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
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 07/17/2017
LAUDERDALE COUNTY CIRCUIT COURT. HON. JUSTIN MILLER COBB.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY: BILBO MITCHELL
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
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.
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
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.
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.
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
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 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.
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
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 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.
[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.
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.
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.
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.
Following deliberations, the jury found Armstrong guilty of
armed robbery and possession of a firearm as a convicted
felon. Armstrong timely appealed.
Motion to Suppress
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)).
"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).
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.
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 (¶6).
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