IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-KA-01856-COA KENDALL WILLIAMS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/31/2013 TRIAL JUDGE: HON. JOHNNIE E. W ALLS JR. COURT FROM W HICH 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 W OOD 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, W ITH TW O 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 W illiam s appeals his conviction of possession of an unauthorized device in

a correctional f

a cility unde r Mississippi C ode Annotated sections 47-5-193 a nd 47-5-195.W i lliam s argues the trial court erred when it f ailed to conduct a hearing on the voluntariness of his w ritten conf

ession bef ore adm itting the statem ent i nto evidence. Finding the trial court erred, we reverse and rem and.

FACTS AND PROCEDURAL HISTORY ¶2. From June to August 2012, W illiam s was incarcerated in the Quitm an County Jail on

a c hild-support lock-up order. On August 7, 2 012, Darry l Linzy , an o f f icer with the Quitm an County S herif

f ’s Departm ent, we nt to W illiam s’s cell when h e sm elled s m oke and discovered that W illiam s and his cellm ate possessed cigarettes and a lighter. ¶3. Of f icer Linzy c onf

iscated the cigarettes and lighter. Of f i cer Linzy t h e n a s k e d
W i lliam s and his cellm ate if they had a ny other contraband i n t h e c ell. One or both of the

m en declared that a c ell phone was o n t h e b o t t o m b unk. Of f icer Linzy f

ound a black and
grey c e ll phone on the bottom bunk. He questioned W illiam s about the phone. ¶4. Of f icer Linzy t estif

ied that he inf

orm ed W illiam s of his Miranda 1 rights a nd obtained

a valid waiver of his rights bef ore he questioned W illiam s. During the i n t errogation,
W i lliam s g ave Of

f icer L inzy the cell-phone n um b er of the phone f

ound in the cell. W illiam s eventually gave an oral conf ession and claim ed that he owned the phon e . Of f i cer Linzy reduced the conf

ession to writing. ¶5. At trial, Of

f icers Linzy a nd W illie Sm ith testif ied that a n initial search of W i lliam s on June 20, 2012, when he f

irst entered the jail, revealed the sam e phone Of f icer Linzy

f ound in t he cell. Of

f icer Sm it h t e s t i f

ied t hat he took the phone f rom W illiam s a nd g ave it to

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

. 4 3 6 , 4 7 1 (1 9 6 6 ) ( m an d atin g th at th e cu sto d ian read th e accu sed h is o r h er rig h t to rem ain silen t an d rig h t to co u n sel p rio r to an in terro g atio n ). 2Wi l l i a ms ’ s sister. Of f icers Linzy and Sm ith also t estif ied that W illiam s lef

t the jail on at least two separate occasions during his lock-up between June 20 and August 7. ¶6. During Of

f i c er Linzy ’s testim ony , the State m oved to introduce W illiam s’s written

statem ent into evidence. W illiam s objected and argued the def ense did not receive a prior opportunity to c ross-exam ine Of f icer L inzy , and the S tate f ailed to prove he advised
W i lliam s of

his rights prior to the conf ession. ¶7. Af ter a discussion w ith the attorney s, the trial c ourt u ltim ately o verruled W illiam s’s objections and allowed the adm ission of both t he waiver and t he written statem e nt. The jury returned a guilty verdict. The trial c o u r t e ntered the f inal judgm ent, and W illiam s f iled a

m otion f or a judgm ent notwithstanding the v erdict or, in the alternative, a new trial. The trial court denied the m otion. W illiam s now appeals. S TANDARD OF REVIEW ¶8. W i lliam s argues the trial c ourt erred w hen it adm itted his w r i t t e n conf ession into evidence without conducting a hearing regarding the voluntariness o f t h e s tatem ent. “Determ ining whether a conf e ssion is adm issible is a f inding of f

act which is not disturbed unless the trial judge applied an incorrect legal standard, com m itted m anif est erro r , o r t h e decision was contrary to the overwhelm ing w eight of t he evidence.” Thorson v. State , 895 So. 2d 85, 115 (¶73) (Miss. 2004) (citations om i tted). ANALYSIS ¶9. W i lliam s contends the trial court e rred in f ailing to hold a hearing on the voluntariness of his conf

ession. At t rial, W illiam s objected to the a d m ission of the statem ent i nto evidence

3without the opp o r t u n i t y to c ross-exam ine Of

f icer Linzy

. The State argued t he conf ession was adm issible as a statem ent against interest. The State f urther countered that any question of voluntariness was a decision f or the court, not the jury , and the def ense should have raised the issue prior to trial. ¶10. “This C ourt has held that ‘when a crim inal def endant objects t o t he adm i ssion of his conf ession, arguing it was involuntary , the trial court m ust co n d u c t a hearing outside the
presence of the jury

. A t the hearing, the b urden is on the State to prove voluntariness bey ond

a reasonable doubt.’” K

leckner v. State , 109 So. 3d 1072, 1 081 (¶18) (Miss. Ct. App. 2012) (quoting Pinkston v. State , 50 So. 3d 1027, 1029 (¶8) (Miss. Ct. App. 2010)). ¶11. However, “sim

p ly objecting to a conf

e s s i o n i s n o t enough to trigger the right to a prelim inary hearing. Since Agee , th e Mississippi Suprem e Court has clarif i ed that, f or a def endant to be entitled to a prelim inary hearing, h e m ust assert the conf

ession is inadm issible because it was i nvoluntary

. ” Parisi v. State , 119 So. 3 d 1061, 1064 ( ¶10) (Miss. Ct. App. 2012) ( citing Booker v. State , 326 S o. 2d 7 91, 793 (Miss. 1976); Agee v. State , 185 So. 2d 6 71, 673 (Miss. 1966) (m andating trial courts hold a hearing outside of the presence of the jury when a def

endant objects to the voluntariness of his conf ession)). ¶12. The issue here challenges the voluntariness o f W illiam s’s statem ent to Of f icer Linzy

. This Court, however, cannot a ddress this issu e o n a ppeal unless W illiam s s pecif ically objected to the adm ission of the statem ent on the ground o f involuntariness. The record indicates that when t he State a ttem p ted to i ntroduce W illiam s ’s written statem ent into evidence, W illi a m s o bjected t o its adm ission. A s the basis f o r his o bjection, W illiam s’s

4counsel stated:

Your Honor, y es, th e r e i s a n o bjection. Your Honor, he has t estif ied that he advised him of his rights, but I have n ’ t h a d a chance to cross-exam ine him

. So, theref ore, I’m going to object to the a dm ission of it prior to m e h aving an opportunity to cross-exam i ne him and show som e proof that he did a dvise him of his rights. ¶13. Though William s undoubtedly m ade an objection t o the statem ent’s adm ission, the objection did not unequivocally raise the issue of voluntariness, which w o uld m andate the Agee hearing requirem ent. W illiam s challenged whether O f f i c e r L inzy properly and f ully advised W illiam s of

his Miranda rights. On its f a ce, this o bjection does not seem to assert

a challenge t o t he voluntariness o f the statem e n t. T he M ississippi S uprem e Court, however, has h eld that whether a def endant receiv e d t h e M

i r a nda w arnings prior to an inculpatory

statem ent only

constitutes the f

irst prong of

the analy s is f

or the adm ission of a c o nf ession: The m ere giving of the Miranda warnings, no m atter how m eticulous, no m atter how of

t en repeated, does not render adm i ssible any incu l p a tory statem ent thereaf

ter given by the accused. The giving of the warnings i s only the f irst step. T o render the statem ent adm i ssible the S tate m ust take the second step and prove that the rights of w h i c h t h e accused has been Miranda

- warned were thereaf ter waived—intel l igently , k nowingly and voluntarily

. Jones v. State , 461 So. 2d 686, 696 (Miss. 1984) (citing N eal v. State , 451 So. 2d 743, 753 (Miss. 1984)). ¶14. Even if W i lliam s ’s objection am biguously raised t he issue of voluntariness, the State, in one of its counter-argum ents to the objection, c onsidered the issue of v oluntariness. The State asserted t hat the trial c ourt could not consider the issue of voluntariness at trial because the def ense s h ould have raised the issu e i n a p r e t rial m o tion to suppress. However,

5voluntariness m ay b e raised f o r t h e f i r s t t im e a t t rial. Cox v. State , 5 86 So. 2d 761, 763 (Miss. 1 991) (trial court held hearing af ter objection at t rial on m atter of voluntariness, and court heard voluntariness challenge on appeal). ¶15. Theref

ore, the voluntariness issue appeared bef ore the t r i a l court, which com pelled the trial court to hold a hearing without the jury present. D uring this hearing, f or adm ission of t he conf

ession in its case-in-chief , “[ t]he S tate m

ust [ have] prove[ n] bey ond a r easonable doubt a ll f

acts prerequisite t o the adm issibility of [ the] conf ession.” Armstead v. State , 978 So. 2d 6 42, 645-46 ( ¶11) (Miss. 2 008) (citing McCarty v. State , 554 S o. 2d 909, 911 (Miss. 1989)). ¶16. In order to f

ind a statem ent adm issible, “[ t]he t rial judge m ust d eterm ine bey ond a reasonable doubt that a conf ession was voluntary and knowing and that the def endant was given his Miranda rights prior to a ny c ustodial 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 m

ust apply the proper leg a l s t a n d ard f or evaluating the voluntariness of a conf ession. T he proper legal analy sis r equires the trial court to consider “the def endant’s experience and f

am i liarity with t he crim inal justice s y s tem , intellectual capacity , educational background, degree of literacy , e mo t i o n al state and any m ental d isease or o ther def ect.”
Brown v. S

tate , 839 So. 2d 597, 6 00 (¶10) ( Miss. Ct. App. 2003) (citing Holland v. State , 587 So. 2d 848, 860 (Miss. 1991)). W hile the t rial c ourt perm itted the State to elicit testim ony f rom th e o f

f icer who advised W illiam s of his Miranda r ights and recorded his conf ession, the trial court neither held a h earing nor applied t he correct legal standard in determ ining the

6statem ent’s adm issibility

.

¶17. By not holding a h earing, the trial court precluded W illiam s f rom putting on evidence

to r ef u te Of f icer Linzy ’s t estim ony . W hen a trial court adm its a conf ession without af

f ording the def endant an opportunity to question the a d m i s sibility of the conf ession through the hearing process, the trial court, in essence, com pels t he def

endant to take the stand at trial to rebut the validity o f the conf ession in contradiction to the def endant’s right n ot t o testif y at trial. This scenario underm ines the purpose f o r the Agee rule. ¶18. The suprem e c o u r t h as held that the objective of an Agee hearing is to protect def endants f rom the p rejudicial ef

f ects of adm itting an involuntary statem ent into e vidence.
W ells v. State , 698 So. 2d 497, 508-09 ( Miss. 1997). T he W ells court f

urther clarif

ied that

t h e adm ission of a conf ession into evidence without holding a hearing prejudices th e def endant only

if the court later f

i nds the statem ent involuntary

. Id. Theref ore, to prevent the possibility of prejudice, t he prudent approach dictates that a trial court s hould conduct a hearing in com

pliance with Agee

. Id. ¶19. In t his case, however, t he t rial court adm itted t he conf ession into e vidence without ruling on the voluntariness of the statem ent at any point. Because the issue of voluntariness

arose a t trial and no hearing on the voluntariness occurred, the trial court abused its discretion when it f ailed to evalu a t e t h e adm ission of W illiam s’s conf ession under the proper legal standards. For this reason, we reverse and rem a nd this case f or a new trial. ¶20. THE JUDGMENT OF THE QUITMAN C OUN T Y C I RCUIT COURT IS REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. ALL COSTS OF T HIS APPEA L A R E ASSESSED TO QUITMAN COUNTY.

7LEE, C .J., IRVING, P.J., BARNES, ISHEE, ROBER T S , M AX WELL AND

F A I R , J J . , C O N C U R . CARLTON, J., DISSENTS WITH O U T S E P A R A T E W R I T T E N OPINION. JAMES, J., NOT PARTICIPATING.

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