COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/10/2013. TRIAL JUDGE: HON. MARCUS D. GORDON. TRIAL COURT ATTORNEYS: CHRISTOPHER A. COLLINS, STEVEN KILGORE.
FOR APPELLANT: EDMUND J. PHILLIPS, JR.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE BRELAND WOOD.
WALLER, C.J., RANDOLPH, P.J., AND CHANDLER, J., CONCUR. LAMAR AND COLEMAN, JJ., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.
[¶1] John Lee Franklin was found guilty of arson by a Scott County jury. The Scott County Circuit Court sentenced Franklin to eighteen years in the custody of the Mississippi Department of Corrections and ordered that Franklin pay a $1,500 fine, make restitution to the dwelling house owners in the amount of $10,000 and make restitution to the victim in the amount of $3,000. The court ordered that the fine and restitutions be made in monthly installments of $150, with the first payment due ninety days following Franklin's release from confinement. Franklin appeals, arguing two issues: (1) the trial court erred in assessing restitution; and (2) the trial court erred in admitting Franklin's confession into evidence. Finding no merit in either issue, we affirm the trial court judgment.
[¶2] Franklin and his girlfriend, Amanda Ormond, lived together with their children in a house they rented from Eddie and Peggy Johnson located at 328 West Fourth Street in Forest, Mississippi. The couple started having relationship problems, and Franklin began spending several nights sleeping in his car.
[¶3] One day in September 2012, Amanda drove to Meridian, Mississippi, to pick up her friend, Scott Smith. The two drove back to Amanda's sister's house that evening.
Around 10:45 p.m., Amanda, Scott, and Amanda's one-year-old son Jacoby, drove back to Amanda's house on West Fourth Street. When they arrived, Scott put Jacoby to bed and sat down to watch television. Around 1:20 a.m., Amanda left to take her sister's keys back to her house.
[¶4] While she was gone, Scott heard banging coming from the back door near the laundry/utility room. When Amanda arrived home minutes later, Scott told her about the noise. Amanda opened the door to the laundry/utility room and saw flames.
[¶5] Scott ran to get Jacoby, Amanda grabbed her purse, and they all ran out of the house. Amanda called 911. Both Amanda and Scott saw Franklin running from behind the house as they waited for the firemen to arrive.
[¶6] Deputy Fire Marshall Pete Adcock investigated the fire and determined that it was incendiary. Franklin was arrested and gave a statement to Investigator Tom Rigby of the Forest Police Department, stating as follows:
That Thursday, Amanda told me to leave. I kept walking. I came back around nine o'clock that night to talk to her. When I got to her house, she was gone. I had a key to the car, and then I got in the car and left. She said she was going to give me the car, but [sic] hadn't put it in my name. I came back around twelve-thirty that night. I heard voices inside her house and saw her in the house with another guy. I then sat down and started to cry and then I heard the van leave. I then lost it and went and got a pair of longjohns and soaked them in gas and then struck the match and lit the longjohns on fire and threw them up into the attic. I--I left after that.
[¶7] Amanda stated that Franklin called her the day after the fire and " he stated that he had set the house on fire because [she] didn't want him no more, and that [she] had another man holding his baby."
[¶8] Franklin was charged with arson and found guilty. He was sentenced to serve eighteen years in the custody of the MDOC. He also was sentenced to pay a $1,500 fine and to pay a total of $13,000 in restitution upon his release. This appeal followed. Additional facts, as necessary, will be related in our analysis.
I. Whether the trial court erred in ordering Franklin to pay restitution.
[¶9] Franklin claims the trial court erred in assessing restitution because the trial court did not meet the requirements set forth in Mississippi Code Section 99-37-3 (Rev. 2007). The State contends that Franklin waived this issue by not objecting to the order of restitution at sentencing.
[¶10] We agree with the State. Franklin waived this issue by not objecting to the restitution order at trial. See Harris v. State, 757 So.2d 195, 199 (Miss. 2000) (holding that because the defendant did not object to the issue of restitution in the trial court, the issue was barred upon appeal); see also Powell v. State, 536 So.2d 13, 17 (Miss. 1988) (same); Watts v. State, 492 So.2d 1281, 1290-91 (Miss. 1986) (same).
[¶11] Procedural bar notwithstanding, this issue is meritless. Section 99-37-3(1) states in part as follows: " When a person is convicted of criminal activities which have resulted in pecuniary damages, in addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim . . . ." Miss. Code Ann. § 99-37-3(1). Section 99-37-3(2) requires the trial court to consider the following:
(a) The financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant;
(b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and
(c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment.
[¶12] According to the record, the trial court heard evidence of the amount of damage caused by Franklin's crime. The court questioned Franklin as to his ability to pay that amount. Afterward, the trial court ordered that Franklin pay a part of the total claimed and ordered that it be paid in monthly installments, to which Franklin did not object. See Miss. Code Ann. § 99-37-3(3) ( " If the defendant objects to the imposition, amount or distribution of the restitution, the court shall, at the time of sentencing, allow him to be heard on such issue." ). For these reasons, we find no error in the trial court's restitution order.
II. Whether the trial court erred in denying the motion to suppress Franklin's statement.
[¶13] Franklin contends that his Miranda waiver and confession were involuntary because during interrogation, Franklin had stated to Investigator Rigby that he needed help. Franklin argues that because Investigator Rigby failed to inquire further what help Franklin needed, the State failed to meet its burden of proof that his confession was voluntary.
[¶14] For a confession to be admissible, it must have been given voluntarily and not as a result of promises, threats, or inducements. Morgan v. State, 681 So.2d 82, 86 (Miss. 1996). Once a defendant alleges that his confession was coerced, he secures a due-process entitlement to a reliable determination that his confession was not given as a result of coercion, inducement, or promises. Id. The State shoulders the burden of proving beyond a reasonable doubt that the confession was voluntary. Id. The State's burden is met and a prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward. Chase v. State, 645 So.2d 829, 838 (Miss. 1994). A trial court's findings of fact on the issue of admissibility of a confession will not be overturned unless it is clearly erroneous or contrary to the overwhelming weight of the evidence. Morgan, 681 So.2d at 87.
[¶15] During the suppression hearing, Investigator Rigby testified that he read Franklin his Miranda warnings prior to the interview and that Franklin acknowledged he understood them. Franklin signed the waiver. Investigator Rigby testified that no threats were made and no promises were given. Investigator Rigby testified that Franklin never asked for an attorney and never asked that the questioning stop. When asked during cross-examination if Franklin had ever asked for help, Investigator Rigby said Franklin had stated that " he needed some kind of . . . health help." Investigator Rigby testified that he took this to mean that Franklin was talking about his " day to day activities." Investigator Rigby stated that he did not think Franklin was asking for an attorney. The trial court questioned Investigator Rigby further and asked at what point during the interview Franklin made the statement that he needed help.
According to Investigator Rigby, Franklin made the statement toward the end of the interview.
[¶16] At the conclusion of the suppression hearing, the trial court found that Franklin's Miranda waiver was knowingly and voluntarily given. No threats or promises were made to Franklin in exchange for his waiver and subsequent confession. The trial court agreed with the State that Franklin was not referring to an attorney when Franklin made the statement that he needed help.
[¶17] We find no abuse of discretion in the trial court's ruling. The record supports the finding that Franklin was advised of his Miranda rights, that he knowingly and intelligently waived his rights, and that he freely and voluntarily confessed to setting fire to the house. We also agree with the trial court that Franklin's statement that he needed " help" was insufficient to invoke his right to counsel. See Barnes v. State, 30 So.3d 313, 317 (Miss. 2010) ( " A defendant must articulate his desire to have counsel present sufficiently clear that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." ). The statement could constitute a request for any number of different types of aid. And it was unreasonable in this instance for Franklin to expect Inspector Rigby to discern what sort of help he wanted.
[¶18] We find this issue is without merit.
[¶19] The separate opinion's contention that the Mississippi Constitution provides greater protection to criminal suspects who invoke the right to counsel during custodial interrogations than does the United States Constitution is inaccurate and contravenes Mississippi precedent.
[¶20] As we explained in Grayson v. State, 806 So.2d 241, 247 (Miss. 2001), both the Sixth Amendment of the U.S. Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee that the accused shall enjoy the right to have assistance of counsel for his or her defense. Section 26 is congruent with the right to counsel guaranteed by the Fifth and Sixth Amendments, " except for the fact [the right] attaches earlier [under Mississippi law.] Id. This exception is not because Section 26 compels so, but because Mississippi Code Section 99-1-7 prescribes it. Cannaday v. State, 455 So.2d 713, 722 (Miss. 1984).
[¶21] In Cannaday, this Court noted that Mississippi jurisprudence has the same constitutional, statutory provisions, and rules guaranteeing the same rights by the Sixth Amendment. Id. Citing Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), Cannaday said: " The time at which the right to counsel attaches to a defendant is when adversary proceedings have been initiated, whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Id. Cannaday, however, distinguished Kirby by noting that: " In Mississippi commencement of prosecution is governed by Mississippi Code Section 99-1-7 where prosecution can be commenced by the issuance of a warrant or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit." Id. In Page v. State, 495 So.2d 436 (Miss. 1986), Justice Robertson, writing for the Court, referred to this--for the first time--as the " accusatory" stage. Page predicated this declaration with the following: " For purposes of our state constitutional right to counsel, we define the advent of the accusatory stage by reference to state law[,] Miss. Code § 99-1-7 . . . ." Id. at 439.
[¶22] Then, in Johnson v. State, 631 So.2d 185 (Miss. 1994), the following misstatement was made: " Under the Mississippi Constitution, the right to counsel 'attaches once the proceedings reach the accusatory stage . . . .'" Id. (quoting Williamson v. State, 512 So.2d 868, 876 (Miss. 1987). Quoting from Johnson, this Court said it again in Gray v. State, 728 So.2d 36, 72-73 (Miss. 1998), and then in McGilberry v. State, 741 So.2d 894, 904 (Miss. 1999). Johnson, Gray, and McGbilberry erroneously advise that the Mississippi Constitution mandates when the right to counsel attaches. It does not. Section 99-1-7 does, as both Cannaday and Page instruct.
[¶23] When--or at what stage--the right to counsel attaches is not at issue here. Rather, it is the rule created by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), holding that " an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused initiates further communication, exchanges, or conversations with the police." " [T]he Edwards rule is not a constitutional mandate, but judicially prescribed prophylaxis." Maryland v. Shatzer, 559 U.S. 98, 105, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). And its application " is justified only by reference to its prophylactic purpose." Id. at 106. Its purpose is designed " to protect an accused in police custody from badgering or overreaching . . . that might otherwise wear down the accused and persuade him to incriminate himself notwithstanding ...