E-Filed Document Nov 2 2015 07:21:41 2014-KA-01098-COA Pages: 17 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI CAUSE NO. 2014-KA-01098-COA SHERMAN BILLIE, SR. APPELLANT VS. STATE OF MISSISSIPPI APPELLEE Appeal From Neshoba County, Mississippi Circuit Court Eighth Judicial District BRIEF OF THE APPELLANT James E. Smith, III, MSB # 101,383 203 N. Pearl St., P.O. Box 387 Carthage, Mississippi 39051 (601) 267-5611 Office Attorney for Appellant
IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI CAUSE NO. 2014-KA-01098-COA SHERMAN BILLIE, SR. APPELLANT VS. STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of the Court of Appeals may evaluate possible disqualifications or recusal. 1. Appellant: Sherman E. Billie, Sr 2. Attorney for Appellant: James E. Smith III 3. Appellee: State of Mississippi 4. Attorney for Appellee: John R. Henry, Mississippi Attorney General s Office 5. Hon. Marcus D. Gordon, presiding Circuit Judge, 8 th Judicial Circuit Court Respectfully submitted, this the 30th day of October, 2015. APPELLANTS BY: /s/ JAMES E. SMITH III James E. Smith, III, MSB # 101,383 203 N. Pearl St., P.O. Box 387 Carthage, Mississippi 39051 (601) 267-5611 Office Attorney for Appellant i
TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS... i TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES... 1 SUMMARY OF THE ARGUMENT... 2 STATEMENT OF THE CASE AND FACTUAL BACKGROUND... 3 ARGUMENT... 6 I. The Trial Court Erred in Failing to Suppress the Defendant s Written Statement.... 6 A. Because The Defendant Did Not Intelligently, Knowingly, or Voluntarily Waive his Rights Under Miranda, The Trial Court Erred in Failing to Suppress Any Statement Elicited by Investigator Sciple.... 7 B. Because the Trial Court Failed to Apply Fruit-of-the-Poisonous-Tree Doctrine, It Erred In Failing to Suppress the Defendant s Final Statement.... 9 CERTIFICATE OF SERVICE... 13 ii
TABLE OF AUTHORITIES Mississippi State Court Cases Blue v. State, 674 So. 2d 1184, 1204 (Miss. 1996)... 12 Depreo v. State, 407 So. 2d 102, 106 (Miss.1981)... 12 Gavin v. State, 473 So. 2d 952, 954 (Miss. 1985)... 12 Glasper v. State, 914 So. 2d 708, 716 ( 21) (Miss. 2005)... 9 Horne v. State, 825 So. 2d 627 (Miss. 2002)... 11, 12 Jones v. State, 461 So. 2d 686, 696 97 (Miss.1984)... 12 Keller v. State, 138 So. 3d 817 (Miss. 2014)... 14 Lee v. State, 338 So. 2d 399, 401 (Miss.1976)... 12 Manix v. State, 895 So. 2d 167, 180-81 (Miss. 2005)... 9 Marshall v. State, 584 So. 2d 437, 438 (Miss. 1991)... 15 Neal v. State, 451 So. 2d 743 (Miss. 1984)... 10 Neal v. State, 57 So. 3d 1271 (Miss. 2011)... 11 Stokes v. State, 797 So. 2d 381, 383 ( 3) (Miss. Ct. App. 2001)... 9 United States Supreme Court Cases Michigan v. Tucker, 417 U.S. 433, 445 (1974)... 14 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)... 10, 12, 13 Murray v. United States, 487 U.S. 533, 536 (1988)... 15 Nardone v. United States, 308 U.S. 338 (1939)... 15 Wong Sun v. United States, 371 U.S. 471 (1963)... 15 iii
STATEMENT OF THE ISSUES I. Whether the Trial Court Erred in Failing to Suppress the Defendant s Final Statement. A. Because The Defendant Did Not Intelligently, Knowingly, or Voluntarily Waive his Rights Under Miranda, The Trial Court Erred in Failing to Suppress Any Statement Elicited by Investigator Sciple. B. Because the Trial Court Failed to Apply Fruit-of-the-Poisonous-Tree Doctrine, It Erred In Failing to Suppress the Defendant s Final Statement. 1
SUMMARY OF THE ARGUMENT Sherman Billie, the Defendant, orally confessed to the crime of sexual battery in the presence of Investigator Sciple on October 7, 2013, while under the effects of sleeping pills taken immediately prior to his arrest that morning. Moreover, the Defendant was led to believe that in exchange for his confession, Investigator Sciple would lower his bond amount. Less than 24 hours later, the Defendant signed a written confession for Investigator Sciple, who was alone and did not record the encounter, while still under the effects of sleeping pills and believing that his bond would be lowered in exchange for the confession. The trial court erred when it failed to suppress the Defendant s statement, as the totality of the circumstances did not establish that the Defendant s statement was made intelligently, knowingly, or voluntarily. Alternatively, if the statement was made intelligently, knowingly, or voluntarily, the State failed to sufficiently remove and distinguish from the conditions present in the oral confession to purge the primary taint of the oral statement. 2
STATEMENT OF THE CASE AND FACTUAL BACKGROUND This case is on appeal from Neshoba County Circuit Court, where Sherman Billie, Sr., the Defendant, was tried and convicted of the sexual battery of a minor, Jacob Bruce. When he was 14, Bruce moved to Neshoba County, Mississippi to live with this stepfather and little brother in April, 2010. A few months after Bruce moved in with his stepfather, the Defendant, who is brother of Bruce s stepfather, moved in with them. During this time, the Defendant attended Police Academy for the Choctaw Police Department. Beginning in September of 2010, Bruce alleges that the Defendant began sexually molesting him. Bruce alleged that the Defendant would come into his room at night and would molest him over the period of several months until the Defendant finally moved out. Some three years later, around September of 2013, Bruce reported the alleged action of the Defendant to the Neshoba County Sheriff s Department, who arrested the Defendant on October 7, 2013. When the Defendant was arrested on October 7, 2013, he had just gotten home from working a night shift with Choctaw Police Department. As he normally did, the Defendant took sleeping pills to sleep during the day. He had just taken four sleeping pills when Sheriff s deputies came and arrested him and took him to the Sheriff s office. Once there, he was interviewed by Investigator Ralph Sciple. Investigator Sciple advised the Defendant of his rights, which he waived, and questioned him regarding the nature of the accusations, in the presence of an additional officer. The Defendant made an oral confession to Investigator Sciple. This took place at approximately 12:30 p.m. 3
Investigator Sciple interviewed the Defendant again at approximately 8:30 a.m. on October 8, 2013, less than 24 hours after the first and after the Defendant spent the night in the county jail. The Defendant again signed a waiver of rights and again made a confession to Investigator Sciple, who was alone during this interview and did not record the interaction in any way. The second statement was put into writing by the Defendant, and witnessed by Investigator Sciple. During a suppression hearing at trial regarding the statement, the Defendant and his wife, Kultilda Billie, provided testimony that the Defendant took sleeping pills, and that those sleeping pills had an adverse effect on his ability to understand things. They both testified that the effects of the pills lasted longer than 12 hours and caused the Defendant to not be able to recognize things and becomes worse if he is not able to sleep. When Investigator Sciple discussed the nature of the second interview, he testified that he felt a second one was necessary because the Defendant was noticeably distraught during the first interview. He further testified, however, that the Defendant appeared perfectly normal during the second interview, and seemed to understand the waiver of his rights before giving his statement. At the end of the suppression hearing, the trial judge allowed the statement to be admitted, ruling that the Defendant was given Miranda rights properly and that he knowingly and intelligently recognized his rights and voluntarily waived them. After Investigator Sciple completed his testimony, the Defendant s counsel moved for directed verdict, which was overruled. The jury subsequently found the Defendant guilty of sexual battery. 4
STANDARD OF REVIEW This Court has held that the standard of review regarding the admissibility of a confession is abuse of discretion, where it will reverse a trial court's finding that a confession is admissible only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence. Stokes v. State, 797 So. 2d 381, 383 ( 3) (Miss. Ct. App. 2001). Further, since the trial court sits as the fact-finder when determining the issue of whether an accused's confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court's determination of this issue when such determination is manifestly wrong. Glasper v. State, 914 So. 2d 708, 716 ( 21) (Miss. 2005) (citing Manix v. State, 895 So. 2d 167, 180-81 (Miss. 2005)). 5
ARGUMENT I. The Trial Court Erred in Failing to Suppress the Defendant s Written Statement. A confession stemming from custodial interrogation of the defendant is not admissible unless it demonstrates the use of procedural safeguards to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Although it is possible for a defendant to waive these privileges, the waiver must be done so voluntarily, willingly, and intelligently. Id. Once the defendant waives the rights, the State must bear the burden of proving that it was done so voluntarily, willingly, and intelligently. Neal v. State, 451 So. 2d 743 (Miss. 1984). When the Defendant waived his rights on October 7th and 8th, he did so under the severe effects of sleeping pills and could not completely understand the magnitude of his actions. The State did not carry its heavy burden of proving that the Defendant was not or no longer under such effects when he waived his rights. The State even conceded that it was clear he was too impaired to give an adequate statement on October 7th. Further, the second statement was based wholly off of the first statement, which was so clearly inadmissible. When the State relied on the use of the second statement without purging it of the inadmissibility of the first, it relied on fruit of the poisonous tree and should have been precluded from using it to prove its case. Because the Defendant did not sufficiently waive his rights under Miranda, and because the State failed to purge the second statement by the Defendant of its primary taint, the trial court committed manifest error by failing to suppress this evidence at trial. 6
A. Because The Defendant Did Not Intelligently, Knowingly, or Voluntarily Waive his Rights Under Miranda, The Trial Court Erred in Failing to Suppress Any Statement Elicited by Investigator Sciple. When the Defendant made his oral statement to Investigator Sciple on October 7 th and his written statement on October 8 th, he did not intelligently or knowingly waive his Due Process rights. The Defendant had taken sleeping pills immediately before his arrest, and testified during the suppression hearing that he was still under the effects of the pills when making his written statement to law enforcement. (Trial Tr. 71). Because he did not appropriately waive his rights, any statements elicited from him by Sciple were inadmissible. Therefore, the trial court erred by failing to suppress the Defendant s statement. For a confession to be admissible at trial, it must have been intelligently, knowingly, and voluntarily given, and not the product of police threats, promises or inducements. Neal v. State, 57 So. 3d 1271 (Miss. 2011). Further, the State bears the burden of proving beyond a reasonable doubt that confession was voluntary, which is met and prima facie case made out by testimony of officer, or other persons having knowledge of facts, that confession was voluntarily made without threats, coercion, or offer of reward. Horne v. State, 825 So. 2d 627 (Miss. 2002) (where the court held that officers testimony, along with videotaped evidence, established that intoxication was not a factor in his decision to waive Miranda rights). In the present case, however, there is no videotaped evidence to support a prima facie case that Sherman was not under the effects of sleeping pills. In fact, the testifying officer, Investigator Sciple, was the only law enforcement officer present to take Sherman s statement, and made no recordings of the interaction of any kind. In fact, the 7
only time that Investigator Sciple was able to determine that the Defendant was unable to give an adequate statement due to his impairment was while in the presence of another officer. This is an important fact that distinguishes the present case from Horne, inter alia, in that this Court has rarely, if ever, determined that a single officer s unsubstantiated testimony was enough to establish a sufficient prima facie case. This holds especially true when faced with such conflicting testimony from witnesses other than the Defendant that conditions existed which would greatly challenge the validity of a Miranda waiver. Because the trial court sits as the fact finder when determining voluntariness of a confession, it cannot be reversed unless that determination is manifestly wrong. Blue v. State, 674 So. 2d 1184, 1204 (Miss. 1996). This Court, however, must look to the totality of the circumstances in determining whether the accused has knowingly and voluntarily waived his or her privilege against self-incrimination. Gavin v. State, 473 So. 2d 952, 954 (Miss. 1985) (citing Jones v. State, 461 So. 2d 686, 696 97 (Miss.1984); Depreo v. State, 407 So. 2d 102, 106 (Miss.1981); Lee v. State, 338 So. 2d 399, 401 (Miss.1976)). Here, the Defendant and his wife testified that the sleeping pills taken by the Defendant immediately prior to his arrest had long lasting and dire effects. After testimony by the Defendant that he had taken more than the normal amount that morning, the trial court accepted simply the investigator s testimony that the Defendant personally appeared able to understand the waiver of his rights. When asked about why the he attempted to take an additional statement however, Investigator Sciple did indicate that at one point the Defendant had indeed been noticeably unable to adequately waive his rights: 8
Q: Was there any reason or any difference that you can tell me or tell the Court between the 7 th and the 8 th as to why you didn t take a statement on the 7 th and you did on the 8 th? A: Now, the day before he was very distraught because he knew he was fixing to lose his job, he was fixing to lose his family, and he was very remorseful at that time. (Trial Tr. 48, lines 11-18). The investigator s second attempt at a statement from the Defendant came less than 24 hours after the first. In the second attempt, Investigator Sciple was alone and made no recordings of the interaction of any kind. Under the totality of the circumstances, the great weight of the evidence stands against the testimony of a single officer, whose opinion is unsubstantiated and which fails to carry the State s burden of proof. Because the State failed to carry its heavy burden in establishing that the Defendant had the capacity to knowingly and intelligently waive his Miranda rights, the trial court committed manifest error in failing to suppress the Defendant s subsequent statement and must be overturned. B. Because the Trial Court Failed to Apply Fruit-of-the-Poisonous-Tree Doctrine, It Erred In Failing to Suppress the Defendant s Final Statement. When Investigator Sciple took the written statement by the Defendant on October 8 th, 2013, it was based on an inadmissible oral statement given less than 24 hours before on October 7 th. When the State failed to purge the second statement of the primary taint regarding the inadmissibility of the first, the trial court failed to apply fruit-of-thepoisonous-tree doctrine in failing to suppress the second statement and committed error. 9
Statements taken in violation of the Miranda principles must not be used to prove the prosecution s case at trial. Keller v. State, 138 So. 3d 817 (Miss. 2014) (citing Michigan v. Tucker, 417 U.S. 433, 445 (1974)). In Keller, the trial court found that the defendant did not voluntarily or knowingly give incriminating statements on two separate occasions to police while in extreme distress in the emergency room due to gunshots, despite Miranda warnings given on both occasions, although the trial court allowed a third Miranda warning the following day while the defendant was in the ICU. As stated supra, the law enforcement officer who took the written statement of the Defendant on October 8th did so only after realizing that the previous oral statement was invalid. During testimony, however, the officer noted that the second statement was based largely, if not entirely, on the previous oral statement: Q: Did you try to get a statement from Mr. Billie the day before, on the 7th? A: I talked to him. Q: Yes, sir. A: Did not get a written statement from him. He told me everything that he told me at this time on his statement, what he told me the day before. (Trial Tr. 48, lines 4-10). The issue in Keller regarding the illegality of the third confession was whether the defendant was in the same condition of extreme distress that existed at the time of the first two confessions. Although the Court ultimately determined that he was not, it was aided largely by the availability of medical evidence to suggest so. The defendant had been moved out of the emergency room and into ICU, which was a much more stable environment. Here, there exists no evidence to aid a finder of fact in determining that the 10
Defendant was no longer substantially affected by sleeping pills other than the unsubstantiated testimony of the officer who took the confession, by himself, with no recordings of the interaction whatsoever. The fruit of the poisonous tree doctrine prohibits introduction into evidence of tangible materials seized during an unlawful search. Marshall v. State, 584 So. 2d 437, 438 (Miss. 1991) (citing Murray v. United States, 487 U.S. 533, 536 (1988)). To overcome this barrier to admissibility, the evidence must reach the point at which the connection becomes so attenuated as to dissipate the taint. Id. (citing Nardone v. United States, 308 U.S. 338 (1939); see also Wong Sun v. United States, 371 U.S. 471 (1963)). Here, the investigating officer s own testimony establishes that there were no changes in the nature and substance of the Defendant s statements in the few hours between the two. When the Defendant s first statement is so clearly inadmissible, any use of a subsequent statement is inadmissible as long as it fails to become so attenuated as to dissipate the taint. Because the State failed to establish sufficient evidence to adequately rebut the Defendant s testimony that he was under the effects of sleeping pills when making both statements, the State failed to sustain the burden of purging the first statement of its primary taint. The trial court erred by failing to suppress the Defendant s written statement on exclusionary rule grounds, and must be reversed. CONCLUSION For all of the foregoing reasons, the Defendant is entitled to a reversal of his convictions and sentences, and moves this Court to remand this case to the Neshoba County Circuit Court for a new trial. Respectfully submitted, 11
SHERMAN BILLIE, SR., APPELLANT By: _/s/ James E. Smith III James E. Smith, III Attorney for Sherman E. Billie, Sr. 12
CERTIFICATE OF SERVICE I, James E. Smith, attorney for the Appellant, Sherman Billie, Sr., hereby certify that I have electronically filed the above Brief of the Appellant with the Clerk of the Court using the MEC System which sent notification of such filing to all counsel of record. DATED this the 30th day of October, 2015. /s/ JAMES E. SMITH, III 13