IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-CT-01826-SCT
BLAINE BROOKS
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 10/10/2001
TRIAL JUDGE: HON. MIKE SMITH
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: RICHARD M. GOLDWASSER
PAUL McGERALD LUCKETT
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY: DUNN LAMPTON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 03/24/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, JUSTICE FOR THE COURT:
¶1. The following testimony was provided by Detective Robert Holmes in the murder
prosecution of Blaine Brooks:
I felt I had just a limited amount of time, before he was appointed an attorney, to try to
conduct a lineup. And that’s what I did. . . . Because . . . you’re going to be appointed
an attorney sooner or later.
[H]e informed me . . . he did not have an attorney. So at that point in time, I used my
advantage. I conducted a physical lineup . . . before he was appointed an attorney. . . .
I asked him if he’d like to speak with me? And he said, no, he did not. He
wanted to wait until he [sic] have an attorney for him.
¶2. This testimony, together with other errors discussed below, requires us to reverse this
murder conviction (which the Court of Appeals has previously affirmed) and to remand this
case for a new trial.
BACKGROUND FACTS AND PROCEEDINGS
¶3. We borrow from the Court of Appeals’ opinion the following recitation of facts:
On May 17, 1999, Merry Wilson was found dead in her home. Wilson died as
a result of multiple stab wounds inflicted by a two-pronged fork which was
recovered from her throat. The pathologist testified that Wilson had probably
died sometime between the twelfth and the fifteenth of May. Wilson had also
recently inherited $10,000 and her bed and mattress had been ransacked.
A neighbor, Sandra Graham, stated that she had seen an African American male
leaving the victim's home in the early morning of May 13. During a photographic
line-up, Graham identified Brooks as the man leaving Wilson's home that
morning. Prior to this, Brooks's mother, Towanda Nobles, had told her
half-sister, Sherry Maxine Hodges Smith, that Brooks told her that he had
stabbed Wilson. After Smith reported this statement to the police, neither
Brooks nor Nobles could be located. Brooks had taken a bus to Chicago on May
14th. Brooks was arrested in Chicago in July 2000 and extradited to Mississippi
in February 2001. There was a line-up at the jail, where Graham again identified
Brooks as the man she had seen leaving Wilson's home the morning of May 13th.
Brooks v. State, 2004 WL 1516503 (¶¶ 2-3) (Miss. Ct. App. 2004).
¶4. Because Brooks did not have counsel when he participated in the lineup, his trial
counsel moved to suppress the identification, and the testimony recited above was provided
at the hearing on that motion. After the trial court denied Brooks’s motion to suppress the
identification at the lineup, Brooks was convicted of murder and sentenced to serve life in
prison. On appeal to this Court, Brooks raises the following issues:
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I. Whether a defendant, who has invoked his right to counsel, later waives
his Sixth Amendment right to have counsel present at his lineup when he
subsequently participates in a lineup purposefully held before the
defendant is appointed counsel.
II. Whether a defendant who has been denied his right to counsel at a lineup
has the burden of demonstrating that the lineup was impermissibly
suggestive in order to exclude evidence of the lineup identification at
trial.
III. Whether an utterance made two to three days after a startling event is
properly admitted into evidence under the excited utterance exception to
rule against hearsay.
IV. Whether Rap Lyrics extolling murder were properly read to the jury
where there was not foundation laid for their introduction into evidence.
Because issues I and II are closely related, we will discuss them together.
DISCUSSION
I. Whether a defendant, who has invoked his right to counsel, later
waives his Sixth Amendment right to have counsel present at his
lineup when he subsequently participates in a lineup purposefully
held before the defendant is appointed counsel.
II. Whether a defendant who has been denied his right to counsel at a
lineup has the burden of demonstrating that the lineup was
impermissibly suggestive in order to exclude evidence of the lineup
identification at trial.
¶5. Although not precisely stated in the issues, the crux of Brooks’s argument to this Court
concerning the lineup identification is that Graham’s in-court identification was tainted
because she had previously identified him at a physical lineup without the presence of counsel
after adversarial proceedings against him had begun. We therefore will review both the in-
court and lineup identifications.
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¶6. A participant in a lineup has a constitutional right to have a lawyer present if the lineup
is held after adversarial proceedings had been initiated against him. Jimpson v. State, 532
So.2d 985, 988 (Miss. 1988); York v. State, 413 So.2d 1372, 1383 (Miss. 1982).
¶7. In Coleman v. State, 592 So.2d 517 (Miss. 1991), this Court held:
As a matter of the law of this state, the right to counsel attaches once the
accused is in custody (a fact generating the legal conclusion that the individual
is under arrest) and all reasonable security measures (of evidence and persons)
have been completed. At all critical stages thereafter, the accused is of right
entitled to access to counsel, absent a specific knowing and intelligent waiver
tied to that stage.
Id. at 520.
¶8. Adversarial proceedings had certainly commenced against Brooks prior to the lineup.
An arrest warrant had been issued, and he had been extradited from Illinois. Furthermore,
Brooks had signed a document indicating that he did not want to speak to any law enforcement
authorities either in Illinois or Mississippi for any investigation.
¶9. In United States v. Wade, 388 U.S. 218, 236-37, 87 S. Ct. 1926, 18 L.Ed. 2d 1149
(1967), the United States Supreme Court held:
Since it appears that there is grave potential for prejudice, intentional or not, in
the pretrial lineup, which may not be capable of reconstruction at trial, and since
presence of counsel itself can often avert prejudice and assure a meaningful
confrontation at trial, there can be little doubt that for Wade the post-indictment
lineup was a critical stage of the prosecution at which he was as much entitled
to such aid (of counsel) as at the trial itself. Thus both Wade and his counsel
should have been notified of the impending lineup, and counsel's presence
should have been a requisite to conduct of the lineup, absent an intelligent
waiver.
Id. (citations & quotations omitted).
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¶10. It is undisputed that adversarial proceedings had begun against Brooks at the time of the
physical lineup. He had not been arraigned; and he was not represented by counsel. Accepting
as true Detective Holmes’s testimony, he informed Brooks that he did not have to participate
in the lineup (although Brooks took the stand and denied the assertion), but he also testified
that Brooks did not respond and participated in the lineup. The Court of Appeals found this
lack of response to be an intelligent waiver. We disagree. This Court will “indulge every
reasonable presumption against the waiver of a constitutional right.” Vickery v. Stat e, 535
So.2d 1371, 1377 (Miss. 1988) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57
S.Ct. 809, 81 L.Ed. 1177 (1937)). Furthermore, silence can never be an intelligent waiver
where a defendant has invoked the constitutional right to have an attorney present. This Court
has held: “Just as written waivers are insufficient to justify police-initiated interrogations after
the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify
police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.”
Balfour v. State, 598 So.2d 731, 742 (Miss. 1992). If a written waiver is insufficient, then
even more so is silence.
¶11. We find that the physical lineup was conducted in violation of Brooks’s constitutional
right to counsel. Graham and Detective Holmes should not have been permitted to testify that
Graham identified Brooks at the physical lineup. In Gilbert v. California, 388 U.S. 263, 87
S. Ct. 1951, 18 L.Ed. 2d 1178 (1967), the United States Supreme Court held:
The State is therefore not entitled to an opportunity to show that that testimony
had an independent source. Only a per se exclusionary rule as to such
testimony can be an effective sanction to assure that law enforcement
authorities will respect the accused's constitutional right to the presence
of his counsel at the critical lineup. In the absence of legislative regulations
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adequate to avoid the hazards to a fair trial which inhere in lineups as presently
conducted, the desirability of deterring the constitutionally objectionable
practice must prevail over the undesirability of excluding relevant evidence.
Id. at 272-73 (emphasis added).
¶12. Trial error does not always require reversal. In Nicholson v. State, 523 So.2d 68, 74
(Miss. 1988), this Court held that:
The record in this case is unclear as to whether or not Nicholson was even under
arrest at the time of the voice lineup. However, even if the voice lineup was
conducted in violation of Nicholson's right to counsel, use of the voice lineup
identification testimony at trial was harmless constitutional error. In so holding,
we note that the voice lineup was not the first confrontation of the victim and
defendant. Ms. McKinion had previously identified Nicholson as her assailant
in a photo identification and an inadvertent voice showup, both of which she was
able to make because of the substantial amount of time she spent in intimate
contact with her assailant. Had this voice lineup been the first confrontation, and
in violation of Nicholson's right to counsel, under the rationale of Moore and
Gilbert, testimony of any subsequent pre-trial identifications would also have
been inadmissible because of the possibility of exploitation of the initial
illegality. See Moore [v. Illinois, 434 U.S. 220, 231 (1977);] Gilbert, 388 U.S.
at 273, 87 S.Ct. at 1957. In a related matter, we note that even if the voice
lineup had been conducted in violation of Nicholson's right to counsel, the
in-court identification would still be permitted "upon a showing by clear and
convincing evidence that the in-court identifications are based on
observations of the suspect other than a lineup identification." York at 1383,
citing U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)
(emphasis added).
523 So. 2d at 74.
¶13. Having found the lineup identification was conducted in violation of Brooks’s
constitutional rights, we must now determine whether the in-court identification was based on
observations of Brooks other than the lineup identification.
¶14. The record amply supports the State’s argument that Graham’s in-court identification
was based on observations of Brooks other than the lineup. She had identified him first at a
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photo lineup.1 More importantly, Graham clearly testified more than once that her in-court
identification of Brooks was based on her observation of him leaving the victim’s home on the
morning of the crime. She testified that she had no doubt in her mind that Brooks was the
person she observed. She testified that she walked by the victim’s house every day, and she
noticed unusual activity. She testified she looked directly at his face and Brooks looked back
at her. She saw him putting a cigarette in his mouth. She also testified that she saw “the
protrusions of his lips and the eyes and the hair.”
¶15. Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L.Ed. 2d 401 (1972), provides
five factors to be considered in evaluating the likelihood of misidentification. The factors
include (1) opportunity of witness to view the criminal at time of crime; (2) witness’s degree
of attention, (3) accuracy of witness’s prior description of the criminal, (4) level of certainty
demonstrated by witness at the confrontation, and (5) length of time between the crime and the
confrontation. Thus, under the holding in York and Biggers, we find that Graham’s independent
recollection of Brooks from the crime scene, followed by her identification from the photo
line-up, provide marginal insulation from the constitutionally impermissible identification at
the physical lineup, and the in-court identification was not error. We further hold that
standing alone, the error committed by the trial court in allowing testimony about the
unconstitutional identification at the physical lineup would be harmless. However, when
combined with the other error committed in this case, it further justifies reversal.
1
The photo identification was not made an issue before this Court.
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III. Whether an utterance made two to three days after a startling event
is properly admitted into evidence under the excited utterance
exception to rule against hearsay.
¶16. The State served notice on the defense that it intended to use at trial a hearsay statement
attributed to Brooks. The State planned to call Sherry Maxine Smith Hodges, who would
testify that she was told by Brooks’s mother, Towanda Nobles, that Brooks had admitted
committing the crime. Since this amounted to double hearsay, Brooks filed an objection which
resulted in a hearing.
¶17. At the hearing, Detective Robert Holmes was called as a witness by Brooks’s counsel.
He testified that he had interviewed Sherry Hodges, who gave details of the crime, and “she
would not have had knowledge of it not unless someone who specifically knew the details of
it could have told her.” He further testified that Sherry Hodges lied to him when she stated she
first heard of the murder on the police scanner. When Detective Holmes confronted her with
the fact that the news had not been on the police scanner, Sherry Hodges changed her story and
stated that she learned from Brooks’s mother, Mrs. Nobles. Sherry Hodges told the detective
that Mrs. Nobles had come to her home in a very emotional state of mind, and she told Hodges
that her son, Brooks, had confessed to the murder. Sherry Hodges told Detective Holmes that
she lied at first because “she knew she was going to have to end up testifying against her
relatives.”
¶18. Detective Holmes testified that he also interviewed Brooks’s mother, Towanda Nobles,
on May 17, 1999, who stated that she had learned of the murder from a friend named Pam
Smith. She further told Detective Holmes that she had not told Sherry Hodges that Brooks had
confessed the crime to her, that is, that Sherry Hodges’s statement “wasn’t true.”
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¶19. The trial judge ruled that Sherry Hodges would be allowed to testify about the
statements made by Brooks’s mother, including the confession. In the trial court’s opinion,
the statements were admissible under both the excited utterance exception to the rule against
hearsay, and the “catch-all” provision of M.R.E. 803(24).
¶20. At trial, Sherry Hodges provided the expected testimony, that is, three days following
the murder she was told by Brooks’s mother, who had been told by Brooks, that he (Brooks)
committed the crime.
¶21. Double hearsay “is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule . . . .” M.R.E. 805. The State claims
that Brooks’s confession to his mother amounted to a statement made against Brooks’s self
interest, which is an exception under M.R.E. 804(b)(3). The State further contends that,
because Nobles was crying and visibly upset as testified to by Smith, Nobles’s statement to
Smith was an excited utterance and therefore admissible. We do not agree. An excited
utterance is “[a] statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.” M.R.E. 803(2). The
murder occurred on May 13, 1999. When Brooks confessed to his mother at her place of
employment, he was wearing bloody clothes. This provides the only evidence of the date of
the confession which we must accept as May 13, the day of the murder. It wasn’t until three
days later that Nobles confided in her half-sister. Although the excited utterance exception
“sets no specific time limit, nevertheless, under our precedent case law, this Court has not
allowed the admission of an excited utterance exception when the time frame was more than
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twenty-four hours.” Smith v. State, 733 So.2d 793, 798 (Miss. 1999). The reason for this is
found in the comments to M.R.E. 803(2).
[T]he underlying theory of the excited utterance exception is that circumstances
may create such an excited condition that the capacity for reflection is
temporarily impeded and that statements uttered in that condition are thus free
of conscious fabrication. The essential ingredient is spontaneity. With respect
to time element, the issue is the duration of the excited state. This depending on
the exact circumstances of a case, vary greatly. The declarant need not be a
participant but only an observer of the event which triggered the excitement. An
excited utterance need only "relate" to the startling event, and therefore, the
scope of the subject matter of the statement may be fairly broad.
M.R.E. 803 cmt.
¶22. The Court of Appeals’ majority held that, since there was evidence of Nobles’s hysteria,
the trial court judge did not abuse his discretion. We disagree. There is little doubt that most
mothers would be stressed, even hysterical, upon hearing their child confess to committing
murder. However, because “this Court has not allowed the admission of an excited utterance
exception when the time frame was more than twenty-four hours,” Smith, 733 So. 2d at 798,
citing Heflin v. State, 643 So. 2d 512, 519 (Miss. 1994), the trial court abused its discretion
in finding the testimony qualified as an excited utterance.
¶23. The separate concurring opinions by King, C.J., and Southwick, P.J., disagreed with the
Court of Appeals’ conclusion that Nobles’s statement to Smith was an excited utterance.
Instead, they would have held that the trial judge was correct in finding that the statement was
“also admissible under 803(24).” This exception provides:
A statement not specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a material fact; (B)
the statement is more probative on the point for which it is offered than any
other evidence which the proponent can procure through reasonable efforts; and
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(C) the general purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence.
M.R.E. 803(24).
¶24. Because this case is being reversed on other grounds, the trial court will be required to
review this issue again. We find on the record before us that the testimony did not meet the
requirements of Rule 803(24). The trial court conducted a pretrial hearing, but only Detective
Holmes testified. The trial court should have also heard the testimony, including cross-
examination, from Sherry Hodges out of the presence of the jury. This would have afforded
the trial court an opportunity to witness her demeanor and judge her credibility (for purposes
of the hearsay exception) prior to making a determination of reliability. This is a very close
issue in this case. There are indications of reliability and reasons for concern.
¶25. Weighing against reliability, we have the fact that Sherry Hodges initially lied to the
police. We also are told that Hodges knew details of the murder not known to the general
public. Finally, this was double hearsay, which means that the court had no opportunity to
observe Brooks’s mother for purposes of reliability. This is particularly important since
Brooks’s mother denied to the police that Brooks confessed to her or that she said as much
to Sherry Hodges.
¶26. Weighing in favor of reliability, we have a mother in a very emotional state, providing
details which implicate her son in a murder. There is also confirmation that Brooks’s mother
was where Sherry Hodges said she was when Brooks allegedly told her of the murder. Also,
the explanation provided by Sherry Hodges of her initial lie, is reasonable.
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¶27. With all of these factors to be weighed in determining whether the double hearsay is
of sufficient reliability to be admissible, we hold that the trial court must hear a proffer of
Sherry Hodges’s direct testimony and cross-examination, prior to ruling on whether the
hearsay is admissible under Rule 803(24).
¶28. We therefore hold that the trial court abused its discretion in ruling the testimony
admissible under the excited utterance exception, and we further hold that the trial court abused
its discretion by failure to hear the testimony of Sherry Hodges prior to ruling on whether the
hearsay meets the exception provided under Rule 803(24). This may be done on retrial.
IV. Whether Rap Lyrics extolling murder were properly read to the
jury where there was not foundation laid for their introduction
into evidence.
¶29. Brooks asserts that the trial court erred in allowing the detective to read “rap” lyrics to
the jury without any prior foundation. This issue is bound up with a similar issue, and we will
address the two together.
¶30. The trial court allowed the State to introduce into evidence some rap lyrics presumably
written by Brooks which extolled murder. Additionally, the trial court allowed the State to
inform the jury that Brooks had been involved in gang activity and that he had a tattoo of the
Grim Reaper holding a pitchfork. The jury learned that Brooks’s gang uses the symbol of a six-
pointed star and a pitchfork as its signs. Brooks says this evidence of his character should not
have been allowed into evidence. M.R.E. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It
may, however be admissible for other purposes such as proof of . . . identity. .
..
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¶31. The State tells us this evidence was not offered to show Brooks’s bad character, but
rather for the purpose of identity because the victim was stabbed repeatedly in the neck with
a meat fork. In other words, the gang follows the devil; the devil uses a pitchfork; the victim
was stabbed with a meat fork.
¶32. When determining whether to admit evidence under Rule 404(b), we utilize a two- part
analysis. “The evidence offered must (1) be relevant to prove a material issue other than the
defendant's character; and (2) the probative value of the evidence must outweigh the prejudicial
effect." Crawford v. State, 754 So.2d 1211, 1220 (Miss. 2000) (citation omitted). In Hoops
v. State, 681 So.2d 521 (Miss. 1996), this Court held:
To be sure, evidence admissible under Rule 404(b) is also subject to the
prejudice test of Rule 403; that is, even though the Circuit Court considered the
evidence at issue admissible under Rule 404(b), it was still required by Rule 403
to consider whether its probative value on the issues of motive, opportunity and
intent was substantially outweighed by the danger of unfair prejudice. In this
sense Rule 403 is an ultimate filter through which all otherwise admissible
evidence must pass.
651 So. 2d at 530-31. In Hoops, although the trial judge did not use the “magic words,” this
Court found that he “implicitly made the determination.” Id. at 531.
¶33. Citing Hoops, the Court of Appeals deemed the following statement from the trial judge
to imply that he had made the determination under M.R.E. 403: “I’m going to let it in, yes. I’m
going to let them, this fork, and let the jury decide whether this fork represents a - - if that’s
the testimony, then I’m going to let the jury decide whether or not the fork represents a
pitchfork.” Brooks, 2004 WL 1516503 at (¶ 24).
¶34. The lyrics presumably written by the defendant make no mention of gangs. The lyrics
discuss murder by use of a gun, not a fork.
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¶35. We hold that the trial court made no attempt on the record to determine whether the
probative value of the evidence outweighed the prejudicial harm. Furthermore, we find that,
based upon the record before us, the tattoo and gang-related evidence would not have survived
a Rule 403 analysis had it been conducted.
CONCLUSION
¶36. Because of the violation of Brooks’s constitutional right to counsel at the lineup,
combined with the impermissible hearsay testimony and the improper admission of gang-
related evidence without proper foundation or M.R.E. 403 analysis, we reverse the judgments
of the Court of Appeals and the Pike County Circuit Court and remand this case to the circuit
court for a new trial consistent with this opinion.
¶37. REVERSED AND REMANDED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ
AND RANDOLPH, JJ., NOT PARTICIPATING.
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