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Crawford v. State

March 27, 1998

CHARLES RAY CRAWFORD
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT: 04/23/94 TRIAL JUDGE: HON. R. KENNETH COLEMAN COURT FROM WHICH APPEALED: TIPPAH COUNTY CIRCUIT COURT

EN Banc.

The opinion of the court was delivered by: McRAE, Justice

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT APPEAL)

DISPOSITION AFFIRMED - 03/12/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

¶1. To this Court Charles Crawford appeals his conviction and sentence of death for the death of Kristy Ray in Tippah County, Mississippi in 1993. Finding no cause for reversal in any of Crawford's assignments of error, we affirm his convictions for capital murder, rape, burglary and sexual battery and their corresponding sentences, including the sentence of death by lethal injection.

PROCEDURAL HISTORY

¶2. Charles Ray Crawford was indicted in the Circuit Court of Tippah County, Mississippi, on September 23, 1993, for the murder of Kristy D. Ray while engaged in the commission of the crime of kidnaping in violation of Miss. Code Ann. § 97-3-19(2)(e); burglary of an occupied dwelling, in violation of Miss. Code Ann. 97-17-21; rape, in violation of Miss. Code Ann. 97-3-65(2); and sexual battery, in violation of Miss. Code Ann. 97-3-95(a). The indictment also alleged that Crawford committed the above crimes as an habitual offender, as he previously had been convicted of assault and rape under Miss. Code Ann. 97-3-19(2)(e).

¶3. Venue changed from Tippah County to the Circuit Court of Lafayette County, Mississippi. A jury was seated on April 18, 1994. Crawford was found guilty of all counts on April 22, 1994. The jury sentenced Crawford to life imprisonment for the rape. Prior to the sentencing phase of Crawford's trial with respect to the capital murder conviction, the trial Judge conducted a hearing and determined Crawford to be an habitual offender as to counts I through III. The Judge sentenced Crawford to serve fifteen years without parole for his burglary conviction, life imprisonment without parole for his rape conviction, and thirty years without parole for his sexual battery conviction, all to be served consecutively without the benefit of parole. Following the sentencing by the Judge, the jury heard evidence and arguments in aggravation and mitigation of the sentence of death. The jury returned a sentence of death for capital murder conviction on April 23, 1994. The Judge set an execution date of June 10, 1994. The execution of Crawford's death sentence has been stayed pending resolution of his appeal of the four convictions, his habitual offender status, and his death sentence. He assigns the following points of error:

I. THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS CHARLES CRAWFORD'S CONFESSION.

II. THE TRIAL COURT ERRED IN NOT REQUIRING THE PROSECUTION TO GIVE NOTICE OF THE AGGRAVATING CIRCUMSTANCES IN A TIMELY MANNER PRIOR TO TRIAL.

III. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENSE TO VOIR DIRE THE JURY WITH REGARD TO WHETHER THEY WOULD AUTOMATICALLY VOTE FOR DEATH.

IV. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENSE TO VOIR DIRE THE JURY WHETHER THEY WOULD CONSIDER MITIGATION.

V. IT WAS ERROR FOR THE PROSECUTOR TO VOUCH FOR THE SUFFICIENCY OF THE EVIDENCE DURING CLOSING ARGUMENT AT THE GUILTY PHASE OF THE TRIAL.

VI. IT WAS ERROR FOR THE PROSECUTION TO VOUCH FOR THE EVIDENCE AT THE SENTENCING PHASE OF THE TRIAL.

VII. THE PROSECUTOR ERRONEOUSLY ARGUED TO THE JURY THAT IT NEED NOT CONSIDER MITIGATION AND COULD DISREGARD SYMPATHY IN TOTO IN ITS DELIBERATIONS.

VIII. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE CRIME OF KIDNAPING REQUIRED THE ELEMENT OF ASPORTATION.

IX. THE TESTIMONY OF JULIE ANN COOPER CONCERNING THE LIKELIHOOD OF THE DNA MATCH WAS ERROR.

X. THE INTRODUCTION OF VICTIM IMPACT TESTIMONY VIOLATED CRAWFORD'S RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS.

XI. IT WAS ERROR FOR THE PROSECUTION TO ARGUE THAT THE JURY COULD NOT CONSIDER THE MITIGATING CIRCUMSTANCE OF "WHETHER THE CAPACITY OF THE DEFENDANT TO APPRECIATE THE CRIMINALITY OF HIS CONDUCT. . . ." SINCE THE JURY HAD ALREADY DETERMINED THAT CRAWFORD WAS SANE.

XII. THE INSTRUCTION PURPORTING TO DEFINE "ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL" WAS CONSTITUTIONALLY OVERBROAD.

XIII. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A BEYOND-A-REASONABLE-DOUBT FINDING OF "ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL."

XIV. SENTENCING INSTRUCTION 2-A IMPERMISSIBLY LIMITED THE JURY'S CONSIDERATION OF MITIGATION.

XV. SENTENCING INSTRUCTION 2-A IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF FROM THE PROSECUTION TO THE DEFENDANT.

XVI. THE USE OF AN ELEMENT OF CAPITAL MURDER AS AN AGGRAVATING CIRCUMSTANCE FAILS TO NARROW THE CLASS OF DEATH-ELIGIBLE DEFENDANTS IN A CONSTITUTIONAL MANNER.

XVII. THE HABITUAL OFFENDER PORTION OF THE INDICTMENT WAS INSUFFICIENT IN THAT IT FOLLOWED THE WORDS "AGAINST THE PEACE AND DIGNITY OF THE STATE" IN VIOLATION OF SECTION 169 OF THE MISSISSIPPI CONSTITUTION.

XVIII. THE DEATH PENALTY IS DISPROPORTIONATE IN THIS CASE GIVEN THE EXTENT OF CRAWFORD'S MENTAL HEALTH PROBLEMS.

XIX. THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE CONVICTION AND SENTENCE.

FACTS

¶4. On Friday, January 29, 1993, at approximately 12:30 p.m., twenty year old Kristy Ray went to the bank where her mother worked. Kristy worked part-time at the Sunburst Bank, since she was also a student at Northeast Mississippi Community College. At about 5:15 p.m, Kristy and her mother, Mary Ray, left the bank, with plans to see each other later that night at their house in Chalybeate, a community near Walnut, Mississippi.

¶5. Mary tried to call Kristy around 6:45 p.m, but received no answer. She assumed that Kristy was visiting her boyfriend. Mary finally got to her house at about 7:00 p.m., but Kristy's car was not there. When she walked into her house, Mary found a ransom note on a table. The note, which also contained a crude map, read, "There will be a red flag somewhere on this block Tuesday, 12:00 midnight, fifteen thousand dollars in gym bag or she dies. No police." Mary noticed that Kristy had left her purse, that Kristy's room was in disarray, and that the phone was dead.

¶6. Mary left the house and drove to Walnut, first stopping at the home of Kristy's boyfriend, Brian Mathis. Not finding her there, she next went to the video rental store where Kristy worked on the weekends; however, no one there had seen Kristy. From the video store, Mary called her husband, Tommy Ray, and then she called 911 to report Kristy's disappearance to the Tippah County Sheriff's Department. After conducting preliminary investigations, the Sheriff's Department contacted the FBI.

¶7. Mary returned home, noticing signs of forced entry. She found that a screen over a window in Kristy's room had been cut out and that a stacking pallet had been left leaning against the house under Kristy's window. Later Mary discovered that someone had been through one of the drawers in her and her husband's bedroom.

¶8. Also on the day of Kristy's disappearance, Charles Crawford's family discovered a ransom note in their attic that was similar to the one found by Mary Ray. Fearing that Crawford, who was due for trial on the following Monday for assault and rape, might kidnap someone, Crawford's mother, wife, and grandfather reported the note to William Fortier, the attorney representing Crawford on other pending criminal charges. Fortier alerted the law enforcement officials investigating the facts surrounding Kristy's disappearance. On the following day, Fortier's law clerk, Shawn Akins, met with law enforcement officials and turned over some medical records; the officials were trying to determine whether Crawford was capable of committing the crime against Kristy.

¶9. The local and federal authorities established a command post at the Chalybeate school on the Saturday following Kristy's disappearance. Additionally, authorities stationed law enforcement officers at the residence of Mr. Miles, Crawford's former father-in-law. Officers reported seeing Crawford approaching the residence, and Officers Jim Wall and Sammy Pickens of the Mississippi Highway Patrol proceeded to the place where Crawford was seen. At the scene were the sheriff of Tippah County, his deputies, and several FBI agents. When Crawford finally returned to the residence on Saturday, he was arrested, carrying a double-barrel shotgun and a switchblade.

¶10. Upon arrest, Crawford was transported by Wall and Pickens. Wall testified that in the car, he asked Crawford if he recognized him, to which Crawford replied yes. Then he advised Crawford of his Miranda rights. After Wall was done, Crawford asked something to the effect of "Why are you asking me this," or "What is going on here." Crawford said that he didn't know Kristy personally, but he knew her when he saw her. Wall testified that in the car, Crawford said that he thought his leg was broken, but that he did not want to go to a hospital.

¶11. Originally, Officers Wall and Pickens were directed to take Crawford to the Tippah County Jail in Ripley. They discussed taking Crawford to the hospital. While en route to the jail, they were instructed to bring Crawford back to the command center in Chalybeate. They continued with Crawford to Chalybeate.

¶12. Upon arrival at the command center, Officers Wall and Pickens turned Crawford over to Joseph Jackson, the agent in charge of FBI operations in Mississippi. Jackson re-Mirandized Crawford, and proceeded to interview Crawford with Agents Jim Maddock and Tom Bush. Crawford did not sign a waiver of his rights, but he immediately responded to Jackson after being advised of his rights, saying that he could not understand why the officers wanted to talk to him but that he would answer questions. Crawford complained that he had not been doing anything and that his back was injured as a result of falling into a well. During the interrogation, Crawford was allowed to lie prone on the floor, to alleviate any back pain he might have been suffering. Initially, Crawford said that he had been hunting. Jackson asked Crawford if Kristy was alive and Crawford began to cry, admitting that Kristy was no longer alive. When asked, Crawford agreed to lead law enforcement to her body. Jackson testified that the questioning of Crawford took about twenty minutes.

¶13. Crawford and law enforcement officials left the command center at about 8:00 on that Saturday night. Crawford escorted law enforcement through extremely rugged terrain and thick woods. Crawford actually led the search team. Crawford never complained about his back during the search. The team reached a heavily wooded area covered with leaves, and Crawford indicated that Kristy was there. When Kristy's body was found, Crawford asked investigators why they did not finish him off. Kristy was found at approximately 9:48 p.m, approximately four hundred yards from an abandoned barn (the Hopper Barn).

¶14. Officer Wall raked the leaves back to uncover Kristy's body. He found her hands were cuffed behind her back around a small cedar sapling. A sock had been stuffed into her mouth, and a gag was around her head to keep it in place. Kristy had not been blindfolded. Her jeans had been pulled down below her hips.

¶15. Dr. Steven Hayne, a pathologist, testified that Kristy had suffered a single stab wound to her chest. Kristy had multiple abrasions over the right and left lower extremities, as well as scrapes to the skin on her back and buttocks. She also had scrapes on her face and chest, as well as contusions on her lips and abrasions on her wrist. The wrist injuries were consistent with Kristy being handcuffed. Hayne testified that the scrapes found on Kristy's buttocks and thigh occurred while Kristy was alive and were consistent with injuries a person would receive while engaged in a fight or flight response. He also testified that the injuries were consistent with Kristy being dragged along a hard surface, possibly branches or twigs. The injuries were also consistent with those occurring on someone attempting to avoid or resist a rape. The abrasions on Kristy's face and contusion on her lip were consistent with her face being pressed against a hard surface, as opposed to being dragged. Hayne testified that Kristy died from a large stab wound to the left mid-chest which punctured her heart and left lung, causing extensive internal and external hemorrhaging. It took Kristy between one and two minutes to die.

¶16. Hayne testified that the wound that caused Kristy's death could have been made by a Marine Corps-style Ka-Bar knife. The wound itself measured one and one-quarter inches in width and four and one-half inches in depth, corresponding with that knife. Kristy also suffered "multiple contusions that measured up to approximately one centimeter which would be three-eighths of an inch about the anal orifice," which suggested penetration of the anus.

¶17. On the Monday following his arrest and the location of Kristy's body, Crawford gave a more detailed account of the kidnaping and murder to the FBI. Agent Newsom Summerlin of the FBI conducted an interview of Crawford at the Union County Sheriff's Office with Lieutenant Steve Williams of the Mississippi Highway Patrol. Summerlin testified that prior to the interview, Crawford read an interrogation advice or rights form, and signed a waiver of those rights. Summerlin testified that Crawford stated that he did not know Kristy but that he had seen her around the Walnut, Mississippi area. Crawford also stated that he was worried about "an upcoming event" and wanted to be alone, and that when he wanted to be alone, he went to the Hopper Barn. Crawford stated that in the early morning of Friday, January 29, 1993, his mother, Johnny Ruth Smith, dropped him off along Providence Road (near the Hopper Barn) to go hunting. He had an over-and-under double barrel shotgun. Crawford also stated that he had a knife similar to a Marine Corps Ka-Bar knife and a .22 caliber revolver. Crawford said that he had been stockpiling food and drink at the Hopper Barn for approximately one month, so when he got to the barn he had some cookies and a drink.

¶18. Crawford said that he was very concerned about his upcoming event, and he had considered running away, but had no money. He also considered suicide, but could not bring himself to do it. He stayed at the barn until midday, when he left to hunt and hike. After reaching an area he was not familiar with, Crawford decided to build a fire, which he soon put out because he was concerned that someone would see the smoke. It was at this point that Crawford claimed to have a blackout; he stated that the next thing he remembered was being inside the Ray residence. Crawford said that when he came out of the blackout, he heard someone crying in one of the back bedrooms of the house. Kristy was on the floor of one of the rooms with her hands cuffed behind her back. Crawford said that he put on a ski mask so that Kristy would not be able to identify him and asked Kristy where the keys to her car were. Crawford stated that he took Kristy and put her in the car and drove away. Crawford stated that he took Kristy from the house because he did not know what he was going to do and figured it was better to take her with him.

¶19. Crawford denied writing or ever having seen the ransom note found by Mary Ray. Crawford stated that Kristy was very upset when they left her house that Friday night, but as they drove around and began talking, she began to calm down. He claimed that they drove around for about forty-five minutes to an hour talking to each other. Crawford then abandoned the car and took Kristy out. She was still handcuffed, and he still had the knife, revolver, and shotgun. He claimed that he removed the handcuffs when she promised not to run away. The two of them walked back and forth along Jonesburough Road, and Crawford decided that since it was getting cold, they should go to the Hopper Barn and spend the night there.

¶20. Crawford stated that as they approached the barn, he fell into a sinkhole that came up to his neck, tossing his shotgun away as he fell. He claimed that Kristy asked him if he was all right, picked the shotgun up, and helped pull him out. Crawford claimed that he and Kristy had something to drink, ate cookies, and huddled together in the barn for warmth and talked throughout the night.

¶21. Crawford said that the next morning, Saturday, he heard a police siren and thought he saw a sheriff's office car coming away from his grandparents home, which was near the Hopper Barn. He said that he told Kristy it was the law, and she tried to talk him into turning himself in. Crawford then fled into the woods with his shotgun and knife. *fn1 He claimed that Kristy ran after him in order to try and convince him to turn himself in to the authorities. He claimed that Kristy told him no one had been hurt and she would help him if he turned himself in. He was concerned because he did not know how he was going to explain abducting her. Crawford said that he felt low, and Kristy had more or less convinced him to let her go.

¶22. Summerlin noted that until this time, Crawford said that he kept the ski mask on at all times except when it was dark inside the barn and Kristy could not see his face. Crawford said that when Kristy convinced him to let her go, he then took his mask off and Kristy allegedly recognized him as someone she had seen around town. Then Crawford stated that as they began walking back to Kristy's car, he gave Kristy the shotgun. Crawford claimed that at that point he had another blackout.

¶23. The next thing Crawford remembered was sitting on a stump in the woods wearing a T-shirt, blue jeans, and no shoes. Kristy was lying at his feet, handcuffed behind her back, dead. He claimed that she was fully clothed with one of his socks in her mouth. He then decided to hide the body and dragged Kristy by her feet across the ground. This is how Crawford explained her pants and underwear being pulled down and her shirt being pulled up. Then he covered her body with leaves, so that no one would find the body. Crawford stated that he sat on the tree stump for a while and thought about what he was going to do. He put his boots back on, retrieved his shotgun and knife and headed back through the woods toward the Providence Road area. Crawford said that he knew people were looking for him, but did not know why. When he neared Providence Road he saw a patrol car, so he sat on the hillside hidden from view. When the patrol car left, he crossed the road into another wooded area. Crawford claimed that he then fell into an abandoned well that was about ten feet deep and had to use his knife to dig himself out.

¶24. Crawford continued toward his residence, a house belonging to his ex-father-in-law. As he approached the house, he was arrested. After discussing with Summerlin that he realized that taking Kristy was wrong, Crawford later stated that he originally denied any knowledge of Kristy's disappearance to buy himself time to think about what he was going to do. Crawford also said that he must have killed her, but could not remember doing so. He told Summerlin that he sometimes had blackouts and could not control himself.

¶25. Stephen Thompson of the Mississippi Highway Patrol testified that clothing, bedding, handcuff keys, a padlock with keys, ammunition, food and soft drinks were found in the Hopper Barn. Tim Wilbanks testified that on February 7, 1993, volunteer searchers found a pair of shoes, men's briefs, long john bottoms, and a T-shirt near where Kristy's body was found. Wilbanks stated that the shoes, found between trees and shrubs, looked as if they had been thrown there, while the underwear and T-shirt were found under a brush pile. Joe Foster testified that he later found a knife and a pistol in a nylon holster in his field which is located approximately one-quarter mile from the Hopper Barn. Dick Koster of the Walnut Police testified that he searched the area where the knife and gun were found and discovered a belt with a Harley Davidson buckle with the name "Chuck" stamped on the back of it. This belt was similar to one worn by Crawford, whose nickname is "Chuck." Crawford had previously admitted to investigators that he owned a Marine Corps Ka-Bar knife and a Taurus .22 caliber revolver. The weapons and belt matched the descriptions Crawford gave investigators of the ones he had on the day of Kristy's disappearance.

¶26. Joe Andrews, of the Mississippi Crime Lab, testified that hairs collected from the clothing found in the Hopper Barn were compared with known samples of hair from Kristy Ray and found to exhibit the same characteristics. Andrews also testified that hairs found on clothing recovered by Wilbanks exhibited the same microscopic characteristics as pubic hairs taken from Crawford. Debbie Haller, a forensic serologist with the Mississippi Crime Lab, testified that stains found on the briefs appeared to be a mixture of blood and seminal fluid. The long johns also contained blood stains. The crime lab could not determine the blood group type from these stains. Heller forwarded samples from the briefs and long john bottoms to Cellmark Diagnostic Laboratories to conduct DNA testing, along with known blood samples from Kristy Ray. A vaginal swab taken from Kristy's body determined the presence of seminal fluid. Heller determined that Crawford could be included as a possible source of the seminal fluid.

¶27. Cellmark Laboratories conducted DNA testing of the stains found on this evidence. Julie Ann Cooper of Cellmark testified that DNA evidence extracted from the vaginal swab matched the known DNA samples of Crawford. The mix of blood and semen found on the briefs was matched to Kristy and Crawford. The bloodstain on the long johns also matched both Kristy and Crawford.

¶28. Crawford presented an insanity defense through the testimony of family members and Dr. Stanley Russel, a psychiatrist with the Mississippi Department of Corrections. Russel treated Crawford during the time he was housed at Parchman, from June of 1993. Russel testified that Crawford suffered from depression and periods of time lapse about which he has no memory. Russel diagnosed Crawford as a psychogenic amnesiac. Russel referred to the prior medical history of Crawford, including medication prescribed by a psychiatrist when Crawford was ten, his hospitalization in East Mississippi State Hospital in 1989, his hospitalization at a psychiatric facility in Memphis in 1991 and two forensic evaluations at Whitfield. Crawford had been diagnosed with bipolar disorder (manic depressive illness) in 1989, and he had been prescribed lithium, which seemed to calm the moods of manic people. Russel also testified regarding Crawford's anger and resentment as a child and his antisocial behavior as a teenager. Russel ultimately testified that in his opinion Crawford satisfied "the M'Naghten test for not being criminally responsible for his actions as a result of mental disorder that affected his reasoning to the point that he was not aware of the nature and consequence of his behavior."

¶29. Rebuttal testimony was presented by Dr. Chris Lott, a clinical psychologist with the Mississippi State Hospital. Lott testified that he saw no evidence that Crawford ever suffered from bipolar illness, based on his review of the diagnosis at the East Mississippi State Hospital. Lott did not think that Crawford had a disease of the mind, an illness, or major mental disorder. He testified that there was nothing in Crawford's records to show that he was delusional or that he was suffering from irrational belief or hearing voices. He also testified that Russel improperly diagnosed Crawford as a psychogenic amnesiac because Crawford "appeared to be malingering his problems or memory deficits." Lott stated that Crawford showed premeditation and that he knew the nature and the quality of his actions and that he was able to distinguish between right and wrong.

¶30. Dr. Reb McMichael, a forensic psychiatrist with the Mississippi State Hospital, testified that Crawford did not meet the requirements of M'Naghten at the time of the crime. McMichael stated that psychogenic amnesia was a rare diagnosis and that in his opinion, Crawford did not have it. McMichael believed that Crawford was planning an act and purposely concealed Kristy Ray's body and that this showed that he knew the nature and quality of his act--that the act was wrong and that he did not want to get caught. *fn2

ANALYSIS

I. THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS CHARLES CRAWFORD'S CONFESSION.

¶31. Crawford argues that his statements made to F.B.I. agents and police on Saturday, January 30, 1993, should have been suppressed because: 1) his constitutional rights were violated when he was interrogated outside the presence of his attorney; 2) his statements were involuntary in that he was in great pain and law enforcement refused to obtain medical treatment for him until they had obtained a confession; and 3) his statements were obtained with the assistance of illegally obtained and privileged information (mental health reports obtained from Crawford's attorney without his consent). Usually for this Court, determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial Judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence. Balfour v. State, 598 So.2d 731, 742 (Miss. 1992). Crawford notes, however, and the State concedes, that the trial court did not make specific factual findings regarding the admissibility of Crawford's confession. Therefore, this Court must conduct an independent review of the totality of the circumstances discoverable in the entire record in order to resolve the questioned validity of Crawford's confession. See Coverson v. State, 617 So. 2d 642, 647 (Miss. 1993); Holland v. State, 587 So. 2d 848, 860 (Miss. 1991).

A. The confession was taken in violation of Crawford's right to an attorney.

¶32. Crawford contends that law enforcement knew that he was represented by counsel and chose to interrogate him outside the presence of his attorney anyway. In his statement of issues, Crawford contends that admission of these confessional statements violated his Fifth and Sixth Amendment rights to counsel. However, Crawford only addresses the Sixth Amendment claim in his brief. Assignments of error unsupported by any meaningful argument or relevant authority need not be addressed on appeal. Brown v. State, 690 So. 2d 276, 297 (Miss. 1996). Therefore, as to the Fifth Amendment claim, Crawford is procedurally barred.

¶33. Crawford claims that the admission of his confession violated his Sixth Amendment right to counsel. Determining whether a confession is admissible is a finding of fact which is usually not disturbed by this Court unless the trial Judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence. Balfour, 598 So. 2d at 742. However, as stated previously, the trial Judge here did not make a specific finding of fact as to the admissibility of Crawford's confession. Therefore, while this Court may rely on necessarily implied findings, we are under no obligation to review under the manifest error standard.

¶34. Under the Mississippi Constitution, the Sixth Amendment "right to counsel `attaches once the proceedings reach the accusatory stage.'" Johnson v. State, 631 So. 2d 185, 187-88 (Miss. 1994)(citation omitted). The right to counsel, both federal and state varieties, attaches at the point in time when the initial appearance under Rule 1.04 of the Uniform Rules ought to have been held. Morgan v. State, 681 So. 2d 82, 90 (Miss. 1996). As is the case with the Fifth Amendment right to counsel, a defendant's Sixth Amendment rights are not violated by questioning in the absence of his attorney unless the defendant has asserted his right to an attorney. Wilcher v. State, 697 So. 2d 1087, 1096 (Miss. 1997).

¶35. Though it is not particularly clear from the appellant's brief, Crawford could be making one of two arguments under the Sixth Amendment. First, Crawford may be arguing that because he was represented by Fortier in another proceeding, he was not to be questioned outside the presence of Fortier. At the time of the interrogation, Randy Fortier represented Crawford for a pending rape and assault trial, which was not connected with the disappearance of Kristy Ray. Fortier's representation did not yet extend to the offense of kidnaping. The Sixth Amendment right is offense-specific; it cannot be invoked once for all future prosecutions. Mack v. State, 650 So. 2d 1289, 1316 (Miss. 1994); Balfour, 598 So. 2d at 746. Therefore, Crawford cannot rely on the invocation of his right to counsel pursuant to previous charges of rape and assault.

¶36. It is more likely that Crawford is arguing that because he was arrested without a warrant, his proceedings had reached an accusatory stage and his Sixth Amendment right to counsel had attached. "Once the right to counsel has attached and been asserted, the State must of course honor it." Morgan, 681 So. 2d at 90 (emphasis added). Although there is debate between the parties as to when the accusatory stage began so as to jumpstart Crawford's right to counsel, we feel that this determination is not germane to the Disposition of the issue. As was addressed previously, there is a conflict of testimony as to whether Crawford invoked his right to counsel. Because the trial court made a general determination of admissibility rather than a specific finding of fact, we find that the trial court did not err in admitting the confessional statement. Accordingly, Crawford's argument regarding violation of his Sixth Amendment right to counsel is without merit.

B. The evidence shows that the confession was coerced from Crawford by denying him medical treatment.

¶37. The next sub-issue raised by Crawford is whether his confession was coerced, based on a law enforcement refusal to give him medical treatment for his back. The standard of review in such cases is the same as that applied above. "nce the trial Judge has determined, at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal." Sills v. State, 634 So. 2d 124, 126 (Miss. 1994)(citation omitted). "Such findings are treated as findings of fact made by a trial Judge sitting without a jury as in any other context. As long as the trial Judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence." Foster v. State, 639 So. 2d 1263, 1281 (Miss. 1994) (citations omitted). "Where, on conflicting evidence, the court makes such findings, this Court generally must affirm." Lesley v. State, 606 So. 2d 1084, 1091 (Miss. 1992) (citations omitted).

¶38. The general rule is that for a confession to be admissible it must have been given voluntarily, and not as the result of any promises, threats or other inducements. The burden is on the prosecution to prove beyond a reasonable doubt that the confession was voluntary. The "burden is met and a prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward." Chase v. State, 645 So. 2d 829, 838 (Miss. 1994) (citation omitted).

¶39. The instant case is distinguishable from Mincey v. Arizona, 437 U.S. 385 (1978), cited by Crawford. In Mincey, there was clear, undisputed indication that the defendant wanted a lawyer. Id. at 399. Further, the defendant was "depressed almost to the point of coma." Id. at 398. Mincey had partial paralysis of one hip, wore breathing tubs, a catheter, and an IV, and was under the influence of medication. Id. at 396. As Crawford correctly states, evidence that the defendant was in pain during the interrogation does not, by itself, render the defendant's confession involuntary. See Wheeler v. State, 536 So. 2d 1347, 1349 (Miss. 1988); Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985); Bullock v. State, 391 So. 2d 601, 605-06 (Miss. 1980).

¶40. Crawford testified at the suppression hearing that at the time of his arrest, he was walking with a shotgun as a crutch, because he had hurt himself. He said that he "had stepped through a dry well and fell through some tin." Crawford testified that there was some debate as to whether he should be taken to the hospital before he was taken to the Chalybeate School. He gave his interview while lying on the floor because he "could not sit up in the chair," and told the authorities of the fact that he was in pain. Crawford testified that the authorities told him "that the quicker we got this over with the quicker we could get out of there and go on, you know, whatever attention I needed, you know, could be taken care of."

¶41. Agent Jackson testified that Crawford mentioned that he had hurt his back when he first entered the interrogation room at the Chalybeate School. Jackson asked Crawford if he would be more comfortable lying on the floor, and Crawford responded that he would. He also denied that law enforcement threatened or inferred that they would withhold medical treatment from Crawford unless he talked and answered questions. Jackson's testimony was echoed by Agents Summerlin, Williams, and Bush. Agent Maddock testified that he did not recall Crawford ever asking for medical assistance.

¶42. In the case at hand, all officers who witnessed Crawford's statement testified that it was voluntarily given. They specifically denied refusing Crawford medical treatment until he gave his statement. Therefore, the State made a prima facie showing that Crawford's statement was voluntary. Again, although the Judge made no specific finding of facts regarding the admissibility of Crawford's confession, in light of the conflicting evidence, this Court will rely on the findings implied by the trial court's ruling. Saucier v. State, 562 So. 2d 1238, 1244 (Miss. 1990). Since it cannot be said that the trial court erred, Crawford's arguments on this point are without merit. Hunter v. State, 684 So.2d 625, 633 (Miss. 1996).

C. The confession was coerced from Crawford by law enforcement using information that was obtained in violation of Crawford's rights and is thus inadmissible as fruit of the poisonous tree.

¶43. Crawford also asserts that F.B.I. agent Newsom Summerlin went to Randy Fortier's law office and obtained Crawford's mental health records from a law student working for Fortier. Further, prior to Crawford's arrest, F.B.I. agent Joe Jackson read the mental health records and consulted with an F.B.I. behavioral science expert about techniques for obtaining a confession from persons with Crawford's psychological profile.

¶44. Crawford now alleges that his mental health records were taken from his lawyer without Crawford's consent, thereby making them illegally obtained. Crawford argues further that the use of illegally obtained material to extract a confession from him renders his confession illegal as well. The State argues that the records were not confidential and that the evaluations of Crawford were done in anticipation of his rape and assault trial, thus meaning that discovery of the records was inevitable.

¶45. Crawford claims that his mental health records were subject to the attorney/client privilege under the Mississippi Rules of Evidence, Rule 502(b). That rule reads as follows:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

Miss. R. Evid. 502(b). Confidential communications are those "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Miss. R. Evid. 502(a)(5).

¶46. Crawford's mental health records are not a part of the record on appeal. A party seeking reversal of the judgment of a trial court must present this Court with an adequate record to show that reversible error has been committed. Chase, 645 So. 2d at 845; Hansen v. State, 592 So. 2d 114, 127 (Miss. 1991); Smith v. State, 572 So. 2d 847, 849 (Miss. 1990). This Court has stated, "e know of no authority for pretermitting the requirement of a record reflecting the error." Queen v. Queen, 551 So. 2d 197, 199 (Miss. 1989). If the mental health records released by Crawford's attorney contained disclosures made to a mental health professional in preparation of Crawford's defense, then the records may be privileged. However, if Fortier released records that only showed Crawford's prior confinement to a state hospital, the records may not be privileged. Either way, this Court would need the actual mental health records to determine whether the attorney-client privilege protected them from disclosure. Presently, the Court has no basis on which to conclude that Crawford's records were confidential.

¶47. Even if the records were privileged, however, Crawford's rights were not violated when his attorney turned the records over to law enforcement. Although Fortier did not testify at the pretrial hearing, he did testify at the trial.

Q: Okay. And what if anything happened that caused you to relinquish or to well to relinquish that representation?

Fortier: The case, the cases that I had been retained to represent Mr. Crawford on concerned some criminal cases in the circuit court of Tippah County. These cases were set for trial on Tuesday, on Friday I believe or the week before these cases were to go to trial I received a phone call early Friday morning from Mr. Crawford's mother telling me that something urgent had come up; that she needed to talk to me. At that point in time I made arrangements for her to come to the office and meet with me. She came to the office with I believe it was Mr. Crawford's wife Gail and also with Mr. Crawford's grandfather Mr. John Lee Montgomery and at that time they told me certain things and information that related to this case that is being tried today. From that point it put me in a very difficult situation from the standpoint that I was representing Mr. Crawford and of course there was an attorney client privilege and I had to represent his rights but at this point in time it with the possibility with the possibility of another crime being committed I had a duty to tell them what knowledge I had about this and because of the conflicts of interest that was created arising out of this situation I didn't have any choice to but to withdraw as Mr. Crawford's attorney in the previous cases.

According to this testimony, Fortier, in good faith, believed that Crawford may have been committing a crime. Although Fortier did not personally turn over any of Crawford's medical records to the police, the relationship between Fortier and Crawford extended to Fortier's law clerk, Shawn Akins. Miss. R. Evid. 502(a)(4). See also Miss. Rules of Professional Conduct, Rule 5.3 (c). Akins actually turned over Crawford's records. Fortier testified that he remembered telling Akins that the attorney client privilege existed but a serious crime had been committed. Pursuant to Rule 1.6 of the Mississippi Rules of Professional Conduct, neither Fortier nor Akins can be faulted for providing Crawford's mental health records to law enforcement officials. Assuming that the records were privileged and confidential, Rule 1.6(b)(1) states that a lawyer may reveal such confidential information to the extent the lawyer reasonably believes necessary "to prevent the client from committing a criminal act." Therefore, since the records were not obtained illegally, Crawford's confession (which may or may not have resulted from use of the mental records) was not illegal on this basis. This assignment of error is without merit.

D. Conclusion

¶48. The confession taken from Crawford by law enforcement officials was not coerced and did not violate his constitutional rights or the attorney-client privilege. Therefore, the confession was admissible. The trial court did not err in denying Crawford's motion to suppress, and assignment of error I is without merit.

II. THE TRIAL COURT ERRED IN NOT REQUIRING THE PROSECUTION TO GIVE NOTICE OF THE AGGRAVATING CIRCUMSTANCES IN A TIMELY MANNER PRIOR TO TRIAL.

¶49. Three months before his trial began, Crawford filed a motion requesting that the prosecution give timely notice of the aggravating circumstances it was seeking in support of the death penalty. The trial court ordered that such notice would be given with the filing of the jury instruction twenty-four hours prior to trial. Crawford now alleges that this notice was insufficient and that the failure to require adequate disclosure of aggravating circumstances was error.

¶50. This Court has stated:

e believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant's contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment.

Williams v. State, 445 So. 2d 798, 804-05 (Miss. 1984). This Court found that defendant Williams received adequate notice. Id. at 805.

¶51. Upon indictment, Crawford knew that the State was charging him with capital murder predicated on the underlying felony of kidnaping. Further, he was aware that the State would be seeking the death penalty. The docket entry sheet reflects that the State filed its jury instructions on February 9, 1994, one week after the preliminary hearing in which Crawford complained that he had not received notice, and over two months before trial. Therefore, despite the trial court's instruction that the State be required to give notice twenty-four hours prior to trial, here Crawford had sufficient notice of the aggravating circumstances sought by the State. Pursuant to Williams v. State, supra, then, Crawford received adequate notice of the aggravating circumstances. Accordingly, this assignment of error is without merit.

III. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENSE TO VOIR DIRE THE JURY WITH REGARD TO WHETHER THEY WOULD AUTOMATICALLY VOTE FOR DEATH.

IV. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENSE TO VOIR DIRE THE JURY WHETHER THEY WOULD CONSIDER MITIGATION.

¶52. Crawford alleges that he was not allowed to fully voir dire the jury as to whether they would automatically vote to impose the death penalty or whether they would consider mitigating evidence.

¶53. Voir dire is conducted under the supervision of the trial court, and a great deal must, of necessity, be left to its sound discretion. Ballenger v. State, 667 So. 2d 1242, 1250-51 (Miss. 1995). This Court has directed that, notwithstanding a prospective juror's scruples, the trial court "should inquire further whether the juror would follow its instructions and a fair verdict render according to the law and the evidence." Hansen, 592 So. 2d at 128. This Court similarly has directed the trial court to take a substantial role in conducting Witherspoon voir dire of potential jurors in capital cases. See Hansen, 592 So. 2d at 128-29; Lockett v. State, 517 So. 2d 1317, 1335 (Miss.1987); Gray v. State, 472 So. 2d 409, 421 (Miss.1985), rev'd on other grounds, 481 U.S. 648 (1987).

¶54. The issue argued by Crawford about whether the prospective jurors would automatically vote to impose the death penalty is the reverse of that propounded in Witherspoon v. Illinois, 391 U.S. 510 (1968), and its progeny, where it was held that a juror who would never vote for the death penalty regardless of circumstances or what instructions of law were given is not impartial and should be removed for cause. The United States Supreme Court in Morgan v. Illinois, 504 U.S. 719 (1992), held that the trial court erred in refusing to ask whether a potential juror would automatically impose the death penalty upon finding the defendant guilty. It is logical that the Circuit Court should take a similar role when conducting reverse Witherspoon voir dire.

¶55. Regarding Witherspoon voir dire, Crawford points to one instance in which his attorney attempted to question the potential jurors about whether they would automatically vote for the death penalty.

Pannell: Is there anyone else that believes that a person who is found guilty of capital murder that is a murder committed in the commission of another crime, which in this case is alleged to be kidnaping should automatically get the death penalty if they are found guilty other than the people that responded none of you think that that ought to be automatic. Let me add in are there any of you that feel that the death penalty ought to be automatic and the situation where someone kills another after committing or during committing a sexual assault; would that change if we add that to the equation; does anyone think that that should bring an automatic death penalty?

Little: Object to the form of the question, Your Honor, process of aggravation in mitigation not just the way its.

The Court: Rephrase your question. I think your in the right area rephrase your question.

Pannell: Is there anybody here, well let me preface this; you have been told that if there is a penalty phase in this trial that Mr. Crawford is found guilty that you will be asked to impose the death penalty. That your alternative to that will in this case be life without the possibility of parole. And that the State will argue and perhaps put on evidence as to certain aggravating factors and in other words things that tend to show that the crime was worse that would tend to show that the Defendant deserved more punishment and that the Defendant would be allowed to put on proof in mitigation in other words evidence that even though ...


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