COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/28/2013. TRIAL JUDGE: HON. ROBERT WALTER BAILEY. TRIAL COURT DISPOSITION: CONVICTED OF WIRE FRAUD AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED, ONE YEAR TO BE SERVED UNDER THE INTENSIVE SUPERVISION PROGRAM, AND FIVE YEARS OF SUPERVISED PROBATION, AND TO PAY A $2,500 FINE AND $500 TO THE CRIME VICTIMS' COMPENSATION FUND.
FOR APPELLANT: CHARLES W. WRIGHT JR.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT.
BEFORE IRVING, P.J., FAIR AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Following a jury trial in the Circuit Court of Lauderdale County, Dareadell " Terrell" Thompson was convicted of wire fraud and sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC), with four years suspended, one year to be served on house arrest, and five years of supervised probation. Thompson appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Thompson was employed as a police officer with the City of Meridian Police Department (MPD). On January 11, 2008, MPD Detective Rita Jack filed a grievance against Thompson with MPD's Office of Internal Affairs (Internal Affairs). The grievance alleged that Thompson had forged Jack's signature, and the signature of Municipal Judge Robbie Jones, on a subpoena that Thompson issued to AT& T in order to obtain cellular-telephone records. MPD conducted an internal investigation headed by Lieutenant Dean Harper, head of MPD's Internal Affairs Division. According to Harper, he headed the investigation up to a certain
point, then reported to MPD Police Chief B.D. Dubose, who continued the investigation to its conclusion.
¶3. On January 22, 2008, at Chief Dubose's request, Thompson underwent a polygraph examination. The polygraph examination was administered by Federal Bureau of Investigation Agent T.J. Sypniewski. Prior to the examination, Agent Sypniewski advised Thompson of his Miranda rights, and Thompson signed a Miranda rights waiver form. According to Agent Sypniewski, after the polygraph examination, Agent Sypniewski advised Thompson that he found Thompson's responses to be deceptive. Thompson then told Agent Sypniewski that he suspected that his wife was communicating with a man with whom she had a previous affair, and that he forged the signatures of both Detective Jack and Judge Jones on the subpoena and faxed the subpoena to AT& T in order to obtain his wife's telephone records.
¶4. During the internal investigation, Chief Dubose consulted Mississippi Highway Patrol Investigator Danny Knight about the criminal nature of Thompson's actions. After being briefed on the incident, Investigator Knight told Chief Dubose that, in his opinion, the matter should be handled internally. At the conclusion of the internal investigation, Chief Dubose reported the forgery of the signatures on the subpoena to the mayor of Meridian and requested that disciplinary action be taken. On February 26, 2008, Chief Dubose issued a disciplinary-action letter to Thompson, in which Chief Dubose summarized the findings of the internal investigation and informed Thompson of MPD's intent to terminate Thompson's employment. In a letter to Meridian Mayor John Smith, dated March 10, 2008, Chief Dubose recommended that disciplinary action be taken against Thompson in lieu of his termination. On March 18, 2008, Chief Dubose issued a revised disciplinary-action letter informing Thompson that MPD was taking disciplinary action against him in lieu of termination. As a result of his misconduct, Thompson was suspended without pay for a period of ten weeks and demoted to the rank of police orderly, with a twelve-month probationary period. The letter further informed Thompson that he would not be considered for a promotion for a period of two years, and that he was required to undergo twelve months of mandatory counseling.
¶5. In October 2009, Chief Dubose retired and was replaced by Chief Lee Shelbourn. According to Chief Shelbourn's testimony at trial, he met with Thompson on January 12, 2010, regarding the forgery incident. During the meeting, Chief Shelbourn asked Thompson if he forged the signatures on the subpoena, and Thompson admitted that he forged the signatures. Following the meeting, Chief Shelbourn referred the forgery incident to the Attorney General's Office for an independent criminal investigation. Thompson's
employment with MPD was terminated on January 27, 2010.
¶6. Following a criminal investigation led by Investigator Roger Cribb of the Attorney General's Office, Thompson was indicted for wire fraud in violation of Mississippi Code Annotated section 97-19-83 (Rev. 2006) on August 12, 2011. Prior to trial, Thompson filed a motion to dismiss attacking the sufficiency of the indictment and a motion to dismiss arguing that his alleged criminal conduct constituted one of numerous misdemeanor offenses. Thompson also filed a motion in limine seeking to exclude any evidence related to the polygraph examination, and a motion in limine seeking to suppress any statements that he made during the internal-affairs investigation, particularly statements made to Chief Dubose, Agent Sypniewski, and Chief Shelbourn admitting that he forged the signatures. Likewise, the State filed several pretrial motions, including: a motion to prohibit the introduction of any testimony or other evidence concerning the possible sentence that Thompson would be subject to if found guilty; a motion to exclude evidence pertaining to any administrative, personnel, or disciplinary action taken against Thompson by the MPD; and a motion to exclude any opinion testimony by Investigator Knight as to whether Thompson's actions constituted a felony or a misdemeanor.
¶7. A hearing on the various motions was held on April 23, 2012, and June 14, 2012. On August 9, 2012, the trial court rendered its judgment on the various motions. The trial court denied Thompson's motions to dismiss and his motion to suppress statements made during the internal investigation. Thompson's motion to exclude any evidence related to the polygraph examination was granted; however, the alleged statement that Thompson made to Agent Sypniewski after the examination was not excluded. Likewise, the trial court granted the State's motion to prohibit testimony concerning the possible sentence Thompson could receive if found guilty, but denied the State's motion to exclude any evidence pertaining to administrative, personnel, or disciplinary action taken against Thompson by the MPD. Finally, the trial court granted the State's motion to exclude any opinion testimony by Investigator Knight pertaining to whether Thompson's alleged conduct constituted a felony or misdemeanor; however, the trial court ruled that Investigator Knight could give factual testimony regarding his investigation and any evidence found during that investigation.
¶8. A jury trial was held on January 28-29, 2013. Thompson was found guilty of wire fraud and was sentenced to five years in the custody of the MDOC, with four years suspended, one year to be served on house arrest, and five years of supervised probation. Thompson now appeals raising the following issues: (1) whether the trial court erred by failing to suppress statements he made during the internal investigation; and (2) whether he was prohibited from presenting evidence supporting his theory of defense.
I. Whether the trial court erred by failing to grant Thompson's motion to suppress statements Thompson made during the investigation.
¶9. Thompson asserts that the trial court erred in denying his motion to suppress statements that he made during the internal investigation. Thompson argues that his statements should have been suppressed because the statements were
used in violation of the Garrity  rule in that he was compelled to answer questions or face termination, and promised that any statements he made would be used solely for administrative disciplinary purposes.
¶10. A trial court's determination of whether a statement or a confession is voluntarily given is " essentially a fact-finding function." Mettetal v. State, 602 So.2d 864, 868 (Miss. 1992) (quoting Stokes v. State, 548 So.2d 118, 122 (Miss. 1989)). Thus, " [a] trial court's finding that a defendant's statements were voluntarily given cannot be reversed unless the court applied an erroneous legal standard or was clearly erroneous in its findings of fact." Fulgham v. State, 46 So.3d 315, 339 (¶ 77) (Miss. 2010) (citing Mettetal, 602 So.2d at 868).
¶11. In Garrity, New Jersey police officers, who were under investigation for corruption, were being questioned by the state attorney general's office. Garrity, 385 U.S. at 494. The officers were advised that they did not have to answer any questions, and that anything they said could be used against them in a criminal proceeding; however, the officers were also told that refusal to answer the questions would result in termination from their employment. Id. The officers answered the questions and their statements were subsequently used against them at trial. The United States Supreme Court found that the statements were coerced and therefore inadmissable, holding:
The choice given [the officers] was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice . . . is likely to exert such pressure upon an individual as to disable him from making a free and rational choice. We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.
Id. at 497; see also Knebel v. City of Biloxi, 453 So.2d 1037, 1040 (Miss. 1984) (extending Garrity to include promises as well as threats holding that " a statement given under the promise that it will not be used against [the employee] in a criminal proceeding is likewise inadmissible" ). Therefore, statements made by a police officer, which result from either the threat of termination if he does not answer or a promise that the statements will not be used in a criminal proceeding, are deemed to have been coerced and are therefore inadmissible in a subsequent criminal proceeding. It follows that in order for Garrity to be implicated, there must be some threat or promise to induce the statement.
¶12. At the suppression hearing, Thompson testified that during the investigation, he believed that he was required to participate in the investigation, and that if he failed to cooperate he would have been subject to disciplinary action up to, and including, termination from employment.
¶13. However, Chief Dubose testified that he did not, either expressly or impliedly, threaten Thompson with termination from employment if Thompson refused to cooperate with the investigation. Chief Dubose further testified that he did not promise Thompson that he would not be prosecuted or that criminal charges would not be brought against him. Chief ...