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Armstrong v. State

Court of Appeals of Mississippi

April 16, 2019

LADARIUS ARMSTRONG A/K/A LADARIUS MAKEL ARMSTRONG A/K/A LADARRIUS ARMSTRONG A/K/A LADARRIUS MAKEL ARMSTRONG A/K/A LADARRIUS MARKEL ARMSTRONG APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/17/2017

          LAUDERDALE COUNTY CIRCUIT COURT. HON. JUSTIN MILLER COBB.

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: PHILLIP BROADHEAD

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON

          DISTRICT ATTORNEY: BILBO MITCHELL

         EN BANC

          GREENLEE, J.

         ¶1. A Lauderdale County jury convicted Ladarius Armstrong of armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014) and for possessing a firearm as a felon in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). For his armed robbery conviction, Armstrong was sentenced to serve twenty-eight years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay $100 in restitution, a $1, 000 fine, $500 to the Crime Victims' Compensation Fund, and $420.50 in court costs. For possessing a firearm as a felon, Armstrong was sentenced to a concurrent ten year term in the custody of MDOC and fined $1, 000. On appeal, Armstrong argues the trial court erred by denying his motion to suppress, prohibiting the introduction of his petition for court-appointed counsel, and denying Jury Instruction D-11-A. We find no error and affirm.

         BACKGROUND

         ¶2. On September 1, 2015, Brenisha Jackson was assisting customers at the Cefco on Highway 39 when she noticed a man pacing outside. The man, who was wearing a dark hoodie, gray jogging pants, and dark glasses, entered Cefco holding a gun. He ran toward the counter, jumped over it, and pointed the gun to Jackson's face. The man told Jackson, "Put the money in the bag and don't push the button [for the police]." Jackson complied and the man took the money, grabbing some Newport cigarettes and cigarillos before leaving the store. At trial, Jackson identified Armstrong as the robber. She testified that the gun he pointed to her face was black with a green slide.

         ¶3. Connie Davis testified that although she had been in Cefco during the robbery, she did not see it take place because she was in the back of the store when it occurred. Davis said she learned what happened after walking to the front of the store and talking with Jackson. Recalling that she had seen a man wearing a black top, gray joggers, and dark glasses exit the store, Davis decided to follow him. She watched as the man entered a dark blue Chevy Malibu with a Triple B dealer-issued license tag. Davis followed the man in the Malibu from within her own vehicle. She said the man drove to an apartment complex, where he got out of the car and ran behind the apartments to another car that picked him up. Davis testified that the man she followed was the same one she saw exit Cefco. She reported her observations to the police.

         ¶4. Armstrong's co-defendant, Ladarrius Stephens, testified that Armstrong was a friend of his. Stephens said that on September 1, 2015, he saw Armstrong near Merrill Road. Armstrong told him that he was about to rob Cefco and needed a ride to the other side of town. Stephens testified that he drove Armstrong to Cefco in his brother's 2010 Chevy Malibu. He said that Armstrong entered Cefco and ran out with a Cefco bag containing cigarillos and a brown paper bag with money inside. Stephens testified that Armstrong had a black gun with a green slide. Stephens said that he was living at Cedar Bend Apartments at that time.

         ¶5. Dustin Allen testified that in September 2015, he was employed as an officer at the Meridian Police Department. He stated that the day after Cefco was robbed, he was informed of a possible sighting of a dark blue Chevy Malibu with a Triple B tag at Cedar Bend Apartments. Officer Allen reported to the apartment complex, found the vehicle, and made contact with a woman who advised him that the car belonged to her son. With the woman's consent, Officer Allen searched the apartment she shared with her sons and found a black gun with a green slide, which he identified at trial as Exhibit 3.

         ¶6. Armstrong was arrested on September 2, 2015, and was questioned by Meridian Police Department officers on two separate occasions. Detective Scott Hopewell was the first to interview Armstrong on the day of his arrest. During the interview, Armstrong gave a signed statement denying any involvement in the Cefco robbery. Armstrong also executed a petition for appointment of an attorney indicating that he lacked sufficient funds to hire an attorney but desired legal representation in connection with his armed robbery charge.[1]

         ¶7. One day later on September 3, Sergeant Dareall Thompson transported Armstrong from the county jail to the Meridian Police Department for the purpose of an interview. Sergeant Thompson testified that he informed Armstrong of his Miranda[2] rights and Armstrong agreed to waive his rights and talk with him. Sergeant Thompson further testified that Armstrong confessed that he went inside Cefco, robbed the clerk at gunpoint, and took cash and cigarettes before fleeing the scene and being picked up by Stephens. Armstrong reviewed a written statement of his confession, initialed next to each statement, and signed at the bottom.

         ¶8. Prior to trial, Armstrong moved to suppress the statements he made to the law enforcement officers, arguing that his petition for appointed counsel constituted a request for an attorney. Although Sergeant Thompson testified at the suppression hearing, Detective Hopewell did not.[3] Sergeant Thompson testified that when he interviewed Armstrong on September 2, 2015, he was unaware that Detective Hopewell had already interviewed Armstrong. Sergeant Thompson further testified that he read Armstrong his Miranda[4] rights prior to the interview and that Armstrong acknowledged he understood his rights and was willing to talk. Sergeant Thompson stated that Armstrong also signed a written waiver of his rights and acknowledged each right by initialing next to it. Armstrong's written waiver was presented at the hearing as Exhibit 2. On cross-examination, defense counsel asked Sergeant Thompson:

[Defense:] And in reviewing . . . the file that you maintained . . . have you had occasion to see the summary that Detective Hopewell prepared regarding his interactions with Mr. Armstrong?
[Thompson:] Yes, sir.
[Defense:] And in that summary it says that, in fact, Mr. Armstrong did request an attorney.
(PAUSE)
[Thompson:] Are you talking about his summary of the -
[Defense:] The summary. And if . . . you don't see it, then we can -
[Thompson:] I don't see it. I see his statement that at one time Hopewell put in there that he asked for a lawyer.

         The defense never moved to introduce Detective Hopewell's summary, and Armstrong did not testify at the suppression hearing. Throughout the hearing, the defense maintained that Armstrong's petition was the only means by which he requested counsel. Armstrong's petition for appointed counsel was presented as Exhibit 1.

         ¶9. Following the suppression hearing, the trial court found that Armstrong never invoked his right to counsel during his first or second interview. The trial court found that the form Armstrong signed was customarily given to defendants booked in the county jail to determine whether they were indigent and eligible for court-appointed counsel, and was not an affirmative invocation of counsel.

         ¶10. During trial, Armstrong's statement to Detective Hopewell was admitted into evidence as Exhibit 10. Armstrong's waiver of rights and written confession to Sergeant Thompson were admitted as Exhibits 6 and 7.

         ¶11. Following deliberations, the jury found Armstrong guilty of armed robbery and possession of a firearm as a convicted felon. Armstrong timely appealed.

         DISCUSSION

         I. Motion to Suppress

         ¶12. The constitutional principles governing custodial interrogation are well established. Anyone subject to custodial interrogation must be advised of his right to remain silent and have an attorney present. Miranda, 384 U.S. at 479. If the right to remain silent is invoked, the interrogation must stop. Id. And if the right to have an attorney present is invoked, the interrogation must cease until counsel is present. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Under either circumstance, interrogation may commence or resume in the absence of an attorney if the defendant (1) initiates further discussions with the police and (2) knowingly, intelligently, and voluntarily waives the right invoked. Holland v. State, 587 So.2d 848, 855 (Miss. 1991) (citing Smith v. Illinois, 469 U.S. 91, 95 (1984)).

         ¶13. "The right to have an attorney present must be 'specifically invoked.'" Id. at 856 (quoting Edwards, 451 U.S. at 482). "This may be accomplished 'in any manner and at any stage of the process.'" Id. (quoting Miranda, 384 U.S. at 444-45). A defendant is not required to use specific language such as "I want a lawyer" to invoke the right to counsel. Montoya v. Collins, 955 F.2d 279, 283 (5th Cir. 1992). See also Downey v. State, 144 So.3d 146, 152 (¶13) (Miss. 2014) (finding Downy requested counsel by stating that she had an attorney and "could use him"); Holland, 587 So.2d at 856-57 (holding that a suspect asking detectives "Don't you think I need a lawyer?" invoked his right to counsel). Instead, the right is asserted by "some kind of positive statement or other action that informs a reasonable person of the defendant's 'desire to deal with the police only through counsel.'" Wilcher v. State, 697 So.2d 1087, 1096 (Miss. 1997) (quoting Wilcher v. Hargett, 978 F.2d 872, 876 (5th Cir. 1992)). Once a defendant expresses his "unequivocal election of the right," his subsequent agreement to waive his rights is invalid unless he initiated further discussion. Montejo v. Louisiana, 556 U.S. 778, 797 (2009).

         ¶14. On appeal, Armstrong claims that he requested counsel twice before waiving his rights and giving a full confession to Sergeant Thompson. Armstrong argues reversal is warranted because he did not initiate discussion with Sergeant Thompson and thus his waiver was invalid.

         ¶15. This Court "will reverse a trial court's denial of a motion to suppress if the court's ruling was a manifest error or contrary to the overwhelming weight of the evidence." Downey, 144 So.3d at 150 (ΒΆ6). In order to determine whether Armstrong's rights were violated, this Court must first determine whether Armstrong affirmatively invoked his right to counsel. As requests for ...


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