IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01098-COA SHERMAN E. BILLIE, SR. A/K/A SHERMAN BILLIE A/K/A SHERMAN BILLIE, SR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/10/2014 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH APPEALED: NESHOBA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMES EDW IN SMITH III ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF SEXUAL BATTERY AND SENTENCED TO SERVE FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 08/23/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ. CARLTON, J., FOR THE COURT: ¶1. She r ma n B i l l i e was convicted of sexual battery a nd sentenced to serve a term of f if teen y ears in the c ustody of the M ississippi Departm e nt of Corrections, with credit f or jail tim e served. Billie now appeals his conviction and sentence, arguing that the trial c ourt erred in f inding that his written conf e s s i o n w as m ade voluntarily , intelligently , and k nowingly

. B i llie f urther asserts t hat his w ritten conf ession was inadm i ssible as f ruit o f the poiso n o u stree due to the alleged inadm issibility of his prior o ral conf e ssion. Finding no e r r o r i n t h e trial court’s ruling of

adm issibility , we af

f irm

. FACTS ¶2. J.B. 1 m oved to Neshoba County in April 2010 at the age of f ourteen to live with his stepf ather and y ounger brother. A f ew m onths af

ter J.B. m oved into his s tepf ather’s hom e, J.B.’s stepf

ather’s brother, B illie, also m o ved into the hom e. Billie was approxim ately twenty

- eight y ears old at the t im e . J.B. claimed that beginning in Septem b er 2010, Billie began m olesting h im o v er a period of s everal m onths. J.B. stated t hat t he m olestation ended af ter Billie m oved out of

the house. ¶3. In Septem

ber 2013 , J

. B

. i nf

orm ed the Neshoba County S herif f ’s Departm ent about the m olestation. On October 7, 2 013, the Neshoba C o unty Sherif f ’ s Departm ent a r r e sted Billie. Billie claim s t h a t i mme d i ately prior t o his arrest, he a rrived hom e f rom working a night shif t with the Choctaw Police Departm ent and consum ed f our sleeping pills. ¶4. The record ref

lects t hat at the sherif

f ’s of f ice, I nvestigator Ralph Sciple advised Billie of his Miranda 2 rights, which Billie waived. Investigator S ciple testif i ed that h e p roceeded

to question Billie about the a llegati o n s m ade by J.B. Billie m a de an oral conf ession to Investigator Sciple a t approxim ately 12:25 p.m ., adm itting that he perf orm e d oral sex on J.B., who was f

ourteen y ears old at the tim e. The record ref lects that Of

f icer J onathan Dearing also witnessed Billie’s conf e ssion. Investigator Sciple testif ied at trial that at the tim e that

1 T o p ro tect th e an o n y

m ity o f th e m in o r v ictim o f sex u a l ab u se, w e u se in itials to rep resen t h is n am e .

2 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 , 4 7 8 (1 9 6 6 ). 2Billie m ade his c onf ession, h e did not appear to be under the inf luence of drugs, including “sleeping m e dication,” or alcohol. Investigator Sciple inf orm ed the trial court t hat he did not obtain a written conf

ession f rom Billie at that tim e, because Billie “was very distraught.” ¶5. T h e r e c o r d s h o w s t h a t B i l lie spent the night i n jail, and the next m o r n i n g a t approxim a tely 8:30 a.m ., Investigator Sciple again i n t e r v i e wed Billie. T he record ref lects that Billie signed another f orm , again waiving his Miranda rights. The e vidence presented

at trial ref

lects t hat Billie then provided a written s t a t e m ent wherein he conf essed to perf orm ing oral s ex on J.B. A grand jury indicted Billie f or sexual battery p ursuant to Mississippi Code Annotated section 97-3-95(1)(c) (Rev. 2014). ¶6. A t a t r i al held on July 7, 2014, the jury heard testim ony f rom J.B. and Investi g a t o r Sciple. The trial c ourt held a suppr e s s i o n h e aring outside o f the presence of the jury to det e r mi ne the adm issibility of Billie’s conf ession. During t he suppression hearing, Investigator Sciple t estif

ied when he f

irst interviewed Billie on October 7, 2013, Billie “was
very distraught because he knew he was f ixing to lose h i s j o b , h e w a s f i xing to lose his f am ily , and he was very rem orsef ul at that tim e.” A s a result, he interviewed Billie again the

next m orning, October 8, 2013, at approxim ately 8 :30 a.m . Billie again signed a waiver of rights and then h e provided a written c onf ession t o Investigator Sciple. Investigator Sciple testif i ed a t trial that Billie did not appear to be under the inf luence of drugs or alcohol at the tim e of the interview. The record r ef lects t hat no other sherif

f ’s deputies were p resent during this interview, and Investigator Sciple m ade no recording of the conf ession. W hen asked by

t h e S t ate i f it i s “uncom m on to allow inm a tes to have a cool-down period bef o re giving a

3written statem ent,” Investigator Sciple answered, “No, sir.”

¶7. Billie and his wif

e, Kultilda Billie, also testif ied at t he suppression hearing. Kultilda provided testim ony that B illie took two sleeping pills im m ediately prior to h i s arrest. Kultilda explained that the sleeping pills “m ake [ Billie] sleepy ” such that he “can’t f unction things right[ ,]” and that while he i s on the m edication, “he can’t r ecognize things.” Kultilda testif i ed that the ef

f ects of the s leeping pills last f or twelve hours, but can last longer if Billie does not sleep. ¶8. During the suppression hearing, Bil l ie testif ied that he actually took f

our sleeping pills

on the m o rning o f October 7 , 2013, af ter he arrived hom e f

rom working the night shif t. He testif i ed that Investigator Sciple a n d a n o t her detective arrived a t his house shortly af ter he lay down to sleep. Billie t estif ied: “[ T]he whole tim e, m y m ind wasn’t aware. I d idn’t know what was going on, and I was half naked when they c a m e in.” W hen questioned about the waiver-of -righ t s f o rm that he signed o n October 7, 2013, Billie testif ied that d ue to the sleeping m edication, he did not recall writing a statem e nt or signing a f orm . ¶9. Billie also testif

ied at the s u

ppression hearing that on the m orning o f October 8, 2013, he still f elt t he ef f ects of the sleeping m edication because he was unable to sleep in the jail. Billie stated that he rem em bered I nvestigator Sciple i nf orm ing him that his bond was set at $190,000. Billie testif

ied t hat Investigator Sciple of f ered to “do [ him ] a f

avor” because Investigator Sc i p l e was “good with the judge.” According to Billie, I nvestigator Sciple stated that if Billie w ould provide a w ritten conf ession, Investigator S ciple could bring the b o n d a m ount down to $70,000 or $80,000. B illie testif ied that he “f

ree[

- wrote] whateve r

4[ cam e ] to m ind because [ he] j u s t w a n t e d t o go hom e” and see his wif e and son. Billie asserted during the suppression hearing that he w ould not have w r i t ten the conf ession if Investigator Sc i p l e h a d not assured him t hat he could convince the judge to lower Billie’s bond. Billie also claim ed that Investigator Sciple was “ly ing” when he testif ied that Billie did not appear to be under the inf luence of drugs or alcohol during the interview. ¶10. At the c onclusion of the suppression hearing, the t rial judge allowed t he s tatem ent to be a d mi t t e d , ruling that Billie was properly M irandized and t hat he k nowingly and i n t e l l i g e ntly recognized his rights and voluntarily w aived them

. Af ter Investigator Sciple

com pleted his trial testim o ny , Billie’s counsel m oved f or a directed verdict, w hich the trial

court denied. The jury s ubsequently f ound Billie guilty of sexual battery

. The trial court sentenced Billie to serve a t erm o f f if teen y ears in the custody of the M ississippi D epartm ent of Corrections, with credit f or jail tim e served. ¶11. Billie f

i led a m otion f

or a new trial, which the trial court d enied. Billie n ow appeals, arguing that his conf

ession was involuntary and thus inadm issible, render i n g h is trial constitutionally unf

air.
STANDARD OF REVIEW ¶12. On appeal, we will revers e t h e t r i a l c o u r t’s determ ination regarding whether an accused’s conf

ession h a s b e e n intelligently , knowingly , and v oluntarily given only “when such d eterm ination is m anif estly wrong.” Glasper v. State , 914 So. 2d 708, 716 (¶27) (Miss. 2005). Additionally , t h i s C o u r t “will not d isturb the trial court' s determ ination on the adm issibility o f a c o n f

ession unless the trial court a pplied an incorrect legal standard,

5com m itted m anif e st error, or rendered a decision which was contrary to the overwhelm ing weight of the evidence.” Id

. ¶13. W h en reviewing challenges to the suf f iciency of the evidence on appeal, this Court views the evidence in t he light m ost f avorable to the State. Varnado v. State , 67 So. 3d 835,
837 (¶6) (Miss. C t. App. 2011). W e recognize that “the critical i n q u i r y i s w hether the evidence s hows bey ond a reasonable doubt that [ the] accused c om m itted the act charged, and that he d id so under su c h c i r c u ms tances that every elem e nt of the of f ense existed.” Id

. (internal quotation m a rks om i tted) (citing B rown v
. State , 48 So. 3d 614, 616 (¶6) (Miss. Ct. App. 2010)). Additionally , “ if any r a t i o n a l t rier of f act could have f

ound, b ey ond a reasonable doubt, that the essential elem ents of the c rim e existed, this Court will af f irm the conviction.” Id

. DISCUSSION ¶14. Billie c laim s the trial court erred by f ailing to s uppress his c onf ession. Billie claim s that he consum ed f

our sleeping p ills im m e d iately prior to his arrest. As a result of the ef f ect f rom his c o nsum

ption of the sleeping pills, B illie argues that the totality o f the circum stances f ailed to establish that h e i ntelligently , knowingly , or voluntarily conf essed to the police. Billie alleges that no videotaped evidence exists to support a p r i ma f acie case b y the State that Billie was not under t he ef f e cts of the sleeping pills when he m a d e his conf ession. Billie also claim s that Investigator Sciple told him that he would reduce Billie’s bond only if Billie would write a statem ent conf essing to m olesting J .B. Billie f urther argues that if

, however, this Court f

inds t hat his written conf

ession was m ade intelligently , knowingly , or voluntarily ,

6the State f

ailed to suf

f iciently “purge the prim ary t aint” f rom the f irst oral conf

ession, thus rendering the written s tatem e nt inadm issible u nder the “f r uit of the poisonous tree” doctrine. ¶15. In G lasper , 914 So. 2d at 716 (¶27), the suprem e court explained t hat since “the trial

court sits as the f

a ct-f inder when determ ining the issue of whether an a ccused’s conf ession has been intelligently , knowingly and v oluntarily given, we will only reverse t he trial court’s determ ination of this i ssue when such determ ination is m anif estly wrong.” (citing Manix v. State , 895 So. 2d 167, 180 (¶39) ( M i s s . 2 0 0 5 )). The s uprem e court in Glasper f urther provided that when r eviewing the adm ission or exclusion of a n a ccused’s c o nf ession at trial, trial judges are af

f orded “the appropriate def erence” a s the ultim a te f

act-f inder, explaining that “the t rial judge

. . . is the only one am ongst the m em bers of the judiciary who will ever have the opportunity t o not only hear the testim ony , but t o also o bserve the dem e anor of the witnesses as they testif

i ed at the suppression hearing.” Id

. at 720 ( ¶28). W e also r ecognize that “there is no doubt that a c onf ession is adm issible only af ter t he State has proven bey ond

a reasonable doubt t hat t he accused’s conf ession w as voluntary by s h o w ing that such conf ession w as n o t the product of prom ises, threats or inducem ents.” Id

. at 717 (¶31). Furtherm o re, “[ w]here, on conf licting evidence, the lower court adm its a statem ent into

e v i d e n c e [ , ] this Court generally m ust af f irm .” Carter v. State , 956 So. 2d 951, 957 (¶10 ) (Miss. Ct. App. 2006) (citing Morgan v. State , 681 So. 2d 82, 87 (Miss. 1996)). ¶16. Af ter hearing t estim ony f

rom B illie a n d Kultilda during the suppression hearing, the trial judge f

ound that Billie “ was given the Miranda rights properly

. . . ; that he knowingly [ and] intelligently recognized h is rights and voluntarily w a i v e d them without hopes of

7reward, l enience, [ or] prom ises of any k ind; and t hat the statem ent [ is] adm issible.” The trial

judge also observed that Billie “has acknowledged that he executed the waiver of his rights and also the statem e nt, stating that he wrote it.” However, the trial judge, unsatisf ied with the hearing at that poin t , s uggested that the State go f orward with Investigator Sciple’s testim o ny . ¶17. During the suppression hearing, Investigator Sciple provided testim o ny deny ing that he of f e red t o redu c e Billie’s bond in return f or a written conf

ession. I nvestigator Sciple explained, “I don’t even think the b o n d w a s s e t at that tim e, so it couldn’t have got[ ten] reduced y et.” I nvestigator Sciple denied possessing any k nowledge about the a m ount set f or Billie’s bond, and he f

urther denied telling Billie that he could convince the judge to reduce the am ount. 3 ¶18. Investigator Sciple also testif ied that he did not provide Billie with any inf orm ation regarding what to write in his written c onf ession; he stated that all o f the inf orm ation in the written statem ent ca me f rom Billie. The trial judge ultim ately overruled the def ense’s objection and allowed B illie’s October 8, 2 0 1 3 w r i tten conf ession to be adm itted into evidence. As stated, this Court m ust generally af

f irm “[ w]here, on conf

licting evidence, the lower court adm its a statem ent into evidence[ .]” Carter , 956 So. 2d at 957 (¶10). ¶19. Billie additionally arg u e s t h at when I nvestigator Sciple took Billie’s written statem ent

on October 8 , 2013, the written statem ent “was based on a n inadm issible oral s tatem ent given

3 R eg ard i n g B illie’s claim th at In v estig ato r S cip le s h o u ld h a v e reco rd ed h is i n terv iew w i th B illie, “th e u se o f [ v id eo o r au d io reco rd ers] is n o t p resen tly req u ired u n d er M ississip p i law [ .] ” B ro w n v. S ta te , 9 8 3 S o . 2 d 1 0 5 9 , 1 0 6 6 (¶2 5 ) (M iss. C t . A p p . 2 0 0 8 ). 8less than 24 hours bef ore[ ,] on October 7.” Billie thus claim s that the State f a iled to purge the w ritten statem e nt of the prim ary taint stemmi n g f rom the inadm issible prior oral

statem ent; theref

ore, his written conf

e ssion should have been suppressed by the trial court. ¶20. T h e State m aintains, however, that Billie is p rocedurally barred f rom a r g u i n g o n appeal that his written statem ent was inadm issible a s f ruit of t he poisonous tree. The State argues that, during his trial, Billie f ailed to raise t he argum ent that his statem ent should be suppressed as f

ruit of the poisonous tree of

the f irst oral statem ent. ¶21. We have repeatedly h eld that a n appellant’s “[ f ]ailure to raise a n issue at trial bar s consideration by the appellate court.” Glasper , 914 So. 2d a t 721 ( ¶30) (citing Smith v. State , 729 So. 2d 1191, 1201 (¶42) (Miss. 1998)). However, “ errors af f ecting f undam ental rights

are exceptions to the rule that questions not raised in the trial c ourt c annot b e raised f or the f irst tim e on appeal.” Rowland v. State , 42 So. 3d 503, 506 (¶10) (Miss. 2010); see a lso Read

v. State , 430 So. 2d 832, 837 ( Miss. 1983). Here, Bill i e c i t e s t o M i randa v. A r izona , 384 U.S. 436, 478 (1966), and alleges that “a conf ession stem m ing f

rom [ a] custodial interrogation of the def

endant is not adm issible unless it dem onstrates the use of p rocedural saf eguards to secure the privilege against self -incrim ination.” ¶22. W e recognize t hat the suprem e court has “ rejected the notion that an illegally obtained conf ession necessarily requires the exclusion of a subsequent voluntary conf ession.” Keller

v. State , 138 So. 3d 817, 849 ( ¶69) (Miss. 2014). The supreme court explained that “[ t]he

rem edy f or coercive interrogation practices is exclusion o f the statem e nts i n w h i c h t he coercion w as present. I t does not require the exclusion of a ll subsequent interrogations that

9are preceded by p r oper Miranda warnings and are not coercive.” Id

. (quoting Byrom v. State ,

863 So. 2d 836, 861 (¶72) (Mi s s . 2 0 0 3 )). Furtherm ore, we recognize that “the f ruit of the poisonous tree doctrine is def eated where the c onf

essio n i s judged adm issible.” Y ates v. State , 467 So. 2d 884, 887 (Miss. 1984). ¶23. I n h i s b rief

, Billie claim s that Investigator Sciple took B i l l i e ’ s s e c o n d w r i t t e n
statem ent on O ctober 8 “only af ter r e a l i z i n g t hat the previous o ral statem ent w as invalid.” However, Investigator Sciple testif ied that af ter Billie waived his Miranda rights on October 7, 2013, Billie becam e “distraught” during the interview when h e realized that he m ay lose his job and f

am i ly . As a result, Investigator Sciple waited until the next m orning, October 8, 2 013, to continue the interview a nd to o btain a written conf ession f rom Billie. O ur review of the t ranscript f

ails to reveal any testim ony provided by I nvestigator Sciple suggesting that he thought Billie’s oral statem ent on October 7 was invalid. ¶24. A f t e r h e a r i n g t estim ony f

rom Investigator Sciple, Billie, and Kultilda during the suppression hearing, the trial c ourt adm itted the writt e n c o nf ession into e vidence. Our review o f t h e r ecord reveals no abuse o f d iscretion by the trial c ourt in adm itting Billie’s conf ession into evidence. See generally Glasper , 914 So. 2d at 720 ( ¶28). I n f inding suf f i cient evidence exists to s u p p o r t Billie’s g uilty verdict, we af f irm the c o nviction and

sentence. See Varnado , 67 So. 3d at 837 (¶6). ¶25. T H E J U D G M E N T O F T H E NESHOBA COUNTY CIRCUIT C OURT O F CONVICTION O F SEX U AL BATTERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEP A R T MENT OF CORRECTIONS IS AFFIRMED. A LL COSTS OF THI S APPEAL ARE ASSESSED TO THE APPELLANT.

1 0LEE, C . J., I RVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES,

WILSON AND GREENLEE, JJ., CONCUR.

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