        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-KA-01856-COA

KENDALL WILLIAMS                                                        APPELLANT

v.

STATE OF MISSISSIPPI                                                      APPELLEE

DATE OF JUDGMENT:                        10/31/2013
TRIAL JUDGE:                             HON. JOHNNIE E. WALLS JR.
COURT FROM WHICH APPEALED:               QUITMAN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: HUNTER NOLAN AIKENS
                                             GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:                       BRENDA FAY MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF POSSESSION OF AN
                                         UNAUTHORIZED DEVICE IN A
                                         CORRECTIONAL FACILITY AND
                                         SENTENCED TO THREE YEARS, WITH
                                         TWO YEARS SUSPENDED AND ONE
                                         YEAR UNDER ISP/HOUSE ARREST, TO
                                         RUN CONSECUTIVELY TO ANY AND ALL
                                         PREVIOUS SENTENCES, ALL UNDER THE
                                         SUPERVISION AND CONTROL OF THE
                                         MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS
DISPOSITION:                             REVERSED AND REMANDED: 04/14/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Kendall Williams appeals his conviction of possession of an unauthorized device in

a correctional facility under Mississippi Code Annotated sections 47-5-193 and 47-5-195.
Williams argues the trial court erred when it failed to conduct a hearing on the voluntariness

of his written confession before admitting the statement into evidence. Finding the trial court

erred, we reverse and remand.

                         FACTS AND PROCEDURAL HISTORY

¶2.    From June to August 2012, Williams was incarcerated in the Quitman County Jail on

a child-support lock-up order. On August 7, 2012, Darryl Linzy, an officer with the Quitman

County Sheriff’s Department, went to Williams’s cell when he smelled smoke and

discovered that Williams and his cellmate possessed cigarettes and a lighter.

¶3.    Officer Linzy confiscated the cigarettes and lighter. Officer Linzy then asked

Williams and his cellmate if they had any other contraband in the cell. One or both of the

men declared that a cell phone was on the bottom bunk. Officer Linzy found a black and

grey cell phone on the bottom bunk. He questioned Williams about the phone.

¶4.    Officer Linzy testified that he informed Williams of his Miranda1 rights and obtained

a valid waiver of his rights before he questioned Williams. During the interrogation,

Williams gave Officer Linzy the cell-phone number of the phone found in the cell. Williams

eventually gave an oral confession and claimed that he owned the phone. Officer Linzy

reduced the confession to writing.

¶5.    At trial, Officers Linzy and Willie Smith testified that an initial search of Williams on

June 20, 2012, when he first entered the jail, revealed the same phone Officer Linzy found

in the cell. Officer Smith testified that he took the phone from Williams and gave it to

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        Miranda v. Arizona, 384 U.S. 436, 471 (1966) (mandating that the custodian read
the accused his or her right to remain silent and right to counsel prior to an interrogation).

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Williams’s sister. Officers Linzy and Smith also testified that Williams left the jail on at

least two separate occasions during his lock-up between June 20 and August 7.

¶6.    During Officer Linzy’s testimony, the State moved to introduce Williams’s written

statement into evidence. Williams objected and argued the defense did not receive a prior

opportunity to cross-examine Officer Linzy, and the State failed to prove he advised

Williams of his rights prior to the confession.

¶7.    After a discussion with the attorneys, the trial court ultimately overruled Williams’s

objections and allowed the admission of both the waiver and the written statement. The jury

returned a guilty verdict. The trial court entered the final judgment, and Williams filed a

motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial

court denied the motion. Williams now appeals.

                                 STANDARD OF REVIEW

¶8.    Williams argues the trial court erred when it admitted his written confession into

evidence without conducting a hearing regarding the voluntariness of the statement.

“Determining whether a confession is admissible is a finding of fact which is not disturbed

unless the trial judge applied an incorrect legal standard, committed manifest error, or the

decision was contrary to the overwhelming weight of the evidence.” Thorson v. State, 895

So. 2d 85, 115 (¶73) (Miss. 2004) (citations omitted).

                                         ANALYSIS

¶9.    Williams contends the trial court erred in failing to hold a hearing on the voluntariness

of his confession. At trial, Williams objected to the admission of the statement into evidence



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without the opportunity to cross-examine Officer Linzy. The State argued the confession was

admissible as a statement against interest. The State further countered that any question of

voluntariness was a decision for the court, not the jury, and the defense should have raised

the issue prior to trial.

¶10.   “This Court has held that ‘when a criminal defendant objects to the admission of his

confession, arguing it was involuntary, the trial court must conduct a hearing outside the

presence of the jury. At the hearing, the burden is on the State to prove voluntariness beyond

a reasonable doubt.’” Kleckner v. State, 109 So. 3d 1072, 1081 (¶18) (Miss. Ct. App. 2012)

(quoting Pinkston v. State, 50 So. 3d 1027, 1029 (¶8) (Miss. Ct. App. 2010)).

¶11.   However, “simply objecting to a confession is not enough to trigger the right to a

preliminary hearing. Since Agee, the Mississippi Supreme Court has clarified that, for a

defendant to be entitled to a preliminary hearing, he must assert the confession is

inadmissible because it was involuntary.” Parisi v. State, 119 So. 3d 1061, 1064 (¶10) (Miss.

Ct. App. 2012) (citing Booker v. State, 326 So. 2d 791, 793 (Miss. 1976); Agee v. State, 185

So. 2d 671, 673 (Miss. 1966) (mandating trial courts hold a hearing outside of the presence

of the jury when a defendant objects to the voluntariness of his confession)).

¶12.   The issue here challenges the voluntariness of Williams’s statement to Officer Linzy.

This Court, however, cannot address this issue on appeal unless Williams specifically

objected to the admission of the statement on the ground of involuntariness. The record

indicates that when the State attempted to introduce Williams’s written statement into

evidence, Williams objected to its admission. As the basis for his objection, Williams’s



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counsel stated:

       Your Honor, yes, there is an objection. Your Honor, he has testified that he
       advised him of his rights, but I haven’t had a chance to cross-examine him.
       So, therefore, I’m going to object to the admission of it prior to me having an
       opportunity to cross-examine him and show some proof that he did advise him
       of his rights.

¶13.   Though Williams undoubtedly made an objection to the statement’s admission, the

objection did not unequivocally raise the issue of voluntariness, which would mandate the

Agee hearing requirement. Williams challenged whether Officer Linzy properly and fully

advised Williams of his Miranda rights. On its face, this objection does not seem to assert

a challenge to the voluntariness of the statement. The Mississippi Supreme Court, however,

has held that whether a defendant received the Miranda warnings prior to an inculpatory

statement only constitutes the first prong of the analysis for the admission of a confession:

       The mere giving of the Miranda warnings, no matter how meticulous, no
       matter how often repeated, does not render admissible any inculpatory
       statement thereafter given by the accused. The giving of the warnings is only
       the first step. To render the statement admissible the State must take the
       second step and prove that the rights of which the accused has been
       Miranda-warned were thereafter waived—intelligently, knowingly and
       voluntarily.

Jones v. State, 461 So. 2d 686, 696 (Miss. 1984) (citing Neal v. State, 451 So. 2d 743, 753

(Miss. 1984)).

¶14.   Even if Williams’s objection ambiguously raised the issue of voluntariness, the State,

in one of its counter-arguments to the objection, considered the issue of voluntariness. The

State asserted that the trial court could not consider the issue of voluntariness at trial because

the defense should have raised the issue in a pretrial motion to suppress. However,



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voluntariness may be raised for the first time at trial. Cox v. State, 586 So. 2d 761, 763

(Miss. 1991) (trial court held hearing after objection at trial on matter of voluntariness, and

court heard voluntariness challenge on appeal).

¶15.   Therefore, the voluntariness issue appeared before the trial court, which compelled

the trial court to hold a hearing without the jury present. During this hearing, for admission

of the confession in its case-in-chief, “[t]he State must [have] prove[n] beyond a reasonable

doubt all facts prerequisite to the admissibility of [the] confession.” Armstead v. State, 978

So. 2d 642, 645-46 (¶11) (Miss. 2008) (citing McCarty v. State, 554 So. 2d 909, 911 (Miss.

1989)).

¶16.   In order to find a statement admissible, “[t]he trial judge must determine beyond a

reasonable doubt that a confession was voluntary and knowing and that the defendant was

given his Miranda rights prior to any custodial interrogation.” Scott v. State, 8 So. 3d 855,

861 (¶23) (Miss. 2008) (citing Armstead, 978 So. 2d at 646 (¶11)). In reaching this decision,

the trial court must apply the proper legal standard for evaluating the voluntariness of a

confession. The proper legal analysis requires the trial court to consider “the defendant’s

experience and familiarity with the criminal justice system, intellectual capacity, educational

background, degree of literacy, emotional state and any mental disease or other defect.”

Brown v. State, 839 So. 2d 597, 600 (¶10) (Miss. Ct. App. 2003) (citing Holland v. State, 587

So. 2d 848, 860 (Miss. 1991)). While the trial court permitted the State to elicit testimony

from the officer who advised Williams of his Miranda rights and recorded his confession,

the trial court neither held a hearing nor applied the correct legal standard in determining the



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statement’s admissibility.

¶17.   By not holding a hearing, the trial court precluded Williams from putting on evidence

to refute Officer Linzy’s testimony. When a trial court admits a confession without affording

the defendant an opportunity to question the admissibility of the confession through the

hearing process, the trial court, in essence, compels the defendant to take the stand at trial to

rebut the validity of the confession in contradiction to the defendant’s right not to testify at

trial. This scenario undermines the purpose for the Agee rule.

¶18.   The supreme court has held that the objective of an Agee hearing is to protect

defendants from the prejudicial effects of admitting an involuntary statement into evidence.

Wells v. State, 698 So. 2d 497, 508-09 (Miss. 1997). The Wells court further clarified that

the admission of a confession into evidence without holding a hearing prejudices the

defendant only if the court later finds the statement involuntary. Id. Therefore, to prevent

the possibility of prejudice, the prudent approach dictates that a trial court should conduct

a hearing in compliance with Agee. Id.

¶19.   In this case, however, the trial court admitted the confession into evidence without

ruling on the voluntariness of the statement at any point. Because the issue of voluntariness

arose at trial and no hearing on the voluntariness occurred, the trial court abused its discretion

when it failed to evaluate the admission of Williams’s confession under the proper legal

standards. For this reason, we reverse and remand this case for a new trial.

¶20. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO QUITMAN COUNTY.

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      LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND
FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. JAMES, J., NOT PARTICIPATING.




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