                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2001-CT-01826-SCT




BLAINE BROOKS

v.

STATE OF MISSISSIPPI

                                  ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                               10/10/2001
TRIAL JUDGE:                                    HON. MIKE SMITH
COURT FROM WHICH APPEALED:                      PIKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        RICHARD M. GOLDWASSER
                                                PAUL McGERALD LUCKETT
ATTORNEYS FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                                BY: W. GLENN WATTS
DISTRICT ATTORNEY:                              DUNN LAMPTON
NATURE OF THE CASE:                             CRIMINAL - FELONY
DISPOSITION:                                    REVERSED AND REMANDED - 03/24/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE FOR THE COURT:

¶1.    The following testimony was provided by Detective Robert Holmes in the murder

prosecution of Blaine Brooks:

       I felt I had just a limited amount of time, before he was appointed an attorney, to try to
       conduct a lineup. And that’s what I did. . . . Because . . . you’re going to be appointed
       an attorney sooner or later.

       [H]e informed me . . . he did not have an attorney. So at that point in time, I used my
       advantage. I conducted a physical lineup . . . before he was appointed an attorney. . . .
        I asked him if he’d like to speak with me? And he said, no, he did not. He
        wanted to wait until he [sic] have an attorney for him.

¶2.     This testimony, together with other errors discussed below, requires us to reverse this

murder conviction (which the Court of Appeals has previously affirmed) and to remand this

case for a new trial.

                        BACKGROUND FACTS AND PROCEEDINGS

¶3.     We borrow from the Court of Appeals’ opinion the following recitation of facts:

        On May 17, 1999, Merry Wilson was found dead in her home. Wilson died as
        a result of multiple stab wounds inflicted by a two-pronged fork which was
        recovered from her throat. The pathologist testified that Wilson had probably
        died sometime between the twelfth and the fifteenth of May. Wilson had also
        recently inherited $10,000 and her bed and mattress had been ransacked.

        A neighbor, Sandra Graham, stated that she had seen an African American male
        leaving the victim's home in the early morning of May 13. During a photographic
        line-up, Graham identified Brooks as the man leaving Wilson's home that
        morning. Prior to this, Brooks's mother, Towanda Nobles, had told her
        half-sister, Sherry Maxine Hodges Smith, that Brooks told her that he had
        stabbed Wilson. After Smith reported this statement to the police, neither
        Brooks nor Nobles could be located. Brooks had taken a bus to Chicago on May
        14th. Brooks was arrested in Chicago in July 2000 and extradited to Mississippi
        in February 2001. There was a line-up at the jail, where Graham again identified
        Brooks as the man she had seen leaving Wilson's home the morning of May 13th.

Brooks v. State, 2004 WL 1516503 (¶¶ 2-3) (Miss. Ct. App. 2004).

¶4.     Because Brooks did not have counsel when he participated in the lineup, his trial

counsel moved to suppress the identification, and the testimony recited above was provided

at the hearing on that motion.      After the trial court denied Brooks’s motion to suppress the

identification at the lineup, Brooks was convicted of murder and sentenced to serve life in

prison. On appeal to this Court, Brooks raises the following issues:




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        I.       Whether a defendant, who has invoked his right to counsel, later waives
                 his Sixth Amendment right to have counsel present at his lineup when he
                 subsequently participates in a lineup purposefully held before the
                 defendant is appointed counsel.

        II.      Whether a defendant who has been denied his right to counsel at a lineup
                 has the burden of demonstrating that the lineup was impermissibly
                 suggestive in order to exclude evidence of the lineup identification at
                 trial.

        III.     Whether an utterance made two to three days after a startling event is
                 properly admitted into evidence under the excited utterance exception to
                 rule against hearsay.

        IV.      Whether Rap Lyrics extolling murder were properly read to the jury
                 where there was not foundation laid for their introduction into evidence.

Because issues I and II are closely related, we will discuss them together.

                                             DISCUSSION

        I.       Whether a defendant, who has invoked his right to counsel, later
                 waives his Sixth Amendment right to have counsel present at his
                 lineup when he subsequently participates in a lineup purposefully
                 held before the defendant is appointed counsel.

        II.      Whether a defendant who has been denied his right to counsel at a
                 lineup has the burden of demonstrating that the lineup was
                 impermissibly suggestive in order to exclude evidence of the lineup
                 identification at trial.

¶5.     Although not precisely stated in the issues, the crux of Brooks’s argument to this Court

concerning the lineup identification is that Graham’s in-court identification was tainted

because she had previously identified him at a physical lineup without the presence of counsel

after adversarial proceedings against him had begun.          We therefore will review both the in-

court and lineup identifications.




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¶6.     A participant in a lineup has a constitutional right to have a lawyer present if the lineup

is held after adversarial proceedings had been initiated against him. Jimpson v. State, 532

So.2d 985, 988 (Miss. 1988); York v. State, 413 So.2d 1372, 1383 (Miss. 1982).

¶7.     In Coleman v. State, 592 So.2d 517 (Miss. 1991), this Court held:

        As a matter of the law of this state, the right to counsel attaches once the
        accused is in custody (a fact generating the legal conclusion that the individual
        is under arrest) and all reasonable security measures (of evidence and persons)
        have been completed. At all critical stages thereafter, the accused is of right
        entitled to access to counsel, absent a specific knowing and intelligent waiver
        tied to that stage.

Id. at 520.

¶8.     Adversarial proceedings had certainly commenced against Brooks prior to the lineup.

An arrest warrant had been issued, and he had been extradited from Illinois.          Furthermore,

Brooks had signed a document indicating that he did not want to speak to any law enforcement

authorities either in Illinois or Mississippi for any investigation.

¶9.     In United States v. Wade, 388 U.S. 218, 236-37, 87 S. Ct. 1926, 18 L.Ed. 2d 1149

(1967), the United States Supreme Court held:

        Since it appears that there is grave potential for prejudice, intentional or not, in
        the pretrial lineup, which may not be capable of reconstruction at trial, and since
        presence of counsel itself can often avert prejudice and assure a meaningful
        confrontation at trial, there can be little doubt that for Wade the post-indictment
        lineup was a critical stage of the prosecution at which he was as much entitled
        to such aid (of counsel) as at the trial itself. Thus both Wade and his counsel
        should have been notified of the impending lineup, and counsel's presence
        should have been a requisite to conduct of the lineup, absent an intelligent
        waiver.

Id. (citations & quotations omitted).




                                                        4
¶10.    It is undisputed that adversarial proceedings had begun against Brooks at the time of the

physical lineup. He had not been arraigned; and he was not represented by counsel. Accepting

as true Detective Holmes’s testimony, he informed Brooks that he did not have to participate

in the lineup (although Brooks took the stand and denied the assertion), but he also testified

that Brooks did not respond and participated in the lineup. The Court of Appeals found this

lack of response to be an intelligent waiver.     We disagree.    This Court will “indulge every

reasonable presumption against the waiver of a constitutional right.” Vickery v. Stat e, 535

So.2d 1371, 1377 (Miss. 1988) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57

S.Ct. 809, 81 L.Ed. 1177 (1937)).        Furthermore, silence can never be an intelligent waiver

where a defendant has invoked the constitutional right to have an attorney present. This Court

has held: “Just as written waivers are insufficient to justify police-initiated interrogations after

the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify

police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.”

Balfour v. State, 598 So.2d 731, 742 (Miss. 1992). If a written waiver is insufficient, then

even more so is silence.

¶11.    We find that the physical lineup was conducted in violation of Brooks’s constitutional

right to counsel.   Graham and Detective Holmes should not have been permitted to testify that

Graham identified Brooks at the physical lineup. In Gilbert v. California, 388 U.S. 263, 87

S. Ct. 1951, 18 L.Ed. 2d 1178 (1967), the United States Supreme Court held:

        The State is therefore not entitled to an opportunity to show that that testimony
        had an independent source. Only a per se exclusionary rule as to such
        testimony can be an effective sanction to assure that law enforcement
        authorities will respect the accused's constitutional right to the presence
        of his counsel at the critical lineup. In the absence of legislative regulations

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        adequate to avoid the hazards to a fair trial which inhere in lineups as presently
        conducted, the desirability of deterring the constitutionally objectionable
        practice must prevail over the undesirability of excluding relevant evidence.

Id. at 272-73 (emphasis added).

¶12.    Trial error does not always require reversal. In Nicholson v. State, 523 So.2d 68, 74

(Miss. 1988), this Court held that:

        The record in this case is unclear as to whether or not Nicholson was even under
        arrest at the time of the voice lineup. However, even if the voice lineup was
        conducted in violation of Nicholson's right to counsel, use of the voice lineup
        identification testimony at trial was harmless constitutional error. In so holding,
        we note that the voice lineup was not the first confrontation of the victim and
        defendant. Ms. McKinion had previously identified Nicholson as her assailant
        in a photo identification and an inadvertent voice showup, both of which she was
        able to make because of the substantial amount of time she spent in intimate
        contact with her assailant. Had this voice lineup been the first confrontation, and
        in violation of Nicholson's right to counsel, under the rationale of Moore and
        Gilbert, testimony of any subsequent pre-trial identifications would also have
        been inadmissible because of the possibility of exploitation of the initial
        illegality. See Moore [v. Illinois, 434 U.S. 220, 231 (1977);] Gilbert, 388 U.S.
        at 273, 87 S.Ct. at 1957. In a related matter, we note that even if the voice
        lineup had been conducted in violation of Nicholson's right to counsel, the
        in-court identification would still be permitted "upon a showing by clear and
        convincing evidence that the in-court identifications are based on
        observations of the suspect other than a lineup identification." York at 1383,
        citing U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)
        (emphasis added).

523 So. 2d at 74.

¶13.    Having found the lineup identification was conducted in violation of Brooks’s

constitutional rights, we must now determine whether the in-court identification was based on

observations of Brooks other than the lineup identification.

¶14.    The record amply supports the State’s argument that Graham’s in-court identification

was based on observations of Brooks other than the lineup. She had identified him first at a



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photo lineup.1      More importantly, Graham clearly testified more than once that her in-court

identification of Brooks was based on her observation of him leaving the victim’s home on the

morning of the crime.       She testified that she had no doubt in her mind that Brooks was the

person she observed. She testified that she walked by the victim’s house every day, and she

noticed unusual activity.    She testified she looked directly at his face and Brooks looked back

at her.       She saw him putting a cigarette in his mouth.         She also testified that she saw “the

protrusions of his lips and the eyes and the hair.”

¶15.      Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L.Ed. 2d 401 (1972), provides

five factors to be considered in evaluating the likelihood of misidentification.                The factors

include (1) opportunity of witness to view the criminal at time of crime; (2) witness’s degree

of attention, (3) accuracy of witness’s prior description of the criminal, (4) level of certainty

demonstrated by witness at the confrontation, and (5) length of time between the crime and the

confrontation. Thus, under the holding in York and Biggers, we find that Graham’s independent

recollection of Brooks from the crime scene, followed by her identification from the photo

line-up, provide marginal insulation from the constitutionally impermissible identification at

the physical lineup, and the in-court identification was not error.                    We further hold that

standing alone, the error committed by the trial court in allowing testimony about the

unconstitutional identification at the physical lineup would be harmless.                   However, when

combined with the other error committed in this case, it further justifies reversal.




          1
           The photo identification was not made an issue before this Court.

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        III.     Whether an utterance made two to three days after a startling event
                 is properly admitted into evidence under the excited utterance
                 exception to rule against hearsay.

¶16.    The State served notice on the defense that it intended to use at trial a hearsay statement

attributed to Brooks.     The State planned to call Sherry Maxine Smith Hodges, who would

testify that she was told by Brooks’s mother, Towanda Nobles, that Brooks had admitted

committing the crime. Since this amounted to double hearsay, Brooks filed an objection which

resulted in a hearing.

¶17.    At the hearing, Detective Robert Holmes was called as a witness by Brooks’s counsel.

He testified that he had interviewed Sherry Hodges, who gave details of the crime, and “she

would not have had knowledge of it not unless someone who specifically knew the details of

it could have told her.” He further testified that Sherry Hodges lied to him when she stated she

first heard of the murder on the police scanner.       When Detective Holmes confronted her with

the fact that the news had not been on the police scanner, Sherry Hodges changed her story and

stated that she learned from Brooks’s mother, Mrs. Nobles. Sherry Hodges told the detective

that Mrs. Nobles had come to her home in a very emotional state of mind, and she told Hodges

that her son, Brooks, had confessed to the murder. Sherry Hodges told Detective Holmes that

she lied at first because “she knew she was going to have to end up testifying against her

relatives.”

¶18.    Detective Holmes testified that he also interviewed Brooks’s mother, Towanda Nobles,

on May 17, 1999, who stated that she had learned of the murder from a friend named Pam

Smith. She further told Detective Holmes that she had not told Sherry Hodges that Brooks had

confessed the crime to her, that is, that Sherry Hodges’s statement “wasn’t true.”


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¶19.   The trial judge ruled that Sherry Hodges would be allowed to testify about the

statements made by Brooks’s mother, including the confession.           In the trial court’s opinion,

the statements were admissible under both the excited utterance exception to the rule against

hearsay, and the “catch-all” provision of M.R.E. 803(24).

¶20.   At trial, Sherry Hodges provided the expected testimony, that is, three days following

the murder she was told by Brooks’s mother, who had been told by Brooks, that he (Brooks)

committed the crime.

¶21.   Double hearsay “is not excluded under the hearsay rule if each part of the combined

statements conforms with an exception to the hearsay rule . . . .” M.R.E. 805. The State claims

that Brooks’s confession to his mother amounted to a statement made against Brooks’s self

interest, which is an exception under M.R.E. 804(b)(3).            The State further contends that,

because Nobles was crying and visibly upset as testified to by Smith, Nobles’s statement to

Smith was an excited utterance and therefore admissible.           We do not agree.      An excited

utterance is “[a] statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition.”          M.R.E. 803(2). The

murder occurred on May 13, 1999.         When Brooks confessed to his mother at her place of

employment, he was wearing bloody clothes.        This provides the only evidence of the date of

the confession which we must accept as May 13, the day of the murder. It wasn’t until three

days later that Nobles confided in her half-sister.         Although the excited utterance exception

“sets no specific time limit, nevertheless, under our precedent case law, this Court has not

allowed the admission of an excited utterance exception when the time frame was more than




                                                  9
twenty-four hours.” Smith v. State, 733 So.2d 793, 798 (Miss. 1999). The reason for this is

found in the comments to M.R.E. 803(2).

        [T]he underlying theory of the excited utterance exception is that circumstances
        may create such an excited condition that the capacity for reflection is
        temporarily impeded and that statements uttered in that condition are thus free
        of conscious fabrication. The essential ingredient is spontaneity. With respect
        to time element, the issue is the duration of the excited state. This depending on
        the exact circumstances of a case, vary greatly. The declarant need not be a
        participant but only an observer of the event which triggered the excitement. An
        excited utterance need only "relate" to the startling event, and therefore, the
        scope of the subject matter of the statement may be fairly broad.

M.R.E. 803 cmt.

¶22.    The Court of Appeals’ majority held that, since there was evidence of Nobles’s hysteria,

the trial court judge did not abuse his discretion. We disagree. There is little doubt that most

mothers would be stressed, even hysterical, upon hearing their child confess to committing

murder. However, because “this Court has not allowed the admission of an excited utterance

exception when the time frame was more than twenty-four hours,”      Smith, 733 So. 2d at 798,

citing Heflin v. State, 643 So. 2d 512, 519 (Miss. 1994), the trial court abused its discretion

in finding the testimony qualified as an excited utterance.

¶23.    The separate concurring opinions by King, C.J., and Southwick, P.J., disagreed with the

Court of Appeals’ conclusion that Nobles’s statement to Smith was an excited utterance.

Instead, they would have held that the trial judge was correct in finding that the statement was

“also admissible under 803(24).” This exception provides:

        A statement not specifically covered by any of the foregoing exceptions but
        having equivalent circumstantial guarantees of trustworthiness, if the court
        determines that (A) the statement is offered as evidence of a material fact; (B)
        the statement is more probative on the point for which it is offered than any
        other evidence which the proponent can procure through reasonable efforts; and

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          (C) the general purposes of these rules and the interests of justice will best be
          served by admission of the statement into evidence.

M.R.E. 803(24).

¶24.      Because this case is being reversed on other grounds, the trial court will be required to

review this issue again.    We find on the record before us that the testimony did not meet the

requirements of Rule 803(24). The trial court conducted a pretrial hearing, but only Detective

Holmes testified.      The trial court should have also heard the testimony, including cross-

examination, from Sherry Hodges out of the presence of the jury. This would have afforded

the trial court an opportunity to witness her demeanor and judge her credibility (for purposes

of the hearsay exception) prior to making a determination of reliability.           This is a very close

issue in this case. There are indications of reliability and reasons for concern.

¶25.      Weighing against reliability, we have the fact that Sherry Hodges initially lied to the

police. We also are told that Hodges knew details of the murder not known to the general

public.    Finally, this was double hearsay, which means that the court had no opportunity to

observe Brooks’s mother for purposes of reliability.               This is particularly important since

Brooks’s mother denied to the police that Brooks confessed to her or that she said as much

to Sherry Hodges.

¶26.      Weighing in favor of reliability, we have a mother in a very emotional state, providing

details which implicate her son in a murder.         There is also confirmation that Brooks’s mother

was where Sherry Hodges said she was when Brooks allegedly told her of the murder. Also,

the explanation provided by Sherry Hodges of her initial lie, is reasonable.




                                                     11
¶27.   With all of these factors to be weighed in determining whether the double hearsay is

of sufficient reliability to be admissible, we hold that the trial court must hear a proffer of

Sherry Hodges’s direct testimony and cross-examination, prior to ruling on whether the

hearsay is admissible under Rule 803(24).

¶28.   We therefore hold that the trial court abused its discretion in ruling the testimony

admissible under the excited utterance exception, and we further hold that the trial court abused

its discretion by failure to hear the testimony of Sherry Hodges prior to ruling on whether the

hearsay meets the exception provided under Rule 803(24). This may be done on retrial.

       IV.     Whether Rap Lyrics extolling murder were properly read to the
               jury where there was not foundation laid for their introduction
               into evidence.

¶29.   Brooks asserts that the trial court erred in allowing the detective to read “rap” lyrics to

the jury without any prior foundation. This issue is bound up with a similar issue, and we will

address the two together.

¶30.   The trial court allowed the State to introduce into evidence some rap lyrics presumably

written by Brooks which extolled murder.       Additionally, the trial court allowed the State to

inform the jury that Brooks had been involved in gang activity and that he had a tattoo of the

Grim Reaper holding a pitchfork. The jury learned that Brooks’s gang uses the symbol of a six-

pointed star and a pitchfork as its signs. Brooks says this evidence of his character should not

have been allowed into evidence. M.R.E. 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show that he acted in conformity therewith. It
       may, however be admissible for other purposes such as proof of . . . identity. .
       ..



                                                12
¶31.    The State tells us this evidence was not offered to show Brooks’s bad character, but

rather for the purpose of identity because the victim was stabbed repeatedly in the neck with

a meat fork. In other words, the gang follows the devil; the devil uses a pitchfork; the victim

was stabbed with a meat fork.

¶32.    When determining whether to admit evidence under Rule 404(b), we utilize a two- part

analysis. “The evidence offered must (1) be relevant to prove a material issue other than the

defendant's character; and (2) the probative value of the evidence must outweigh the prejudicial

effect." Crawford v. State, 754 So.2d 1211, 1220 (Miss. 2000) (citation omitted). In Hoops

v. State, 681 So.2d 521 (Miss. 1996), this Court held:

        To be sure, evidence admissible under Rule 404(b) is also subject to the
        prejudice test of Rule 403; that is, even though the Circuit Court considered the
        evidence at issue admissible under Rule 404(b), it was still required by Rule 403
        to consider whether its probative value on the issues of motive, opportunity and
        intent was substantially outweighed by the danger of unfair prejudice. In this
        sense Rule 403 is an ultimate filter through which all otherwise admissible
        evidence must pass.

651 So. 2d at 530-31. In Hoops, although the trial judge did not use the “magic words,” this

Court found that he “implicitly made the determination.” Id. at 531.

¶33.    Citing Hoops, the Court of Appeals deemed the following statement from the trial judge

to imply that he had made the determination under M.R.E. 403: “I’m going to let it in, yes. I’m

going to let them, this fork, and let the jury decide whether this fork represents a - - if that’s

the testimony, then I’m going to let the jury decide whether or not the fork represents a

pitchfork.” Brooks, 2004 WL 1516503 at (¶ 24).

¶34.    The lyrics presumably written by the defendant make no mention of gangs. The lyrics

discuss murder by use of a gun, not a fork.

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¶35.    We hold that the trial court made no attempt on the record to determine whether the

probative value of the evidence outweighed the prejudicial harm.   Furthermore, we find that,

based upon the record before us, the tattoo and gang-related evidence would not have survived

a Rule 403 analysis had it been conducted.

                                              CONCLUSION

¶36.    Because of the violation of Brooks’s constitutional right to counsel at the lineup,

combined with the impermissible hearsay testimony and the improper admission of gang-

related evidence without proper foundation or M.R.E. 403 analysis, we reverse the judgments

of the Court of Appeals and the Pike County Circuit Court and remand this case to the circuit

court for a new trial consistent with this opinion.

¶37.    REVERSED AND REMANDED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ
AND RANDOLPH, JJ., NOT PARTICIPATING.




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