Emery v. State

869 So. 2d 405, 2004 WL 693425
CourtMississippi Supreme Court
DecidedApril 1, 2004
Docket2002-KA-00450-SCT
StatusPublished
Cited by18 cases

This text of 869 So. 2d 405 (Emery 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
Emery v. State, 869 So. 2d 405, 2004 WL 693425 (Mich. 2004).

Opinion

869 So.2d 405 (2004)

Odis EMERY, Jr.
v.
STATE of Mississippi.

No. 2002-KA-00450-SCT.

Supreme Court of Mississippi.

April 1, 2004.

William R. Labarre, for Appellant.

Office of the Attorney General by Deirdre McCrory, for Appellee.

DICKINSON, Justice, for the Court.

¶ 1. Odis Emery, Jr., was tried before a jury in Washington County, Mississippi, on *406 a charge of burglary of a dwelling house. During trial, Emery took the stand, but did not testify on direct examination as to his whereabouts at the time the crime was committed.

¶ 2. On cross-examination, the prosecutor asked Emery where he was at the time the crime was committed. Then, over objection, the prosecutor was allowed to cast suspicion on Emery by asking him why he had not told his story before.

¶ 3. The jury found Emery guilty, and he was sentenced to twenty years in the custody of the Mississippi Department of Corrections.

¶ 4. Emery appeals and now asserts that the trial court committed reversible error by allowing the prosecutor to impeach him for exercising his constitutional right to remain silent. We agree, and we reverse and remand for a new trial.

FACTUAL BACKGROUND

¶ 5. On February 10, 2001, at approximately 9:00 p.m., police officers Taylor, Williams and Maybell responded to a burglar alarm at 823 Simmons Street, in Hollandale, Washington County, Mississippi. There they discovered that someone had either pried or broken open the back door. Upon entering the house, officer Taylor discovered someone in the bathroom and ordered him to step out into the hallway and to place his hands on the wall. When the individual refused to comply, Taylor tried to push him against the wall. Something fell out of the suspect's pocket onto the floor, causing Taylor to look down. When Taylor looked down, the individual then "swirled around." Officer Taylor also turned, but the suspect's hand hit Taylor's wrist causing his gun to discharge.

¶ 6. The suspect fell to the ground claiming that he had been hit. Taylor used a flashlight to check for a wound, and then stepped back to speak to another officer as to what they needed to do. The suspect then jumped up, dove through the kitchen window and escaped. Five days later, Emery was arrested and charged with burglary of a dwelling house.

¶ 7. Emery testified at trial, but no questions were asked on direct examination as to his whereabouts at the time the alleged crime was committed.

¶ 8. On cross-examination by the prosecutor, the following exchange took place between the prosecutor and Emery:

Q. All right. You say you weren't there that night?
A. No, I wasn't.
Q. And I'm talking about the night of the 10th, February 10th at that house. Where were you?
Q. Saturday, approximately 10:30 that morning, me and a guy named Jerry Wright, we left and went to Leland to see a woman that raised me when I was coming up, like a big sister. Her name Pearl Young. We went over to her house that day, were taken there by her niece—I mean, her daughter and her son-inlaw, d we did barbecue, ... So the people that brought us to Leland, they left the party, ... and we didn't see them no more until about 10:30, 11:00 o'clock that night. That was the time they came back and picked us up and brought us back to Hollandale ....
Q. Okay. Today is February 19th. Would you agree with me?

(emphasis added). At this point, the questioning was interrupted by Emery's counsel, William R. Labarre:

BY MR. LABARRE: Your honor, can we approach the bench?
BY THE COURT: Yes.
*407 BY MR. LABARRE: The State did make a demand for intent to use an alibi defense. We did not offer an alibi. He is eliciting this information himself. I know where he is going with it because he has done it to my clients before, that how come you never told anybody anything up to this point. I would object to that line of questioning. He is not required to make any statement. He is not required to do anything. He has elicited the information about where he was. We did not present it. I think it's improper cross-examination for him to try to badger him about the fact that he has not made any mention of this to anybody else up until this date.
BY MR. GORE: I disagree, Your honor. That has always been allowed. It is a simple question. Why didn't you tell the police this when you—I am going to say this is the first time you are telling this.
BY THE COURT: I'm going to allow this.

¶ 9. The questioning then resumed, as follows:

A. Yes.
Q. Thank you. Again, back to my question, would you agree with me that day is February 19th?
A. Yes, I do agree.
Q. And that this burglary occurred, you were arrested on February 15 of 2001?
A. Yes.
Q. And this is the first time that you have ever made that statement or told that story, isn't it?
A. Upon my arrest, like I said, I was maced down, I was cuffed, forced to take pictures. I even asked the officer to let me speak to my lawyer before I even make any type of statement or anything....
Q. If you would, simply answer my question. In over a year's time since you've been arrested, this is the first time that you've told that story; isn't that correct?
A. Talking about as far as where I was?
Q. Yes.
A. No.
Q. Who did you tell the story to?
A. My father knew about it, my family knew about it. If I'm not mistaken, the investigator—I told the investigator about it.
Q. What investigator?
A. I think it's my lawyer's investigator, if I'm not mistaken.
Q. But you didn't tell anybody else?
A. By him being my lawyer, he pretty much is my speaker too. So I forward information to him, and he will take it from there.
Q. Simple question. You didn't tell anybody else, did you?
A. No.

¶ 10. During closing argument, the prosecutor argued to the jury: "Okay, there ain't nothing about this going to Leland to a barbecue stuff. Folks right there, you can tattoo `liar' right across his forehead because that's what he did. He took that stand and he lied to you."

¶ 11. The jury returned a verdict of guilty of burglary of a dwelling house, and Emery received a 20-year sentence.

DISCUSSION

¶ 12. At the time of his arrest, Emery was advised of his constitutional rights (the "Miranda Warning"), which included a statement to Emery that he had the right to remain silent. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme *408 Court stated that "[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. at 444, 86 S.Ct. 1602. During the thirty-seven years following that decision, the Miranda

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Cite This Page — Counsel Stack

Bluebook (online)
869 So. 2d 405, 2004 WL 693425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emery-v-state-miss-2004.