                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2014-KA-01172-SCT

LAQUNN GARY a/k/a LAGUNN GARY a/k/a
LAQUNN SHAROD GARY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:               05/22/2014
TRIAL JUDGE:                    HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:          MICHAEL HENRY
                                ALISON KELLY
                                YEMI KINGS
                                BRAD HUTTO
                                GRETA HARRIS
                                IVON JOHNSON
COURT FROM WHICH APPEALED:      HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:        OFFICE OF THE STATE PUBLIC
                                DEFENDER
                                BY: BENJAMIN ALLEN SUBER
                                    GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:              ROBERT SHULER SMITH
NATURE OF THE CASE:             CRIMINAL - FELONY
DISPOSITION:                    REMANDED WITH DIRECTIONS -
                                12/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     EN BANC.

     MAXWELL, JUSTICE, FOR THE COURT:
¶1.    Before his capital-murder trial, Laqunn Gary moved to suppress his confession,

arguing he had not knowingly, intelligently, and voluntarily waived his Miranda rights.1 The

trial court denied his motion without a hearing. This was error. Because Gary had

questioned the voluntariness of his confession, he had a due-process right to a suppression

hearing. And the State had the burden to prove his confession was in fact voluntary. We

remand this case to the trial court to conduct a hearing to determine the admissibility of

Gary’s confession.

                      Background Facts and Procedural History

       I.     Investigation

¶2.    On February 11, 2012, the Jackson Police Department (JPD) received a call about a

dead body. Someone had found seventeen-year-old Vizavian Trent Darby lying in the grass

with a gunshot wound to his head. Darby was last seen leaving home in his mother’s rental

car. Police found the abandoned car two days later.

¶3.    On February 14, 2012, JPD took Gary in for questioning. After advising him of his

Miranda rights, Detectives Eric Smith and Patricia Wilder interviewed Gary. During this

interview, Gary confessed to shooting Darby, abandoning the rental car, and hiding the gun

he used to shoot Darby, as well as Darby’s 9 mm pistol. After the interview, Gary led

Detective Smith and another detective to the guns.




       1
         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
(requiring that, prior to a custodial interrogation, the person be warned he has a right to
remain silent, that any statement he makes may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or appointed).

                                             2
¶4.    Gary and his friend were indicted for capital murder for unlawfully killing Darby

during the course of a robbery.2 See Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014).

       II.      Pretrial

¶5.    While Gary was awaiting trial,3 Detective Smith was killed. Detective Smith was

interviewing a suspect in an unrelated case when that suspect grabbed Detective Smith’s gun

and shot him. Detective Wilder was in the interrogation room and witnessed her partner

Smith’s murder.

¶6.    Before his trial, Gary moved to suppress his written statement and confession. The

thrust of Gary’s argument was that he was only seventeen at the time and too immature to

appreciate the constitutional rights he purportedly waived before the interview. With

Detective Smith’s death and unavailability as a witness in Darby’s trial, the State subpoenaed

Detective Wilder to testify. Specifically, the State intended to call Detective Wilder to testify

at Gary’s suppression hearing to show his confession was voluntary.

¶7.    But Detective Wilder did not want to testify. And an attorney she had retained to

represent her in another matter moved to quash the State’s subpoena. Detective Wilder’s

attorney argued she suffered from post-traumatic stress disorder (PTSD) from witnessing her

partner’s murder.     And having to either watch and/or testify about Gary’s recorded

confession—which took place in the same or similar interrogation room where Detective

Smith was shot—would damage her mental health. Detective Wilder’s resistence to


       2
         The pair were further charged with using a firearm during the commission of a
felony, in violation of Mississippi Code Section 97-37-37 (Rev. 2014).
       3
           For reasons unclear from the record, Gary was tried by himself.

                                               3
testifying prompted the State to file a pretrial motion to determine her availability as a

witness.

¶8.    On the Thursday before trial was set to begin on Monday, May 12, 2014, both the

State’s motion as well as Wilder’s motion to quash the State’s subpoena were brought for a

hearing. At this hearing, Detective Wilder’s therapist testified about Wilder’s supposed

PTSD and the potential harmful impact testifying might have on her.

¶9.    Both the State and Gary informed the court that Detective Wilder’s potential

unavailability would impact Gary’s suppression hearing, since the State intended to call

Detective Wilder to prove Gary’s confession was voluntary and to authenticate the video-

recording of the confession. Gary’s counsel reminded the court about Gary’s pending

suppression motion, urging an age-based challenge to the voluntariness of his Miranda

waiver. At this point, a disagreement arose about Gary’s true age. While Gary’s counsel

asserted he was seventeen when he confessed, the State insisted Gary was in fact eighteen,

based on his birth date. Though the current hearing was about Wilder’s availability to

testify—not the admissibility of Gary’s confession—Gary’s counsel offered to put Gary on

the stand for the limited purpose of confirming the year he was born.

¶10.   From the stand, Gary testified he was born in November 1994, making him seventeen

in February 2012. The trial court then permitted the State to cross-examine him about his

age. The State showed Gary the Miranda waiver form and written statement, which listed

his date of birth. Gary confirmed that he could read and write and that it was his signature

on two of the pages. But he insisted the officers never asked him about his birthday. At this



                                             4
point, the State asked to show the video confession, suggesting that within the first thirty

seconds of the video statement, Gary told Detective Smith and Detective Wilder he was born

in 1993—making him eighteen, not seventeen. Over Gary’s objection, the trial court

permitted several minutes of the video to be played—up to when Gary was asked about his

date of birth. Gary confirmed that he was the person in the video, that the video depicted him

being interviewed by the two detectives, and that he had told the detectives he was born in

1993.

¶11.    After Gary’s brief testimony, the hearing shifted back to the issue of Detective

Wilder’s availability to testify. The hearing ended with the trial court taking the issue of

Detective Wilder’s availability under advisement.

¶12.    On the morning of trial, the court announced that it had deemed Detective Wilder an

unavailable witness. The court also confirmed it was denying Gary’s motion to suppress his

written statement and video-recorded confession.4 Gary’s counsel spoke up, arguing she had

not been heard on his motion to suppress. And though the court agreed with Gary’s counsel

that Gary “was not fully heard on his motions” to suppress the written statement and video-

recorded confession, the court still ruled his confession was voluntary.

        III.   Conviction

¶13.    At trial, the video confession was introduced through Deputy Chief Brent Winstead,

the third detective who had witnessed parts of Gary’s interview and had been with Gary



        4
         Apparently, the court had emailed the parties over the weekend, informing them of
its decision on the two motions. So the pronouncement from the bench was to place in the
record the court’s rulings and reasoning.

                                              5
when he led the police to the murder weapon. After hearing from multiple witnesses called

by the State and defense, the jury found Gary guilty of capital murder. He was sentenced to

life in prison without parole.

                                        Discussion

¶14.   Though Gary alleges several errors on appeal, we address only his first—the trial

court’s denial of Gary’s motion to suppress his written statement and video-recorded

confession.5 At a minimum, Gary argues, he was entitled to a suppression hearing, in which

the State was required to put on evidence to meet its burden to make a prima facie case that

the confession was voluntary. We agree.

¶15.   “When the voluntariness of a confession is put into question, the defendant has a due

process right to a reliable determination that the confession was in fact voluntarily given.”

Cox v. State, 586 So. 2d 761, 763 (Miss. 1991) (citing Stokes v. State, 548 So. 2d 118, 121

(Miss. 1989)). To protect this right, we have held that “[w]hen objection is made to the

introduction of the confession, the accused is entitled to a preliminary hearing” outside the

presence of the jury “on the question of the admissibility of the confession.” Agee v. State,

185 So. 2d 671, 673 (Miss. 1966).

¶16.   But here, as the trial court acknowledged, there was no suppression hearing. And

because there was no suppression hearing, the State was never required to meet its burden

to make a prima facie showing that Gary voluntarily had waived his Miranda rights and that



       5
         Gary also claims the evidence was insufficient to convict him of capital murder and
that his guilty verdict is contrary to the overwhelming weight of the evidence. He also
broadly asserts “cumulative errors” require a new trial.

                                             6
his confession was voluntary. See Cox, 586 So. 2d at 763. In fact, the State was not required

to put on any evidence at all or call any witnesses about the voluntariness of his Miranda

waiver or his statement. Instead, the trial court relied on evidence introduced through

Gary—over his objection—to rule Gary’s confession was admissible. This was error, since

the State “bears the burden of proving all facts prerequisite to admissibility [of a confession]

beyond a reasonable doubt.” Id. And only after the State makes its prima facie case does the

defendant have to put on evidence of coercion or involuntariness. See Agee, 185 So. 2d at

673, as modified by Thorson v. State, 653 So. 2d 876, 888 (Miss. 1994).

                                          Conclusion

¶17.   Because the court did not require the State to make a prima facie showing that Gary’s

confession was voluntary, we have no option but to remand this case to the trial court to hold

a suppression hearing to decide if Gary’s confession was indeed admissible. See Jackson

v. Denno, 378 U.S. 368, 394, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (remanding to the state

court to conduct a constitutionally adequate suppression hearing); see also Conerly v. State,

760 So. 2d 737, 742 (Miss. 2000) (remanding burglary case to the trial court for a probable-

cause hearing, because no probable-cause determination had been made before admitting

evidence found during the defendant’s arrest). If, upon remand, the trial court determines

Gary’s confession is inadmissible, then the trial court shall vacate his conviction and order

a new trial. See Conerly, 760 So. 2d at 742. If the trial court finds Gary’s confession was

in fact admissible, it shall enter an order to that effect. See id.; see also Jackson, 378 U.S.

at 394, 84 S. Ct. at 1790, 12 L. Ed. 2d 908 (finding that, if after a proper suppression hearing,



                                               7
the confession is found to be voluntary and admissible, there is “no constitutional necessity

at that point for proceeding with a new trial”).

¶18.   REMANDED WITH DIRECTIONS.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, COLEMAN
AND BEAM, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KING, AND
COLEMAN, JJ.

       KITCHENS, JUSTICE, SPECIALLY CONCURRING:

¶19.   I concur with the majority’s holding that, because the trial court did not require the

State to present a prima facie case that Gary’s confession was voluntary and that he

knowingly, intelligently, and voluntarily waived his Miranda6 rights, the trial court erred by

admitting the video recording of Gary’s confession and his written statements. I write

separately to address the clear Fifth Amendment violation that occurred when Gary was

compelled to give evidence against himself by authenticating the video recording of his own

statement and his own written statements.

¶20.   “One of the most settled premises in our constitutional jurisprudence is that no

individual may be compelled to testify against himself or to offer testimony which might

render him liable to a criminal prosecution.” Moore v. Moore, 558 So. 2d 834, 836 (Miss.

1990). The Fifth Amendment to the United States Constitution provides that no person shall

be compelled to be a witness against himself. U.S. Const. amend. V; U.S. Const. amend XIV.

And, under Article 3, Section 26, of our state constitution, the accused cannot “be compelled

to give evidence against himself.” Miss. Const. art. 3, § 26. Under the Fifth Amendment, “[a]

       6
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              8
defendant is protected not merely from being placed on the witness stand and compelled to

testify to his version of the matters set forth in the indictment; he is protected from

authenticating by his oath any documents that are sought to be used against him . . . .”

Haywood v. United States, 268 F. 795, 802 (7th Cir. 1920).

¶21.   The accused may assert the privilege against self incrimination on a question-by-

question basis or refuse to take the witness stand at all. Knapp v. State, 536 So. 2d 1330,

1334 (Miss. 1988). A defendant can waive the right against self incrimination by voluntarily

and knowingly taking the witness stand and responding to questions. Hentz v. State, 496 So.

2d 668, 673 (Miss. 1986). But no waiver occurs if the defendant’s counsel timely objects to

questions that would elicit incriminating information. Moore, 558 So. 2d at 838.

¶22.   What occurred in this case starkly contravened these basic principles. Gary filed a

motion to suppress his statements and a motion to suppress the videotape of his interrogation.

The State bears the burden of proving that a confession is voluntary and admissible.

According to the procedure for determining the voluntariness of a confession set out in Agee

v. State, 185 So. 2d 671, 673 (Miss. 1966), the State makes a prima facie case of

admissibility by presenting testimony that the confession was voluntary. Id. Once the State

makes a prima facie case, the burden shifts to the defendant to make specific allegations of

coercion. Id. Then, the State can offer rebuttal testimony. Id.

¶23.   As discussed in the majority opinion, no formal suppression hearing occurred in this

case. Instead, in its ruling, the trial court pieced together facts gleaned from other preliminary

proceedings to support the denial of the motions to suppress. The first such preliminary



                                                9
proceeding was the May 8, 2014, hearing on the State’s motion to determine the availability

of Patricia Wilder, one of the two officers who took Gary’s statements; the other officer, Eric

Smith, was deceased.

¶24.   At this hearing, defense counsel argued that, if Wilder was deemed unavailable due

to her post-traumatic stress disorder, the trial court should suppress Gary’s statements

because the State could not make out a prima facie case that the statements were voluntary

and that Gary’s Miranda waiver was knowing, intelligent, and voluntary. Thus, defense

counsel argued, the availability determination was “critical” to the motions to suppress.

Defense counsel argued that, if Wilder was declared unavailable, the trial court must

categorically grant the motions to suppress.

¶25.   Defense counsel also asserted that, without testimony from the officers, the State

would be unable to authenticate the videotaped confession. The following colloquy occurred:

       BY MS. KELLY: . . . . So there’s a suppression of the videotape on the basis
       of the insufficient warning, but further, without Detective Wilder’s testimony,
       the State cannot possibly authenticate the videotape because the only three
       people connected to the videotape were Detective Eric Smith, Detective
       Wilder and Mr. Gary. Mr. Gary is certainly not going to abandon his 5th
       Amendment right of self-incrimination to authenticate the very tape that would
       be used against him.

       BY THE COURT: Ms. Kelly, what’s your client’s date of birth? What’s his
       date of birth?

       BY MS. KELLY: I’m going to have to ask him, sir. I know it, but I don’t have
       it with me. 11/19/94.

       BY THE COURT: 11/19 of ’94?

       BY MS. KELLY: Yes, sir. I’m sorry. 11/9 of ’94. He was 17 at the time. He’s
       no longer 17. He’s been locked up for several years now.

                                               10
(Emphasis added.) The State averred that its records showed Gary’s birthday was November

9, 1993, which would have meant that he was eighteen years old at the times of the crime and

the interrogation. Defense counsel then stated: “I just clarified with my client. For the very

limited purpose of the [c]ourt ascertaining his correct birthday, he will – I will allow him to

answer the [c]ourt under oath as to his birth date.” The State requested limited cross

examination of Gary as to his birth date. Defense counsel agreed, “[s]o long as the limited

cross-examination deals with the date of birth only.”

¶26.   Accordingly, Gary, after being sworn, testified that his correct birth date was

November 9, 1994. On cross examination, the State asked Gary if, during his interrogation,

he had informed the detectives that he was born in 1993. Gary denied that the detectives had

asked him about his birthday. The State then asked if Gary had signed and initialed his

Miranda rights waiver form and his written statements. At this point, these documents were

marked for identification only. Gary agreed that he had signed the waiver form and one of

the statements, but he denied having initialed the statement. The State also elicited Gary’s

testimony that he had an eighth grade education and could read and write. Defense counsel

objected that this questioning was beyond the scope of Gary’s birth date.

¶27.   Then the State informed the trial court that Gary had stated his birth date on the

videotaped recording of his confession. The State requested to publish the recorded

interview, and defense counsel objected. The trial court overruled the objection and allowed

a portion of the videotape to be played. When the recording was played, the State elicited




                                              11
Gary’s testimony that he was the person on the videotape, and that the videotape was a

recording of his interview. Again, defense counsel objected.

¶28.   Before the trial began on May 12, 2014, the trial court informed the parties of its

finding that Wilder was unavailable and of its denial of the motions to suppress.7 The trial

court stated that, based on its review of Gary’s videotaped statement, the State had made out

a prima facie case of voluntariness. Defense counsel argued that, because the State had

presented no testimony, no prima facie case had been made. Defense counsel argued that the

trial court’s viewing of the videotape had been for the limited purpose of determining Gary’s

age, not for the purpose of ruling on the motions to suppress. Defense counsel requested that

the trial court either grant the motions to suppress or continue the case until Wilder became

well enough to testify, enabling State to establish a prima facie case. The State argued that

the trial court had sufficient information to rule on the motion to suppress based on Gary’s

testimony as to his age and education level, and his authentication of the videotaped

confession. Defense counsel responded that “without Detective Wilder, they simply can’t

authenticate the statement or the tape without Mr. Gary’s waiving his Fifth Amendment

rights, which he will not do at this point.”

¶29.   The trial court denied the motion for a continuance, finding that “the Miranda waiver

was signed and initialed various times by the defendant. The defendant acknowledged

signing the waiver during the video statement, and the defendant confirmed during the video

statement that he had not been threatened or coerced to give the statement at issue.” In an

       7
       The trial court already had provided the parties with informal notice of these rulings
by email.

                                               12
order entered after Gary’s sentencing, the trial court expounded on its reasoning for denying

the motion to suppress. Concerning the fact that the State had presented no evidence, the trial

court stated:

              The totality of the circumstances approach supports this [c]ourt’s
       finding that the evidence presented by the parties during the May 8, 2014[,]
       hearing was sufficient to find that the State made the necessary prima facie
       case. The defendant verified under oath that he initialed and signed the
       Miranda waiver. The defendant confirmed under oath that he was [the]
       interviewee in the videotape. Although the recitation of the defendant’s
       Miranda rights were [sic] not made on the videotape, Detective Smith and the
       defendant confirmed on at least two different occasions during the tape that the
       Miranda warnings were given to the defendant, he understood these rights,
       and that he was not threatened or coerced into giving the statement. Notably,
       the [c]ourt found very persuasive that throughout the videotape, both the
       detectives and the defendant were calm, collected, and rational. Due to the
       aforementioned circumstances, among others, the [c]ourt did not require
       testimony to establish the prima facie case of voluntariness.

(Emphasis in original.) Having found that the State had made its prima facie case, the trial

court went on to find that Gary had not presented any evidence that his confession had been

coerced. The trial court found from the “totality of the circumstances” that Gary’s Miranda

waiver had been knowing, intelligent, and voluntary, and that his confession was not the

result of coercion.

¶30.   The majority correctly holds that, because the State did not make out a prima facie

case, the trial court erred by weighing the evidence. But what occurred in this case also

implicated Gary’s right against self incrimination. After conferring with Gary, defense

counsel permitted him to take the stand to testify about his birth date and to answer questions

on cross examination limited to his birth date. When the State’s questions veered away from

the subject of Gary’s birth date, defense counsel objected. Defense counsel also

                                              13
contemporaneously objected on Fifth Amendment grounds to the State’s elicitation of Gary’s

authentication of the videotaped recording and written statements. While Gary’s waiver did

expose him to the State’s use of his prior inconsistent statements to impeach his direct

testimony about his age, defense counsel’s objections make clear that his waiver did not

extend to authentication of the videotaped recording and written statements for use as

substantive evidence against him. The trial court’s overruling of those objections forced Gary

to incriminate himself by authenticating the evidence against him, in clear violation of the

Fifth Amendment of the United States Constitution and Article 3, Section 26, of the

Mississippi Constitution. Simply put, Gary was forced to give evidence against himself, in

violation of one of our most basic tenets of constitutional law. Even without the gross

mishandling of the suppression motions, this error alone would warrant reversal.

¶31.   I agree that this case must be remanded for the trial court to hold a suppression

hearing to determine whether Gary’s confession was admissible. This case is distinguishable

from Keller v. State, 138 So. 3d 817 (Miss. 2014), in which I dissented. In Keller, I wrote

that the majority erroneously entered an order that reopened a suppression hearing to permit

the State to put on additional evidence. In my opinion, that order impermissibly gave the

State a second opportunity to adduce testimony that the accused’s confession was voluntary.

Keller, 138 So. 3d at 878 (Kitchens, J., dissenting). Unlike Keller, in this case, because no

suppression hearing occurred, neither the State nor the defense had an opportunity to present

any evidence. Therefore, this Court appropriately remands to the trial court with instructions

to hold a suppression hearing. If the trial court finds that confession was admissible, no new



                                             14
trial is required. Jackson v. Denno, 378 U.S. 368, 395, 84 S. Ct. 1774, 12 L. Ed. 2d 908

(1964).

      DICKINSON, P.J., KING AND COLEMAN, JJ., JOIN THIS OPINION.




                                          15
