HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Randy Bevill appeals his conviction of capital murder in the circuit court of Monroe County, upon change of venue from Lee County, and sentence to death. We have addressed numerous claims of error made by Bevill. One requires reversal, the introduction into evidence of an admission by Bevill, given to law enforcement officers without a Miranda warning, that he was in the neighborhood of the victim on the night of the murder. We reverse and remand. In this opinion we also give direction as to questions which either will or may recur upon retrial.
July 31, 1986, was a Thursday. Amy Clayton, who had turned 18 on July 3, graduated that May from Saltillo High School, and who expected to attend Itawamba Community College in the fall on a cheerleader scholarship, lived with her parents Joe and Carolyn Clayton at 1401 Frances Square in Tupelo. Also living at this home were Amy's two older brothers, Brad and Robert (Rob) Clayton.
Amy spent the day at the home of her maternal grandmother, who had broken her leg, and was being cared for by the Claytons. Mrs. Clayton went to their home to get some clothes before spending the night with her mother on Mitchell Road, and relieving Amy. Amy left her grandmother's about 6:30 p.m.
When Amy got to the Clayton residence, only Brad was there. They went to a store for some gasoline for Amy's car and soft drinks, and then returned home where Amy prepared supper. The two ate around 7:00-7:30 p.m.
Their brother Rob came home about 7:30 and a short while later Jimmy Gray, on the softball team with the boys, arrived. The two of them left around 8:00 to go to the softball field in the Palmetto community. Around 9:00 p.m. Brad left to join the
team. He invited Amy to go with him, but she wanted to stay home and jog. Amy routinely jogged on a pathway above the Joyner School around the Joyner City Park area.
This was the last Brad saw his sister alive.
Mr. Clayton was employed by the Lee County Extension Service. He was out in the field all day, and did not get off work until 6:00 or 6:30 that evening. He went to the softball game, arriving there around 9:00. Following the game he and Brad returned to the Clayton residence, arriving around 11:30.
Amy was not home, and around midnight Mr. Clayton became worried. He telephoned Mrs. Clayton who came home. He called some of Amy's friends. Around 1:00 a.m. he notified the police, who came to the Clayton residence, and Mr. Clayton accompanied them looking for Amy. They traced the area where she normally jogged. The Claytons spent a sleepless night, continuing to search and wait for Amy. Around 6:00 a.m. Mr. Clayton called his brother Jerry Lee Clayton, the chancery clerk.
Al Wallace was jogging around Legion Lake at 6:00 a.m. that Friday, August 1, and as he looked across the lake he saw what appeared to be a human body down by the lake. When he got to the area where he had spotted the body, he left the road, walked down to the lake and discovered the body of a girl who had been dead for a period of several hours.
Wallace called the police, who promptly investigated. Jerry Lee Clayton was called to the scene and identified the body as Amy.
City and county law enforcement officers investigated the scene. Sheriff Roy Sandefer and Police Chief Ed Crider assigned officers to comb the area. *fn1 The body was 22 feet from the road and 18 feet from the lake. The shoes were 8-to-10 feet from the body in underbrush, and a white sock was found three feet above her head. The body was slightly over a half mile north of the Clayton residence. This was not the area where Amy had customarily jogged, Joyner Park being south of Frances Square. Found 167 feet from the body was a bloodied, sleeveless, white Fruit of the Loom brand "tank top" muscle shirt, also called a "t-shirt." While called a "t-shirt" this should not be confused with military t-shirts which have short sleeves. This undershirt was made of ribbed material, size 46-48 extra large. At a distance of 515 feet from the body, near a stop sign intersection of Country Club and Legion Lake roads, a size 34 pair of J.C. Penney brand under shorts was also found.
Dr. Thomas Bennett, state medical examiner, performed an
autopsy on the body in Jackson. He determined the time of death between 10:00 p.m. and 12:00 midnight on Thursday, July 31. Amy's sock and shoes had been removed, and prior to her death, one of her shoe strings was used to tightly bind her wrists in front of her body, and one of her socks was used as a gag. Dr. Bennett noted two bruises on the top of her head caused by some blunt instrument. The autopsy revealed 34 stab wounds as well as abrasions, lacerations and bruises. The vagina had been torn, bruised and scraped by something blunt, which Dr. Bennett stated could have been a penis, and dead spermatozoa were found inside the vaginal vault. Dr. Bennett determined this spermatozoa had probably been deposited some time between 18 and 14 hours before the 7:30 p.m. autopsy on Friday, August 1.
Randy Bevill, a native of Pontotoc County, 30 years of age, was indicted on March 10, 1986, by the Pontotoc County grand jury in cause number 9041 for burglary of the inhabited dwelling of Lonnie Briggs on December 7, 1985. The same grand jury also indicted Bevill in cause number 9042 for burglary of an inhabited dwelling of Sue Hurley on September 10, 1985.
On July 11, 1986, Bevill pleaded guilty to both indictments. Bevill was sentenced on July 18, in cause number 9041 to ten years imprisonment, with the sentence suspended. He was placed on five years probation, three years supervised.
In cause number 9042 no sentence was imposed by the circuit court at the July Term. An order was entered on July 18 continuing the cause indefinitely for sentencing.
Following the crime, the officers received descriptions of suspicious or strange people in the area. Michael H. Sadler, a next door neighbor to the Claytons, furnished a description of a man seen walking toward the Clayton home around 10:15-10:30 p.m. on Thursday night. He appeared approximately five feet nine inches tall, was stocky, with a beard, dark hair, and wearing a headband, a light t-shirt and dark trousers. This description helped make a composite picture which was published in the North Mississippi Daily Journal on August 2.
Iris Cowly lived at 1201 Eugene Street, in the immediate neighborhood of the Claytons, although they were not acquainted. She and Bevill had previously dated, but had broken up. She had complained to the police that Bevill had come by her house on Thursday night, banging on the door and wanting to get in.
Larry K. Rickels, criminal investigator with the Mississippi Highway Patrol, and a resident of Lee County, led the criminal
investigation. The law enforcement officers had received sufficient information to want a picture of Bevill. The sheriff's office in Pontotoc County was contacted on Saturday, August 2, and Lee Monts, a constable and deputy sheriff in Pontotoc County, informed the law enforcement officers he could obtain one. According to Monts a picture of Bevill was obtained. It was delivered by Monts to a Lee County deputy at the county line shortly after 1:00 p.m. This picture, however, is not in the record.
Monts' version of what transpired that afternoon was given at a pre-trial suppression hearing. Later that afternoon, according to Monts, he ran into Bevill at a barn in the north part of Pontotoc County. After about another hour, according to Monts, he received a radio call asking him "if I knew where I could pick this subject up at." Monts then attempted, without initial success, to locate Bevill. Still later, according to Monts, he received another radio call, and this time recognized Rickels' voice on the radio. The Lee County sheriff's office radioed "to see if I had went [sic] 10-15 with the subject." Finally, around 5:00 p.m., after searching for Bevill, Monts found Bevill with some more individuals working on a barn. According to Monts, Bevill came over to him and said, "Somebody tells me that you want to talk to me." Monts replied, "Yeah, Randy, I do. You have got to go to Tupelo with me." Bevill wanted to know the reason, and Monts replied, "Randy, I can't tell you." He also told him it was very serious and "you are going to have to go with me."
According to Monts he radioed Lee County that "I was in 10-15," and "that means that you've got your subject arrested, in custody and fixing to transport them." According to Monts, Rickels asked him if Bevill's truck was there, and Monts told him it was. Monts told one of the other men to drive Bevill's truck to Tupelo, and Bevill rode with Monts. He testified that Bevill had asked him if he could drive his own truck, and Monts told him that he could not, but had to stay in the car with him [Monts].
Monts testified that he never told Bevill he was under arrest, but he did tell Bevill that "he had to go with me."
When Monts had transported Bevill to the Lee County jail, he told him that he had to go in and "talk with some investigators." Monts walked into the jail with Bevill, told the officers "This is Randy."
Monts did not give Bevill any Miranda warning.
There were several law enforcement officers gathered at the jail. Sadler was also there, although Monts did not know him.
According to Monts, when Rickels came in he asked the man (Sadler) if Bevill was the man he had seen walking down the street. Sadler replied that from the picture he had seen he did not think it was Bevill, but after seeing Bevill in person he was more certain he was not the man he had seen on Thursday night.
Finally, Monts testified that Rickels said, "He was in the area and I am going to talk to him, anyway."
At the same suppression hearing Rickels testified that Bevill was not under arrest, that he only wanted to ask him some questions because he had been seen in the area. Rickels, in the presence of deputy Don Barnett, questioned Bevill. The officers did not give Bevill any Miranda warning.
According to Rickels, Bevill was not a suspect when he began to question him. He asked Bevill if he had been drinking, who replied he drank eight-to-ten beers. Bevill told Rickels he had gone to Cowly's house around dark that Thursday night. He also told Rickels that he was out in the woods seeing if anybody else came to see her, and that he had parked his truck at the Parkway Baptist Church and walked to Cowly's home.
The officers learned during their questioning that Bevill was on probation, and also that his driver's license had been suspended. Bevill was not released, but held in custody until his parole officer could be contacted. Rickels considered Bevill's admission to driving while his license was suspended and drinking constituted a parole violation, as did Cowly's complaint of disturbing her at her home. Bevill was held in custody for parole violation on Saturday, August 2, and was never released from jail.
Rickels was unable to locate Bevill's probation officer on Saturday, but the following Monday, August 4, he notified the Officer Kenneth H. Valentine, who signed an affidavit charging Bevill with probation violation. Also on that date, Bart Aguirre with the Tupelo police department examined Bevill's pickup truck, a 1976 Chevrolet C-10, red with white top. He found the seat covers, removed and freshly washed, on the floorboard.
Also on that Monday deputy sheriffs Joe Davidson and John Conrad went to the home of Mrs. Hilda Wilder, Bevill's sister, in Pontotoc County. They learned from Mrs. Wilder that Bevill had been staying with her for about three weeks, sleeping on the couch. He had not come in when she went to bed at 9:30-10:00 p.m. on Thursday night, but was asleep on the couch when she went to work around 6:30 a.m. the next morning.
She gave the officers a blue Fruit of the Loom t-shirt of the same size and description (except for color) of the undershirt found near the body. The officers also got Bevill's tennis shoes. Mrs. Wilder told them she had washed the tennis shoes along with the remaining laundry Friday. She also told them that Bevill had a white t-shirt which she had not seen since Thursday.
On Tuesday, August 5, Rickels signed an affidavit for a search warrant of Bevill to obtain from him a sample of blood, saliva and hair from all parts of his body. A search warrant was issued by Thomas J. Gardner, III, circuit judge, authorizing this search. Because the personnel at the Mississippi Crime Laboratory requested additional samples, Rickels again on August 18 signed another affidavit for a search warrant, and Judge Gardner issued a search warrant on that date for samples of the blood, saliva and hair of Bevill.
On August 21 a hearing was held before Judge Gardner to revoke Bevill's probation. Rickels testified at this hearing that when he questioned Bevill he was not under arrest, and was only questioned as a possible witness because he had been in the area where the crime was committed. He said they locked Bevill up until they could get in touch with his probation officer in reference to Bevill's admitting to Barnett and him that he had been drinking and being "over at a resident's house causing a disturbance which was in violation of his probation and driving under suspension." Bevill also told Rickels he had been in the area (Cowly's residence) between eight and eleven o'clock p.m. on Thursday night. Rickels testified Bevill was not given any Miranda warnings until the following Monday. Bevill did not testify at the probation hearing. He was represented at this hearing by the same counsel who represented him at trial.
Following the hearing Judge Gardner found Bevill had violated his probation by consuming alcoholic beverages and driving a motor vehicle while his driver's license was suspended. He then revoked his probation and sentenced Bevill to a five-year prison term.
After sentencing Bevill in cause number 9041, Judge Gardner then sentenced Bevill to a three-year prison term in cause number 9042.
The grand jury indicted Bevill on August 29, count I being for capital murder committed while in the commission of the crime of rape in violation of Miss. Code Ann. 97-3-19(2)(e) and 97-3-65(2) (Supp. 1989). Count II charged Bevill with kidnapping in violation of Miss. Code Ann. 97-3-53 (Supp. 1989). He was
also charged as a habitual offender under Miss. Code Ann. 99-19-81 (Supp. 1989) based upon his two burglary convictions.
On January 2, 1987, Bevill filed a motion to suppress the blood, saliva and hair samples resulting from the search warrants issued August 5 and 18, 1986. On March 2, 1987, following an extensive hearing, the circuit judge overruled the motion.
On March 13 Bevill filed a motion to suppress the oral statements given officers Rickels and Barnett the previous August 2, and statements made to Cary Clark, a convict in the penitentiary in Parchman. Following a hearing on March 27, the circuit judge on March 30 overruled this motion.
Upon a change of venue, trial began in the circuit court of Monroe County on March 30, 1987.
In addition to what has been above stated of Dr. Bennett's autopsy, he testified that he removed hair from between her hands, made pubic hair combings and pulled pubic hair, took blood samples, made vaginal swabs and found spermatozoa. He took hair fibers from the front of her shirt and arms. Her panties were blood soaked. He was of the professional opinion that the stab wounds had been made with a single-edge sharp instrument, at least four inches long and three-fourths of an inch wide.
Larry Donnell Turner, of the Mississippi Crime Laboratory, determined from his examination of Amy's and Bevill's blood that they were both type "O" , a common blood type. The sperm likewise were determined to be from a type "O" secretor.
Joe Edward Andrews, the hair and fiber specialist with the Laboratory, compared the head, chest and pubic hairs pulled from Bevill with hair specimens removed from Amy's clothing and body. He also compared hair pulled from Amy's body with hair found on the bloodied t-shirt.
The hair found in Amy's hands matched her head hair. Amy's pubic combing produced a pubic hair exhibiting the same microscopic characteristics of Bevill's pubic hair. The microscopic examination of hair removed from Amy's shirt and arms all matched hers except one which exhibited the same characteristics as Bevill's chest hair.
Hairs from the contact clothing of Amy's matched her head and pubic hair, but one pubic hair exhibited characteristics of Bevill's pubic hair.
From the white t-shirt a number of hairs were examined revealing the same characteristics as Bevill's chest hair. One head and one pubic hair found on it showed the same characteristics as Amy's.
The undershorts found some distance from the body contained no substances identifying it with either Bevill or Amy.
Evidence of pubic lice were found from Amy's pubic hair combing. No evidence of pubic lice was found on Bevill.
Sadler, the neighbor, testified that when he came home around 10:30 p.m. on July 31 he saw a stranger heading south on Frances Square about 30 to 40 yards north of the Clayton residence. He was from five feet nine inches to six feet tall, stocky build, dark hair, bearded, and wearing a headband of some sort. He had on dark trousers and "light to possible white t-shirt." (R-VIII.1220) He further testified he could not say that the man he saw at the jail on August 2 was Bevill. Bevill's beard at the time appeared heavier, and Bevill did not appear to be as old or as paunchy as the man he saw. At trial Bevill "looked similar" to the man he saw.
Bill Graddy who lived near the Parkway Baptist Church, recalled seeing a pickup truck of the description of Bevill's truck in the parking lot of the church around 10:30 p.m. on July 31.
Anita Dillard, a friend of Amy's, had been by the Clayton residence around 11:15 in the morning of July 31. She saw a man standing across the street from the Clayton's driveway, who appeared five feet eight inches to six feet tall, about thirty years of age, and weighing around 200 pounds. He had a beard and mustache, a red bandana on his head, and a white or light gray sleeveless shirt, the same style as the t-shirt found near the body. The man she saw looked like Bevill's picture at the time of his arrest.
Gary Carnathan, an attorney of Tupelo, left his office shortly before 11:00 p.m. on the night of July 31. When he turned off McCullough Boulevard onto Country Club Road en route home, the beam from his headlights revealed a man in a raincoat. The man stopped. It struck Carnathan as unusual for the man to have a raincoat on in the heat. He appeared around six feet tall, with a lot of hair on his face and head, and weighing approximately 190 pounds. The features were similar to the photograph of Bevill at the time of his arrest.
Lawrence Patrick Renfroe was riding in a friend's pickup around 10:30 p.m. on the night of July 31. At the intersection
of Lawhorn Street with McCullough Boulevard, he noticed an attractive girl with her back to the road talking to a man. They were under a street light. She appeared to be around five feet seven inches tall, shapely, with light brown hair, and had on blue shorts and a light colored top. The man was around six feet tall, had on a light colored tank top or "muscle shirt," probably blue jeans, and a beard, a mustache, and very dark hair and dark eyes. He identified Bevill as the man he saw that night talking to the girl. On cross-examination Renfroe said the pickup in which he was riding was going about 35 miles per hour when he saw the man and girl. On cross-examination Renfroe also admitted to convictions of assault and battery in Florida, and of driving while under the influence of intoxicating liquor.
Mrs. Wilder testified that she and her husband had a son and daughter living with them in Pontotoc, and that Bevill moved in with them about three weeks prior to July 31. He slept on the living room couch, and kept his clothes in sacks in the utility room. The officers got Bevill's blue Fruit of the Loom tank top shirt from her. She had washed his tennis shoes on Friday, August 1, because they were in the dirty clothes basket.
Cowly lived in a duplex around the corner and behind the Clayton residence; a clump of trees was between the houses. She first met Bevill at a local bar, and began dating him in February, 1986. They went together four or five months. On July 31 she had not seen Bevill in two or three months. Cowly worked at Hancock's, a local textile plant.
On the night of July 31, she returned home around 9:00 p.m. In about twenty minutes' time there were four attempts by Bevill to get her to accept a collect telephone call. She refused. He sounded angry to her, and she told the woman who lived in the adjacent duplex he would probably be over. Around 9:40 she saw Bevill through her living room window. She recognized a white t-shirt and saw the top of blue jeans. He banged on her door, begging her to let him in, but she refused. This lasted until around 10:00 p.m. Cowly called the police about his disturbing her.
She testified that she had ridden with Bevill in his pickup and it was "junky" inside. He carried a change of clothes, ...