                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2012-KA-00921-SCT

MICKEY L. JOHNSON a/k/a MICKEY JOHNSON

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                              05/09/2012
TRIAL JUDGE:                                   HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                     LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        EDMUND J. PHILLIPS, JR.
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: STEPHANIE B. WOOD
DISTRICT ATTORNEY:                             MARK SHELDON DUNCAN
NATURE OF THE CASE:                            CRIMINAL - FELONY
DISPOSITION:                                   AFFIRMED - 11/07/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE DICKINSON, P.J., KITCHENS AND CHANDLER, JJ.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    On appeal from his conviction for possession of cocaine, Mickey L. Johnson argues

that law enforcement officers gave him a defective Miranda 1 warning and then coerced his

written statement by promising to forego charges against his fianceé. He further argues that,

because the trial court refused to suppress his written statement, his conviction must be

reversed. We find that the Miranda warning used in this case was not defective, and we are

not persuaded that the trial judge committed manifest error in finding that Johnson

voluntarily gave a statement that included his confession.



       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                       FACTS AND PROCEDURAL HISTORY

¶2.    On August 4, 2011, Johnson, his fianceé Chiquita Clay, and Gamilla Truss were in

Johnson’s home when law enforcement officers arrived to execute a search warrant. During

the search, officers located a plastic bottle containing what appeared to be crack cocaine.

Later analysis by the crime lab confirmed that the substance was in fact cocaine. Following

the search, the officers arrested Johnson and transported him and Clay – whom they did not

arrest – to the Leake County Jail.

¶3.    After arrival at the jail, Officer Clay McCombs and Chief Deputy Mike Williams

presented Johnson with a form Miranda warning and waiver, which he signed. Thereafter,

Officer McCombs wrote out a statement which Johnson signed, stating:

       I, Mickey Johnson, am giving this statement to Clay McCombs, who is writing
       it for me. Today I was at my house when I heard officer was at my house. I
       had some crack cocaine that I put in a white bottle. I put the white bottle in
       some clothes in the closet with women’s clothes. It was my crack cocaine and
       Chekita Clay had nothing to do with it.

¶4.    The Leake County grand jury indicted Johnson on a charge of possession of cocaine

in an amount of at least two grams but less than ten grams, and as a second drug offender,

and on May 8, 2012, the case went to trial.

¶5.    At trial, Johnson’s counsel objected to the admission of Johnson’s statement, arguing

that the statement was involuntary because it was coerced with a promise by law enforcement

to forego charges against Clay; and that the Miranda warning was defective because it did

not include the required disclosure that Johnson had the right to consult with counsel prior

to any questioning.




                                              2
¶6.      During a suppression hearing outside the presence of the jury, the trial judge – after

hearing testimony from Officer Clay McCombs, Chief Deputy Mike Williams, and Johnson,

as well as argument from both sides – found the warning sufficient pursuant to Miranda and

held that Johnson’s statement was admissible. On appeal, Johnson claims this ruling was

error.

                                         ANALYSIS

¶7.      In arguing that the trial judge should have suppressed his statement, Johnson first

argues that his statement was involuntary because it was coerced by a promise not to pursue

charges against his fianceé. He also argues that the Miranda warning given to him was

defective.

         I.     The trial judge did not commit manifest error in finding that
                Johnson voluntarily gave his statement.

¶8.      During the suppression hearing, Johnson testified that Officer McCombs threatened

to charge Clay – who officers knew was his fianceé – with possessing cocaine if he did not

sign a confession. The trial judge found that Johnson’s testimony did not give rise to a

credible argument that his confession had been coerced.

¶9.      Johnson argues that, because the State had the burden to prove beyond a reasonable

doubt that his confession was voluntary; and because the State failed to refute his testimony,

the trial judge was bound to accept it and exclude the statement. We do not find this to be

the law.




                                               3
¶10.   A defendant’s confession may be allowed into evidence over objection only where the

trial judge finds the confession was intelligently, knowingly, and voluntarily made,2 rather

than bargained for with promises, threats, or inducements by law enforcement officers.3 And

where, as here, a defendant argues that the confession was coerced by one of these means,

the court must hold a hearing at which the trial judge sits as the finder of fact.4

¶11.   As the fact-finder, the trial judge must consider “the totality of the circumstances” and

decide whether “the statement [was] the product of the accused’s free and rational choice.” 5

We reverse the trial court’s decision only upon finding the ruling was manifestly erroneous

or contrary to the overwhelming weight of evidence.6

¶12.   When a defendant challenges the voluntariness of his confession, the State has the

burden to show beyond a reasonable doubt that the defendant voluntarily gave the

confession,7 and the “burden is met and a prima facie case is made by testimony of an officer,




       2
       Wilson v. State, 936 So. 2d 357, 361 (Miss. 2006) (citing Manix v. State, 895 So. 2d 167,
180 (Miss. 2005)).
       3
        Manix, 895 So. 2d at 180 (citing Dancer v. State, 721 So. 2d 583, 587 (Miss. 1998);
Morgan v. State, 681 So. 2d 82, 86 (Miss. 1996); Chase v. State, 645 So. 2d 829, 838-39 (Miss.
1994)).
       4
      Wilson, 936 So. 2d at 362 (citing Thorson v. State, 653 So. 2d 876, 888 (Miss. 1994) (citing
Abram v. State, 606 So. 2d 1015, 1030 (Miss. 1992))).
       5
           Wilson, 936 So. 2d at 361-62 (citing Jacobs v. State, 870 So. 2d 1202, 1207 (Miss. 2004)).
       6
       Wilson, 936 So. 2d at 361 (citing Glasper v. State, 914 So. 2d 708, 716 (Miss. 2005));
Barnes v. State, 30 So. 3d 313, 317 (Miss. 2010).
       7
        Manix, 936 So. 2d at 180 (citing Morgan, 681 So. 2d at 86 (citing Haymer v. State, 613
So. 2d 837, 839 (Miss. 1993))).

                                                   4
or other persons having knowledge of the facts, that the confession was voluntarily made

without threats, coercion, or offer of reward.” 8

¶13.   During the suppression hearing, Johnson testified that Officer McCombs had

threatened to charge his fianceé, Chiquita Clay, unless he confessed that the cocaine

belonged to him. Johnson’s counsel also drew attention to the fact that Johnson’s signed

confession referenced Clay’s innocence.

¶14.   In response to Johnson’s argument, the State called both Officer McCombs and Chief

Deputy Williams, and both refuted Johnson’s testimony by testifying that neither promises

nor threats were made to induce Johnson’s confession. Officer McCombs testified that

Johnson had asked whether Clay would be charged, and he had responded that, if Johnson

admitted the cocaine was his, there would be no reason to charge Clay. After hearing this

testimony, the trial judge stated that he did not find Johnson’s argument to be credible.

¶15.   We are unable to find that the trial judge’s ruling was manifestly incorrect. We have

held that the State may meet its burden by producing “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.” 9 According to the officers, Johnson initiated the

subject of whether Clay would be charged, and Officer McCombs’s factual response to

Johnson’s question does not, as a matter of law, rise to the level of a threat or coercion. Both

interviewing officers testified that Johnson was not promised anything in exchange for his


       8
        Id. (quoting Morgan, 681 So. 2d at 87 (quoting Chase, 645 So. 2d at 838 (quoting Cox v.
State, 586 So. 2d 761, 763 (Miss. 1991))) (internal quotations omitted).
       9
        Id. (quoting Morgan, 681 So. 2d at 87 (quoting Chase, 645 So. 2d at 838 (quoting Cox v.
State, 586 So. 2d 761, 763 (Miss. 1991))) (internal quotations omitted).

                                               5
confession, and the only evidence to refute this testimony was Johnson’s verison of the

discussion.

¶16.    In Glasper v. State, we addressed similar conflicting testimony at a suppression

hearing in which the defendant argued his confession was involuntarily given because law

enforcement officers induced the confession with repeated promises of leniency.10 At a

suppression hearing, Glasper testified that the interviewing officer had promised leniency

during his custodial interrogation.11         To refute this testimony, the State presented

contradictory testimony from the interviewing officer.12 In affirming the trial judge’s ruling

that the defendant had confessed voluntarily, we stated:

       Regardless of the number of appellate judges who now, or in the future, review
       this case, the trial judge in this case is the only one amongst the members of
       the judiciary who will ever have the opportunity to not only hear the
       testimony, but to also observe the demeanor of the witnesses as they testified
       at the suppression hearing. We thus afford the appropriate deference to the trial
       judge since she was the ultimate fact-finder based on disputed testimony
       offered at the suppression hearing. And the trial judge, siting as the fact finder,
       had the sole authority to weigh the credibility of the witnesses and decide in
       the state’s favor.13

¶17.   This case presents the same issue we addressed in Glasper. The defendant testified

that his confession was given in exchange for a promise. Both interviewing officers testified

that this was not true. Giving the deference due to the trial judge’s discretion in determining

the credibility of witnesses, we cannot say that the trial judge’s ruling was manifestly wrong.


       10
            Glasper, 914 So. 2d at 720.
       11
            Id.
       12
            Id.
       13
            Id. (citing Culbreath v. Johnson, 427 So. 2d 705, 708-09 (Miss. 1983)).

                                                  6
       II.        The Miranda warning was not defective.

¶18.   The question concerning the Miranda warning is not complicated. Johnson was

informed that he had “the right to have an attorney present during interrogation,” but he was

not specifically informed that he had the right to consult with counsel. The trial judge found

that informing a defendant of his right to have an attorney present during questioning carries

with it the understanding that he may consult with that attorney. We agree.

¶19.   In Miranda, the United States Supreme Court held that the Fifth Amendment to the

United States Constitution requires that a defendant be informed of his rights to remain silent

and to counsel prior to being subjected to custodial interrogation.14 Johnson relies on the

Supreme Court’s statement in Miranda that “an individual held for interrogation must be

clearly informed that he has the right to consult with a lawyer and to have the lawyer with

him during interrogation under the system for protecting the privilege we delineate today.” 15

¶20.   In and since Miranda, the United States Supreme Court has rejected a rigid

requirement of exact language when giving Miranda warnings. In Miranda, the Court stated

that the warnings stated therein were necessary “in the absence of a fully effective

equivalent.” 16 In Duckworth v. Eagan, the Supreme Court stated that “[w]e have never

insisted that Miranda warnings be given in the exact form described in that decision” and




       14
            Miranda, 384 U.S. at 470.
       15
            Id.
       16
            Id. at 476.

                                              7
that “[t]he inquiry is simply whether the warnings reasonably ‘convey to a suspect his rights

as required by Miranda.’” 17

¶21.   This Court addressed a similar claim regarding Miranda warnings in Byrom v. State,

in which the defendant moved to suppress her confession, arguing that she did not know she

had a right to have an attorney present during interrogation.18 The sheriff in that case had

advised Byrom that she had the right to consult with an attorney prior to questioning, but had

failed to state that counsel could be present during the interrogation.19 In affirming the

admission of Byrom’s confession, this Court stated “[w]hile as noted by the trial court, the

warnings were not the classic warnings, Byrom was fairly advised of her rights.” 20

¶22.   Johnson was clearly informed that he had “the right to have an attorney present during

interrogation,” and that if he desired an attorney, but could not afford one, one would be

appointed. This adequately informed Johnson of his right to counsel.

                                         CONCLUSION

¶23.   The trial judge did not commit manifest error by finding that Johnson voluntarily gave

his confession. And we find that the waiver-of-rights form Johnson signed sufficiently

advised him of his right to counsel. Accordingly, we affirm Johnson’s conviction and

sentence.




       17
         Duckworth v. Eagan, 492 U.S. 195, 202-03, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989)
(quoting California v. Prysock, 453 U.S. 355, 361, 101 S. Ct. 2806, 2810, 69 L. Ed. 2d 696 (1981)).
       18
            Byrom v. State, 863 So. 2d 836, 855 (Miss. 2003).
       19
            Id.
       20
            Id. at 858.

                                                 8
¶24. CONVICTION OF POSSESSION OF COCAINE AND SENTENCE AS A
SECOND DRUG OFFENDER OF TWENTY (20) YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

     WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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