. Hawk said that Roy Necaise was going very hard on him and had pressured him to think of something that would convict Ricky and Darlene.

 Randy Page, Ricky Page's brother, testified that Ricky was home the entire evening on the night of the fire as was Darlene. He testified that Herbert Hawk was in and out all evening. He testified that Hawk was addicted to glue and paint thinner and had been sniffing these substances in the bathroom all evening. He testified that Hawk behaved irrationally when he did this and would often break into Goodwill boxes and drag home old TV's and stuff like that. Randy testified that Hawk cried and told him that he had signed a statement against Ricky and Darlene because it was the only way they would let him out of jail, but that the statement was not true. Randy came forth with this alibi defense the day before the trial.

 E. J. Entrekin, Herbert Hawk's brother, testified that Herbert told him he testified against Ricky and Darlene because he was high and he told them what they wanted to hear in anticipation that all charges against him would be dropped.

 Charles Ditcharo, the owner of the business that burned and Herbert Hawks' brother-in-law, testified that he was not even informed of the fire until the following day. Ditcharo further testified that Hawk had told him that, if he testified against Ricky, he would then be allowed to go scot free.

 On rebuttal Hawk testified that Necaise had never offered him anything to testify against Ricky and Darlene Page and that he was positive that he and Ricky and Darlene had set the fire.

 The jury found both Ricky and Darlene guilty of arson. Upon these convictions, the Circuit Court sentenced Ricky and Darlene each to the custody of the Mississippi Department of Corrections for a period of ten (10) years. Miss. Code Ann. 97-17-5 (1972). These consolidated appeals have followed.


 At the outset, Ricky and Darlene each claim that the evidence - as to each of them - is insufficient as a matter of law to sustain a conviction. Each here seeks a determination that, because of the evidentiary insufficiency said to be apparent from the record, each should be finally discharged. The point need not detain us. The standards we apply when presented such a proposition are well settled and clear. See, e.g., Gavin v. State, 473 So.2d 952, 956 (Miss.1985); Winters v. State, 473 So.2d 452, 459-61 (Miss.1985); Cook v. State, 467 So.2d 203, 209 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984). When these standards are applied to the testimony summarized above, we may only hold that this assignment of error must be denied.



 Appellants' dispositive assignment of error concerns the admission into evidence of the recording of the inculpatory statements Ricky Page made to Herbert Hawk. The circumstances under which the tape recording was obtained need to be made clear.

 On December 22, 1982, - almost two months after the fire - Detective Wayne Payne of the Gulfport Police Department enlisted Hawk's services in an effort to obtain information from Ricky Page. Hawk at the time was under arrest for burglary but not yet for arson. Ricky had been arrested but had been released from custody the day before on $25,000.00 bond. Prior to this time Ricky had obtained counsel to assist him in the defense of the arson charge at this time. *fn2 Officer Payne placed a body transmitter on Hawk who was then dispatched to confer with Ricky, which Hawk did in fact accomplish. Not only was the Hawk-Ricky Page conversation recorded; it was monitored by Detective Payne and Inspector Roy Necaise of the Gulfport Fire Department. Suffice it to say that Ricky made statements preserved via tape recording which were substantially incriminating both with respect to himself and Darlene.

 On appeal Ricky assigns as error receipt of this tape recorded statement into evidence on a plethora of grounds. It is necessary that we consider only one: the denial of Ricky's constitutionally secured right to counsel Miss. Const. Art. ...

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