Donald Ray Jolly v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: May 17, 2022
• Docket: 2021-KA-00318-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-00318-COA

DONALD RAY JOLLY APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/18/2021 TRIAL JUDGE: HON. MARK SHELDON DUNCAN COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: STEVEN SIMEON KILGORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/17/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.

McDONALD, J., FOR THE COURT:

¶1. A Neshoba County Circuit Court jury convicted Donald Jolly of four counts of

statutory rape in violation of Mississippi Code Annotated section 97-3-65(1)(b) (Supp.

2017). The circuit court sentenced Jolly to serve life in prison for one count and three

twenty-year sentences for the remaining three counts, with all sentences ordered to run

consecutively. Jolly now appeals his convictions arguing that the trial court erred in denying

his motion to suppress his statement to law enforcement. Jolly argued that he did not have

the capacity to understand that he had the right to remain silent, the right to an attorney, or any of the other accompanying rights; therefore, his statement allegedly was not knowingly,

intelligently, or voluntarily made. After a review of the record, arguments of counsel, and

relevant caselaw, we affirm Jolly’s convictions and sentences.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. At eight years old, Stacy1 began living with her father after her mother passed away.

Stacy’s father and Jolly were friends and neighbors. Over the years, Stacy and her siblings

spent time with Jolly, riding four wheelers around their homes and hunting in nearby

communities.

¶3. Stacy made allegations to family members that Jolly had been inappropriately

touching her, and on January 7, 2020, Stacy was interviewed by Beth Reynolds, a forensic

interviewer at the Wesley House Community Center (“Wesley House”) in Meridian.2 Officer

Gordon Atkins, an investigator for the Neshoba County Sheriff’s Department, was present

during Stacy’s interview at the Wesley House. After witnessing the interview, Atkins and

other officers went to Jolly’s home to locate him for questioning regarding Stacy’s

allegations. When Jolly was located, Atkins and Officer Brad Stuart detained and transported

him to the Neshoba County Sheriff’s Department.

¶4. When they arrived at the sheriff’s department, Jolly was placed in Atkins’s office.

1 To protect the minor’s identity and privacy, her name has been replaced with a fictitious name. 2 The Wesley House’s Child Advocacy Center conducts forensic interviews with children and teens when there are allegations of physical abuse, sexual abuse, or if they have witnessed a violent crime.

2 According to Jolly, Sheriff Eric Clark came and spoke with him for a moment after he

arrived,3 but his official interrogation was conducted by Atkins and Stuart.4 Before the

questioning began, Atkins read Jolly a Miranda5 warning and waiver form. Jolly signed the

waiver form and, thereafter, hand-wrote and signed a statement in which he admitted to

having sex with Stacy.

¶5. On July 8, 2020, a Neshoba County grand jury indicted Jolly on four counts of

statutory rape, and on March 8, 2021, the case was tried in the Neshoba County Circuit

Court. At trial, the State called Stacy as its first witness. She testified about the allegations

she made during her interview at the Wesley House. Stacy was unable to give specific dates,

but she testified to three specific incidents where she alleged that Jolly raped her. According

to Stacy, Jolly raped her many, many times. Stacy testified that the first time Jolly touched

her inappropriately she was around the age of eleven.

Direct Examination of Stacy:

Q. When did Mr. Jolly start doing things to you that you thought were inappropriate?

A. When I was like 11, him and me and my brother were sitting in the car in the chicken house, the old chicken house.

3 Jolly testified that the Sheriff Clark came in the office, turned his chair around, and got right up in his face. Jolly stated that the sheriff kept calling him a “M-F and all that stuff.” Jolly also testified that the sheriff stated, “You sorry S-O-B. I had to throw you in the back with the rest of them jokers.” 4 The sheriff was not present during the official interview. 5 Miranda v. Arizona, 384 U.S. 436 (1966).

3 ....

Q. Tell us what happened then.

A. He told my brother to go get a drink from the compost shed, the refrigerator out there, and after that he slowly put his hand on my leg, and that’s when it started.

Stacy further testified that on one occasion, when she was around the age of thirteen, Jolly

took her hunting. Usually Stacy’s little brother went with her and Jolly hunting, but on this

particular day, Jolly did not want her brother to go. Jolly and Stacy rode to Mt. Zion where

his shooting house was located. According to Stacy, Jolly took her into the shooting house

and told her to lie on the ground. Once on the ground, Stacy testified that Jolly put his

“thing” inside of her after he pulled her pants down.

¶6. The State then called Atkins to testify. Atkins described how the Wesley House

conducted children’s interviews and where he was located on the day that Stacy had her

interview. After Atkins witnessed the interview, he went back to Neshoba County to find

Jolly. According to Atkins, he and other officers went to Jolly’s residence but he was not

there. The officers tracked Jolly down and took him to the sheriff’s department. As

anticipated, Jolly objected to the admission of his handwritten statement. As a result of the

objection, the court then conducted a suppression hearing outside the presence of the jury.

¶7. During the suppression hearing, Jolly was asked whether Atkins went over the waiver

form with him, and he stated that Atkins had not. Jolly stated, “He didn’t give me no rights.”

Jolly Direct Examination

4 Q. What about in his office? Did he read you those rights?

A. No, sir.

Q. Did he say that anything you say can be used against you in a court of law?

A. No, sir. He didn’t say that.

Q. Did he tell you you can talk to a lawyer?

¶8. During the interrogation, Jolly gave both an oral and written statement to Atkins and

Stuart.6 Although he did write and sign the statement, according to Jolly, Atkins allegedly

told him what to write.

Q. Who gave you the words and the language to write down on those two pieces of paper?

A. Mr. Gordon told me what to say. He told me when he said that you had sex with you but you did not force her. I said I didn’t – I ain’t even writing that because I ain’t had sex with nobody. He told me – he said, “If you want a bond, you know, you will.”

¶9. In response to Jolly’s testimony, Atkins and Stuart both testified during the

suppression hearing. Both officers countered Jolly’s testimony, stating that Jolly was fully

advised of his Miranda rights and that he voluntarily gave his oral and written statements.

Further, both officers denied promising Jolly a bond in exchange for his confession.

6 Jolly’s oral statement was not recorded.

5 Atkins Direct Examination

Q. Prior to talking to the Defendant, was he advised of anything?

A. Yes, sir. His Miranda rights.

....

Q. Is that the Miranda form that was read to the Defendant?

A. Yes, sir.

Q. The rights in that form – was he advised of those rights?

¶10. Jolly’s written statement contained several misspelled words, and some were

scratched through and marked with his initials. In the statement, Jolly stated that he and

Stacy had sex fifty to sixty times or more, but he never forced her. Jolly identified specific

places where he and Stacy engaged in sexual intercourse, including the shooting house in Mt.

Zion, the fields by his house, and in the chicken house. He further stated that he and Stacy

were like boy-girl friends in a way. Jolly was forty-seven years old at the time he wrote his

statement.

¶11. However, at the suppression hearing, Jolly stated that he never had sexual intercourse

with Stacy. Jolly argued that he only wrote and signed the statement because Atkins

promised him that he would receive a bond. Jolly also testified that on the day of the

6 interrogation, he had been up for a couple days and was on “crystal.”7 However, Jolly

admitted that he did not tell the officers this information because he did not want his boss and

family members to know of his drug use. Atkins and Stuart testified that Jolly did not appear

to be under the influence of any drugs or alcohol while being questioned. Based on their

observations, Jolly fully understood his rights and that he was waiving those rights by signing

the waiver. Stuart testified that neither he nor Atkins threatened or offered Jolly any type of

reward for his statement.

¶12. At the close of the suppression hearing, Jolly argued that his statement should be

suppressed because he was threatened and intimidated by Sheriff Clark and was not read his

rights before he wrote his statement. Jolly further argued that he did not understand he had

the right to a lawyer or the right to remain silent, nor did he understand that he could ask for

an attorney and stop the questioning. According to Jolly, he was told that if he ever wanted

a bond he would have to write a statement.

¶ 13. After hearing testimony from Atkins, Stuart, and Jolly, as well as arguments of

counsel, the circuit court found that “the Defendant was properly read his rights, . . . properly

advised of [those] rights, and that he freely and voluntarily waived those rights.” Thus, the

circuit court held that Jolly’s confession was admissible.

¶14. Testimony before the jury then resumed. Jolly testified and maintained his contention

that he never engaged in sexual intercourse with Stacy. Concerning his written statement,

7 Crystal methamphetamine is the reference.

7 Jolly told the jury that he only confessed to having sexual intercourse with Stacy because

Atkins promised him a bond in exchange for doing so. According to Jolly, he did not

understand that he was confessing to having sex with Stacy when he wrote his statement.

Jolly admitted that he did not really talk with the officers before he began writing out his

statement. The officers just told him that they had some questions for him and that he needed

to answer them. He further alleged that Atkins told him the words to write in his statement.

At the end of the trial, the jury found Jolly guilty of all four counts of statutory rape.

¶15. Jolly now appeals his convictions and sentences, raising as the sole issue whether the

circuit court manifestly erred in denying his motion to suppress his statement because it was

not knowingly, intelligently, nor voluntarily made.

Standard of Review

¶16. In reviewing the trial court’s denial of a motion to suppress a statement, the general

rule that the “trial court sits as the fact-finder when determining the issue of whether an

accused’s confession has been intelligently, knowingly and voluntarily given.” Glasper v.

State, 914 So. 2d 708, 716 (¶21) (Miss. 2005). This court will “only reverse the trial court’s

determination of this issue when such determination is manifestly wrong.” Id.

Discussion

¶17. In order for a defendant’s confession to be admissible, over an objection, the trial

court must find that the confession was knowingly, intelligently, and voluntarily given and

was not a product of police threats, promises, or inducements. Johnson v. State, 129 So. 3d

8 148, 150 (¶10) (Miss. 2013). In making this determination, the trial court sits as a finder of

fact and considers the totality of circumstances. Id. This Court has stated that a defendant’s

“education; vocabulary and ability to read and write in the language in which the warnings

were given” may be considered when examining the totality of circumstances. Taylor v.

State, 291 So. 3d 14, 22 (¶25) (Miss. Ct. App. 2019) (citing Roberts v. State, 234 So. 3d

1251, 1260 (¶23) (Miss. 2017)). The supreme court has held that a defendant’s mental ability

is also a factor to be considered when evaluating the totality of the circumstances. Moore

v. State, 287 So. 3d 905, 912 (¶12) (Miss. 2019). The State has the burden of proving the

voluntariness of the confession, and “a prima facie case is made by testimony of an officer,

or other person having knowledge of the facts, that the confession was voluntarily made

without any threats, coercion, or offer of reward.” Id. at (¶12). The trial court’s

determination will only be reversed if it was manifestly erroneous or contrary to the

overwhelming weight of evidence. Id. at (¶11).

¶18. In this case, Jolly argues that his statement should have been suppressed for two

reasons. First, he contends that his confession should have been suppressed because he

lacked the capacity to understand that he had the right to remain silent, the right to an

attorney, or any of the other accompanying rights. Jolly also asserts that his lack of capacity

resulted from his limited ability to read and write, due to having minimal education and poor

eyesight. Second, Jolly argues that his statement should have been suppressed because he

wrote and signed the waiver in exchange for Atkins’s promise that he would receive a bond.

9 A. Limited Capacity and Understanding

¶19. The inability to understand what is being asked during an interrogation does not

necessarily bar the admission of a confession. Even when faced with a defendant whose

primary language was not English, our supreme court found that he had been properly

advised of his Miranda rights. See Chim v. State, 972 So. 2d 601 (¶18) (Miss. 2008).

¶20. In Brown v. State, 130 So. 3d 1074, 1080 (¶16) (Miss. 2013), Brown argued that the

trial court had not sufficiently considered his learning disability in determining whether his

waiver of his Miranda rights was knowing, intelligent, and voluntary. After an independent

review of the record, the supreme court found that “Brown’s learning disability [did] not rise

to the level of mental disability required to have interfered with his ability to waive his

rights.” Id. at 1080 (¶17). The supreme court in Brown cited McGowan v. State, 706 So.

2d 231, 234 (¶8) (Miss. 1997), for the holding that the “defendant knowingly, intelligently,

and voluntarily waived his Miranda rights even though he was only 17, had a low I.Q., and

read at a fourth-or-fifth grade level.” Brown, 130 So. 3d at 1080 (¶17). Both Brown and

McGowan waived their rights by signing a standard waiver form after the form had been read

to them by interrogating officers. Id. The court found that Brown possessed the capacity to

waive his rights and that such waiver was knowing, intelligent, and voluntary despite his

learning disability. Id.

¶21. Here, Jolly presented even less evidence of limited capacity than did Brown or

McGowan. He argues that he did not understand his rights or the waiver of them due to his

10 minimal education and poor eyesight. However, both officers testified that Jolly was given

his rights and that he fully understood them. That Jolly’s confession contained misspellings

and grammatical errors only established his limited education, not a lack of understanding.

Jolly never alleged that he had a mental disability or a low IQ. Even if Jolly had alleged that

he had a mental disability, “the mental abilities of an accused are but one factor to be

considered in determining whether the confession was knowingly, intelligently and

voluntarily made.” Moore, 287 So. 3d at 912 (¶21). It should also be noted that Jolly’s

statement was remarkably consistent with Stacy’s testimony at trial. The trial court was in

the best position to weigh the evidence and hear Jolly’s testimony. See Glasper v. State, 914

So. 2d 708, 720 (¶28) (Miss. 2005). Considering the totality of circumstances, the circuit

court was acting within its discretion in finding that Jolly’s minimal education did not prove

a lack of the capacity to voluntarily waive his rights. After reviewing the record, we find no

merit to Jolly’s argument that his minimal education should have barred the admission of his

statement.8

B. Threats and Coercion

¶22. Threats or coercion may prohibit the admissibility of a statement, but there must be

proof in the record to support such an argument. In Johnson, 129 So. 3d at 150 (¶8), the

defendant argued that his statement to law enforcement should have been suppressed because

8 Jolly also argued that he did not have his glasses, but the record does not show he informed the officers of his need for them or that he asked for them.

11 it was coerced by a promise not to pursue charges against his fiancée. Id. The State called

the officers who interrogated Johnson to testify during the hearing. Id. at 151 (¶14). Both

officers testified that “neither promises nor threats were made to induce Johnson’s

confession.” Id. “Officer McCombs testified that Johnson had asked whether [his fiancée]

would be charged, and he had responded that, if Johnson admitted the cocaine was his, there

would be no reason to charge [his fiancée].” Id. “The trial judge found that Johnson’s

testimony did not give rise to a credible argument that his confession had been coerced.” Id.

at 150 (¶8). On appeal, the supreme court held that “the trial judge did not commit manifest

error by finding that Johnson voluntarily gave his confession.” Id. at 153 (¶23).

¶23. Jolly argues that he only signed the waiver and statement because Atkins promised

him a bond. Both officers denied promising Jolly any reward in exchange for his statement.

The only evidence Jolly presented to refute this was his own testimony concerning what

happened during the interrogation. As in Johnson, the court was tasked with weighing the

credibility of the testimony of the officers versus the credibility of Jolly’s testimony. In

Glasper, 914 So. 2d at 720 (¶28), the supreme court stated:

The trial judge in this case is the only one amongst the members of the judiciary who will ever have the opportunity to not only hear the testimony, but to also observe the demeanor of the witnesses as they testified at the suppression hearing. We thus afford the appropriate deference to the trial judge since she was the ultimate fact-finder based on disputed testimony offered at the suppression hearing. And the trial judge, sitting as the fact finder, had the sole authority to weigh the credibility of the witnesses and decide in the state’s favor.

(Citation omitted).

12 ¶24. After hearing all witnesses’ testimony, the circuit court ultimately held that Jolly had

been properly read his Miranda rights, properly advised of those rights, and that he freely and

voluntarily waived those rights. Both Atkins and Stuart stated that there was no indication

from Jolly’s demeanor, words or actions that his waiver was not voluntary, and Jolly offered

no evidence to refute the officers’ testimony. See Moore, 287 So. 3d at 913 (¶26) (holding

that testimony of interrogating officers was sufficient to establish a prima facie case of

voluntariness). Giving the deference due to the circuit court’s discretion in determining the

credibility of witnesses, we cannot say that the circuit court’s ruling was manifestly wrong.

Conclusion

¶25. Because the circuit court was not manifestly wrong in its decision to admit Jolly’s

confession, and because the testimony in the record supports that ruling, we affirm Jolly’s

convictions and sentences.

¶26. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.