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JIMMY EARL McCARTY v. STATE OF MISSISSIPPI

DECEMBER 06, 1989

JIMMY EARL McCARTY
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., AND PRATHER, and ANDERSON, JJ.

ANDERSON, JUSTICE, FOR THE COURT:

This is an appeal of the judgment and sentence of the Circuit Court of Wayne County, wherein Jimmy Earl McCarty was convicted of burglary and sentenced as an habitual offender under the provisions of Mississippi Code Annotated, Section 99-19-81 (Supp. 1988), to serve a term of ten (10) years, without the possibility of parole or probation. In reversing, we address two of the five errors asserted by McCarty on appeal.

STATEMENT OF FACTS

 On July 15, 1987, the Wayne County Grand Jury returned a multi-count indictment against the appellant, charging that Jimmy Earl McCarty committed the crime of Burglary of the dwelling house of Robert L. Sumlin on June 17, 1987, and stealing four items: a rifle, a VCR, car battery, and a set of stereo speakers. The appellant was also indicted for the burglary of the dwelling house of Willie Bodie on June 19, 1987 and stealing a color television. A third count of providing stolen property to Alvin Worsham was filed against him, but the trial court granted appellant's demurrer.

 Wayne County Deputy Sheriff, Harold McInnis arrested McCarty on June 19, 1987 as McCarty walked along the side of U.S., Highway 84 heading west toward Waynesboro in Wayne County, Mississippi. McCarty was taken to the sheriff's department, placed under arrest, and given his Miranda Warnings. *fn1 The appellant did not request counsel, but he did say that he knew nothing about a burglary. Upon request the appellant gave the sheriff his tennis shoes, which were used to assist in the investigation of the burglary at Bodie's home. After further investigation the sheriff returned to the appellant and attempted to advise him of his rights, but McCarty cut him off explaining that he already knew his rights and still denied knowing anything about the burglary. After more investigation the sheriff again returned to McCarty and told him that he knew he had committed the burglaries. This time, however, the sheriff did not give nor attempt to give the appellant his Miranda warnings. In response, the appellant agreed to show the sheriff where the television was hidden. With McCarty's assistance the sheriff and his deputies recovered the television.

 The appellant argues that he knew nothing about a burglary nor was he ever advised of his Miranda Rights. He also testified that he made no admission to the sheriff.

 PROPOSITION I

 THAT THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S

 MOTION TO SUPPRESS HIS ALLEGED CONFESSION OR ADMISSION

 It is undisputed that the appellant was subjected to custodial interrogation on three separate occasions. Although there is contradictory testimony concerning the first two interrogations the testimonies concerning the third interrogation do not differ.

 According to the prosecution, the sheriff gave the appellant his Miranda Rights when he was brought to the department and placed under arrest. McCarty neither requested an attorney nor

 did he choose to talk other than saying that he knew nothing about the burglary and that he had been in Laurel. After more investigation, the sheriff approached the appellant inquiring about his involvement in the burglary. As the sheriff was explaining his rights to him again, McCarty abruptly interjected saying that he knew his rights. He again denied having any involvement in the burglary.

 The deputy sheriff also testified at the suppression hearing as well as the trial. He stated that the sheriff did give the defendant his Miranda Warnings when he brought McCarty into the office. Moreover, McCarty stated that he understood his rights, but he also denied knowing anything about the burglary. He also explained that on the second confrontation the defendant said that he knew his rights.

 Although the sheriff and deputy differed on the exact location where the Miranda Warnings were given, their testimonies were substantially the same. However, the appellant continuously maintained, during the suppression hearing and the appeal, that the sheriff and his deputies never informed him of his rights, and made no confession or admission.

 DISCUSSION OF LAW

 In determining whether a confession was freely and voluntarily given the circuit court sits as the fact finder. The trial judge first must determine whether the accused has been adequately warned. And, under the totality of circumstances, the court then must determine if the accused voluntarily and intelligently waived his privilege against self-incrimination. Layne v. State, 542 So. 2d 237, 239 (Miss. 1989); Pinkney v. State, 538 So. 2d 329, 342 (Niss. 1988); and Gavin v. State, 473 So. 2d 952, 954 (Miss. 1985). Accord Edwards v. Arizona, 451 U.S. 477, 486, 101 S.CT. 1880, 1885, 68 L.Ed.2d 378, 387 (1981).

 The defendant in the case sub Judice does not attack the voluntariness of his alleged confession or the knowing waiver of his privilege against self-incrimination, but he does maintain that he made no confession or admission. He alleges that the sheriff and deputy failed to inform him of his rights altogether. Therefore, the State has the burden of proving all facts prerequisite to admissibility beyond a reasonable doubt. Gavin, 473 So. 2d at 954 (citations omitted).

 There are practical and institutional limitations upon this Court's ability to find facts; consequently, much deference is placed upon the trial judge's full discharge of his responsibility to make findings of fact as the question of whether Miranda rights have been intelligently, knowingly and voluntarily waived. Gavin, supra at 955. Moreover, when there is conflicting evidence, as in this case, and the trial judge" determines that a confession is admissible, his finding becomes a finding of fact which will not be reversed on appeal unless it is manifestly in error or contrary to the overwhelming weight of the evidence. "Pinkney, 538 at 342; see also, Frost v. State, 483 So. 2d 1345, 1350 (Miss. 1986); Gavin, 473 So. 2d at 955. Cf. Davis v. State, So. 2d, 1989 Miss. LEXIS 364 (Miss. No. DP-86, dec. July 26, 1989) (not yet reported) (this Court is limited by substantial evidence rule when considering findings of fact).

 The trial judge in this case made no extensive findings of fact. Rather, after listening to the evidence he was of the opinion that the motion to suppress" should be and is hereby overruled. "Likewise at trial when the admission was offered into evidence, the defense objected; but the court simply overruled it.

 As this Court has explained:

 There will be no doubt times when such a cursory handling of the question of voluntariness will place us in an awkward position. We sit as an appellate court, and as such are ill equipped to find facts. Pragmatically speaking it is essential that we have from our trial courts findings of fact upon which we may rely, for, if we had to find the facts anew in every case coming before us, we would become even further bogged down in the dispatch and management of our caseload. Beyond that, even if we wanted to be fact finders, our capacity for such is limited in that we have only a cold, printed record to review. The ...


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