IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-01101-COA
LARRY WESLEY LAWRENCE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/15/1999
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS JR.
ROBERT N. BROOKS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY: KEN TURNER
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: 06/15/1999: BURGLARY OF A DWELLING HOUSE
(HABITUAL OFFENDER): SENTENCED TO 25 YEARS IN
THE MDOC, WITHOUT THE BENEFIT OF PAROLE,
SUSPENSION OR REDUCTION OF SENTENCE
DISPOSITION: AFFIRMED - 04/17/2001
MOTION FOR REHEARING FILED: 4/27/2001; denied 7/17/2001
CERTIORARI FILED: 7/24/2001; granted 9/20/2001
MANDATE ISSUED:
BEFORE McMILLIN, C.J., PAYNE, AND LEE, JJ.
McMILLIN, C.J., FOR THE COURT:
¶1. Larry Lawrence was arrested on December 30, 1998, without a warrant, after items matching the
description of property taken in a burglary were discovered in his vehicle. He was taken into custody on a
charge of possession of stolen property. Lawrence was held without benefit of a court appearance from the
time of his arrest until the morning of January 5, 1999, when he was brought before the Circuit Court of
Scott County. Shortly before that court appearance, Lawrence signed a written waiver of his Miranda
rights, confessed to the crime and gave information regarding the location of some additional property taken
in the burglary. Lawrence was tried and convicted of burglary, based largely on his confession and evidence
growing out of that confession. He now appeals claiming that the trial court erred when it refused to
suppress his confession based on the fact that it was an outgrowth of an unconstitutional confinement.
Lawrence raises four additional issues in his principal brief and filed a supplemental pro se brief in which he
attempts to present four more issues. For reasons we will proceed to explain, we affirm Lawrence's
conviction and resulting judgment of sentence.
I.
The Confession
¶2. Lawrence suggests that the failure to grant him an initial appearance within forty-eight hours of his
detention renders his subsequent confession, given while still incarcerated, inadmissible. The United States
Supreme Court has determined that the failure to have a neutral magistrate make a probable cause
determination regarding the basis for confinement within forty-eight hours of a warrantless arrest violates the
Fourth Amendment's shield against unreasonable seizures (subject to certain exceptions having no
application in this case). County of Riverside v. McLaughlin, 500 U.S. 44, 57-58 (1991). Uniform
Circuit and County Court Rule 6.03, apparently adopted to meet this requirement, states, in part, as
follows:
Every person in custody shall be taken, without unnecessary delay and within 48 hours of arrest,
before a judicial officer . . . . If the arrest has been made without a warrant, the judicial officer shall
determine whether there was probable cause for the arrest and note the probable cause determination
for the record.
URCCC 6.03.
¶3. The State argues in its brief that the admitted failure to comply with this rule can be excused by virtue of
the fact that law enforcement officials, after Lawrence had been arrested, went before a magistrate and
obtained an arrest warrant which was subsequently served on Lawrence at the place of his confinement.
We reject that argument. The State cites no authority that such a procedure is a proper substitute for
compliance with the applicable rules and our own research has uncovered no support for the proposition. It
is true that the initial appearance to determine probable cause may be extremely informal and need not be a
full-scale adversarial proceeding. Gerstein v. Pugh, 420 U.S. 103, 120 (1975). Yet all case law on the
subject reviewed by this Court suggests that the accused has at least the minimal protection of being present
during the course of the proceeding, no matter the informality with which it is conducted. Aside from that
consideration, we state what should be an obvious proposition. Once a procedure intended to protect an
accused's constitutional rights has been properly established, law enforcement officials are not free to
disregard the mandated procedure and, by some freelance process, design a substitute procedure that could
arguably pass constitutional muster. We, therefore, proceed on the basis that, at least for purposes of
analysis of this issue, Lawrence's Fourth Amendment rights were violated when he was denied an initial
appearance within forty-eight hours of his arrest.
¶4. Despite this finding, we note that an improper detention, of itself, is not ground to set aside a criminal
conviction subsequently obtained. Frisbie v. Collins, 342 U.S. 519, 522 (1952); Esparaza v. State, 595
So. 2d 418, 423 (Miss. 1992). Neither is the fact that a confession obtained after the time has expired
under the rules for an initial appearance, standing alone, a sufficient basis to exclude the confession. Powell
v. Nevada, 511 U.S. 79, 84 (1994); Veal v. State, 585 So. 2d 693, 699 (Miss. 1991). Thus, we
conclude that the failure to give Lawrence a timely initial appearance is but one of a number of factors to be
considered in determining whether, in the totality of the circumstances, it can be shown that his confession
was not freely and intelligently given. In this case, Lawrence alleges no specific prejudice growing out of his
continued confinement beyond the fact of the confinement itself. Neither does he point to other
considerations that might, in concert with the delay in getting him before a magistrate, cast doubt on the
voluntary nature of his statement. Rather, the record reflects that he freely and voluntarily waived his rights
under Miranda and proceeded to confess to the crime. We find no basis under constitutional principles to
exclude this confession.
II.
Batson Error
¶5. The State exercised a number of peremptory challenges against African American venire members. This
prompted the defense to suggest that the State was purposely attempting to exclude jurors based solely on
race, a practice forbidden by the case of Batson v. Kentucky, 476 U.S. 79 (1986). The trial court did an
informal statistical analysis of the strikes and concluded that the pattern of strikes raised a prima facie case
of discriminatory practice. Under Batson procedures, this finding required the State to offer race-neutral
reasons for the strikes. Id. at 93-94. The State proceeded to do so, and the trial court, as to each strike,
concluded that the State offered valid race-neutral reasons. As a result, all of the State's peremptory
challenges of African Americans were allowed.
¶6. In this appeal, Lawrence disputes only one of those challenges, claiming, not that the reason offered was
discriminatory on its face, but that it was pretextual and intended to disguise the true invidious purpose of
the State to exclude African Americans from the jury. The State said the challenge was based on
information from an African American deputy sheriff indicating that the juror suffered from mental or
emotional problems. The State contended that these problems would interfere with the potential juror's
ability to serve effectively. The defense offered no countering evidence or argument to refute the claim that
this potential juror's mental problems were such as to render her service undesirable. The trial court, noting
that the State had accepted another African American juror at the same time it was peremptorily challenging
this juror, concluded that the reason offered was both legitimate and race neutral. In assessing whether a
facially race-neutral reason is actually serving to mask a hidden racially-based motivation in shaping the jury,
the trial court is vested with substantial discretion. Davis v. State, 767 So. 2d 986 (¶21) (Miss. 2000).
There is nothing in this record or in Lawrence's argument before this Court on appeal to convince us that the
trial court abused its discretion in deciding to allow the State this peremptory strike.
III.
Denial of Psychiatric Evaluation
¶7. Lawrence insisted on representing himself during the trial phase; however, the trial court appointed an
attorney to advise Lawrence in his efforts. This attorney, prior to trial, moved the court to require Lawrence
to undergo a psychiatric examination to determine whether he was mentally fit to stand trial. The motion was
based upon evidence from an earlier motion hearing in which it was reported that Lawrence was under a
suicide watch in jail and had attempted suicide twice since his incarceration. The trial court concluded that
this evidence was not sufficient to raise an issue of Lawrence's mental competency to stand trial and
Lawrence now raises that as error. The burden of demonstrating that a reasonable probability exists that the
defendant is incapable due to mental problems of understanding the nature of the proceedings against him
and rationally participating in his defense is on the defendant. Richardson v. State, 767 So. 2d 195 (¶41)
(Miss. 2000). The trial court is charged with making that determination, and an appellate court may
overturn that decision only if it concludes that it was against the overwhelming weight of the evidence.
Emanuel v. State, 412 So. 2d 1187, 1189 (Miss. 1982). The trial court held that allegations of previous
suicide attempts and nothing more was insufficient to raise a legitimate issue of Lawrence's mental abilities to
appreciate the nature of a trial and to participate in an informed and meaningful way in the defense of the
case. Prior to the hearing on the motion, the trial court had undertaken a lengthy examination of Lawrence
when considering his request to represent himself and was convinced that Lawrence was lucid, intelligent,
aware of the nature of the proceedings, and understood fully the risks associated with representing himself.
We do not find an abuse of discretion in the fact that, after that thorough investigation into Lawrence's
abilities to represent himself, the trial court was not persuaded to change its view based on a report of two
unsuccessful suicide attempts.
IV.
Lawrence's Pro Se Defense
¶8. After insisting at the trial level that he be permitted to conduct his own defense, Lawrence now argues
on appeal that the trial court erred in acceding to his own demand. Lawrence's argument on this point
consists of a largely conclusory statement that the trial court was less than thorough in its efforts to ensure
itself that Lawrence was fully aware of the consequences of representing himself. See, e.g., Armstead v.
State, 716 So. 2d 576 (¶19) (Miss. 1998); URCCC 8.05. We have reviewed the dialogue between the
court and Lawrence when the matter was under consideration and find that the matter was explored in
depth. We also note that Lawrence was provided with an attorney to advise him and that, in fact, the
attorney took a much more active role in the defense than merely acting as an adviser. We find no abuse of
discretion in the handling of this matter that would require this Court to intercede and reverse the conviction.
V.
Failure to Quash the Indictment
¶9. Lawrence makes a perfunctory argument that the trial court should have quashed the indictment on its
own motion, apparently because it contained charges for which Lawrence did not receive an initial
appearance. Lawrence was originally arrested on a charge of receiving stolen property and his initial
appearance related to that charge. However, a grand jury subsequently indicted him for burglary based on
the fact that subsequent information implicated Lawrence in the burglary itself and not just for possessing
property derived from the burglary.
¶10. This issue lacks merit for any number of reasons. In the first place, this Court normally does not
consider issues not first presented to the trial court, and the record is clear that Lawrence did not seek to
have the indictment quashed in the circuit court. Florence v. State, 755 So. 2d 1065 (¶19) (Miss. 2000).
Aside from that, a defendant indicted by a grand jury is not entitled to an initial appearance as to the
charges in that indictment. McClurg v. State, 758 So. 2d 473 (¶19) (Miss. Ct. App. 2000), URCCC
6.05. Finally, as we have already observed, denial of an initial appearance unaccompanied by a showing of
some prejudice arising from the denial is not ground to void a criminal conviction and would thus not
constitute a valid basis to quash an indictment. McClurg, 758 So. 2d 473 at (¶19), Florence 755 So. 2d
1065 at (¶19).
¶11. The remaining issues were raised by Lawrence, proceeding pro se, in a supplemental brief.
VI.
Sufficiency of the Evidence
¶12. In this issue brought in Lawrence's pro se supplemental brief, Lawrence urges that the trial court erred
in denying his JNOV motion. Such a motion tests the sufficiency of the State's evidence. Johnson v. State,
642 So. 2d 924, 927 (Miss. 1994). Lawrence's argument on this point begins with the proposition that
some of the most damaging evidence, such as his confession, should have been excluded and, without that
evidence, there is nothing implicating him in the crime of burglary. The evident fallacy of that argument is
that, as we have already determined, the evidence was properly admitted. We are required to consider all
the evidence in the light most favorable to upholding the verdict. Daniels v. State, 742 So. 2d 1140 (¶11)
(Miss. 1999). Viewed in that way, there was sufficient evidence presented as to all the essential elements of
the crime.
VII.
Suppression of Evidence
¶13. Lawrence makes a heavily fact-laden argument that the trial court erred in admitting into evidence the
items discovered in Lawrence's vehicle when he was initially stopped. His argument consists primarily of an
assertion that the articles could not have been in plain view as the officer testified and that he had not given
permission for a more thorough search of the vehicle. Those were disputed issues of fact resolved by the
trial court sitting as trier of fact in the suppression hearing. McClain v. State, 625 So. 2d 774, 778 (Miss.
1993). Such findings are entitled to substantial deference when attacked on appeal. Id. We find Lawrence's
argument unpersuasive.
VIII.
Suppression of Confession
¶14. Lawrence attacks a second time the trial court's refusal to suppress his confession. His argument, once
again, consists essentially of an assault on the credibility of the police officers testifying as to the
voluntariness of Lawrence's statements. The resolution of such disputed issues of fact is for the trial court
and the court's determination is entitled to great deference. Id. We find no abuse of discretion in the trial
court's decision.
IX.
Ineffective Assistance of Counsel
¶15. After having strenuously asserted his right to represent himself, Lawrence now complains that he
received ineffective assistance of counsel by virtue of the services performed by the attorney appointed to
advise him in his defense. His grievance consists of reciting a number of instances where the attorney
allegedly failed to follow Lawrence's directions in presenting his defense. Lawrence does not explain why
Lawrence himself, essentially acting as lead counsel in the defense, could not have done the things himself.
See Estelle v. State, 558 So. 2d 843, 847 (Miss. 1990). We find this issue to be without merit.
X.
Lack of Initial Appearance
¶16. Lawrence attempts in his final issue to bolster his appellate counsel's argument regarding the
suppression of his confession. The supplemental argument continues to be based on the fact that the
confession was given when he remained incarcerated beyond the time for an initial "probable cause"
appearance before a neutral magistrate. The supplemental argument adds nothing new and we remain
satisfied that our resolution of the question as set out in Issue I herein is correct.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION
OF BURGLARY OF A DWELLING HOUSE AND SENTENCE OF TWENTY-FIVE YEARS,
WITHOUT BENEFIT OF PAROLE, SUSPENSION OR REDUCTION OF SENTENCE, IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.
KING AND SOUTHWICK, P.JJ., PAYNE, BRIDGES, THOMAS, LEE, IRVING,
MYERS AND CHANDLER, JJ., CONCUR.