ZACHARY D. BARNES a/k/a ZACHARY BARNES
STATE OF MISSISSIPPI
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/12/2013. TRIAL JUDGE: HON. ROBERT B. HELFRICH.
FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: ERIN E. PRIDGEN, GEORGE T. HOLMES.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA BYRD.
BEFORE DICKINSON, P.J., LAMAR AND CHANDLER, JJ. DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. KING, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., NOT PARTICIPATING.
¶1. Zachary Barnes was convicted of burglary of a dwelling and sentenced to twenty-five years in prison, with twenty years to serve and five years' post-release supervision. He appeals to this Court, arguing that his statement to the fire investigator should have been suppressed and that his trespass instruction should have been granted. We find that the trial judge should have granted his trespass instruction, and we reverse and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
Investigation and Indictment
¶2. On May 3, 2012, Michael Scott's apartment was broken into and burned. After speaking with other residents of the apartment complex, Fire Investigator Chip Brown spoke with fifteen-year-old Charles Darby and Darby's mother's boyfriend, Zachary Barnes. Darby and Barnes lived in a trailer across the road from Scott's apartment. Brown spoke extensively with Darby the night of the fire, and Darby named Barnes as the perpetrator. Barnes was arrested the next day and charged with arson, and the judge set his bond at $40,000.
¶3. Brown subsequently spoke with Barnes at the jail on two occasions. During the first interview, Barnes denied involvement in the crime. Barnes stated that he had had an altercation with a neighbor the night of the crime and was stabbed. Barnes went back home where his girlfriend, Rebecca Henson (Darby's mother), tried to stop the bleeding. Darby came in and said " Don't worry about that; you know, I handled that."
¶4. Barnes's story changed during the second interview. Darby and Henson were present during the second interview, and Barnes said he changed his story because Brown promised he would get Barnes's bond reduced. Brown denies that he promised Barnes anything. Ultimately, Barnes wrote a statement during the second interview implicating himself:
I was with Charles when he set the fire. We went to the house in [sic] threw some thing[s] around. Then he said he was about to set the house on fire. Then we left and when I got to the house I was bleeding from the fight early [sic]. We left at the same time after. I saw him set the bed on fire. When we got home I was trying to stop the bleeding from the stab wound he call [sic] me to the kitchen window and I saw the house on fire.
Barnes subsequently was indicted for arson and for directing a minor (Darby) to commit a felony.
¶5. But a few months later, Darby changed his story. Darby told the authorities that he had lied in his earlier statement when he said that Barnes had started the fire. Darby stated at trial that " at first I was trying to get him [Barnes] locked up because I didn't want to go to jail for doing it, and he [Barnes] told me to man up about it and do the time so I just admitted to it, and I went to court." The State presented an Order of Nolle Prosequi to the court on Barnes's indictment following Darby's recantation.
¶6. But two days before Barnes's first indictment was nolle prossed, a grand jury indicted him a second time, this time for burglary of a dwelling. The trial judge set Barnes's bond at $10,000 for the burglary charge.
¶7. A couple of weeks before trial, Barnes's counsel filed a motion in limine, arguing that Barnes's statement implicating himself should be suppressed because Barnes had requested an attorney, and because Brown had promised him a bond reduction. The State responded to Barnes's motion, and the trial judge held a hearing on the motion the day before trial.
¶8. Both Barnes and Brown testified at the hearing. Barnes testified that Brown spoke with him on three occasions. On the first occasion, Barnes told Brown that he wanted to " invoke my [right] to remain silent because I was scared that I might incriminate myself or something." On the second occasion, Barnes wrote a statement:
and told him [Brown] that we had a -- I had an altercation with a neighbor in which I got stabbed, and I went back home and my girlfriend, fiancé, was trying to stop me from bleeding and everything, and that's when -- when we was in the house, Charles Darby came back. He came to the house, and he was like, Don't worry about that; you know, I handled that. So I was like, What are you talking about? And he was like he handled that.
And finally, as for the third occasion (when Barnes gave the statement implicating himself), Barnes testified that:
A. Yes, he [Brown] brought Charles Darby and my fiancé . He brought them both down with him. He said that he had already spoke [sic] to my fiancé about the bond and how much she could afford to pay to get me bonded out of jail. And my bond at first was $50,000, and I couldn't afford 50, so he told me that -- cause I had been there three months, and he was like, Well, you ain't going to get no preliminary hearing until you tell me, you know, what I want to hear. And if you tell me -- write this statement down, and you and Charles Darby are going to tell you [sic] exactly what to say on this statement, and you write it down. Then I can guarantee you that I'll get your bond reduced, so I wrote the statement down, and the next week I came over here still never seeing the lawyer or anything and got my bond reduced.
. . .
Q. So to you admitting to a crime you didn't commit -- let me rephrase it. To you getting out of jail temporarily meant more than telling the truth; you were willing to sign anything just to get out of jail for just a minute; is that what you're saying? You admitted to a crime; didn't you?
A. No, sir. What I did was when he told me that he could get me a bond reduction because I had been locked up three months, and I've got a family that I'm the sole provider for. And he told me that in a prior case, that he got somebody three years probation, and he could get my bond reduced from $50,000 to a lower bond, and that's exactly what he did.
. . .
Q. But you wrote that, and you say that this is false; everything you wrote here is false; is that what you're saying?
Q. Okay. That's all false, and you did that just so you could get out of jail, correct?
Barnes also testified that he had asked for an attorney on the third occasion, while Darby and Henson were present. But Barnes also admitted that he had initialed a Miranda form during both interviews. He admitted that the form advised him that he had the right to an attorney, and that he had signed off on a provision that stated that he did not want an attorney at that time.
¶9. Brown then testified and denied promising Barnes a bond reduction:
Q. I also wanted to ask you at any point in time did you play a role in the setting of the bond for Mr. Barnes?
A. No. I'm not in any position to set a bond.
Q. Did you have an input on the original bonds?
. . .
Q. Do you have any idea how that happened?
A. How the bond was reduced?
Q. Yes, sir.
A. I was -- I don't believe I was at either one of those bond hearings. I do know that during the -- I was approached several times by Ms. Henson -- I believe at the time it was Mr. Barnes' [s] fiancé -- asking how they could get the bond reduced. I said, I don't have anything to do with reducing the bond. All I can do is when I turn in my case, I can tell the D.A. that Mr. Barnes was very cooperative, but I can make no promises because that's strictly up to the courts.
. . .
Q. Did you promise [Barnes] anything to either change his statement or make a statement?
A. No, sir.
. . .
Q. Would you get in trouble if you had promised Barnes a ...