Petition for certiorari filed at, 09/03/2014
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COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/08/2009. TRIAL JUDGE: HON. LISA P. DODSON.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ALISON R. STEINER, ANDRE DE GRUY.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JASON L. DAVIS, MARVIN L. WHITE, JR.
COLEMAN, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL
¶1. Jason Lee Keller appeals his conviction for capital murder; finding no reversible error, we affirm.
¶2. On March 21, 2008, Jason Lee Keller was indicted for capital murder while in the commission of robbery. On October 5, 2009, a jury trial commenced in the Circuit Court of Harrison County, Second Judicial District, with the Honorable Lisa P. Dodson presiding. The jury returned a verdict of guilty on the capital murder charge on October 7, 2009. After a separate sentencing hearing, the jury found beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder: that Keller intended to kill Hat Thi Nguyen, that Keller attempted to kill Nguyen, and that Keller did kill Nguyen. The jury unanimously found the following aggravating circumstances: the capital offense was committed in the commission of a robbery; the capital offense was committed to avoid or prevent a lawful arrest; and Keller previously had been convicted of a felony involving the threat of violence to a person.
¶3. Subsequently, Keller filed a motion for new trial, followed by an amended motion for a new trial, both of which were denied. Keller then timely filed the instant direct appeal. The Court entered an en banc order on February 15, 2013, remanding the case to the Circuit Court of Harrison County to conduct a supplemental evidentiary hearing on the questions of whether any of the three statements made by Keller to law enforcement officers was coerced, and, if so, whether any information learned in a coerced confession was used to gain additional information from Keller. On remand, the trial court found that none of the statements had been coerced and - even if the first two were - that the third statement was sufficiently removed from them to render it admissible. Having retained jurisdiction, the Court will address Keller's issues on appeal.
FACTS AND PROCEDURAL HISTORY
¶4. On the morning of June 21, 2007, someone shot and killed Hat Thi Nguyen (" Hat" ) inside Food Mart, a convenience store she owned in Biloxi, Mississippi. A customer, Terri Muffi, found her. Muffi saw a pack of cigarettes lying on the floor and noticed that the cash register was not completely closed. Upon looking behind the counter, Muffi noticed a woman lying on the floor, so she rushed behind the counter and called 911.
¶5. An owner of a neighboring business, Teo Nguyen (no relation) (" Teo" ), entered the store and immediately noticed a distressed
woman behind the counter on the telephone. Muffi asked Teo the name of the store. He went outside to confirm that the store was named Food Mart. Shortly thereafter, Teo saw Hat lying on the floor behind the counter and became concerned about her children. He walked to the rear of the store and called for them but received no answer. Teo went back to the front of the store and took the telephone from Muffi so he could speak with the 911 operator. Muffi proceeded to perform cardiopulmonary resuscitation (CPR) on Hat. On the witness stand at trial, Teo recalled that it appeared as though there had been a struggle between Hat and her attacker. He also noticed that the cash register was damaged.
¶6. Within minutes of the 911 call, first responders were on the scene, including Sergeant Darryl Montiforte of the Biloxi Police Department. Montiforte recalled that, upon his arrival on the scene, a woman (later identified as Muffi) was performing CPR on Hat. Hat did not appear to be responding and did not have a pulse. Montiforte discovered Hat's son, unharmed, sleeping in the rear of the store. Montiforte testified that the cash register appeared to be undamaged and closed.
¶7. On the morning of the shooting, Keller, having wrecked and abandoned a stolen truck, set out on foot in possession of a stolen gun before stopping by Hat's store for cigarettes. Keller recounted to Investigator Michael Brown in his third statement, which was admitted into evidence:
KELLER: . . . . Don't know why I did it, but I did it. I asked her for a pack of cigarettes. When she turned around, I pulled my gun out and when she turn back around, I told her give me all the money. She started screaming no. I just shot her . . . .
Keller recalled that he had shot her " once or twice" before she ran out the door of the convenience store (although he could not remember exactly how many times he had shot her), and he had followed her out of the store with the gun. She told him she would give him all the money in the store, so they returned inside the store. Keller then shot her again. Hat fell to the floor, at which point Keller shot her one final time at close range (referred to by the forensic pathologist as " contact range" ) in the back of the head. Keller retrieved the money from the register before fleeing on foot to his stepfather's house, where he stole a second truck. Keller then went to a bank to cash the rolls of change he had stolen from the convenience store. Surveillance tape at Keesler Federal Credit Union confirmed that Keller had come into the bank with rolls of change to exchange them for cash. Keller then proceeded to a " crack house." Having sold the stolen gun used in the shooting in exchange for crack cocaine, Keller remained at the house smoking crack cocaine until nightfall. He then left in the stolen truck, driving around until police attempted to pull him over. After initially refusing to yield to police pursuit, Keller finally stopped the vehicle. When he exited the vehicle, Keller, attempting suicide, pointed a metal object that resembled a shotgun barrel at the police to induce them to shoot him. He was shot by arresting officers and transported to Biloxi Regional Medical Center. While in the emergency room, officers attempted to interrogate him on two different occasions. The day after his shooting, Investigator Brown of the Biloxi Police Department conducted a recorded police interview with Keller while he was being treated in the intensive care unit (ICU) at Biloxi Regional.
¶8. At trial, without objection by the defense, the State tendered Dr. Paul McGarry as an expert witness in forensic
pathology. Dr. McGarry testified that Hat had four gunshot wounds in her body. He identified a gunshot wound to her abdomen (wound C) as nonfatal, because it had not penetrated any vital structures. He testified that, after the initial gunshot, Hat still would have been able to walk, talk, think, and engage in movement (though in pain). Dr. McGarry identified gunshot wound A, a shot that entered Hat's head about four inches above her right ear canal but stayed beneath the scalp and did not penetrate her skull or brain. Dr. McGarry testified that wound A also had been a nonfatal wound that likely would have stunned her and knocked her down but would not have paralyzed her or seriously damaged her brain. According to Dr. McGarry, gunshot wound D went into the brain itself. It would have done more serious damage by decreasing the degree of consciousness and/or rendering her unconscious, along with causing her to suffer brain damage. However, she still would have been able to move the muscles and use the nerves of her extremities. Finally, he described a gunshot wound in which the bullet entered the base of the skull where the spinal cord connects to the brain and traveled to her cerebellum, labeled wound " B." That shot was identified as the fatal one.
¶9. Keller was indicted by a grand jury for capital murder as a nonhabitual offender on March 31, 2008. On May 6, 2008, the State filed a motion to amend the indictment, seeking to charge Keller as a habitual offender pursuant to Mississippi Code Section 99-19-83. Keller maintains that he did not receive notice of the motion, nor did he receive a hearing on the motion. He further contends that he was not appointed counsel at the instant stage of the proceedings. On June 6, 2008, Judge Jerry O. Terry granted the State's motion. Keller was appointed counsel on June 11, 2008.
¶10. Judge Clark  presided over an omnibus hearing on August 27, 2009, during which arguments were heard from both parties on Keller's motion to suppress statements that he had made to police during his hospitalization. Keller had given statements to police in the emergency room and in the ICU. The trial judge granted Keller's motion in part, suppressing statements Keller had made to police while being treated in the emergency room but not suppressing statements Keller had made to police while in the ICU.
¶11. Jury selection in the trial commenced on October 5, 2009. Trial began immediately thereafter, resulting in a jury verdict of guilty of capital murder, on October 7, 2009, after just over thirty minutes of deliberation. The jury returned a sentence of death on October 8, 2009. Keller timely filed a direct appeal.
¶12. After oral argument, the Court entered an en banc order on February 15, 2013, remanding the case to the Circuit Court of Harrison County to conduct a supplemental evidentiary hearing to determine whether " any one or more of the statements Keller made to law enforcement was coerced and, if so, whether any information gained in any coerced statement assisted law enforcement in gaining additional information from Keller in any statement that was not coerced."
¶13. Upon remand, the trial court allowed the parties to introduce evidence as they deemed necessary to assist in making a determination of the two issues, including hearing testimony from the State's witness,
Dr. Gregory F. Bredemeier, who was Keller's emergency room doctor; and Keller's witness, Dr. Joseph A. Jackson, who is board certified in neurology, psychiatry, sleep disorders, pain management, and medical acupuncture. Dr. Bredemeier testified that, while Keller was in pain, he was alert and supplied information as was needed. He also testified that the amount of morphine that Keller received was not enough to make him incoherent or to compromise his ability to understand what was going on around him. Dr. Jackson had not treated or examined Keller, but he did review the medical statements and prior testimony. He testified that Keller was not competent to waive his Miranda rights in the first two statements due to the pain and discomfort he was experiencing. Further, he testified that the officers coerced Keller when they coupled their questions with statements that they would " see what they could do" as to getting Keller some water at a time when it was not medically reasonable to do so. Dr. Jackson also believed that when the officer said that he didn't know what the next few minutes or hours would hold in store for him, Keller was being coerced.
¶14. After both parties rested, the trial court rendered its opinion, holding that
none of the statements given by Jason Lee Keller were " coerced" by the improper actions of the investigating law enforcement officers. Further, the Court finds that even if the first two statements are held to be " coerced," the third statement was freely and voluntarily given after an intelligent and knowing waiver of Keller's rights under Miranda and sufficiently removed and distinguishable from the conditions present during the first two statements to be " purged of the primary taint," if any, of those statements. Finally, the Court finds that the information obtained in the first two statements was not " used to obtain additional information" from Keller in the third statement.
Having retained jurisdiction, the Court must now make a ruling on Keller's arguments on appeal.
I. Whether constitutional flaws in the process by which Keller was accused and tried irrevocably tainted his conviction and death sentence and require reversal of both.
A. Whether repeated violations of the order granting full recordation of all proceedings in this matter deprived Keller of a fair trial.
B. Whether repeated exclusion of Keller from critical stage proceedings also prejudiced his fundamental Sixth and Fourteenth Amendment rights to presence and a fair trial.
C. Whether amendment of the indictment in this matter by ex parte action when Keller was unrepresented and without notice was prosecutorial misconduct and deprived Keller of his Fifth, Sixth, and Fourteenth Amendment protections.
D. Whether payment of excess compensation to State's witness Terry Ann Muffi and her nontestifying traveling companion was
similarly prosecutorial misconduct, and violated Keller's rights to due process and to confrontation of witnesses.
II. Whether the jury selection process was constitutionally infirm and requires reversal of Keller's conviction and sentence of death.
A. Whether exclusion of Keller from off-record voir dire was unconstitutional and prejudicial.
B. Whether the trial court improperly limited defense voir dire relating to juror understanding of the sentencing process and exacerbated the harm by off-record resolution of the objections resulting in those limitations.
C. Whether the trial court improperly removed prospective jurors qualified to serve under Witherspoon.
D. Whether the trial court deprived Keller of his right to a fair and impartial jury by seating Juror 5, Glenn Anderson, who failed to reveal material information during jury qualification and voir dire at any time prior to being selected as a juror.
III. Whether the trial court erred in failing to suppress the final statement elicited from the defendant at Biloxi Regional Medial Center by law enforcement officers.
A. Whether the trial court erroneously applied controlling " fruit of the poisonous tree" jurisprudence in not suppressing Keller's third statement to police.
B. Whether the trial court's conclusions of law in the Remand Opinion concerning coercion and its effect on Keller's third statement to police are contrary to controlling law and unsupported by the record.
C. Whether Keller's invocation of his right to silence during questioning in the ER was not honored by police when they resumed his interrogation in the ICU.
D. Whether, even if treated sui generis, the Miranda warning and waiver obtained prior to the third statement were insufficient and invalid.
IV. Whether prosecutorial misconduct and erroneous rulings by the trial court caused the jury to receive inadmissible information during the culpability phase of the trial which requires reversal of Keller's conviction of capital murder.
A. Whether the trial court erred in denying Keller's Rule 404(b) motion to exclude concerning alleged vehicle thefts for which Keller was separately indicted.
B. Whether the trial court erred in allowing the jury to read along with a transcript while they were listening to the audio recording of Keller's statement.
C. Whether the trial court erred in admitting, over Keller's objection, prejudicially gruesome photographs, and a cumulative and gruesome diagram prepared by the pathologist.
D. Whether the State committed prosecutorial misconduct during the culpability phase of the trial by adducing and arguing improper victim impact evidence and other unnecessary and inflammatory evidence concerning the suffering of and injuries to the decedent.
E. Whether much of Dr. Paul McGarry's testimony was also
outside the scope of his expertise and/or admittedly unsupportable by the facts of records and was therefore inadmissible for any purpose.
F. Whether the prosecution's reference in its opening statement to multiple " statements" given by Keller violated the trial court's suppression order and the Fifth and Sixth Amendments of the United States Constitution.
V. Whether the culpability phase verdict was also constitutionally flawed by improper instructions and premature and insufficient deliberation by the jury and must be revised.
A. Whether the trial court erred in denying Keller's requested Instructions D-9, D-10, and D-11 on noncapital murder and manslaughter.
B. Whether the jury engaged in premature deliberations as to guilt prior to conclusion of the evidence or receipt of instructions, and followed that with an absence of meaningful deliberation at the time the case was consigned to them, which requires reversal here.
VI. Whether the trial court erroneously permitted the state to present improper matters to the jury during the penalty phase proceedings and precluded Keller from responding to the state's evidence at that phase.
A. Whether the jury received inadmissible, inflammatory evidence and argument concerning four prior non-violent felony convictions which prejudicially influenced its verdict.
B. Whether the victim impact testimony offered by the State went beyond the limited scope permitted by law, and requires reversal of the sentence as a consequence.
C. Whether the trial court compounded the prejudice created by admission of this improper evidence by erroneously limiting Keller's ability to refute inferences of non-statutory aggravating factors that were not supported by law and/or the facts.
VII. Whether the trial court erred in the instructions to the jury at the sentencing phase and reversal is required as a consequence.
A. Whether the trial court's sentencing instruction improperly permitted the jury to consider aggravating factors that were not supported by law and/or the facts.
B. Whether the trial court erroneously refused Keller's requested sentencing phase instructions D SP-2, 6, 7 and 8.
VIII. Whether the penalty phase was further rendered fundamentally unfair by the failure of the trial court to insure a constitutionally sufficient process.
A. Whether matters conducted off-record in the sentencing phase were a violation of Keller's rights for the reasons discussed in Argument I, supra.
B. Whether the trial judge erred in handling the off-record receipt of a jury note indicating premature sentencing deliberation by at least one juror when evidence was still being received, and similarly failed to make a contemporaneous record of two additional jury notes received during sentencing deliberation.
IX. Whether the death sentence in this case must be vacated because it
was imposed in violation of the Constitution of the United States.
A. Whether the failure to include aggravating circumstances in [the] indictment renders the sentence unconstitutional and requires that it be vacated.
B. Whether the scienter provisions of the Mississippi capital sentencing statute are unconstitutional and void, and Keller's death sentence is therefore without any legal basis and must be vacated.
C. Whether duplicative use of the robbery which was relied upon to render the homicide capital murder as a statutory aggravating factor making Keller eligible for the death penalty and weighing against mitigation at sentencing violates the Constitution.
D. Whether the execution of Keller pursuant to the sentence in this matter will violate Baze v. Rees and the death sentence must be set aside as a result.
E. Whether the Mississippi statute is unconstitutional for additional reasons, as well.
X. Whether the death sentence in this matter is constitutionally and statutorily disproportionate.
XI. Whether the cumulative effect of the errors in this trial court mandates reversal of either the verdict of guilt or the sentence of death.
XII. Except as raised to preserve substantive errors discussed in arguments I through XI, issues relating to ineffective assistance of trial counsel are not fully apparent from the record, and the right to raise such issues is reserved.
STANDARD OF REVIEW
¶15. " [T]his Court applies heightened scrutiny to capital-murder convictions where a sentence of death has been imposed." Fulgham v. State, 46 So.3d 315, 322 (¶ 16) (Miss. 2010) (citing Bishop v. State, 812 So.2d 934, 938 (Miss. 2002)). " We repeatedly have ruled that '[w]hat may be harmless error in a case with less at stake [may become] reversible error when the penalty is death.'" Id. (quoting Bishop, 812 So.2d at 938).
¶16. In reviewing the trial court's denial of a petitioner's motion to suppress confessions, " we apply the familiar general rule that since the trial court sits as the fact-finder when determining the issue of whether an accused's confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court's determination of this issue when such determination is manifestly wrong." Glasper v. State, 914 So.2d 708, 716 (¶ 21) (Miss. 2005). " [W]e will not disturb the trial court's determination on the admissibility of a confession unless the trial court applied an incorrect legal standard, committed manifest error, or rendered a decision which was contrary to the overwhelming weight of the evidence." Id.
I. Whether constitutional flaws in the process by which Keller was accused and tried irrevocably tainted his conviction and death sentence and require reversal of both.
Incomplete transcription of proceedings
¶17. Keller asserts that numerous proceedings, including bench jury qualification and voir dire, bench objection conference, recess proceedings with judge and attorneys, jury strikes and selections, receipt of
jury notes, and other matters were conducted off-record. Keller maintains that the omissions violated both the Court's longstanding condemnation of off-record proceedings and an order entered by the trial court that all such matters be recorded. See Suan v. State, 511 So.2d 144, 147 (Miss. 1987) (" [W]e direct without equivocation that court reporters should never fail to preserve for record at-the-bench or chambers conferences following objections such as have been made. The trial judge has the responsibility to enforce this directive." ); see also Smith v. State, 877 So.2d 369, 392 (¶ 70) (Miss. 2004) (reaffirming the Court's pronouncement in Suan). Conversely, the State contends that Keller should have contemporaneously objected to the failure of the court reporter to make a complete transcription or the failure of the court to follow its own omnibus order, granting Keller's pretrial motion to record all proceedings.
¶18. Keller asserts that his failure to object when the order was not followed at trial does not serve as a procedural bar, because he had filed a motion in limine asking that all proceedings be recorded, which was granted by the trial court. Keller cites Goff v. State, 14 So.3d 625 (Miss. 2009), to support his argument that the Court has held that motions in limine preserve a defendant's right to appeal an alleged error, even in the absence of a contemporaneous objection. In Goff, we stated, " [t]his Court has held that a defendant's motion in limine regarding the introduction of evidence properly preserved the issue for appeal, and an objection was not necessary." Goff, 14 So.3d at 640 (¶ 46) (citing Kettle v. State, 641 So.2d 746, 748 (Miss. 1994)). However, Goff was limited to motions to suppress evidence. Accordingly, the matter has not been properly preserved for appeal due to the absence of a contemporaneous objection by the defendant at trial to failure on the part of the court reporter to record all of the proceedings. See Smith v. State, 724 So.2d 280, 302 (¶ 69) (Miss. 1998) (reiterating that a contemporaneous objection must be made to preserve an alleged point of error for appeal) (quoting Davis v. State, 660 So.2d 1228, 1251 (Miss. 1995)).
¶19. In an attempt to supplement the record, Keller filed a motion to correct and reconstruct these off-record occurrences on February 18, 2011, almost one year after a designation of the record was filed on March 12, 2010, and the actual record was filed with the Court on July 20, 2010, after appellate counsel was substituted for trial counsel. Despite having agreed with the State that the motion was untimely under Mississippi Rule of Appellate Procedure 10(c), the trial court took up Keller's motion at a hearing on April 4, 2011. At the hearing, portions of the record were reconstructed and/or recounted at the hearing by the trial judge, with counsel for both parties present and participating. Keller argues that any attempt on the part of the trial court either during trial or post-trial to reconstruct off-record proceedings was insufficient and warrants reversal of the conviction.
¶20. In opposition, the State argues that Keller's issue also is procedurally barred for failure to follow Mississippi Rule of Appellate Procedure 10(c), which provides the appropriate procedure for modifying the record on appeal when " no stenographic report or transcript of all or part of the evidence or proceedings is available." In that instance, an appellant may prepare a statement of the evidence or proceedings from recollection. Miss. R. App. P. 10(c). The statement of the evidence or proceedings must be " certified by the appellant or his counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60
days after filing the notice of appeal," and must be served upon the appellee. Id. A failure to follow the procedure results in a procedural bar to raising the issue of an incomplete transcript on appeal. Simmons v. State, 805 So.2d 452, 506 (¶ 157) (Miss. 2001) (citing Watts v. State, 717 So.2d 314, 317 (Miss. 1998)). Keller never filed a statement of the evidence or proceedings from recollection. He has failed to preserve the issue on appeal for failure to object contemporaneously and failure to follow Rule 10(c).
Exclusion from critical proceedings
¶21. Keller maintains that he was excluded from several off-record bench conferences and conferences in chambers, including voir dire examination conducted at the bench. Eleven venire members were questioned by the trial judge at the bench. For three of these venire members, the defense made the decision as to whether or not they served on the jury, and one actually served on the jury. Keller maintains his exclusion violated his Sixth-Amendment right to be present at critical stages of the trial. Moreover, he argues that the failure of his attorney to object was " a constitutionally ineffective reaction to this deprivation" which resulted in prejudice to his defense.
¶22. Conversely, the State argues that he is procedurally barred from making the argument. Alternatively, the State asserts that the argument is without merit, because the defendant has no Sixth Amendment right to be present during bench conferences.
¶23. " A criminal defendant's right to be present at 'critical stages' does not include the right to be present during bench conferences and the conference on jury instructions, since those matters are purely legal and the criminal defendant can do little to aid his defense. It is sufficient that his counsel is present." Jordan v. State, 786 So.2d 987, 1022 (¶ 126) (Miss. 2001) (citing Smith v. State, 724 So.2d 280, 308-12 (Miss. 1998)). Accordingly, the issue is without merit.
Amendment of the indictment
¶24. Keller argues that the process by which his indictment was amended violated his Sixth Amendment right to presence at all critical stages of the proceedings, as well as his right to counsel. See Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) ( " [T]he right to counsel granted by the Sixth and Fourteenth Amendments means . . . a person is entitled to . . . a lawyer at or after the time that judicial proceedings have been initiated against him 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" ) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). Keller avers that such an " [a]mendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised." Adams v. State, 772 So.2d 1010, 1020 (Miss. 2002) (quoting URCCC 7.09). Keller contends that the trial court should not have allowed for the amendment of the indictment without notice to Keller and without a hearing on the motion, at which Keller should have been represented by counsel. In support of his argument, Keller cites Sharp v. State, 240 Miss. 629, 127 So.2d 865, 869, error overruled, 240 Miss. 629, 129 So.2d 637 (Miss. 1961):
The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause.
Keller maintains that the trial court's order granting the amendment was an improper
ex parte order  and that the prosecutor violated ethical rules in obtaining the order, especially from a judge who was not otherwise involved in the case. Keller insists that he was deprived of an opportunity to challenge the factual and legal bases for the amendment.
¶25. The State filed a motion to amend the indictment on May 6, 2008, in which the State sought to sentence Keller as a habitual offender pursuant to Mississippi Code Section 99-19-83, based on a March 1999 conviction for burglary (for which he served a seven-year sentence) and a March 1999 conviction for grand larceny (for which he served five years). The record is void of any hearing on the motion to amend the indictment. Judge Jerry O. Terry granted the motion on June 6, 2008. There is no signed order appointing Keller counsel; however, a statement indicating that his case was assigned to the public defender's office was filed with the court on June 11, 2008. Keller was arraigned on August 18, 2008. The motion, the order granting the motion, and the amended indictment are in the record.
¶26. The State argues that the issue is procedurally barred due to Keller's failure to challenge the indictment prior to trial. Keller argues that he cannot be charged with failing to object to the motion and subsequent order to amend the indictment because both were " concealed" from Keller, his counsel, and Judge Clark. Alternatively, Keller argues that his counsel was ineffective for failing to review the court file and/or failing to take action to have the amendment set aside.
Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss. 2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss. 1983).
Gowdy v. State 56 So.3d 540, 543 (¶ 7) (Miss. 2010) (quoting Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss. 2008)). The Court declines to grant relief on the basis of ineffective assistance of counsel, because the issue is not based on " facts fully apparent from the record." Miss. R. App. P. 22.
¶27. It is not necessary for the Court to address the issue on appeal, because, regardless of whether the indictment was amended or not, there were only two options for Keller's sentence - the death penalty or life without parole.
Compensation of State's Witness
¶28. Keller argues that the Court has cautioned the bench and bar that improper compensation of witnesses resulting in prejudice to the defendant warrants reversal of a conviction. See Woodward v. State, 726 So.2d 524, 544 (¶ 89) (Miss. 1997)
(" [T]his Court urges trial judges to be extremely cautious in complying with the statutes regarding payment of witness fees in the future." ).
¶29. Keller asserts that Muffi, one of the State's witnesses, was reimbursed at a rate of " more than sixteen times" what Mississippi law authorizes for her travel expenses from Lee County to Harrison County for the trial, plus two hotel bills. Furthermore, Keller argues that there was no statutory authority for compensating Muffi's traveling companion, Gary Roberts (to whom the trial court authorized a check for traveling expenses and for whom the trial court paid for a room at a local hotel), and that the State misrepresented to the court that Roberts was a witness. Muffi's companion was paid $362.67 ($321.20 for 584 miles at $0.55 mile plus $41.47). The motion and order reference the " attached itemized expenses and charges," but the record does not contain any attachments or itemized charges. The State also filed two motions for lodging costs (two hotel rooms for Muffi and Roberts at $69.00 each). The trial court granted the lodging expense on January 12, 2010, and those bills were paid directly to the hotel. Mississippi Code Section 25-7-47, the statute authorizing expenses for witnesses, provides (in pertinent part):
Witnesses in the county, circuit, and chancery courts shall receive one dollar and fifty cents per day and five cents for each mile going to and returning from the courthouse to their homes by the nearest route, and such tolls and ferriages as they may actually be obliged to pay; but mileage, toll, and ferriage shall be charged but once at each term of court, and a charge shall not be made for mileage except that traveled in this state.
Miss. Code Ann. § 25-7-47 (Rev. 2010).
¶30. Conversely, the State argues that the issue is procedurally barred for failure to raise it before the trial court and that Keller had notice, because the motions for expenses and orders were made part of the record. While Keller avers that he was not made aware of the payments until after he had been sentenced, the State points out that the date of the order authorizing travel expenses for Gary Roberts was the day of sentencing, October 8, 2009. Keller did not oppose the motion for travel expenses at the time nor did he raise it in his motion for new trial on October 15, 2009. Nothing indicates that Keller opposed the motion for lodging, although Keller contends that the order was obtained ex parte and that he had no notice of the State's motion for lodging.
¶31. We agree that Keller is procedurally barred from raising the issue for the first time on appeal. In Woodward, 726 So.2d at 543, the Court applied a procedural bar (although alternatively addressing it for lack of merit) where a defendant raised the issue of excessive expenses paid to witnesses for the prosecution, claiming that he did not receive notice of the State's motions for expenses and had discovered payments for these expenses only when reviewing the record for appeal. The Court found that the orders authorizing the first two payments to the State's witness were in the record prior to
the defendant's resentencing trial. A third payment to the witness had been ordered after the post-trial motion in the case had been filed. Id. The Court found that " Woodward clearly had notice of the payment of witness fees. However, because Woodward did not timely object to the first two payments, he waived his right to object to the third payment." Id.
¶32. Assuming for argument's sake that Keller has not waived his right to raise the issue of the payment for lodging, given that it was made after sentencing and after the amended post-trial motion for a new trial was made, and accepting his claim that he did not have actual notice of the motion and subsequent order, we find, alternatively, the claim is without merit.
¶33. Keller argues that the State had an obligation to disclose the compensation paid to Muffi and her traveling companion pursuant to Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); United States. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Keller argues he was prejudiced because he did not have opportunity to impeach the witness as to the benefit received. Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); Bagley, 473 U.S. at 676; Miss. R. Evid. 616.
¶34. Keller maintains that his Sixth Amendment right to confrontation was violated, because the information should have been provided at a time that permitted him to make effective use of it. Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994). At the very latest, according to Keller, the disclosure should have occurred prior to cross-examination. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); see also Meeks v. State, 604 So.2d 748, 755 (Miss. 1992) (stating the often-cited rule that wide-open cross-examination of any matter bearing upon the credibility of the witness is allowed, including the possible interest, bias, or prejudice of the witness).
¶35. A Brady violation occurs where the record shows the existence of evidence that 1) is favorable to the accused or impeaching of a state's witness, 2) was suppressed either willfully or inadvertently by the prosecution, and 3) is " material" to the accused's defense. Banks, 540 U.S. at 691 (citing Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481). While Keller has a valid argument that information regarding payment to Muffi for expenses could have been used to impeach her for any potential bias, proving suppression by the State is more problematic for Keller. Given that the motion was filed post-trial and all payments were ordered post-trial, the record is silent as to whether the State had made an agreement with Muffi before trial for paid expenses or that Muffi expected compensation for her expenses prior to her testimony. Additionally, all motions for expenses and orders for payment were made part of the trial court's record. Lastly, Keller argues that, because Muffi was a material witness to the State's case, the materiality prong is satisfied. To satisfy the third Brady prong requires that there must be a " reasonable probability" that the result of the proceeding would have been different if the evidence had been disclosed. Kyles, 514 U.S. at 434. " The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence." Id. Stated differently, a " reasonable probability" of a different result is present where the State's evidentiary suppression " undermines confidence in the outcome of the trial." Id. (citing Bagley, 473 U.S. at 678).
¶36. Reimbursement for travel expenses and lodging for a state's witness and the person who accompanied her, particularly where the motions requesting reimbursement and orders authorizing payment appear in the record, can hardly be said to have denied Keller a fair trial or undermined confidence in the verdict and sentence, particularly considering that Muffi's testimony was supported by testimony by Teo and Montiforte. As such, the instant case is comparable to Woodward, 726 So.2d at 545, wherein the Court found no error in the alleged overpayment of the State's witnesses, notwithstanding a lack of statutory authority for the payments, due to the defendant's inability to show how he had been prejudiced by the compensation to the witnesses.
¶37. Keller also argues that overpayment by the State constituted prosecutorial misconduct to such a degree that reversal is required. In support of his argument, Keller cites Brown, 986 So.2d at 275, for the premise that reversal is warranted where a prosecutor fails to heed the Court's admonition regarding what is impermissible conduct. The instant case is easily distinguished from Brown in that the prosecutor in that case made a " send a message" argument to the jury and misrepresented to the trial court that the Court had upheld similar " send a message" arguments, when, to the contrary, the Court repeatedly had admonished prosecutors for similar pleas to juries and considered it as stand-alone reversible error in some instances. Brown, 986 So.2d at 275.
II. Whether the trial court committed reversal error in the jury selection process.
Off-the-record voir dire
¶38. These arguments by Keller are repetitive of his previously discussed assignment of error regarding the court reporter's failure to transcribe proceedings conducted at the bench. More specifically, Keller argues that he was prejudiced by his absence at the bench during the voir dire of four members of the venire. As previously discussed, the State maintains that the issue is procedurally barred for counsel's failure to object to voir dire at the bench while Keller remained at counsel table. Alternatively, on its merits, the argument fails, because a bench conference has not been considered a critical stage of trial. Jordan, 786 So.2d at 1021-22. Moreover, nothing in the record suggests that Keller was not present in the courtroom during voir dire.
¶39. One of the venire members who actually served on the jury, Juror 2, was questioned at the bench during voir dire, because she identified herself as a victim of a violent crime. The transcript reflects that " a conference was held at the bench with both parties." After voir dire, the trial judge recounted for the record that Juror 2, when questioned at the bench, indicated that she and her husband had been accused of domestic violence
against each other. She said that these charges had never gone to court and that she did not think it would affect her ability to be fair in the case. Juror 2 also had heard about the case on the news but stated that it would not affect her ability to be impartial. Keller has waived the assignment of error, as his counsel did not use a strike to remove her from the venire, and both parties accepted Juror 2.
¶40. Keller also claims error with prospective Juror 24. Juror 24 came forward at the trial court's invitation to discuss privately at the bench (with " all parties" present) his experience with violent crime, given that he had identified himself when the venire was asked about involvement with violent crime. Juror 24 was peremptorily struck by the defense after he indicated his brother had been convicted of assault. Again, given that the defense struck him, presumably because his brother had been convicted of a crime, Keller has waived the instant assignment of error.
¶41. Keller avers that another juror, Juror M, was erroneously questioned at the bench, and thus, Keller was unable to participate along with his counsel in deciding whether to keep or strike Juror M. A bench conference revealed that Juror M's stepfather had abused his mother, but Juror M did not think the history of abuse would impact his ability to be fair. There was no objection to the bench conference, and Keller struck Juror M.
¶42. Juror K came forward to advise the court that he had a prior conviction as a juvenile that was handled in Youth Court and that he had no other convictions. Later, he told the trial court he could not be sequestered because he worked four nights a week and did not have a replacement. Moreover, Juror K had been assaulted by off-duty police officers who were later prosecuted but did not think the alleged assault would affect his ability to be impartial. After voir dire was concluded, the State challenged Juror K for cause, because he had sequestration issues, and defense counsel agreed to excusing Juror K.
¶43. We have recognized a procedural bar on appeal where the defense has failed timely to object to the State's peremptory challenges to venire members. Thomas v. State, 517 So.2d 1285, 1286 (Miss. 1987) (citing Irving v. State, 498 So.2d 305 (Miss. 1986)). " Moreover, 'a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter.'" Duplantis v. State, 644 So.2d 1235, 1245 (Miss. 1994) (quoting Myers v. State, 565 So.2d 554, 557 (Miss. 1990)). The bar applies even in capital cases. Duplantis, 644 So.2d at 1245 (quoting Chase v. State, 645 So.2d 829, 859 (Miss. 1994)).
¶44. The issue has not been sufficiently preserved for appeal. Alternatively, Keller argues that his counsel's failure to object constituted ineffective assistance of counsel. As previously stated, any issue not clearly apparent from the record is best addressed in a post-conviction-relief petition. Miss. R. App. P. 22.
Voir dire and sentencing
¶45. Keller repeats his argument that the failure to record voir dire conducted at the bench is reversible error, given that he attempted to preserve his right to a complete transcript in his pretrial motion. The State argues that Keller did not object contemporaneously to the failure to record the bench conferences throughout voir dire and cannot now complain that the failure is error. For reasons previously discussed, the issue is without merit.
¶46. Keller insists that one post-hoc reconstruction of a bench conference by the trial court was inaccurate. He
maintains that where the trial court has made an actual mistake in reconstructing a bench conference, the mistake results in a due-process violation that requires reversal. See Eaves v. State, 730 So.2d 717, 718 (Fla. Dist. Ct. App. 1999). Keller fails to cite the portion of the record that he claims is inaccurate or incomplete. Moreover, Keller fails to cite controlling authority that reversal is necessary.
¶47. Keller further argues that the trial court improperly limited defense voir dire relating to the jurors' understanding of the sentencing process and then exacerbated the harm with off-record resolution of the defense's objections to the limitations. In general, voir dire is presumed sufficient to ensure a fair and impartial jury. To overcome the presumption, a party must present evidence indicating that the jury was not fair and was partial and must show that that prejudice resulted from the circuit court's handling of voir dire. Ross v. State, 954 So.2d 968, 988 (Miss. 2007). " [V]oir dire is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Foster v. State, 639 So.2d 1263, 1274 (Miss. 1994).
¶48. Keller argues that, in a capital case, prospective jurors must be examined not only for their biases, knowledge, or other pertinent matters but also about their ability to engage in death-penalty sentencing deliberations. See Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). According to Keller, capital jurors are required to have two interrelated characteristics: (1) the ability to make the requisite individual, reasoned, and moral response to sentencing-phase evidence, and (2) an understanding of and the ability to comply with the statutory method Mississippi has implemented for doing so. Morgan, 504 U.S. at 733-34. Keller argues that the trial court " thwarted all attempts by the defense to conduct voir dire necessary to 'lay bare the foundation' for any cause challenges it would have to make to jurors who are unable to do either of these two things," citing Morgan, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492. Moreover, Keller argues that the voir dire was aimed at exploring the jurors' ability to fulfill their constitutional obligation to follow instructions regarding individual, reasoned, and moral response to the evidence in deciding what sentence that evidence permits or requires. He argues that the failure of the trial court to prevent the line of questioning by the defense was a violation of his rights under the Sixth, Eighth, and Fourteenth Amendments. More specifically, Keller takes issue with a sustained objection by the trial court to the following line of voir dire:
[Defense counsel]: There are three choices that you have when you go back into jury room: death, life without and we can't make up our minds. When you say we can't make up our minds the judge is required under the law to give the defendant life without.
The State objected, and the trial court held a bench conference before ultimately sustaining the objection and instructing the jurors to disregard the question. Keller asserts that the line of questioning by defense counsel was a correct statement of the law and that the instruction by the trial court to disregard it served to confuse the jury. See Miss. Code Ann. § 99-19-101(3) (Rev. 2007) (providing that, if a jury cannot unanimously agree as to the death sentence, then the court shall impose a sentence of life imprisonment); see also Sudduth v. State, 562 So.2d 67, 72 (Miss. 1990) (" This Court has repeatedly condemned
confusing and misleading instructions." ).
¶49. The second instance with which Keller takes issue was as follows:
[Defense counsel]: You will be required, and I must say this individually, each of you individually, will be required to decide whether this defendant is so far beyond redemption that he should be killed.
The State objected to the line of instruction to the jury by the defense, and the trial court sustained. The language the " defendant is so far beyond redemption that he should be killed" is an inaccurate statement of the law, and the trial court cannot be held in error for sustaining the objection.
¶50. The line of questioning continued as follows:
[Defense counsel]: . . . The judge won't make that decision. No other appeal court is going to make this decision.
The above-quoted statement drew another objection, which the trial court sustained. Ultimately, the following voir dire by defense was allowed:
[Defense counsel]: . . . In any case, that is the real decision you will be required to make, and you must make this decision individually. It takes, and the court will instruct you, that it takes 12 of you to impose either sentence.
¶51. Moreover, the following was objected to by the State and sustained by the trial court:
[Defense counsel]: Do any of you believe that you must reach a verdict when you go back and decide what the sentence will be? That you must decide one way or the other. That all 12 of you must decide that way. Do any of you believe that to be true?
¶52. Following a bench conference, the trial court allowed the following from the defense:
[Defense counsel]: Ladies and gentlemen, you understand that you are not required by the law to go back into the jury room after you've reached a verdict and you're deciding on a sentence, you're back there to decide life or death, that you are not required to reach a verdict of death. Do you understand that? Does everyone understand that? That's the point that I was trying to make.
¶53. In Foster, 639 So.2d at 1274, defense counsel attempted to question the venire as to whether they believed a verdict of guilty for a capital-murder charge automatically resulted in a death sentence. The trial judge denied the attempt as an incorrect statement of law and a line of questioning that had the potential to confuse the jury. Id. The Court found no error where a review of the entire voir dire proceeding did not indicate Foster was denied his right to question the venire on the death penalty. Id. Given the considerable discretion the trial judge has in voir dire, where the voir dire proceedings as a whole indicate Keller was able to inquire as to the venire's opinions on the death penalty, and the court informed the jury that it had a duty to make decisions about Keller's fate on an individual basis, and that the death penalty was not required, there is no error in the judge refusing a line of questioning (which actually
reads more like jury instructions) that is a misstatement of the law or that the trial court believed would confuse jurors.
¶54. During the sentencing phase, the trial court instructed the jury as follows:
If you are unable to unanimously agree on the sentence, the Judge will sentence the Defendant to life imprisonment without parole and the form of your verdict shall be:
We the jury are unable to agree unanimously on punishment.
It is presumed that jurors follow the instructions of the court. Payne v. State, 462 So.2d 902, 904 (Miss. 1984); Carter v. State, 450 So.2d 67, 69 (Miss. 1984). Given that the jury ultimately was instructed and that Keller failed to show how he was prejudiced by the line of voir dire the trial court disallowed, the Court finds no merit in the instant assignment of error.
Removal of jurors qualified to serve under Witherspoon
¶55. Keller argues that Jurors E and C were improperly eliminated based on their beliefs regarding their conscientious objections to the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Keller asks that the Court reverse the conviction and sentence and remand for a new trial based on the trial court's exclusion of these jurors.
¶56. To the contrary, the State argues that Keller did not argue before the trial court that Witherspoon had been violated; thus, he is procedurally barred from making the argument on direct appeal. Tate v. State, 912 So.2d 919, 928 (¶ 27) (Miss. 2005) ( " Issues not brought before the trial court are deemed waived and may not be raised for the first time on appeal" ) (citing Wilcher v. State, 479 So.2d 710, 712 (Miss. 1985)). Out of an abundance of caution, and because the defense objected to the removal of Jurors E and C from the venire, we will address the issue notwithstanding any procedural bar that may apply.
¶57. The Court, in Wilcher v. State, 863 So.2d 776, 813-14 (¶ 116) (Miss. 2003), recognized the standards promulgated by the United States Supreme Court in both Witherspoon and Wainwright:
" [A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." [Witherspoon, 391 U.S. 510] at 522, 88 S.Ct. 1770, 20 L.Ed.2d 776. The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment " is whether the juror's views would 'prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
Based on their responses during voir dire, it is conceivable that both Juror E's and Juror C's views on capital punishment would have prevented or substantially impaired the performance of their duties as jurors.
¶58. Juror E stated several times that he is Catholic and that the Catholic Church opposes the death penalty. When questioned by defense counsel as to whether he could impose the death penalty, Juror E responded: " [B]ased on my upbringing and based on my Catholic faith [there is a] 99.9 percent chance I don't believe that I could do it." Juror C stated multiple times that she did not think she could vote to impose the death penalty, that it
would be " very, very difficult" for her to do, and that she could not think of a single circumstance in which she believed she could vote in favor of a death sentence.
¶59. The record bears out that the trial court had ample bases for excluding these venire members given their responses to questioning as to whether their personal beliefs regarding capital punishment would prevent or substantially impair them from carrying out their duties as jurors. The issue is without merit.
Whether the trial court erred in seating Juror A.
¶60. Keller avers that the trial court erred in seating Juror A (Juror 5), who disclosed to a bailiff (after he had been selected, seated, and sworn as a juror) that he had a rehearsal dinner and wedding to attend that had the potential to conflict with the jury sequestration. Juror A made the potential conflict known after having been seated and having failed to answer direct questions from the trial judge regarding whether any of the venire members had scheduling conflicts. Keller contends that the " failure of a prospective juror to make complete and honest responses to voir dire questions necessar[ily] impairs a defendant's right to a fair trial and requires reversal of his conviction if prejudice ensues from that failure." In support of his contention that his sentence should be vacated due to the juror's failure to disclose a scheduling conflict prior to being seated, Keller cites Morgan, 504 U.S. at 729. In Morgan, the United States Supreme Court stated:
A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.
Id. The Morgan analysis cited by Keller is inapplicable to the facts presented in the instant case in that at no time did Juror A express that he could not be impartial about the imposition of the death penalty, but rather that he might have had a scheduling conflict.
¶61. Keller, however, maintains that Juror A's presence on the jury prejudiced the defense in two ways: (1) actual prejudice occurred when the jury reached a guilty verdict after only thirty minutes, and (2) the process of jury selection was prejudiced, because Juror A's silence during voir dire when the venire was asked directly about conflicts prevented the defense from striking him. The Court addressed the issue in Odom v. State, 355 So.2d 1381, 1383 (Miss. 1978):
Where . . . a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court's determination of these inquiries is in the affirmative, the court
should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror's failure to respond.
¶62. Even if the questions from defense counsel regarding scheduling conflicts, as propounded to the jury, were relevant to voir dire and unambiguous, and if Juror A knew at the time of his upcoming plans, Keller has failed to show that he was prejudiced. The trial judge made both parties aware that Juror A had spoken with a bailiff during a break in proceedings. Keller failed to make a contemporaneous objection to Juror A's remaining on the jury. Juror A's conflict never came into play with regard to whether he was able to serve and carry out his duties. Keller speculates that the reason the jury returned a verdict in thirty minutes was due to a hasty decision on the party of Juror A because of his scheduling conflict. The argument is not supported by the record and is based entirely on speculation.
III. Whether the trial court erred in failing to suppress the final statement elicited from the defendant at Biloxi Regional Medical Center by law enforcement.
Whether the trial court erroneously applied controlling " fruit of the poisonous tree" jurisprudence in not suppressing Keller's third statement to police.
¶63. After having been shot by police during pursuit of his vehicle, Keller was transported to Biloxi Regional Medical Center's emergency room shortly before midnight on June 21, 2007. While Keller received treatment for the gunshot wounds, including the insertion of a chest tube, police questioned him about his involvement in Hat's death. In total, Keller made statements on three separate occasions to police, implicating himself in the shooting death.
¶64. The trial court found that the first interview, conducted by Investigator Craig Shows, was inadmissible due to the judge's finding that the recorded portion of the interview revealed that Keller was in a great deal of pain and distress. As stated in the trial court's order granting in part Keller's motion to suppress: " The totality of the circumstances in the Emergency Room convinces the [c]ourt that Keller was unable to have knowingly, voluntarily, and willingly waived his rights under Miranda at that time."  Likewise, the second recorded police interview, conducted by Officer Michael Brown approximately thirty minutes after the first police interview, was suppressed due to the fact that Keller was in a great deal of pain and did not seem to be alert and/or aware of his surroundings.
¶65. The following day, at 2:00 p.m., on June 22, 2007, Brown interviewed Keller a third time. Brown read Keller his Miranda warnings, and Keller responded: " I understand." The trial court found that " Keller clearly responded that he understood he was waiving his rights." The trial court made on-the-record findings that the totality of the circumstances established that Keller voluntarily and knowingly
confessed to shooting and killing Hat. The trial court rejected Keller's argument that the " fruit-of-the-poisonous-tree" doctrine applied to the third statement, rendering the third statement inadmissible, because it was tainted by the suppression of the two previously coerced statements. On remand, the trial court found that the three statements given by Keller to law enforcement officials were not coerced and that, even if any of the first two statements were, the third statement was freely and voluntarily given and sufficiently removed from the first two statements to " purge the primary taint." Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
¶66. On appeal, Keller again argues that, because the first two confessions were obtained due to overreaching by the officers, the trial court should have applied the " fruit-of-the- poisonous-tree" doctrine and thus suppressed the third confession. Conversely, the State argues that Keller was not foreclosed by the prior inadmissible statements from subsequently waiving his rights and providing a confession. " [S]ince the trial court sits as the fact-finder when determining the issue of whether an accused's confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court's determination of this issue when such determination is manifestly wrong." Richardson v. State, 74 So.3d 317, 322 (¶ 14) (Miss. 2011) (quoting Glasper v. State, 914 So.2d 708, 716 (¶ 21) (Miss. 2005) (citing Manix v. State, 895 So.2d 167, 180-81 (Miss. 2005))).
¶67. For a statement to be admissible against an accused, the accused must knowingly and voluntarily waive his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Saucier v. State, 562 So.2d 1238, 1244 (Miss. 1990); Powell v. State, 540 So.2d 13, 16 (Miss. 1989). " [S]tatements taken in violation of the Miranda principles must not be used to prove the prosecution's case at trial." Michigan v. Tucker, 417 U.S. 433, 445, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). The trial court found, despite police having issued Miranda warnings on both occasions, Keller had appeared to be in extreme distress while being treated for gunshot wounds in the emergency room at the time of the first and second police interviews. Thus, the incriminating statements to police were not voluntarily and/or knowingly given. However, the trial court ruled that there was no Miranda violation when Brown approached Keller the following day in the ICU, because the officer gave an adequate warning and because Keller voluntarily and knowingly waived his Fifth and Sixth Amendment rights.
¶68. Keller claims that the trial court erred as a matter of law, because it failed to consider the totality of the circumstances
surrounding the third confession by ignoring the fact that the same officer who had administered unconstitutional coercion to obtain a statement in the ER was the officer who approached Keller in the ICU. See Kircher v. State, 753 So.2d 1017, 1023-24 (¶ 28) (Miss. 1999) (" The voluntariness of a waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances." ) (citing O'Halloran v. State, 731 So.2d 565, 570 (Miss.1999); Gavin v. State, 473 So.2d 952, 954 (Miss.1985); Stevens v. State, 458 So.2d 726, 729 (Miss. 1984)).
¶69. In Byrom v. State, 863 So.2d 836, 858 (Miss. 2003), the Court rejected the notion that an illegally obtained confession necessarily requires the exclusion of a subsequent voluntary confession. " The remedy for coercive interrogation practices is exclusion of the statements in which the coercion was present. It does not require the exclusion of all subsequent interrogations that are preceded by proper Miranda warnings and are not coercive." Id. at 861 (¶ 72) (citing Oregon v. Elstad, 470 U.S. at 316-18). But see Rollins v. State, 300 So.2d 145, 146 (Miss. 1974) (recognizing a " presumption of law that a confession obtained by the influence of a threat or a promise, once made, continues to operate unless it is shown that a subsequent confession was not made under the influence of the previous threats or promise" ).
¶70. In Byrom, the defendant argued that she should have been advised that prior incriminating statements she made to police were inadmissible. Her argument was that law enforcement's statements that she already had talked to the sheriff and already knew her rights were tantamount to law enforcement exploiting the prior, illegally obtained statements to get the subsequent confession. The Court rejected that argument, finding that Byrom had failed to show " that the admitted statements were obtained by exploiting the excluded statements." Byrom, 863 So.2d at 859 (¶ 62).
¶71. Keller suggests that the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), rejected the reasoning relied on by the Court in Byrom, 863 So.2d at 858. However, Seibert, 542 U.S. at 611-12, addressed a police interrogation tactic referred to as " question first, warn later" and whether that tactic made the Miranda warning ineffective when given after a confession was obtained. In holding that Miranda warnings are ineffective under a " question first, warn later" approach, the Supreme Court reasoned:
[T]he reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.
Id. at 613. We are of the opinion that Seibert applies only to a single-interview scenario where police fail to warn, question a suspect, obtain a confession, then administer a Miranda warning in hopes of having the accused repeat the confession given prior to the Miranda warning. In other words, these are " Miranda warnings delivered midstream." Id. at 615. Seibert has no application to the instant facts,
where police questioned Keller a third time the day after he had been transported from the ER to the ICU, police readministered a Miranda warning, and police approached the interview anew without relying on anything revealed in the first two interrogations.
¶72. The record supports the trial court's finding that Keller intelligently, knowingly, and voluntarily confessed. Keller gave a full confession to the murder in a series of coherent, narrative responses to Investigator Brown's questions. At no time did Keller invoke his right to remain silent or ask to confer with counsel. Nothing in the record supports a theory that the statements made in Keller's two suppressed interrogations were exploited to secure a subsequent confession. " Once a determination of voluntariness is made by the trial court, the defendant bears a heavy ...