Delashmit v. State

991 So. 2d 1215, 2008 WL 4511233
CourtMississippi Supreme Court
DecidedOctober 9, 2008
Docket2007-KA-02130-SCT
StatusPublished
Cited by33 cases

This text of 991 So. 2d 1215 (Delashmit v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delashmit v. State, 991 So. 2d 1215, 2008 WL 4511233 (Mich. 2008).

Opinion

991 So.2d 1215 (2008)

Stephen Joseph DELASHMIT
v.
STATE of Mississippi.

No. 2007-KA-02130-SCT.

Supreme Court of Mississippi.

October 9, 2008.

*1216 Mississippi Office of Indigent Appeals by George T. Holmes, attorney for appellant.

Office of the Attorney General by La Donna C. Holland, attorney for appellee.

Before WALLER, P.J., EASLEY and CARLSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. Stephen Joseph Delashmit was tried and convicted by a jury in the Circuit Court of Lee County for the crime of enticement of a child for sexual purposes. *1217 See Miss.Code Ann. § 97-5-33 (Rev.2006).[1] Delashmit was sentenced as a habitual offender to a term of life imprisonment without parole in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated Section 99-19-83 (Rev.2007). After his post-trial motions were denied by the trial judge, Delashmit appealed to us. Finding no error, we affirm the Lee County Circuit Court's judgment of conviction and sentence.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On October 24, 2006, Corey Mallory drove past Lee Memorial Cemetery in Verona after leaving work. He observed a little girl pushing a bicycle and then noticed a blue Nissan car quickly pull up beside her. Mallory thought the encounter appeared suspicious, so he turned around to check on the little girl to ensure her safety. He saw the bicycle lying in the cemetery, but the little girl was by then gone. Mallory became alarmed and followed the blue car, and he eventually pulled up beside the car and questioned the driver, who later was identified as Stephen Delashmit. Mallory inquired about the little girl, and Delashmit initially replied that he did not know what Mallory was talking about. Delashmit pulled off, but Mallory continued to follow him and called 911 to report the incident.

¶ 3. Sergeant Robbie Gwin of the Lee County Sheriff's Department was dispatched to Lee Memorial Cemetery in Verona regarding a possible child abduction. When Sergeant Gwin arrived at the scene, he saw a little girl's bicycle on the ground. A woman arrived on the scene and identified the bicycle as belonging to her eight-year-old daughter, V.B.[2] Shortly, V.B. returned to the scene with an adult woman and told officers what had transpired. V.B. stated that she had stopped to fix the chain on her bicycle when she noticed a blue car pass by two or three times. The driver of the car pulled up beside her and asked for directions. The driver then asked V.B. to get in the car with him, and he offered her fifty dollars to have sex with him. The man already had his pants unzipped and showed the little girl his "middle spot" or genital area. V.B. became scared and ran to her brother's friend's house, leaving her bicycle in the cemetery.

¶ 4. After leaving the scene, Sergeant Gwin and other officers began looking for the suspect, who Mallory and V.B. described as a white male wearing glasses and a baseball cap and driving a small blue Nissan car. Gwin received a telephone call from Lee County Deputy Sheriff Phillip Smith, who was with Deputy Gary Turner, and they advised Gwin that they were familiar with an individual, Stephen Delashmit, who matched the description of the suspect and could possibly be a registered sex offender. The investigation led Sergeant Gwin to the Industrial Park at Hickory Springs where Delashmit worked. He saw Delashmit's vehicle in the parking lot, and this vehicle matched the description previously obtained. A supervisor located Delashmit, and Gwin asked him to step outside to speak with him in the parking lot. Gwin advised Delashmit of his Miranda rights and informed him why law enforcement wished to speak with him at that time. Gwin then waited for Lee County Sheriff Jimmy Howell Johnson to *1218 arrive. Miranda v. Ariz., 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 5. After arriving at the scene, Sheriff Johnson approached Delashmit and ensured that he had been read his Miranda rights and fully understood them. Due to weather conditions and their location in a workplace parking lot, Johnson asked Delashmit to speak with him in the back seat of a patrol car. Once inside the car, Johnson personally re-read Delashmit his Miranda rights. Delashmit admitted that he had offered the little girl, V.B., fifty dollars for sex and had shown her his penis. Delashmit was then placed under arrest and transported to the Lee County jail.

¶ 6. At the jail, Donna Franks, an officer assigned to the Criminal Investigation Division of the Lee County Sheriff's Department, again advised Delashmit of his Miranda rights, and Delashmit executed a waiver-of-rights form. Delashmit again confessed to Investigator Franks that he had offered V.B. fifty dollars to have sex with him and demonstrated how he had shown her his penis.

¶ 7. Following a grand-jury indictment, Stephen Delashmit went to trial on November 26, 2007, in the Circuit Court of Lee County, Judge Thomas J. Gardner, III, presiding. After the jury returned a verdict finding Delashmit guilty of the crime of having enticed, induced or solicited V.B., an eight-year-old child, for the purpose of engaging in sexually explicit conduct, Judge Gardner sentenced Delashmit as a habitual offender to a term of life imprisonment without parole in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated Section 99-19-83 (Rev.2007). After Judge Gardner denied his motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, Delashmit perfected this appeal to this Court.

DISCUSSION

¶ 8. Delashmit presents three issues for us to consider: (1) whether Delashmit's statements to law enforcement officials were properly admitted; (2) whether Delashmit was entitled to a lesser-offense instruction; and (3) whether Delashmit's counsel was unconstitutionally prevented from making a closing argument regarding reasonable doubt. We restate these issues for the sake of today's discussion.

I. WHETHER DELASHMIT'S STATEMENTS TO LAW ENFORCEMENT OFFICIALS WERE PROPERLY ADMITTED.

¶ 9. The standard of review for admission of evidence is abuse of discretion. Debrow v. State, 972 So.2d 550, 552 (Miss.2007). However, when a question of law is raised, we apply a de novo standard of review. Id. "This Court will reverse a trial court's finding that a confession is admissible only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence." Martin v. State, 871 So.2d 693, 701 (Miss. 2004) (citing Duplantis v. State, 644 So.2d 1235, 1243 (Miss.1994); Willie v. State, 585 So.2d 660, 665 (Miss.1991)).

¶ 10. Delashmit argues that his separate confessions to Sheriff Johnson and to Investigator Franks were improperly admitted. With regard to the confession to Sheriff Johnson, Delashmit argues that while he was under arrest, the arrest was without probable cause, so the statement to the sheriff was inadmissible as "fruit of the poisonous tree." He argues that the second statement also should not have been admitted, because it was made after he had invoked his right to counsel.

¶ 11. Delashmit was not under arrest at the time of his confession to *1219 Sheriff Johnson.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Joshua Fletcher v. State of Mississippi
Court of Appeals of Mississippi, 2024
People v. Andres CA2/6
California Court of Appeal, 2023
United States v. Hill
District of Columbia, 2021
People v. Molano
California Court of Appeal, 2019
People v. Molano
443 P.3d 856 (California Supreme Court, 2019)
Hye v. State
162 So. 3d 750 (Mississippi Supreme Court, 2015)
Minnesota Life Insurance Co. v. Columbia Casualty Co.
164 So. 3d 954 (Mississippi Supreme Court, 2014)
State v. Nicolas Subdiaz-Osorio
2014 WI 87 (Wisconsin Supreme Court, 2014)
State v. Derik J. Wantland
2014 WI 58 (Wisconsin Supreme Court, 2014)
Harris v. State
123 So. 3d 925 (Court of Appeals of Mississippi, 2013)
Gebben v. State
108 So. 3d 956 (Court of Appeals of Mississippi, 2012)
Birkhead v. State
57 So. 3d 1223 (Mississippi Supreme Court, 2011)
Williams v. State
53 So. 3d 734 (Mississippi Supreme Court, 2010)
Barnes v. State
30 So. 3d 313 (Mississippi Supreme Court, 2010)
Williams v. State
53 So. 3d 761 (Court of Appeals of Mississippi, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
991 So. 2d 1215, 2008 WL 4511233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delashmit-v-state-miss-2008.