                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2005-KA-00722-SCT

JUSTIN HAYNES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           02/02/2005
TRIAL JUDGE:                                HON. C. E. MORGAN, III
COURT FROM WHICH APPEALED:                  ATTALA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     EDWARD C. FENWICK
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JOSE BENJAMIN SIMO
DISTRICT ATTORNEY:                          DOUG EVANS
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 06/08/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    After an Attala County grand jury indicted sixteen-year-old Justin Haynes on charges

of murder, sexual battery, and arson, venue was transferred to Rankin County. Haynes was

tried and found guilty of murder, sexual battery, and first degree arson, and sentenced to

consecutive sentences of life for murder, thirty years for sexual battery, and twenty years for

first degree arson. Haynes subsequently filed a motion for a new trial, or in the alternative,

judgment not withstanding the verdict, which motions were denied.

¶2.    Aggrieved, Haynes appeals to this Court, contending (1) the court erred in changing

venue to Rankin County and in denying his motion to quash the venire, which was composed
of only twelve percent African-American jurors in a county with a seventeen percent

African-American population; (2) the court erred in failing to suppress Haynes’ confession

to law enforcement officers after he invoked his right to counsel; and (3) the evidence did

not support the judgment.

                                           FACTS

¶3.    In the early morning hours of February 9, 2004, a newspaper delivery woman reported

a house on fire on South Huntington Street in Kosciusko, Mississippi. Kosciusko Police

Officer Carl Black and Kosciusko Firefighter Mark Hill, were some of the first responders

to arrive at the house. Officer Black testified smoke was originating from the rear of the

house, and that he noticed window screens located on the back of the home had been

removed, as well as a broken window pane located in the back door. Officer Black also

testified that he found a note in the driveway which read, “[d]o not say anything unless the

note tells you. Shake your head yes when you finish reading this note.” After extinguishing

the fire, Hill and other officials discovered the body of fifty-nine-year-old Jeanette Nowell,

a paraplegic, lying on her bed. Even though slash wounds were found on Nowell’s neck, the

pathologist listed Nowell’s primary cause of death as smoke inhalation.

¶4.    Later that morning, Kosciusko Police Officer Matt Steed was eating at a McDonald’s

restaurant when Haynes, a McDonald’s employee, approached him and said that he knew

“who killed that lady last night.” Officer Steed testified that Haynes told him that Barry Love

was responsible and then Haynes described in detail how Love broke into the house and



                                              2
killed Nowell. Police investigator Curtis Pope testified Haynes repeated the same story to

him, and that Haynes subsequently confessed that he, not Love, committed the crime.

Physical evidence found at the crime scene, including fingerprints and seminal fluid,

corroborated Haynes’ confession.

                                      DISCUSSION

       I.     WHETHER THE COURT ERRED IN CHANGING VENUE TO
              RANKIN COUNTY AND IN DENYING HAYNES’ MOTION TO
              QUASH THE VENIRE.

¶5.    Haynes first argues that the trial should not have been transferred to Rankin County,

a county where black citizens constitute only seventeen percent of the demographic, as

compared to Attala County, whose black citizens make up forty percent of the demographic.

Instead, Haynes argues his trial should have been moved to a county with similar racial

demographics as Attala County.

¶6.    However, “a defendant has no right to a change of venue to a jurisdiction with certain

racial demographics.” Mitchell v. State, 886 So. 2d 704, 709 (Miss. 2004) (citing De La

Beckwith v. State, 707 So. 2d 547, 597 (Miss. 1997)); see also Simon v. State, 633 So. 2d

407, 412 (Miss. 1993), vacated on other grounds, 513 U.S. 956, 115 S. Ct. 413, 130 L. Ed.

2d 329 (1994), on remand, 679 So. 2d 617 (Miss. 1996). Furthermore, “[m]otions for change

of venue are left to the trial court’s sound discretion.” Swann v. State, 806 So. 2d 1111,

1116 (Miss. 2002) (citing Davis v. State, 767 So. 2d 986, 993 (Miss. 2000); Hickson v. State,

707 So. 2d 536, 542 (Miss. 1997)).



                                             3
¶7.    Here, the circuit judge moved the trial to Rankin County, after considering factors

such as where Haynes could obtain a fair and impartial trial, away from pretrial publicity.

The circuit judge also considered courthouse facilities, proximity from the transferor county,

and the location of witnesses. Based on Mitchell and the trial judge’s findings, we find no

abuse of discretion.

¶8.    Haynes also argues that the circuit judge improperly denied his motion to quash the

venire which was only twelve percent black, when Rankin County’s demographic is

seventeen percent black. In order to show a violation of the right to an impartial jury

representing a fair cross-section of the community, a defendant must show “(1) that the group

alleged to be excluded is a “distinctive” group in the community; (2) that the representation

of this group in venires from which juries are selected is not fair and reasonable in relation

to the number of such persons in the community; and (3) that this underrepresentation is due

to systematic exclusion of the group in the jury-selection process.” Gray v. State, 887 So.

2d 158, 165 (Miss. 2004) (citing Lanier v. State, 533 So. 2d 473, 477 (Miss. 1988)).

¶9.    Here, the venire from which the jury was selected was produced by a computer which

randomly selected names from the voter rolls of Rankin County. Haynes made no objection

to the selection process, nor did he present any evidence indicating systematic exclusion of

blacks in the jury-selection process. As the circuit judge noted, Haynes objected only to the

results of the selection process, not the manner in which the jury was drawn. Because




                                              4
Haynes has failed to make a showing of any of the prima facie elements, this Court finds this

argument is without merit.

       II.    WHETHER THE COURT ERRED WHEN IT FAILED TO
              SUPPRESS HAYNES’ MARCH 3, 2004, CONFESSION WHICH
              WAS MADE AFTER HAYNES INVOKED HIS RIGHT TO
              COUNSEL.

                                      A. Confession

¶10.   On February 9, 2004, Haynes was arrested for Nowell’s murder. During Officer

Pope’s first meeting with Haynes, Officer Pope first advised Haynes of his Miranda rights.

See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At this time

Haynes did not request an attorney. Officer Pope met with Haynes a second time, and again

advised Haynes of his Miranda rights. However, this time, Haynes requested counsel, and

Officer Pope subsequently stopped the interview. About one week later, Haynes received

counsel. On March 3, 2004, Officer Pope received a phone call from the jail informing

Officer Pope that Haynes had asked to speak with him.

¶11.   Thereafter, Officer Pope and Detective Blakely went to the jail and met with Haynes,

re-advised Haynes of his rights, and had Haynes sign a waiver form. Haynes did not say he

wanted to talk about his case, but instead asked Officer Pope several questions about his

bond, scheduling, and a preliminary hearing. Although Officer Pope’s testimony is unclear

as to the sequence of the remaining conversation’s topics, the record provides a general

description about the details of the conversation. At some point Officer Pope asked Haynes




                                             5
if anything else was bothering him, to which Haynes shook his head, and then began talking

about problems at the jail.

¶12.   Following this discussion, Officer Pope asked Haynes “if he wanted to tell us anything

about the situation.” Again, Haynes shrugged his shoulders. On cross-examination during

a pretrial motion, defense counsel asked Officer Pope what he meant by “situation.” Officer

Pope replied “[w]ell, the whole situation. We probably were talking about the charges.”

However, Officer Pope went on to say “I don’t think I would, I ever directly brought up the

address or anything like that.”

¶13.   Officer Pope then asked Haynes if he previously had told the truth, to which Haynes

shrugged his shoulders again. At some point Haynes discussed his vocational activities, his

instructor, and fishing, although the record is not clear as to when this discussion took place.

Officer Pope then stated Haynes was told that it was obvious he had something bothering

him. Officer Pope stated he and Detective Blakely continued talking with him. Officer Pope

testified Haynes eventually put his head down, took a deep breath, raised his head, and said

“I’m ready to do my time and be a man.” Officer Pope stated Haynes confessed that he

attempted to kill Nowell and set fire to her home, but never admitted having intercourse with

her.

¶14.   After the confession, Officer Pope stated he and Detective Blakely asked Haynes if

he would write down or allow a videotaping of his statement. Officer Pope testified Haynes

told him no, because Haynes’ attorney did not want him to give any statements. Thereafter,



                                               6
Officer Pope asked Haynes if he would like to speak with his attorney, to which Haynes

responded affirmatively. After being contacted, Haynes’ attorney went to the jail and after

talking with Haynes, told Officer Pope that he could not advise his client to give a statement

at that time.

¶15.   Haynes claims his confession was the result of police interrogation, and therefore was

inadmissible as a violation of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed.

2d 378 (1981). Whether a confession is admissible is a fact-finding function for the trial

court, and its decision will not be overturned unless the trial court applied an incorrect legal

standard, committed manifest error, or made a decision against the overwhelming weight of

the evidence. Thorson v. State, 895 So. 2d 85, 115 (Miss. 2004); Payton v. State, 897 So.

2d 921, 935 (Miss. 2003); Swinney v. State, 829 So. 2d 1225, 1235 (Miss. 2002).

¶16.   In Edwards, the United States Supreme Court held “that an accused . . . having

expressed his desire to deal with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made available to him, unless the

accused himself initiates further communication, exchanges, or conversations with the

police.” 451 U.S. at 484-45; see also Minnick v. Mississippi, 498 U.S. 146, 156, 111 S. Ct.

486, 112 L. Ed. 2d 489 (1990); Kirkland v. State, 559 So. 2d 1046, 1047 (Miss. 1990).

¶17.   In other words, once an accused has invoked his right to counsel, any statements given

by the defendant in response to further police questioning are admissible only where (1) the

defendant initiated further discussions with the police and (2) knowingly and intelligently



                                               7
waived the rights he had invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 83 L.

Ed. 2d 488 (1984).

¶18.   At first glance, it would appear that any type of conversation initiated by a defendant

would fall under the Edwards exception. However, in Oregon v. Bradshaw, 462 U.S. 1039,

1045, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983) (plurality opinion), the United States

Supreme Court held otherwise:

       While we doubt that it would be desirable to build a superstructure of legal
       refinements around the word “initiate” in this context, there are undoubtedly
       situations where a bare inquiry by either a defendant or by a police officer
       should not be held to “initiate” any conversation or dialogue. There are some
       inquiries, such as a request for a drink of water or a request to use a telephone
       that are so routine that they cannot be fairly said to represent a desire on the
       part of an accused to open up a more generalized discussion relating directly
       or indirectly to the investigation. Such inquiries or statements by either an
       accused or a police officer, relating to routine incidents of the custodial
       relationship, will not generally “initiate” a conversation in the sense in which
       that word was used in Edwards.

Stated differently, the Supreme Court’s use of the term “initiate” involves more than the

inquiry of simply “who talks first.” See Sattayarak v. State, 887 P.2d 1326, 1329 (Okla.

Crim. App. 1994).

¶19.   In Bradshaw, the Supreme Court held that the defendant’s ambiguous statement,

“[w]ell, what is going to happen to me now?” expressed a desire to open up a generalized

discussion about the investigation. 462 U.S. at 1045-46 (plurality opinion); Id. at 1050

(Powell, J., concurring) (“[T]he facts and circumstances, when viewed in their entirety,

clearly establish a valid waiver of the right to counsel). In the case at bar, after invoking the



                                               8
right to counsel, Haynes admits to initiating conversation as to his bond and other matters,

but argues he did not initiate a conversation as to the charges he was facing.

¶20.   For this Court, this case is of first impression with regard to what constitutes

“initiation” as to a conversation relating directly or indirectly to the investigation and

conversation relating to routine incidents of the custodial relationship.

¶21.   Although this Court is not bound by case law from other states, we look to Kraft v.

State, 713 S.W.2d 168 (Tex. App. Houston 1st Dist. 1986) (affirmed on appeal for separate

reason), which provides guidance as to how other courts have construed inquiries “relating

to routine incidents of the custodial relationship.” In Kraft, the defendant was arrested for

driving while intoxicated. Id. at 169. Kraft was informed of his Miranda rights and

thereafter stated he wanted to call his lawyer. Id. While Kraft was on the phone, an officer

told the defendant that his attorney could not come down to the police station. Id. After

hanging up, Kraft asked the officer whether the advice he received over the phone was

correct; specifically, whether a bondsman could get him out of jail. Id. at 169-70, 172. The

officer told Kraft he would be able to call a bondsman, and then the officer recommenced

questioning. Id. at 169-70.

¶22.   Although a Texas trial court held the defendant’s question reinitiated conversation

with the officer, the Texas Court of Appeals held otherwise: “[i]nquiries about bail are the

type of necessary inquiries arising out of the incidents of the custodial relationship,

distinguished in Edwards from conversations evincing a desire to open up more generalized



                                              9
discussion relating to the investigation.” Id. at 172 (emphasis added).1 The court went on

to find that the State failed to show a knowing and intelligent waiver of Kraft’s Fifth

Amendment right to have counsel present during interrogation because the police officer

repeatedly told the defendant that his attorney could not come to the police station during the

interview. Id.

¶23.   In this case, Haynes asked to speak to Officer Pope regarding what he terms

“procedural matters,” including bond, scheduling, and a preliminary hearing. Following

Texas’ lead in Kraft, we find those inquiries are matters “relating to routine incidents of the

custodial relationship” as discussed in Bradshaw. Therefore, Haynes’ questions did not

“initiate” a conversation as the word was used in Edwards.

¶24.   Moreover, at no point in Officer Pope’s testimony did he say Haynes asked other

questions which “evinced a willingness and a desire for a generalized discussion about the

investigation.” See Bradshaw, 462 U.S. at 1046; United States v. Velasquez, 885 F.2d 1076,

1085 (3d Cir. 1989); see also United States v. Whaley, 13 F.3d 963 (6th Cir. 1994) (“[A]n

Edwards initiation occurs when, without influence by the authorities, the suspect shows a

willingness and a desire to talk generally about his case.”) In Smith, 469 U.S. at 98, the

Supreme Court stated:

       1
        Defendants’ inquiries regarding requests to use the telephone, get a drink of water, to contact
his mother, whether the defendant would be held overnight, and what charges were being asserted
against the defendant have all been held to arise out of incidents of the custodial relationship.
Bradshaw, 462 U.S. at 1045; Potts v. Commonwealth, 546 S.E.2d 229, 234 (Va. Ct. App.
2001); United States v. Lynch, 813 F. Supp. 911, 913 n.4 (D.N.H. 1993); State v. Barmon, 679
P.2d 888, 893 (Or. Ct. App. 1984).

                                                  10
       Edwards set forth a “bright-line rule” that all questioning must cease after an
       accused requests counsel. In the absence of such a bright-line prohibition, the
       authorities through “badger[ing]” or “overreaching” - explicit or subtle,
       deliberate or unintentional - might otherwise wear down the accused and
       persuade him to incriminate himself notwithstanding his earlier request for
       counsel’s assistance.

(Citations omitted). In this case, it was only after Officer Pope and Detective Blakely’s

questions, specifically, “if he wanted to tell us anything about the situation,” whether Haynes

had told the truth, and what was bothering him, that Haynes gave his confession. Therefore,

Officer Pope and Detective Blakely’s questions constituted interrogation after Haynes

invoked his right to counsel, and those questions were in violation of Edwards.

¶25.   However, the State argues that because Haynes received his Miranda rights and

signed a waiver of those rights before the conversation took place between Haynes and the

two officers, the trial court was correct in allowing Haynes’ confession into evidence.

Moreover, the State argues, neither Officer Pope nor Detective Blakely used any threats,

promises, or coercion to obtain Haynes’ confession.

¶26.   Essentially, the State is asking this Court to skip the first step of the Edwards analysis,

which requires this Court to determine whether the defendant initiated further discussions

with the police, and focus only on the second step, which requires this Court to determine

whether the defendant knowingly and intelligently waived the rights he had invoked. We

find this argument is without merit. See United States v. Cannon, 981 F.2d 785, 789 (5th

Cir. 1993) (“Determining who initiated the conversation after [defendant] invoked his right

to counsel is essential to a Fifth Amendment inquiry.”) (citing Bradford v. Whitley, 953 F.3d

                                               11
1008, 1010 (5th Cir. 1992)). Even if Haynes knowingly, intelligently, and voluntarily waived

his right, the waiver does not cure a violation of Edwards. See United States v. Webb, 755

F.2d 382, 390 (5th Cir. 1985) (citing Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L.

Ed. 2d 579 (1984)).

¶27.   A case dealing with both defendant initiation and waiver of rights is Sattayarak, 887

P.2d at 1329. There, Sattayarak invoked her right to counsel during custodial interrogation.

Id. The next morning, she was handcuffed and placed in a car with a police officer. Id. As

the car began to drive off, she asked the officer where they were going. Id. In response, the

officer told her their destination and then asked if she had made any statements to other

officers. Id. Before she could answer, the officer read Sattayarak her Miranda rights. Id.

The officer went on to ask her if she would answer his questions and give a statement. Id.

The Oklahoma criminal appeals court not only held Sattayarak’s question “could not be

construed as an invitation to discuss any aspect of the investigation,” but also held the waiver

“was the result of police-initiated questioning and [was] not valid.” Id. at 1329-30. As such,

the court held it was error to admit Sattayarak’s statements given after the officer initiated

the conversation. Id. at 1330.

¶28.   In this case, although Officer Pope had Haynes sign a waiver of his Miranda rights

before any conversation took place, just as in Sattayarak, it was the officers who initiated

discussion relating to the investigation when Officer Pope asked Haynes “if he wanted to tell

us anything about the situation,” whether he had told the truth, and what was bothering him.



                                              12
¶29.   Furthermore, to accept the State’s argument that Haynes waived his right to counsel

would invalidate the “initiation” distinction set forth in Bradshaw. Adopting the State’s

position would allow an officer to question a defendant subsequent to the invocation of

counsel, where the defendant asked a question that is custodial in nature.

¶30.   Because the trial judge allowed Haynes’ confession into evidence based on the judge’s

finding that Haynes’ “initiated” contact with Pope in the sense that Haynes was essentially

the “first to speak,” we find the trial judge erred by applying an incorrect legal standard. As

case law shows, an initiation by a defendant regarding inquiries relating to the custodial

relationship does not constitute an “initiation” within the meaning of Edwards. As such,

Officer Pope and Detective Blakely violated Haynes’ Fifth Amendment right under Edwards

when the officers began questioning Haynes about the investigation. Haynes had previously

invoked his right to counsel and reinitiated conversation with Pope only as to matters of

bond, scheduling, and preliminary hearing. Therefore, we find the circuit judge erred in

admitting the confession into evidence.

                                     B. Harmless Error

¶31.   We must now determine whether the admission of the confession constituted harmless

error, thus allowing the verdict to stand. “The admission of confessions obtained in violation

of Edwards and its progeny constitutes trial error, and is therefore amenable to harmless error

analysis.” Goodwin v. Johnson, 132 F.3d 162, 181 (5th Cir. 1988); United States v. Webb,

755 F.2d 382, 392 (5th Cir. 1985). In order for a violation of a constitutional right to be held



                                              13
harmless, this Court must determine that the violation was harmless beyond a reasonable

doubt. Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Similarly, this Court has held “errors involving a violation of an accused’s constitutional

rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence

against the accused is overwhelming.” Clark v. State, 891 So. 2d 136, 142 (Miss. 2004)

(citing Riddley v. State, 777 So. 2d 31, 35 (Miss. 2000)).

¶32.   Here, without Haynes’ confession, the State submitted only circumstantial evidence

establishing that Haynes’ actually set the fire which led to Nowell’s death. Although DNA

of the semen found on Nowell’s body matched Haynes’ DNA indicating sexual battery, the

State presented little concrete evidence actually showing Haynes was responsible for setting

the fire. Only a small burn on Haynes’ jacket as well as the odor of smoke linked him to the

fire. Without Haynes’ confession, the jury may have given different weight to the State’s

evidence, and possibly in Haynes’ favor. See Palm v. State, 748 So. 2d 135, 142 (Miss.

1999) (“While some statements by a defendant may concern isolated aspects of the crime or

may be incriminating only when linked to other evidence, a full confession in which the

defendant discloses the motive for and means of the crime may tempt the jury to rely upon

that evidence alone in reaching its decision.”) (citing Arizona v. Fulminante, 499 U.S. 279,

296, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).

¶33.   Moreover, Haynes’ argument that Love may have played a role in the crime also

constitutes a shift in the trial’s dynamic. Haynes argued during trial that police did not fully



                                              14
investigate Love as a suspect in the crime, although Haynes originally told police Love

perpetrated the crime. Haynes also argued that police did not request Love’s clothes to check

for ignitable fluids in order to show Love might have caused the fire, nor did they check

Love’s shoes to determine whether they matched a shoe print found at Nowell’s home.

Furthermore, without Haynes’ confession, the jury might have questioned Love’s credibility.

Haynes pointed out Love’s inconsistent stories as to how Love came into possession of

Nowell’s gun. Even though Love’s mother testified Love was at her house the night of the

murder, when confronted, Love originally denied knowing about the gun. Love later

changed his story stating Haynes sold him the gun.

¶34.   However, the evidence against Haynes, disregarding his confession, is overwhelming

and links him to the scene of the crime. The evidence includes Haynes’ DNA found at the

crime scene; Haynes’ fingerprints found on a note outside Nowell’s home; a burnt spot on

Haynes’ jacket, as well as the odor of smoke; Haynes’ knowledge of the crime as told to

Officer Steed and Officer Pope, alleging Love was responsible for the crime; that Haynes’

grandmother served as Nowell’s caretaker; bullets taken from Nowell’s home were found in

the floorboard of the car belonging to Haynes’ grandmother; a piece of cloth found at

Nowell’s home was similar to a piece found in the car; Haynes had possession of his

grandmother’s car keys the night of the crime; and Love’s testimony that Haynes sold him

a gun that was registered in Nowell’s name and was taken from her home. Based on this




                                             15
large amount of evidence establishing Haynes’ culpability, we find the circuit judge’s

admission of Haynes’ confession was harmless beyond a reasonable doubt.

¶35.   Finally, although this Court held in Balfour v. State, 580 So. 2d 1203, 1209 (Miss.

1991), that the admission of a defendant’s full confession did not constitute harmless error

where the confession was obtained in violation of Edwards and no other confessions were

presented into evidence, we find Balfour is distinguishable from this case. In Balfour, this

Court found the defendant’s Fifth and Fourteenth Amendment rights were violated when the

officers reinitiated interrogation after the defendant had invoked her right to counsel. Id.

Here, however, Haynes initiated the meeting with Officer Pope and Detective Blakely in

which Haynes subsequently gave a confession.

¶36.   Because we find the admission of Haynes’ confession constituted harmless error

beyond a reasonable doubt, we find no reversible error.

       III.   W H E T H ER TH E T R IA L C O U R T ’S JU D G M E N T IS
              SUPPORTED BY THE EVIDENCE.

¶37.   Haynes argues the evidence presented at trial is insufficient as a matter of law to

warrant a conviction on the three counts of the indictment. Additionally, Haynes argues the

weight of the State’s evidence was not sufficient for a reasonable juror to find him guilty.

¶38.   When determining whether the evidence is sufficient to sustain a conviction, “the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (citing

                                            16
Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Excluding

Haynes’ confession, and considering only the evidence the State presented in the light most

favorable to the State, we find sufficient evidence existed to convict Haynes of murder,

sexual battery, and first degree arson. As discussed in our harmless error analysis above,

Haynes’ DNA and fingerprints were found at the crime scene, Haynes had detailed

knowledge of the crime as related to Officer Steed and Officer Pope, alleging Love was

responsible for the crime, as well as other factors connecting Haynes to the crime.

¶39.   When determining whether a verdict is against the weight of the evidence, this Court

weighs the evidence in the light most favorable to verdict. Bush, 895 So. 2d at 844.

Moreover, “the verdict must be ‘so contrary to the overwhelming weight of the evidence that

to allow it to stand would sanction an unconscionable injustice.’” Dilworth v. State, 909 So.

2d 731, 737 (Miss. 2005) (citing Bush, 895 So. 2d at 844). Again, excluding Haynes’

confession, Haynes provided little, if any, evidence or explanation to refute the State’s

evidence that connected him to the crime scene. Therefore, we cannot say the verdict was

contrary to the overwhelming weight of the evidence so as to create an unconscionable

injustice. See id.

                                     CONCLUSION

¶40.   Although we find the circuit judge erred when he admitted Haynes’ confession into

evidence, we find the admission of Haynes’ confession constituted harmless error beyond a

reasonable doubt. We do so based on the State’s overwhelming evidence presented against



                                             17
Haynes. We also find the evidence sufficient to sustain the jury’s verdict. Finally, we hold

that the jury’s verdict is consistent with the weight of the evidence presented by the State.

Therefore, we affirm the circuit court’s judgment.

¶41. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY
AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III:
CONVICTION OF ARSON (FIRST DEGREE) AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. THE SENTENCE IMPOSED IN COUNT II SHALL
RUN CONSECUTIVE TO THE SENTENCE IMPOSED IN COUNT I. THE
SENTENCE IMPOSED IN COUNT III SHALL RUN CONSECUTIVE TO THE
SENTENCES IMPOSED IN COUNT I AND COUNT II.

     EASLEY AND CARLSON, JJ., CONCUR. RANDOLPH, J., CONCURS IN
RESULT ONLY. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY WALLER AND COBB, P.JJ., AND GRAVES, J. DIAZ, J.,
NOT PARTICIPATING.

       DICKINSON, JUSTICE, DISSENTING:

¶42.   I agree with Parts I and III of the plurality opinion, but because I am unable to agree

with Part II, I respectfully dissent.

¶43.   The plurality agrees that Haynes’ constitutional rights were violated, but declares the

violation harmless. In my view, the harmless error analysis employed by this Court in this

case, and in other recent cases, is flawed. We have departed from guidelines set forth by the

United States Supreme Court, instead employing our own tests for determining harmless

error. Our analysis has all but eviscerated harmless error analysis, turning it into a review




                                             18
of the weight and sufficiency of the evidence, rather than an independent review of whether

the unconstitutionally admitted evidence contributed to the conviction.

¶44.   All fifty states and the federal system permit harmless error analysis in order to save

convictions from reversal based on errors which do not affect the substantial rights of the

parties. Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Harmless errors are only those “which in the setting of a particular case are so unimportant

and insignificant that they may, consistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the conviction.” Id. In conducting harmless

error analysis, this Court has the power and duty to review the record de novo in order to

determine the error’s effect. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S. Ct. 1246,

113 L. Ed. 2d 302 (1991).       Harmless error may apply to cases where an accused’s

constitutional rights were violated. Chapman, 386 U.S. at 22. This includes involuntary or

coerced confessions, Fulminante, 499 U.S. at 308, and violations of Edwards v. Arizona,

451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and its progeny. See Goodwin v.

Johnson, 132 F.3d 162, 181 (5th Cir. 1997).

¶45.   The violation of a constitutional right may not be deemed harmless unless certain

guidelines are followed, as set forth by the United States Supreme Court. The current version

of harmless error analysis was announced by the United States Supreme Court in Chapman

but traces its origins back to Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975

(1958), and Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). In



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Chapman, the Court held that, before a federal constitutional error can be held harmless, the

Court must be able to declare a belief that it was harmless beyond a reasonable doubt. 386

U.S. at 24. Accordingly, the Court placed the burden on the beneficiary of the error to prove

there was no injury; otherwise reversal of the erroneously obtained judgment is required. Id.

¶46.   The phrase “harmless beyond a reasonable doubt” has now become synonymous with

harmless error analysis, but this Court’s current usage of that phrase has set it loose from its

original moorings. The Chapman Court found little difference between the phrase “harmless

beyond a reasonable doubt” and the Court’s holding in Fahy. Id. In Fahy the Court held:

       We are not concerned here with whether there was sufficient evidence on
       which the petitioner could have been convicted without the evidence
       complained of. The question is whether there is a reasonable possibility that
       the evidence complained of might have contributed to the conviction.

Fahy, 375 U.S. at 86-87 (emphasis added). While the United States Supreme Court’s

wording has changed over the years, the basic tenet remains the same – the impact of the

erroneously admitted evidence, rather than the properly admitted evidence, should be

weighed to determine what errors are harmless. Fulminante, 499 U.S. at 296.

¶47.   In Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284

(1969), the United States Supreme Court held harmless the admission of confessions by non-

testifying co-defendants in violation of the defendant’s right of confrontation. While the

Court discussed the overwhelming evidence of guilt in that case, it did not base its decision

on the weight and sufficiency of the untainted and cumulative evidence. Id. The Court




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followed the Chapman procedure by examining the impact of the improperly admitted

confessions on the specific facts of that case:

       Our judgment must be based on our own reading of the record and on what
       seems to us to have been the probable impact of the two confessions on the
       minds of an average jury. We admonished in Chapman against giving too
       much emphasis to ‘overwhelming evidence’ of guilt, stating that constitutional
       errors affecting the substantial rights of the aggrieved party could not be
       considered to be harmless. By that test we cannot impute reversible weight to
       the two confessions. We do not depart from Chapman; nor do we dilute it by
       inference. We reaffirm it. We do not suggest that, if evidence bearing on all
       the ingredients of the crime is tendered, the use of cumulative evidence,
       though tainted, is harmless error. Our decision is based on the evidence in this
       record. The case against Harrington was not woven from circumstantial
       evidence.

Id. (Emphasis added; citations omitted). See also Fulminante, 499 U.S. at 296 (harmless

error analysis required the Court to “determine[] whether the State has met its burden of

demonstrating that the admission of the confession to Sarivola did not contribute to

Fulminante’s conviction.”).

¶48.   While it is unclear at what point this Court’s analysis changed direction, the resulting

impact is profound. Our contemporary approach, as recently announced in Clark v. State,

891 So. 2d 136, 142 (Miss. 2004), holds that “errors involving a violation of an accused’s

constitutional rights may be deemed harmless beyond a reasonable doubt where the weight

of the evidence against the accused is overwhelming.” This level of review deprives this

Court of its role in protecting the accused’s constitutional rights, leaving the issue squarely

in the hands of the trial court, whose decisions we now merely review for the weight and

sufficiency of the evidence. Chapman requires this Court to do more. We are required, in

                                              21
my view, to inquire into the character and quality of the tainted evidence to determine if it

reasonably contributed to the conviction. It is simply not enough to say that, had the tainted

evidence been excluded, the admissible evidence was strong enough to secure a conviction.

¶49.   Turning to the present case, it is beyond question that the police violated Haynes’

Fifth and Fourteenth Amendment rights as espoused by Edwards. I cannot fathom how the

plurality could conclude the tainted evidence could not possibly have contributed to the

conviction. The United States Supreme Court has agreed that a defendant’s confession is

perhaps the most probative and prejudicial evidence that the State can produce at trial.

Fulminante, 499 U.S. at 296 (finding admission of coerced confession was not harmless

error). Sitting as an appellate court, we cannot say the weight and credibility the jury gave

to Haynes’ confession was inconsequential, especially where the remainder of the State’s

evidence was circumstantial. See Harrington, 395 U.S. at 254; Payne, 356 U.S. at 568. And

beyond that, we certainly cannot say the unconstitutionally secured confession did not

reasonably contribute to Haynes’ conviction. Indeed, absent the constitutionally forbidden

confession, honest and fair-minded jurors might very well have arrived at not-guilty verdicts.

See Chapman, 386 U.S. at 25.

¶50.   This Court has previously found a similar Edwards violation to be reversible and not

harmless. Balfour v. State, 580 So. 2d 1203, 1209 (Miss. 1991). I disagree with the

plurality’s conclusion that Balfour and the present case are distinguishable. In both cases

the police violated the accused’s rights in conducting a custodial interrogation following a



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request to have counsel present. The fact that Balfour did not reinitiate the discussion with

the police while Haynes did is immaterial. In the present case, Haynes’ reinitiating dealt only

with matters related to bond, scheduling, and his preliminary hearing. When the police

questioned Haynes further about general matters related to the charges against him, they

clearly violated his Fifth and Fourteenth Amendment rights. These were the same rights the

police violated in Balfour, and the minor underlying factual distinctions are not enough to

distinguish the hard and fast rule.

¶51.   Once he invoked his right to counsel, Haynes had a constitutional right not to be

questioned without his counsel present, and the violation of that right should not be

emasculated by other evidence of guilt. I would reverse the trial court’s judgment and

remand this case for a new trial which excludes evidence of Haynes’ confession. For these

reasons, I must respectfully dissent.

       WALLER AND COBB, P.JJ., AND GRAVES, J., JOIN THIS OPINION.




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