Mixon v. State

794 So. 2d 1007, 2001 WL 1047496
CourtMississippi Supreme Court
DecidedSeptember 13, 2001
Docket2000-KA-00436-SCT
StatusPublished
Cited by12 cases

This text of 794 So. 2d 1007 (Mixon 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
Mixon v. State, 794 So. 2d 1007, 2001 WL 1047496 (Mich. 2001).

Opinion

794 So.2d 1007 (2001)

Joshua David MIXON
v.
STATE of Mississippi.

No. 2000-KA-00436-SCT.

Supreme Court of Mississippi.

September 13, 2001.

*1009 Thomas D. Berry, Jr., Patricia H. Willis, Bay St. Louis, for Appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, for Appellee.

Before McRAE, P.J., MILLS and WALLER, JJ.

WALLER, Justice, for the Court:

INTRODUCTION

¶ 1. After guilt and sentencing proceedings before a jury in Hancock County, Mississippi, Joshua David Mixon was convicted of capital murder and was sentenced to life imprisonment. On appeal, Mixon raises issues concerning the admissibility of his three statements given to law enforcement officers, improper limitation of cross-examination, and prosecutorial misconduct. We affirm.

FACTS

¶ 2. After leaving the Fire Dog Saloon in Bay St. Louis, Hancock County, Mississippi, on June 29, 1998, Mixon struck up a conversation with a limousine driver waiting outside the Fire Dog for his passengers. The driver recalled that Mixon bragged about being a kick boxing expert. He did not, however, believe Mixon's boasting because he saw that Mixon was heavy set and did not look like he exercised on a regular basis. The driver observed Jose Lemus leave the Fire Dog and begin walking toward the Blue Parrot, another bar. Mixon joined Lemus, and the driver saw the two of them go as far as the entrance gate to the Blue Parrot.

¶ 3. At some point, Mixon and Lemus left together and went to a dirt road, where Mixon shot and killed Lemus. Mixon took Lemus' wallet, took all of the cash out of it, and, while running from the scene, threw the wallet away. Mixon contacted an acquaintance, arranged for a U Haul, went to the apartment of his girlfriend, Rosemary Hiersch, and packed up the entire apartment contents. Mixon and Hiersch stayed on the road for several days and eventually ended up in Metairie, Louisiana, where they stayed at a hotel and Hiersch found a job. Acting on a tip, an officer from the Bay St. Louis Police Department followed Mixon to Metairie and arrested him there on July 9, 1998.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING MIXON'S THREE STATEMENTS INTO EVIDENCE.

¶ 4. The general rule is that for a confession to be admissible it must have been given voluntarily and not because of promises, threats or inducements. Dancer v. State, 721 So.2d 583, 587 (Miss.1998) (citing Morgan v. State, 681 So.2d 82, 86 (Miss.1996)). "[T]he prosecution shoulders the burden of proving beyond a reasonable doubt that the confession was voluntary." Morgan, 681 So.2d at 86 (citing Haymer v. State, 613 So.2d 837, 839 (Miss.1993)). This "burden is met and a prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward." Morgan, 681 So.2d at 87. Mixon attacks the confessions on three bases: *1010 voluntariness; promises, threats or inducements; and tampering with the audiotapes of the statements.

A. Voluntariness of Confession

¶ 5. Our review of whether Mixon's confessions were voluntary is limited. The circuit court sits as a fact finder when determining voluntariness of a confession, and its determination will not be reversed unless manifestly wrong. Blue v. State, 674 So.2d 1184, 1204 (Miss.1996); Porter v. State, 616 So.2d 899, 907 (Miss.1993). The State has the burden of proving all facts prerequisite to the admissibility of a defendant's confession beyond a reasonable doubt. Blue, 674 So.2d at 1204; Porter, 616 So.2d at 908.

¶ 6. Mixon gave three recorded statements to law enforcement officials. At a pretrial suppression hearing, Lieutenant Tom Burleson, a policeman with the Bay St. Louis Police Department, testified that he read Mixon his Miranda rights while Mixon was in the custody of the Jefferson Parish Sheriffs Office in Gretna, Louisiana. Mixon signed a waiver of rights form before Lt. Burleson and Detective Kevin Fayard of the Jefferson Parish Sheriffs Office. Mixon did not appear to be intoxicated; his speech was coherent; and Lt. Burleson could not smell any alcohol on him. Mixon appeared to understand his rights, never stated that he wanted the services of an attorney, and never invoked his right to remain silent. Neither Lt. Burleson nor Det. Fayard made any promises to or coerced Mixon.

¶ 7. On this proof, we find that the trial court did not err in concluding that the State made a prima facie case of voluntariness.

B. Promises, Threats or Inducements

¶ 8. The evidence shows that Mixon's statements were given without threats, coercion, or offer of reward. Transcripts of the three audiotapes were entered into evidence. In the first statement, Mixon claimed that Wallace "Root" Hanes shot and killed Lemus, that Hanes had stolen Hiersch's gun on a previous day, and that he could show the police where Hanes had thrown the gun into a river.

¶ 9. At the end of the statement, Mixon said that he had contemplated suicide because he knew that he was in a desperate situation. He stated, "But I know I am [in a desperate situation] and ah to be honest with you, I don't give a f**k if you blow my brains out right now. I don't care." Lt. Burleson responded, "That's not going to happen," and that the law enforcement officers were there to protect him. Lt. Burleson asked Mixon not to get anybody else involved in the situation because Mixon had been through the system before and Mixon should not want anyone he cared about to have to go through the same experience. Mixon then stated that if Lt. Burleson would allow him to make a telephone call, "I'll tell you the whole f*****g story word for word and you can take it to the bank and I can go show you where the gun is at." Lt. Burleson agreed to allow Mixon to make a telephone call to Hiersch if Mixon allowed Lt. Burleson to be present during the call. Mixon agreed. Lt. Burleson then told Mixon he would allow him to call Hiersch after Mixon gave another statement.[1] The following discourse then took place:

Mixon: Will you let me talk to her before? It's not going to change the *1011 way I feel. I just want to set some ground rules for her.
Burleson: I don't want to make any promises to you. Okay. And I don't want you to make a promise to me.
Mixon: I will. I wouldn't make a promise to you anyway.
Burleson: Do you understand what I am saying? I don't want to make a promise because I cannot make a promise.
Mixon: I can make a promise to you but I'm going to get the f*****g chair because you know that I know and Mr. Fayard knows but I need you to let me talk to her just once.
Burleson: We will let you talk to her.
Fayard: Are you worried not being able to talk to her after making a statement? Is [that] what you are saying?
Mixon: (Crying.) I'm just scared, man.
Burleson: I'll let you make. I'm [going to] let you talk to her and this is on tape. Okay. This tape that you ... have given me points [out] the impression I'm getting now [that there is] a lot of b******t on it.
Mixon: Yeah....

¶ 10. The second tape was begun at 12:58 a.m. on July 10. The Miranda rights were once again read to Mixon, who stated that he understood his rights.

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Cite This Page — Counsel Stack

Bluebook (online)
794 So. 2d 1007, 2001 WL 1047496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mixon-v-state-miss-2001.