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SEPTEMBER 07, 1988




This shocking case of a mother's inhumanity to her child presents in sharp focus the dual ends of our criminal justice system: deciding whether the accused committed the crime but at once deciding the point fairly. The fairness point draws its importance from the dispute at trial whether the defendant mother was guilty of capital murder or some lesser homicide, and, assuming guilt of capital murder, whether at sentencing she should be put to death or imprisoned for life.

The trial we examine today - and with the benefit of twenty-twenty hindsight (for that is the sight the law requires that we bring to bear on appellate review) - fails the fairness test three-fold. The prosecution was allowed to present seven years' evidence of this mother's sporadic abuse of her child, evidence quite inflammatory but not fairly related to any issue in the case. To make matters worse, the prior abuse evidence was presented in pure hearsay form. Finally, in the face of a defense discovery violation, the trial judge's preclusion of practically the entire case for the defendant at sentencing was a bit heavy handed. We reverse and remand for a new trial.



 Our courts frequently encounter painful examples of tragic and premature endings to the lives of the young. That we have seen such before in no way deadens the sense of shock we experience today.

 At the time of her death fifteen-year-old Paula Susanne Houston was a petite, quiet teenager, poised to graduate from the ninth grade at the Pope School. Paula was a straight-A

 student, scheduled to receive academic excellence awards in English, science and history. But Paula never got her awards. For reasons we may only partially know, Paula's life was brutally taken - by her mother.

 Many of the facts are found in the voluntary confession of Judy Lane Houston, Paula's mother, as given to law enforcement officers the day after the murder.

 Apparently, on Sunday, June 2, 1985, Houston had discovered a letter from Paula to a girlfriend in which Paula had counseled her friend to be sure before she did "it" with her boyfriend. The letter went on to describe Paula's dreamy state over an unidentified boy. Houston and her husband, Larry Houston, got into a heated argument about Houston reading Paula's letter, but when Houston asked her husband to punish Paula he "dusted her britches" with a belt. Larry Houston then stormed off to work sometime prior to 10:00 p.m. and did not get home until sometime after 7:45 a.m. on Monday, June 3, his shift at his place of employment in Grenada having ended at 7:00 a.m.

 In her confession, Houston said that when she got up at 6:30 a.m. Paula was already up and dressed. Houston claimed that Paula refused to go to school in spite of the fact that final exams were being given. Instead, Paula went to work washing her clothes and feeding and watering the animals, while Houston got the other two girls ready for school. Houston claims that after the girls got on the bus for school, Paula came in and cursed her and accused her of marital infidelity.

 . . .Paula started the fight by acting like she was going to scratch me. She had never put her glasses on. She had a wild look on her face, that's when I grabbed her right arm and gave her a flip. She fell and hit the floor. She started to call me a slut. When she tried to get up, I slapped her on the side of her head. She tried to get up a second time. She was down on her hands and feet (all fours). There was a pink macrame belt lying on Paula's bed. I reached over and grabbed the belt and dropped it over the front of her head. . . I held the belt around her neck for a short time and she just collapsed.

 After this, Houston says she went outside, lay down and cried, then came back in and tried to revive Paula by shaking her, calling her name and pouring water on her, but to no avail.

 As though nothing had happened, Houston called the Charleston Clinic and made an appointment for herself at 8:30 that morning. She then took Paula's outer clothes off and put Paula's body in the trunk of her car. She went to the clinic; left there around 10-10:30 a.m.; drove to a dump on the banks of the Yocona River in south Panola County; took Paula's underpants and bra off and threw Paula's body off the bank. When she got home, Larry Houston was there and she asked him if his insurance would cover her medical bills. Larry Houston asked where Paula was. Houston suggested that she may have run off with a boy. Larry Houston told her to check with the school, and later to go to town to get her prescriptions filled and report Paula missing.


 On June 14, 1985, Judy Lane Houston was formally charged with capital murder in an indictment returned by the Panola County Grand Jury. The indictment alleged more specifically that on or before June 3, 1985, Houston had murdered her fourteen year old daughter, Paula Susanne Houston, while engaged in the crime of felonious child abuse and battery. See Miss. Code Ann. 97-3-19 (2) (f) and 97-5-39 (2) (Supp. 1987).

 After change of venue to Desoto County, the case was called for trial on December 2, 1985. A five day trial ensued, the jury in the end returning a verdict of guilty as charged. On December 7, 1985, at the conclusion of the penalty phase, the jury determined that Houston should suffer the punishment of death. From this conviction and sentence, Houston appeals.


 Houston argues that the Circuit Court erred in overruling her objections to the jury's receiving the statements she had given law enforcement authorities. More specifically, she claims violations of her rights secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. We further consider her claim under Miss. Const. Art. 3, 26 (1890).

 Three inculpatory statements are at issue here: the June 4, 1985, confession; a June 5 statement; and, a June 7 statement. During the suppression hearing, Houston and the prosecution's witnesses testified to identical facts in relation to the last two statements.

 On June 5, 1985, while Houston was in jail, Panola County

 Dispatcher/Deputy, Dorothy Ann Collins, and Deputy Sheriff Joe Cosby had a fifteen minute interview with Houston. Collins read Houston her rights and Houston signed a waiver of rights form. Houston understood and freely and voluntarily waived her rights. She was not coerced and no force or threats were used. She did not ask for a lawyer or for the questioning to end. Houston told Collins and Cosby that she had strangled Paula with a pink macrame belt, but that she did not know where the belt was.

 On June 7, 1985, Houston was interviewed by Sheriff David M. Bryan and Deputy Cosby. She was orally informed of her rights, which she understood and freely and voluntarily waived. Again, Houston was not coerced. She did not request a lawyer. She told them that she had had a dream and that all she could remember was seeing the belt around Paula's neck.

 Between 4:00 and 5:00 p.m. on June 4, 1985, Panola County Sheriff Bryan and Jay Clark, a criminal investigator with the State Highway Patrol, took Houston from her home to the Panola County Courthouse for questioning. Houston testified that she was not advised of her rights, but she gave the sheriff an exculpatory statement anyway. Houston claims that at this point she was taken back to the Sheriff's car where he told her that he knew she had done it, that someone had seen her dumping the body, and that it would be easier on her if she told the truth. Bryan and Clark testified that this did not happen.

 Everyone agrees that she (then or initially) was Mirandized and that she signed a waiver or her rights. Bryan and Clark stated that she said she understood her rights, that she was alert and calm, that she was not coerced or threatened, and that she never requested a lawyer. Houston stated that she did not really understand all of her rights at that time, that she was "upset, nervous, numb, whatever. Didn't really know what was going on" and that she "thought" she requested a lawyer. Sheriff Bryan wrote down Houston's seven-page confession, at the end of which Houston signed each page. She was then formally charged with the murder and put in jail. The Circuit Court held that all of these statements were admissible.

 Houston argues that these statements given to law enforcement officials should have been suppressed because her right to counsel had attached and was violated. She cites

 Page v. State, 495 So. 2d 436 (Miss. 1986); Edwards v. Arizona,

 451 U.S. 477 (1981); and, Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L.Ed.2d 631 (1986).

 Although Houston's right to counsel had attached at the time she gave her confessions, Nicholson v. State, 523 So. 2d 68, 76-77 (1988), the evidence convincingly establishes that Houston knowingly, intelligently and voluntarily waived her rights, including her right to counsel. Page v. State, 495 So. 2d 436, 440 (Miss. 1986); Jordan v. State, 464 So. 2d 475, 480 (Miss. 1985). She has been denied no right secured to her by federal or state constitution. The Circuit Court's holding in this regard is beyond our authority to disturb. Frost v. State, 483 So. 2d 1345, 1350 (Miss. 1986); Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985); Neal v. State, 451 So. 2d 743, 753 (Miss. 1984).


 Houston argues that physical evidence taken from her home and car should have been suppressed because the law enforcement officials never received competent consent to search. In this she claims violation of rights secured to her by the Fourth and Fourteenth Amendments to the Constitution of the United States. In support of her position, Houston points to a portion of the suppression hearing, during which the Circuit Court sustained a defense objection to the sheriff's supposition that the Houston home was owned jointly by Houston and her husband, Larry Houston. Houston cites Foti Construction Co. v. Donovan, 786 F.2d 714, 717 (6th Cir. 1986).

 At the conclusion of a lengthy suppression hearing, the Circuit Court held admissible any evidence seized from Houston's car and the Houstons' home, as such was the product of a valid consent search. The evidence established that Larry Houston was in a position to give his consent to the searches and that he did so voluntarily and with no coercion.

 Larry Houston was advised of his rights and freely and voluntarily signed a consent to search form. Houston, herself, on cross-examination, said that her car was registered in her husband's name and that she and her husband shared their home and were buying, rather than renting, it. The fact that the defense objection to the sheriff's "supposition" that the home was jointly owned was sustained is irrelevant because there was other evidence of joint control.

 In Shaw v. State, 476 So. 2d 22, 24 (Miss. 1985), quoting Brown v. State, 358 So. 2d 1004, 1005 (Miss. 1978), we said:

 "Consent to search voluntarily given without coercion may be given by a third party who possessed common authority, mutual use and joint

 control over property not in the exclusive control or possession of the defendant and where the defendant had no reasonable expectation of privacy.

 Haralson v. State, 318 So. 2d 891 (Miss. 1975); United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L.Ed.2d 242 (1974).

 As an aside, the record indicates that none of the evidence seized from the car was entered into evidence at trial and the only evidence seized from the house entered into evidence at trial was a note written from Houston to her husband on the morning of the crime (turned over by Larry Houston), notes of Paula's retrieved from Paula's bedroom, and photographs of the exterior of the house, the hallway, the bathroom, the laundry room and Paula's bedroom.

 The assignment of error ...

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