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STATIE SMITH, JR. a/k/a Statie Smith, III. v. STATE OF MISSISSIPPI

NOVEMBER 16, 1988

STATIE SMITH, JR. a/k/a Statie Smith, III.
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, ROBERTSON AND ANDERSON

ANDERSON, JUSTICE, FOR THE COURT:

Statie Smith was convicted of rape in the Circuit Court of Marshall County and sentenced to twenty years' imprisonment. On appeal, Smith alleges that his confession was erroneously admitted into evidence and that he was entitled to a new trial because a relative of the victim sat on the jury. Finding no error, we affirm.

FACTS

 On the night of May 7, 1985, a man broke into the victim's home, bound her arms with a discarded extension cord, and raped her twice over the ensuing three to four hours. The victim stated that she never saw the rapist's face, but described him as a young black man in his 20's, who was about five feet tall with soft skin. On the stand, the victim stated that her assailant's hands were rough and calloused.

 Statie Smith, a sixteen-year-old black youth, was one of three suspects arrested during the investigation of this crime. Of the three suspects only Smith's fingerprints were found in the victim's home. Smith was arrested on May 12, 1985. While the law enforcement officials were making the arrest, Smith apparently became frightened or hostile and resisted the arrest, brandished a gun and assaulted one of the officers.

 Two days later, on the morning of May 14, 1985, Smith was taken before J. M. Ash, the Marshall County Youth Court Referee for determination of whether he should be further detained on charges of burglary, resisting arrest and assault upon a law enforcement officer. At this detention hearing, Smith was represented by appointed counsel, Kizer Jones. Jones and Ash testified that the rape was not brought out in the Youth Court hearing. Apparently, Smith had not yet been charged with this crime.

 The Youth Court Referee concluded that there was probable cause on the crimes charged to warrant further

 detention of the defendant. At this time, the referee also gave Kenneth Dickerson, a criminal investigator with the Mississippi Highway Patrol, permission to question Smith, while cautioning Dickerson to have one or both of Smith's parents present during any questioning.

 On the afternoon of May 14, 1985, Smith called Dickerson to his cell, saying he wanted to make a statement. Dickerson contacted Smith's mother. No one notified Jones, who, it will be recalled, had been appointed to represent Smith earlier that day. Dickerson orally informed both Smith and his mother of Smith's Miranda rights. Smith's mother consented to her son giving a statement and both she and her son signed a waiver of his rights. Smith then confessed to the May 7 rape.

 Trial was held in the Marshall County Circuit Court on February 3-6, 1986. The taped confession was admitted into evidence over defense objection.

 I. DID THE TRIAL COURT ERR IN ADMITTING THE CONFESSION SECURED IN VIOLATION OF THE YOUTH COURT ACT?

 Smith's first argument is that the Youth Court Act is applicable to the facts of this case and that his confession was secured in violation of the Act. We have held that when a juvenile is charged with an offense carrying a potential life sentence, such as rape or murder, jurisdiction is vested exclusively in the circuit court and the Youth Court Act is inapplicable. Johnson v. State, 512 So.2d 1246, 1250 (Miss. 1987); Winters v. State, 473 So. 2d 452, 459 (Miss. 1985). This determination flows from the language of the Youth Court Act, Mississippi Code Annotated, Section 43-21-105 (j) (Supp. 1986), defining a delinquent as:

 (j)." Delinquent Act "is any act which if committed by an adult is designated as a crime under state or federal law, or municipal or county ordinance [other than offenses punishable by life imprisonment or death.] * A delinquent act includes escape from lawful detention. (Emphasis added).

 At the time Smith gave his confession he had not been charged with any crime that would remove him from the Youth Court's jurisdiction. The crimes with which he had been charged, burglary, resisting arrest and assaulting a police officer, all fall within the Youth Court's jurisdiction. Therefore, the circumstances surrounding Smith's confession must satisfy

 the Youth Court Act.

 MCA 43-21-311 (4) (Supp. 1986), provides:

 Except for the child's counsel, guardian ad litem and authorized personnel of the youth court, no person shall interview or interrogate the child held in a detention or shelter facility unless approval therefor has first been obtained from the judge or his designee. When a child in a detention or shelter facility is represented by counsel or has a guardian ad litem, no person may interview or interrogate the child concerning the violation of a state or federal law, or municipal or county ordinance by the child unless in the presence of his counsel or guardian ad litem or with their consent.

 In In Interest of W. R. A., 481 So. 2d 280 (Miss. 1985), on facts almost identical to those in the case at bar, we held that MCA 43-21-311 (4) had not been violated. In W. R. A., the youthful offender was represented by counsel on charges wholly unrelated to the charges under investigation. The officers interrogating W. R. A. did not know that he had an attorney representing him on the other charges. One of the officers obtained permission from the Youth Court Referee to question W. R. A. After this, W. R. A.'s mother was contacted and consented to his being questioned. W. R. A. was informed of his rights and waived them. Neither he nor his mother told the officers that he had an attorney.

 One important question left unanswered in W. R. A. was" whether law enforcement officials would under section 43-21-311 (4) have the obligation to notify and obtain consent from [the attorney] had they known of his representation? "In Interest of W. R. A., 481 So.2d at 285. In the case at bar, investigator Dickerson testified that he was aware that Smith was represented by Attorney Jones on charges brought before the Youth Court earlier in the day. He emphasized that neither Smith nor his mother informed him of this fact, nor asked that he be present. We hold, notwithstanding the interrogating officer's knowledge that the defendant had counsel, that the interrogation did not violate MCA 43-21-311 (4). However, we caution that where, as here, no guardian ad litem has been appointed, the better practice is to ...


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