Devereaux v. State
| Docket Number: | 2010-KA-00710-COA Linked Case(s): 2010-KA-00710-COA ; 2010-CT-00710-SCT ; 2010-CT-00710-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-31-2011 Opinion Author: Ishee, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Burglary of building other than dwelling & Grand larceny - Miranda rights - Ineffective assistance of counsel - Right to remain silent Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers and Carlton, JJ. Non Participating Judge(s): Russell, J. Concur in Part, Concur in Result 1: Irving, P.J., and Roberts, J. Concurs in Result Only: Barnes and Maxwell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-21-2010 Appealed from: Tate County Circuit Court Judge: Andrew C. Baker Disposition: Convicted of Burglary of a Building other than a Dwelling and Sentenced to Seven Years Without Parole or Probation; and Convicted of Grand Larceny and Sentenced to Ten Years, to Run Consecutively to the Burglary Sentence Without Parole or Probation, All in the Custody of the Mississippi Department of Corrections District Attorney: John W. Champion Case Number: CR-2009-157-BT |
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| Party Name: | Attorney Name: | |||
| Appellant: | George Wesley Devereaux |
DAVID CLAY VANDERBURG, LESLIE S. LEE, JUSTIN T. COOK |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Burglary of building other than dwelling & Grand larceny - Miranda rights - Ineffective assistance of counsel - Right to remain silent |
| Summary of the Facts: | George Devereaux was convicted of burglary of a building other than a dwelling and grand larceny. The trial court found Devereaux to be a habitual offender and sentenced him to seven years for the crime of burglary of a building other than a dwelling, and to a consecutive term of ten years for grand larceny. Devereaux appeals. |
| Summary of Opinion Analysis: | Issue 1: Miranda rights Devereaux argues that his Miranda rights were violated due to ineffective assistance of counsel. The United States Supreme Court has provided that a suspect in a criminal investigation may waive his Miranda right to have counsel present during an interrogation. In order for a waiver to be deemed voluntary, a defendant must be aware of the nature of his self-incrimination rights and comprehend the consequences of waiving them. Although an attorney told Devereaux that he was present at the interrogation as Devereaux’s attorney and that he would properly object to any improper questioning, the attorney never objected to any questions and allowed Devereaux to sign a waiver of his Miranda rights prior to speaking with the detective. In fact, the attorney signed the Miranda waiver form himself in the witness line of the document. The attorney remained in the room during the entirety of the interrogation. Additionally, Devereaux made it known to the detective that he suffered from some mental instability and severe memory loss due to his contraction of and treatment for hepatitis C. Devereaux displayed obvious inabilities to focus and respond appropriately during conversations he was having with the detective and with the attorney. He further voiced concerns over his mental health and his corresponding ability to understand the proceedings taking place. As such, under no circumstances should Devereaux have been prompted to sign a form waiving his Miranda right to counsel when he had already requested counsel and the requested lawyer was present in the room with him. The attorney and the detective made every indication, both explicit and implicit, that the attorney was at the interrogation in order to represent Devereaux’s best interest during questioning, despite the attorney’s later insistence that he was not serving as Devereaux’s counsel at the time of the interrogation. Devereaux’s fragile mental condition necessitated the presence of a lawyer, to the point that Devereaux specifically requested one. As such, Devereaux’s waiver of his Miranda right to have counsel present on his behalf during the questioning in order to prevent self-incriminating statements from being made was not, in any way, voluntarily, knowingly or intelligently made, and the ensuing interrogation was a direct violation of Devereaux’s Fifth Amendment rights. None of the interrogation should have been presented to the jury due to the Fifth Amendment violation. Issue 2: Ineffective assistance of counsel Devereaux argues that he received constitutionally ineffective assistance of counsel during the pretrial interrogation. In this case, the attorney gave every indication to Devereaux that he was present at the interrogation in furtherance of Devereaux’s best interest. It is clear from the record that Devereaux was relying on the attorney to give him sound legal advice and guide him through the interrogation. Such guidance included advising Devereaux as to what consequences his statements to the detective would have for his defense at trial. The attorney advised Devereaux to cooperate fully with the detective and tell her what she wanted to know. In essence, the attorney encouraged Devereaux to incriminate himself. It is indisputable that the attorney did not act in the best interest of Devereaux when he allowed Devereaux to sign a waiver of his Miranda rights, nor did he act in his best interest during the interrogation. Thus, the trial court erred in failing to address Devereaux’s receipt of ineffective assistance of counsel during the pretrial interrogation. Issue 3: Right to remain silent Devereaux argues that the admission of the interrogation video violated his Fifth Amendment right to remain silent, as he was forced to take the witness stand in defense of the information within the video of his prior bad acts. Devereaux was faced with the option of taking the stand in order to mitigate the prejudice caused by the jury’s consideration of the highly prejudicial and inadmissible interrogation video or remaining silent and allowing the jury to consider his silence as evidence in the wake of the video. Such an option creates an indefensible position by essentially forcing an accused to testify in his own defense. |
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