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Burns v. State

November 19, 1998

JOSEPH DANIEL BURNS, A/K/A "JOJO"BURNS
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Pittman, Presiding Justice

DATE OF JUDGMENT: 09/06/96

TRIAL JUDGE: HON. FRANK ALLISON RUSSELL

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

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

DISPOSITION: AFFIRMED - 11/19/98

EN BANC.

¶1. This case is before this Court on appeal from the Circuit Court of Lee County, Mississippi. Joseph Daniel "JoJo" Burns ("Burns") was indicted during the November 1995 term of the Lee County Grand Jury for the capital murder of Floyd Melvin McBride ("McBride") on November 10, 1994 while engaged in the commission of armed robbery in violation of § 97-3-19(2)(e). The three-day trial began September 3, 1996 and ended September 5, 1996 with the jury returning a verdict of guilty. The sentencing hearing was held September 6, 1996. The jury heard final arguments from both the defendant and the state before retiring to the jury room for deliberation. After 2½ hours of due consideration, the jury returned with a verdict. The following verdict was returned in the proper form:

We the jury unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the Capital Murder:

1- That the defendant, Joseph Daniel Burns, actually killed Floyd Melvin McBride;

2- That the defendant attempted to kill Floyd Melvin McBride ;

3- That the defendant intended that the killing of Floyd Melvin McBride take place;

4- That the defendant contemplated that lethal force would be employed in this crime.

Next, we the Jury, unanimously find that the aggravating circumstances of the defendant, Joseph Daniel Burns, was engaged in the commission of a robbery is sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstance, and we unanimously find that the defendant should suffer death.

Sonny Turner Foreman of the Jury

¶2. The trial Judge sentenced Burns to death by lethal injection to be carried out on October 11, 1995. Burns filed a Motion to Stay Execution pending appeal which was granted on September 13, 1996. Burns' Motion For JNOV Or In The Alternative A New Trial was denied by the trial Judge on September 18, 1996. Burns timely filed a Notice of Appeal with this Court on October 1, 1996. Following the denial of his Motion for Supersedeas Bond Pending Appeal, Burns is currently being held in the maximum security unit at The Mississippi State Penitentiary pending the outcome of his appeal. Burns raises the following issues on appeal:

I. THE COURT ERRED BY FAILING TO GRANT REQUESTED PRELIMINARY HEARING.

II. THE COURT ERRED BY FAILING TO HAVE ENTIRE PROCEEDINGS RECORDED.

III. BURNS WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND A RIGHT TO A FAIR TRIAL BY THE COURT'S DENIAL OF BURNS' REQUEST FOR A CONTINUANCE.

IV. THE COURT ERRED IN FAILING TO QUASH THE INDICTMENT.

V. SUFFICIENT EVIDENCE WAS NOT PRESENTED TO CONVICT BURNS ON THE INDICTED CHARGE.

VI. THE COURT ERRED IN ALLOWING THE INTRODUCTION OF THE EXEMPLARS WHERE THE ITEMS WERE TAKEN IN VIOLATION OF BURNS' RIGHTS UNDER THE FOURTH, FIFTH, AND SIXTH AMENDMENT OF THE U.S. CONSTITUTION.

VII. THE COURT ERRED IN ALLOWING THE LETTERS OVER THE OBJECTION OF THE DEFENDANT WHERE THE PROSECUTION DID NOT LAY THE PROPER FOUNDATION FOR INTRODUCTION AND DID NOT REQUIRE THE PROSECUTION TO SATISFY THE "CHAIN OF CUSTODY" OF SAID LETTERS.

VIII.THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT, BOTH AT THE CLOSE OF THE STATE'S CASE AND AT THE CLOSE OF THE ENTIRE CASE, AND IN DENYING MOTION FOR NEW TRIAL.

IX. THE COURT ERRED IN ALLOWING THE STATE TO MAKE PREJUDICIAL REFERENCE TO PRIOR CRIMES IN VIOLATION OF M.R.E. RULE 404.

X. THE EVIDENCE PRESENTED PROVED TO BE INSUFFICIENT WHERE GREAT RELIANCE WAS PLACED ON UNCORROBORATED, INCREDIBLE TESTIMONY.

XI. THE TRIAL COURT ERRED IN ADMITTING UNNECESSARY AND GRUESOME AUTOPSY PHOTOGRAPHS INTO EVIDENCE.

XII. THE DENIAL OF BURNS' RIGHT TO AN INDEPENDENT PSYCHOLOGIST EXPERT TO ASSIST HIS DEFENSE VIOLATED CONSTITUTIONAL RIGHTS.

XIII.THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR A MANSLAUGHTER INSTRUCTION.

XIV. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE UNDERLYING CRIME OF ROBBERY.

XV. THE COMMENTS MADE BY PROSECUTION AMOUNTED TO PROSECUTORIAL MISCONDUCT.

XVI. THE COURT MUST REMAND THIS CASE FOR A NEW SENTENCING PROCEEDING, IN LIGHT OF PROSECUTION'S MENTIONING OF UNDEFINED AGGRAVATORS WHICH WERE VIGOROUSLY ARGUED TO THE JURY AS THE GROUNDS FOR A DEATH SENTENCE.

STATEMENT OF THE FACTS

¶3. The facts, as revealed in the record, indicate that during the day of November 9, 1994, Burns and Phillip Hale went to the Town House Motel on Gloster Street in Tupelo, Mississippi where Mike McBride was the hotel manager. Phillip Hale testified that he and McBride were friends, and that he introduced Burns to McBride on November 9, 1994. Phillip Hale testified that he went in and asked McBride if they could stay there three or four days. McBride said sure, and Phillip went out to the truck, got his bag and asked Burns to come inside. Phillip Hale testified that they then "hung out for awhile" with McBride. Burns and Phillip Hale then went to get something to eat and watched a movie before returning to the motel office. McBride asked Burns and Phillip Hale if they wanted to help him count $30,000. They agreed and while they were counting the money, the two decided to rob McBride. Burns and Phillip Hale agreed that Hale would hit McBride and Burns would take the money. Phillip Hale further testified that he hit McBride and knocked him down and left the room to make sure nobody was coming. When he returned to the room, Burns was stabbing McBride in the back of the neck with a knife, a fork, and a phillip's head screwdriver. When Hale asked Burns what he was doing, Burns stabbed Hale in the foot. Hale testified that McBride was repeating "why me" while he was being stabbed to death. After the stabbing, Burns and Hale wiped fingerprints, got the money and left. The record reflects that $3,000 was taken from a tin safe in McBride's office. Burns broke the lock off of the safe with a pair of pliers.

¶4. After the stabbing, Burns and Phillip Hale returned to the trailer in Verona where they were living with Janie Taylor and Brandi Sides. Burns went into Janie Taylor's room, whom he was dating at the time, woke her up, told her what they had done, counted the money, and divided the money between himself and Hale ($1,500 each).

¶5. Phillip Hale then went to his brother, Jeff's, shop. His brother was out of town. Burns showed up later and informed Phillip Hale that he had thrown the "stuff" behind the trailer park where they lived. The testimony of State's witness, Carrie Cryder, revealed that on December 24, 1994 he and Burns were riding around, and Burns retrieved the weapons from behind the trailer and threw them off of the bridge on Brewer Road.

¶6. Later that day, on November 10, 1994, Phillip Hale parked the truck the two had driven to the Town House Motel behind Jeff's house because he was fearful that someone had seen the truck and could identify Burns and Hale by the truck. Jeff Hale had loaned his brother the truck several weeks before McBride was killed.

¶7. When Jeff Hale returned to town, he was suspicious about why Phillip had parked the truck behind the house. Also, Phillip paid his brother, Jeff, $600 he owed him, and this too made Jeff suspicious about where Phillip got the money. When Jeff first asked Phillip where the money came from, Phillip lied to him. Phillip testified that he ultimately told his brother that he and Burns killed McBride, although there is some question about when he told him. Burns also told Jeff Hale what happened. The following weekend, on November 12, 1994, Burns, Phillip Hale and his brother, Jeff went to Tunica to the casinos and spent the money they had stolen from the Town House Motel returning to Tupelo with $100 or $200.

¶8. A guest of the Town House Motel the night of November 9, 1994 testified for the State. He testified that he remembered seeing two men arrive at the motel in a tan truck that fit the description of the truck belonging to Jeff Hale that Phillip Hale was driving on the day of the murder. The guest testified that they arrived about 8:00 p.m. and left around 10:00 or 10:30 p.m. McBride's body was found by another employee of the motel around 7:00 a.m. the next morning.

¶9. Phillip Hale and Burns were not arrested until August of 1995 concerning this crime. The Tupelo Police Department arrested them pursuant to an investigation that ensued after two anonymous phone calls were received by the Crime Stoppers.

¶10. McBride's body was found in his living quarters at the Town House Motel. McBride died from a combination of blunt force injuries to the head and neck caused by numerous blows to the head and back of the neck and exsanguination from the injuries to his face and neck.

¶11. While Burns was in jail in Lee County, he began corresponding with a female prisoner, Contina Kohlheim. In the letters Burns sent Kohlheim, he talks about killing a man. "Look about the guy I killed, me and Phillip were dealing with a lot of dope and Phillip was giving our dope to this guy. He owed us $58,000. I told Phillip to ask him one more time to pay us but he never did. So that night we went to the town house and I killed his ass." In the other letter Burns sent Kohlheim, he wrote, "I took a man's life now I'm looking at the Death Penalty." Testimony at trial revealed that Burns was not charged with any other murder, and there had been no other murders at the Town House Motel.

¶12. The letters were signed from "JoJo," or "Love JoJo." Burns gave the letters to a male trustee who in turn gave them to the jailer who then gave them to a female trustee to deliver since the male prisoners were not allowed to go to the female side of the jail. Kohlheim turned the letters over to the police after being asked to do so.

¶13. Following a request by the district attorney's office, Officer Buddy Bell obtained a handwriting sample from Burns under the pretense of having him write down who would be allowed to visit him in jail. A comparison was then made between the letters written to Kohlheim and the known writing sample of Burns. The state's expert determined that there was a strong probability that the signatures on both letters were Burns'. He further determined that the content of both letters was probably written by Burns. There was also a fingerprint analysis done on the letters. Burns' fingerprints were found on both letters obtained from Tina Kohlheim.

ANALYSIS

I. THE COURT ERRED BY FAILING TO GRANT REQUESTED PRELIMINARY HEARING.

¶14. Burns first alleges that he was denied a "valuable right" when he was denied a preliminary hearing prior to his indictment. After a hearing on the matter, the Justice court Judge determined that Burns was not entitled to a preliminary hearing because the matter had already been presented to the Lee County Grand Jury. In his brief, Burns argues that he had not been served with capias and did not know whether he had actually been indicted. The Judge reserved his ruling until he could rule in writing. Judge Carr's written ruling stated that while there had not been a formal report of the indictment, he had evidence that Burns had been indicted by the Lee County Grand Jury. The record reflects that the Lee County Grand Jury returned a true bill against Burns on December 13, 1995, and Burns requested a preliminary hearing by Motion dated November 9, 1995.

¶15. This Court held, in Mayfield v. State, 612 So. 2d 1120 (Miss. 1992), that once a defendant has been indicted by a grand jury, the right to a preliminary hearing is deemed waived. Id. at 1129. This Court further stated in Mayfield that "the fundamental purpose of a preliminary hearing is to 'determine whether there is probable cause to believe that an offense has been committed and whether the defendant committed it.'" Id. (quoting Avery v. State, 555 So. 2d 1039, 1046 (Miss. 1990)(Roy Noble Lee, C.J., Dissenting in part)).

¶16. Burns argues in his brief that his case is distinguishable from Mayfield because in Mayfield, the motion for a preliminary hearing was filed seven months after he was indicted. In the case sub judice, Burns moved for a preliminary hearing approximately one month before he was formally indicted by the Grand Jury.

¶17. The Justice court Judge conducted a partial preliminary hearing in November, 1995 which he aborted upon receiving an oral report that an indictment had been returned against Burns. The Justice court Judge clearly had no basis for aborting the preliminary hearing based upon a report of an indictment which had never been served or filed.

¶18. Burns sought to have the circuit court correct the Justice court error after his indictment. The circuit court declined to do so on the basis that Burns had failed to show any prejudice in not having been afforded a preliminary hearing.

¶19. We are in agreement with the trial court. Although the Justice court Judge had no basis for aborting the preliminary hearing, the trial court did not abuse its discretion in determining that the error was harmless.

II. THE COURT ERRED FAILING TO HAVE ENTIRE PROCEEDINGS RECORDED.

¶20. Burns' next assignment of error alleges that the failure of the trial court to record the entire proceedings including bench conferences is reversible error. Burns filed a pre-trial motion requesting that all hearings be recorded whether pre-trial hearings, in open court, bench conferences or conferences in chambers. The trial Judge granted Burns' motion. Appellant argues that the absence of complete recordings violates his right of a record for the purpose of an appeal. In his brief, Burns fails to cite any specific instances of unrecorded or off- the-record proceedings.

¶21. The State correctly responds that nothing of substance was omitted from the record, that the record is sufficiently complete, and that a full appellate review can be made on the present state of the record. The State also submits that approximately twenty-four bench conferences were held without the benefit of the court reporter. The majority of these proceedings concerned administrative matters and no rulings of the court were made. Finally, the State contends that at no point in the proceedings did counsel for Burns object to the court reporter not recording these conferences.

¶22. Burns cites this Court's decision in Davis v. State, 684 So. 2d 643, 651 (Miss. 1996) which stands for the proposition that trial courts should "ensure that every word is transcribed stating, '[W]e direct without equivocation that court reporters should never fail to preserve for record at-the-bench or chambers conferences following objections. . . The trial Judge is responsible to enforce this directive.'" Id. (quoting Suan v. State, 511 So. 2d 144, 147 (Miss. 1987)). Davis also states, "[h]owever, 'it is the appellant's burden to furnish the record.'" Id. (quoting Goodson v. State, 566 So. 2d 1142, 1153 (Miss.1990)(designating the record on appeal turns on wishes of counsel)). However, in the case sub judice many of the instances in the record of bench conferences were not as a result of objections. Also in Davis, this Court further found, "Davis failed to designate this portion of the record for purposes of appeal, and failed to show or attempt to show that he was prejudiced as a result, in that the loss of information would have revealed a violation of Davis's rights during jury selection." Id. The case at bar presents the same issue. Burns fails to state how he was prejudiced in any way by the failure to record the entire proceedings.

¶23. Burns further relies on Walker v. State, 671 So. 2d 581 (Miss. 1995) where a majority of this Court found that "none of these unrecorded Discussions prejudiced Walker's ability to appeal his case." Id. at 620. This Court has said "it is the duty of the appellant to present a record of the trial sufficient to show that the error of which he complains on appeal has occurred and, further, the error was timely and properly preserved." Doby v. State, 557 So. 2d 533, 536 n. 2 (Miss. 1990). Relying on the proposition in Doby, this Court in Thorson v. State, 653 So. 2d 876 (Miss. 1994) found that because defendant failed to object at trial as to the trial court's failure to preserve a record of bench conferences, this issue did not warrant a finding of reversible error. Id. at 895. In Thorson, this Court said:

While defense counsel filed a motion June 23, 1987, to require the transcription of all proceedings at the bench outside the presence of the jury, the record shows that counsel participated in unrecorded conferences without calling it to the court's attention, or making any contemporaneous request at the time to have comments made a part of the record. It is in poor grace for counsel to participate without objection in unrecorded bench conferences and complain for the first time on appeal. We find no error here.

Id. (citing Doby, 557 So. 2d at 536).

¶24. The issue now before this Court is almost the exact same issue presented in Thorson and discussed above. In both the case at bar and in Thorson, the defendant filed a motion requesting that the proceedings be recorded in its entirety and in both instances the trial Judge granted the motion. In both cases, also, counsel for the defendant participated in bench conferences willingly without requesting that they be recorded or even calling it to the court's attention. This Court finds no distinction between the present case and Thorson. Therefore, this issue is without merit.

¶25. After a thorough review of the record in this case, we determine that the subject of the Discussions as well as the outcome of those Discussions was clear. When taken in the context in which they arose, the reason for the Discussions was apparent. Burns raises no issue on appeal in which he argues that there is an insufficient record to adequately pursue his appeal. Therefore, the argument presented by Burns in his brief, is insufficient to establish a valid claim of an incomplete record.

¶26. This Court does note for the future, however, that when a trial Judge grants a motion to have all proceedings recorded, it becomes at least partially the responsibility of the granting court to do everything possible to ensure the court reporter complies with the order. Without overruling any previous law issued by this Court providing that it is the responsibility of the appellant to ensure that there is a proper record for appeal, we admonish the trial courts of our State to assist in this endeavor.

III. BURNS WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND A RIGHT TO A FAIR TRIAL BY THE COURT'S DENIAL OF BURNS' REQUEST FOR A CONTINUANCE.

¶27. Burns next contends that because he was not granted a continuance, he was denied his right to a fair trial. Burns argues that State's witness, Jeff Hale, the brother of Burns' co-defendant was a surprise witness who the defendant did not know would be called until ten days before trial. Burns alleges that he had no knowledge of Jeff Hale's testimony regarding the trip to Tunica and/or spending the money allegedly stolen by his brother, Phillip Hale and Burns. Burns finally argues that defense counsel was not prepared to meet the challenge of the testimony of Jeff Hale.

¶28. The State submits that the prosecution properly submitted its discovery and as such no error occurred. The prosecution made the information pertaining to Jeff Hale's testimony regarding the trip to Tunica available to the defendant as soon as they received it, according to the Rules of Evidence. Further, the defendant was aware that Jeff Hale would be called as a witness upon receipt of the initial discovery in this case. The defendant, however, "had no reason to believe they needed to make any in-depth investigation of his past or any investigation of his connection with the crime of the co-defendant of the defendant and have not done so." The trial Judge denied the motion for a continuance stating, "[y]ou've got a week from today before we start picking a jury from this morning. You've got an investigator. Get to work. If you want to interview him, interview him. The State has a continuing obligation to supplement discovery just like the defendant does."

¶29. This Court held in Walker that "the decision whether to grant or deny a continuance is a matter left to the sound discretion of the trial court. Unless manifest inJustice is evident from the denial of a continuance, this Court will not reverse." Walker, 671 So. 2d at 592 (citing Johnson v. State, 631 So. 2d 185, 189 (Miss. 1994) (citing Wallace v. State, 607 So. 2d 1184, 1190 (Miss. 1992); Morris v. State, 595 So. 2d 840, 844 (Miss. 1991); Fisher v. State, 532 So. 2d 992, 998 (Miss. 1988))). "'[T]he question of whether defendant had a reasonable opportunity to prepare to confront the State's evidence at trial depends upon the particular facts and circumstances of each case.'" Id. (quoting Traylor v. State, 582 So. 2d 1003, 1006 (Miss. 1991) (citing Reuben v. State, 517 So. 2d 1383 (Miss. 1987))).

¶30. Counsel for the defendant had sufficient time, at least a week, in which to interview Jeff Hale in order to prepare Burns' defense. Burns was aware of the identity of Jeff Hale, as well as the State's intention to call him as a witness, eight months before the trial began.

¶31.This Court will not reverse absent a showing that Burns suffered injury as a result of the refused continuance. Burns has failed to offer any evidence of injury and thus this issue is without merit.

IV. THE COURT ERRED IN FAILING TO QUASH THE INDICTMENT

¶32. Burns next contends that the trial court erred in failing to quash the indictment due to the fact that the indictment fails to set out the proper elements of the underlying crime of armed robbery.

¶33. In addressing this issue in Mackbee v. State, we said,

On the merits, Mackbee's argument still fails because the indictment further read, "contrary to and in violation of § 97-3-19(2)(e) of the Mississippi Code of 1972," which is the statutory provision for capital murder. Thus, the indictment was in compliance with § 99-17-20. See, Bullock v. State, 391 So. 2d 601, 606 (Miss. 1981); Bell v. State, 360 So. 2d 1206, 1208-09 (Miss. 1978). This issue lacks merit.

Mackbee v. State, 575 So. 2d 16, 35 (Miss. 1990).

¶34. The issue now before the Court is identical to the issue raised in Mackbee. Burns' indictment contained the provision of the Mississippi Code he violated, the capital murder provision. Burns was indicted for capital murder while in the commission of armed robbery. He had adequate notice of the crime charged such that he would have been able to present a well prepared defense. There is no Mississippi case law that requires the indictment to list the elements of the underlying offense charged in a capital murder indictment when the underlying offense is armed robbery.

¶35. We find that since Burns was indicted with the underlying offense of armed robbery, and the indictment included the provision comprising a charge of capital murder, this issue lacks merit.

V. SUFFICIENT EVIDENCE WAS NOT PRESENTED TO CONVICT BURNS ON THE INDICTED CHARGE.

¶36. Burns fifth assignment of error alleges that the prosecution failed to prove the essential elements of armed robbery. In this assignment of error, Burns challenges the sufficiency of the State's evidence. He contends that the prosecution failed to prove he had the requisite intent to commit armed robbery.

¶37. The State relies on this Court's holding in Voyles v. State, 362 So. 2d 1236, 1243 (Miss. 1978) where this Court held that the intent to rob may be shown by the acts of the person involved as well as the circumstances surrounding such actions. The intent to rob and/or murder need not be express. By Phillip Hale's own admission, he and Burns intended to rob Melvin McBride.

¶38. The standard of review in reviewing issues of sufficiency of the evidence was set out by this Court in McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987). The State asserts that based on McFee, the evidence was sufficient to convict Burns. In that case, this Court said:

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidence--not just that supporting the case for the prosecution--in the light most consistent with the verdict. We give prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different Conclusions, the verdict of guilty is thus placed beyond our authority to disturb. See, e.g., Gavin v. State, 473 So. 2d 952, 956 (Miss. 1985); May v. State, 460 So. 2d 778, 781 (Miss. 1984).

Id.

¶39. The facts, as set out in detail above, along with all the other evidence support the jury's verdict sufficiently. This assignment of error is without merit.

VI. THE COURT ERRED IN ALLOWING THE INTRODUCTION OF THE EXEMPLARS WHERE THE ITEMS WERE TAKEN IN VIOLATION OF BURNS' RIGHTS UNDER THE FOURTH, FIFTH, AND SIXTH AMENDMENT OF THE U.S. CONSTITUTION.

¶40. In his next assignment of error Burns alleges that his Fourth, Fifth and Sixth Amendment constitutional rights were violated when, over his objection, the trial Judge allowed writing exemplars taken from Burns without his knowledge to come into evidence.

¶41. Counsel for Burns argues in his brief that because Burns did not sign a consent form to have the handwriting samples seized from him, his Fourth Amendment right against unlawful seizure was violated. He further argues that the taking of the exemplars without warning of self- incrimination is a violation of his Fifth Amendment right against self- incrimination. Finally, Burns claims that he was denied his Sixth Amendment right to effective assistance of counsel at trial.

¶42. Following a request by the district attorney's office, Officer Buddy Bell, jail administrator for the Tupelo Police Department, asked Burns to write down who should be allowed to visit him on visiting days. The record makes it clear that the real purpose of Bell's request was to obtain for the district attorney a known writing sample against which to compare the letters Burns wrote to Contina Kohlheim. Bell testified that it was not common for the jail to request written confirmation of an inmate's visitors. However, Bell further testified that he believed that if he had approached Burns requesting a handwriting sample or if the district attorney's office had first obtained a court order to force Burns to give a handwriting sample, he would not have cooperated.

¶43. This particular issue is relatively new to Mississippi. However, the United States Supreme Court and various State Supreme Courts have addressed this same issue. The taking of handwriting exemplars is treated in much the same manner as blood samples, hair samples, etc. in that it is not a critical stage requiring presence of counsel and that there is no privacy expectation in handwriting samples taken from a prisoner.

¶44. The trial Judge in the case at bar held a hearing outside the presence of the jury in order to rule on the defendant's motion to suppress. After hearing arguments of counsel for the defendant and the prosecution, the Judge determined that:

he has no expectations -- legitimate expectation of privacy in his handwriting under the 4th amendment. And the court finds that the 5th amendment doesn't apply either to this type of evidence, handwriting exemplar. It is well-established law that the 5th amendment privilege against self-incrimination applies only to evidence of a testimonial or communicative nature and does not protect a suspect from being compelled to produce real or physical evidence. This law has most recently been stated last year in United States versus Timothy J. McVey, who is ...


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