287 So.3d 905
Miss.
2019

GEROME MOORE a/k/a GEROME MONTREAL MOORE v. STATE OF MISSISSIPPI

NO. 2017-KA-00379-SCT

IN THE SUPREME COURT OF MISSISSIPPI

DATE OF JUDGMENT: 03/02/2017

TRIAL JUDGE: HON. JEFF WEILL, SR.

TRIAL COURT ATTORNEYS: RANDY HARRIS

AAFRAM Y. SELLERS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: JACOB W. HOWARD

PHILLIP W. BROADHEAD

OFFICE OF STATE PUBLIC DEFENDER

BY: GEORGE T. HOLMES

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JOE HEMLEBEN

KATY TAYLOR GERBER

DISTRICT ATTORNEY: ROBERT SHULER SMITH

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED IN PART; VACATED AND REMANDED IN PART - 05/30/2019

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. A Hinds County grand jury indicted Gerome Moore for the capital murder of Carolyn Temple during the commission of a robbery. After a trial in the Circuit Court of the First Judicial District of Hinds County, a jury convicted Moore of capital murder. The trial court

conducted a sentencing hearing as provided in Miller v. Alabama1 and sentenced Moore to life imprisonment without parole. Moore now appeals both his conviction and his sentence.

¶2. We affirm Moore’s conviction of capital murder. Moore, though, had a statutory right to be sentenced by a jury. Thus, we vacate his sentence and remand the case for Moore to be resentenced by a jury.

FACTS AND PROCEDURAL HISTORY

¶3. On January 7, 2015, Moore, Antreal Jones and Antwain Dukes traveled in a maroon Impala to North Jackson in order to commit a robbery. Moore drove the group into Jackson, near downtown. They spotted Carolyn Temple exit a store, get in her white Mercedes and pull out onto the road. Moore decided to tail the Mercedes so that they could rob Temple. Moore followed Temple into the Belhaven neighborhood to the corner of Euclid Street and Pine Street. As Temple pulled into a driveway on Pine Street, Moore slowed the Impala for Dukes and Jones to get out.

¶4. As Dukes got out of the car, Moore handed him his loaded .380 handgun. Dukes and Jones then robbed Temple at gunpoint and shot her in the stomach.

¶5. After letting Dukes and Jones out, Moore turned the Impala around and idled on the street during the shooting. After the robbery, Dukes and Jones ran back to the car with Temple’s purse. Once Dukes got back in the car, he handed the gun back to Moore and exclaimed, “She would not give up the purse, so I blasted the bitch.” Moore drove the group away from the crime scene. As they drove away, someone threw Temple’s purse out of the

window.

¶6. Lance Tennyson, Temple’s neighbor, had heard the gunshot and saw the “dark burgundy-maroonish” car drive away, down Euclid Street. Tennyson heard the gunshot while he was watching television in his living room; he went to his front porch and looked toward the sound. He saw a car idling on Euclid Street. Just then, two black males ran up Pine Street. One got in the front passenger seat of the car, and the other entered the rear passenger seat of the car. The car then drove away. According to Tennyson, someone had already been sitting in the driver’s seat of the car.

¶7. As Moore drove away, Temple lay in the driveway clutching her stomach. She also had a wound to her head that was consistent with being struck with a blunt object. Soon after the shooting, neighbors—including Tennyson—ran to the scene and notified law enforcement. Once law enforcement arrived, Temple described her attackers as two black males in a maroon Impala. Temple was transported to the hospital and later died as a result of the gunshot wound.

¶8. Police recovered a single shell casing in the driveway. During the autopsy, a bullet was recovered from Temple’s spinal canal. The bullet was determined to have been fired from a .380 handgun.

¶9. Detective Daryl Owens led the investigation into Temple’s murder. Moore developed as a person of interest in the crime. Detectives Jermaine Magee and Rozerrio Camel interviewed Moore on January 13, 2015. Before questioning, Detective Magee informed

Moore of his Miranda2 rights. Moore indicated that he understood his rights and initialed beside a list of each one of them on a waiver form. Moore also signed and dated the form under the list of rights.

¶10. Detective Magee then recited the waiver paragraph from the form and encouraged Moore to read along with him. He asked Moore if he understood the waiver. Moore lifted his head in acknowledgment, mouthed an unintelligible response (that was affirmative in nature) and began to reach for his pen. Before he picked up the pen, Detective Magee asked him, “Okay. You wanna tell us, give us a statement?” Moore answered, “No, sir. I ain’t, I ain’t do nothin’.” Magee followed up, “Do you want to give us a statement and tell us?” Moore did not verbally answer Detective Magee’s second question. After a pause, he shook his head twice, negatively. Detective Camel then asked him, “Honest, do you want to talk to us?” Moore responded, “No, sir. I’ll talk to y’all, but . . . .”3 Detective Magee then stated, “Okay. Sign it. Sign it right here.” Next, Moore picked up the pen and signed the waiver form.

¶11. After Moore signed the waiver, Detectives Magee and Camel questioned him, and Moore did not indicate any desire to stop answering questions. He also did not invoke his right to counsel. In the end, Moore confessed to participating in the planning and execution

122 So. 3d at 700–03; Parker, 119 So. 3d at 995–1001. This is not to say that a specific case may not arise in which expert testimony could be helpful and could be allowed. While the trial court did not err in denying Moore’s motion for funds, Moore—given his resentencing before a jury—may seek funds on remand should his counsel determine that an expert witness is warranted. If Moore does request funds, the trial court, of course, will still need to determine if Moore is entitled to them.

CONCLUSION

¶62. We affirm Moore’s conviction of capital murder. Further, we vacate Moore’s sentence of life imprisonment without parole and remand to the trial court for Moore to be resentenced by a jury under Mississippi Code Section 99-19-101. The jury will determine if Moore should be sentenced to life imprisonment without parole or life imprisonment with eligibility for parole. If the jury determines that Moore should be eligible for parole, Moore is to be sentenced to life imprisonment with eligibility for parole, notwithstanding the provisions of Mississippi Code Section 47-7-3(1)(e).

¶63. AFFIRMED IN PART; VACATED AND REMANDED IN PART.

RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM AND GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND ISHEE, J.

KING, PRESIDING JUSTICE, DISSENTING:

¶64. It was plain error to admit Moore’s statement to police into evidence because the statement was given after he invoked his right to remain silent. Moore’s conviction should be reversed and the case should be remanded for a new trial; accordingly, I respectfully dissent.5

¶65. The video of Moore’s statement, introduced at the suppression hearing, showed that Detectives Magee and Camel interviewed Moore and had him sign a waiver of his Miranda6 rights. Yet, this waiver of rights was not signed as witnessed by either Magee or Camel. Instead, it was witnessed by Detective Owens, who never appeared in the video, but who was the lead detective on the case. During the suppression hearing, it was made clear that it was not normal procedure for pre-signed waiver forms to be used, nor was it normal procedure for a detective not interviewing the witness to sign a waiver form.

¶66. On the video, when asked if he wanted to give a statement, Moore initially responded, “No, sir. I ain’t, I ain’t do nothing.” The detectives again asked him if he wanted to give a statement. Moore unambiguously and unequivocally shook his head in the negative. The detectives again asked Moore if he wanted to talk to them, and Moore replied, “No, sir. I [indecipherable] talk to y’all, but . . . .” At that point, one of the detectives interrupted Moore and stated, “Ok. Sign. Sign right here.” Moore then said something indecipherable and both detectives forcefully responded, “Sign your name.” The detectives then extensively questioned Moore.

¶67. What occurred before the initiation of the video, namely whether Detective Owens attempted to interview Moore first, hence his signature on the waiver form despite not actually witnessing the waiver, is disputed. Detective Camel testified that he and Detective Magee interviewed Moore because when Moore was brought in, the detectives who “first started initially trying to talk to him . . . could not get anywhere with him. And he wouldn’t talk to them.” So Detectives Camel and Magee were “asked to go in and try to talk to him, see if we could get him to talk.” He reaffirmed multiple times in his testimony that other detectives had questioned Moore first and that Moore would not talk with them. (“Q. You stated that there were other detectives that were talking to Mr. Moore prior to you and Mr. Magee questioning him? A. Yes. Q. Where they had been in that same interview room? A. Prior to us. Q. They were? A. Prior to us.”) (“Q. Well you said other people tried to talk to him? A. That’s correct. What I’m saying, they tried to talk to him but there was no communication between them. Q. Okay. A. Wasn’t nothing said.”) (“Like I said, you know, (inaudible) and Ella started off the interview. And I can’t explain why we didn’t sign.”) (“Q. Is it possible that Detective Owens or Detective Thomas could have been watching through the two-way mirror as you and Detective Magee questioned him? A. I know they were, yes. Q. You know that happened? A. Yes.”). Detective Magee, on the other hand, at first testified that no one else interviewed Moore, then backtracked and testified several times that he “can’t answer” whether someone else interviewed Moore before he and Detective Camel did.7 Detectives Owens and Thomas both testified that they did not interview Moore.

¶68. On cross-examination, Detective Owens admitted that he had interviewed one of the other suspects in the case. When defense counsel pointed out that no report of this interview existed and that another detective testified that he had interviewed that suspect, Owens then stated that “according to [his] records,” he did not interview that suspect. Defense counsel tried to establish that Owens had signed a waiver form for that suspect as well, but the trial court limited cross-examination on that issue; thus Moore was unable to fully flesh out the meanings of the highly unusual procedure surrounding his statement.

¶69. The “invocation of the right to silence concerns whether an officer scrupulously honors a defendant’s right to cease questioning for a reasonable time, after which questioning may resume if the defendant knowingly and voluntarily waives this right.” Chamberlin v. State, 989 So. 2d 320, 334 (Miss. 2008). “No magic language must be used by an accused wishing to invoke his right to stop the interrogation.” Jones v. State, 461 So. 2d 686, 699 (Miss. 1984). “[A] suspect need not ‘speak with the discrimination of an Oxford don’ . . . .” Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (quoting Davis, 512 U.S. at 476 (Souter, J., concurring in judgment)). When a defendant invokes the right to silence, the interrogation must cease. Holland v. State, 587 So. 2d 848, 855 (Miss. 1991). However, an interrogator may ask questions to clarify ambiguous invocations. Id. at 856. Such an inquiry is “strictly limited” to “clarification purposes.” Id. “[A]n interrogator’s ‘behavior’ must not exceed the limits of permissible clarification.” Id. at 858. Thus, once any ambiguous invocation is clarified, there is no need for further clarifying questions. See Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) (negatively distinguishing the situation in which interrogators “persist[] in repeated efforts to wear down [the defendant’s] resistance and make him change his mind.”).

¶70. At the outset, Moore unambiguously invoked his right to remain silent by stating that he did not want to speak with the officers because he did not do anything. The majority construes the statement “No, sir. I ain’t, I ain’t do nothing[]” as ambiguous, because Moore stated his reasoning for invoking his right to silence after his clear, unambiguous, and unequivocal statement that “No, sir” he did not want to speak with police. Moore stating his reason for invoking his right to silence in no way undermines his unambiguous invocation of that right. “[S]o long as the suspect’s apparent motives do not cast genuine doubt on his desire to stop questioning entirely, then the issue of why he wants to do so is constitutionally irrelevant: the officer must scrupulously honor the suspect’s request.” Munson v. State, 123 P.3d 1042, 1049 (Alaska 2005). The majority claims that prior to this statement, Moore was “reaching for his pen” and then out of whole cloth “presum[es]” that its characterization of his movement was because Moore was going to waive his rights. Maj. Op. ¶ 39. Yet, the movement that the majority characterizes as “reaching for his pen” is Moore placing both his hands on the edge of the table at the same time. In no way is Moore obviously reaching for his pen or anything else. Describing his action as “reaching for his pen” requires much more guesswork and many more assumptions than the majority indicates. And this characterization is what the majority believes “bookend[s]” Moore’s statements. Maj. Op. ¶ 39.

¶71. Moreover, even assuming for the purpose of argument that Moore’s first invocation of his right to silence was ambiguous, as the majority concludes, his second invocation of the right to silence was certainly unambiguous and unequivocal. When the officer asked a “clarifying” question about whether Moore wanted to speak with them, Moore unambiguously shook his head “no.” A clear negative head shake, such as the one employed by Moore to invoke his right to silence, is a sufficient and clear invocation.8 See Chamberlin, 989 So. 2d at 333 (a head shake “no” in response to whether she was willing to answer questions was a successful invocation of her right to silence). After Moore’s unambiguous and unequivocal invocation of his right to silence, any ambiguity was clarified, and the officers had no basis to ask further clarifying questions.9 The majority inexplicably finds this unambiguous invocation in response to a clarifying question to be ambiguous, without adequately explaining how “no” is remotely ambiguous. An officer is not allowed to continue to ask “clarifying” questions until he or she receives the response she wants—the questioning must end once the invocation is clarified. Any further questioning exceeds

the limits of permissible clarification, and appears to be an effort to pressure Moore, or to “persist[] in repeated efforts to wear down [the defendant’s] resistance and make him change his mind.” Mosley, 423 U.S. at 105-06.

¶72. While Moore’s third invocation of his right to silence need not be analyzed as it was subsequent to his unambiguous invocation of the right, the majority finds that invocation to be ambiguous, as well. Yet, Moore again said “no,” he did not want to speak to police. He then stated, “I [indecipherable] talk to y’all, but . . . .” and the police officers pounced on him, interrupting his answer and instructing him to sign the waiver. Had Moore been allowed to complete his answer, perhaps his statement would be less “ambiguous.” As it stands, the officers did not allow Moore to complete his answer and to clarify it. The State cannot create the ambiguity and then reap the benefit of that ambiguity; here, the officers created any ambiguity by refusing to let Moore finish his “clarifying” answer.

¶73. The failure to cease interrogation after Moore’s invocation of his right to silence is made all the more troubling by the potential that Moore was interviewed by other officers first and refused to talk to them. The State admitted at the suppression hearing that it is unknown what, if anything, occurred in that first interview. The conflicts in the testimony of the various detectives are striking—while Detective Owens testified that he did not interview Moore, Detective Camel testified repeatedly and with certainty that Detective Owens had indeed attempted to interview Moore, but that the interview had been unsuccessful. Detective Camel’s testimony is bolstered by Detective Owen’s signature on Moore’s waiver of rights, despite a pre-signed waiver of rights having no place in police protocol. The testimony that Moore would not speak to the first detectives strongly implies that he may have invoked his right to silence during any first interview. The State, however, argued at the suppression hearing that the first interview was unimportant because “if there had been a first interview, well Detective Magee and Detective Camel went back through his Miranda rights.” Yet, had there been a first invocation of the right to remain silent, the interrogators must give a cooling-off period by waiting a reasonable amount of time before re-initiating questioning. The facts give no indication that any cooling-off period occurred.10

¶74. Because Moore invoked his Fifth Amendment right to remain silent prior to giving his statement to police, his statement was inadmissible as evidence against him, and the admission of the statement was plain error. Given that a substantial amount of the direct evidence against Moore came from his statement to the officers, such error is not harmless and results in a manifest injustice. Consequently, I would reverse Moore’s conviction and remand the case for a new trial.

KITCHENS, P.J., AND ISHEE, J., JOIN THIS OPINION.

Notes

1
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
It is unclear exactly what Moore said here. From a review of the recording in the record, Moore’s “No, sir” is not clear and could, arguably, be a “Yes, sir,” since it sounds different than Moore’s first clear “No, sir” and has a more audible “z” sound. Also, it is possible that the second portion of Moore’s statement is, “I’d talk to y’all, but.” (Emphasis added.)
5
While I agree with the majority’s conclusion regarding the sentencing issue, that issue would be moot were Moore’s conviction reversed and the case remanded for a new trial.
6
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
7
Tellingly, at trial, Detective Magee was asked whether Moore had ever indicated that he did not want to speak to police, and Detective Magee said that Moore never indicated that he did not want to speak. This is starkly contradicted by the video, in which Moore stated several times that he did not want to speak to police.
8
Ambiguities often tend to occur when invocations are in the form of a question or use the word “maybe,” as contrasts with Moore’s unambiguous repetition of the word “no.” See Holland, 587 So. 2d 848 (defendant asked a question about an attorney); Davis, 512 U.S. 452 (defendant used the equivocal word “maybe”); Gillett v. State, 56 So. 3d 469 (Miss. 2010) (defendant used the word “maybe”).
9
A head shake in the negative is universally understood as “no.” The majority’s argument that it is ambiguous “in context” logically must include a situation in which a defendant such as Moore verbally answered “no.” Thus, if Moore had verbally stated “no” to the second “clarifying” question, the majority would still deem that “ambiguous” “in context.” Such an argument stretches credulity. “No” is not ambiguous. Moreover, taken to its logical conclusion, a holding that a clearly negative head shake is “ambiguous” in its meaning could affect many of our cases. This Court frequently relies on records in which the court reporter’s transcript indicates that head movement is either positive or negative. According to the majority, this Court can no longer justify reliance on those notations, and attorneys should note that any such evidence in the record is now deemed “ambiguous.”
10
While this issue is reviewed for plain error, it is noteworthy that, had this been raised with the trial court, the State would have had the burden of proof to show that Moore’s statement was admissible. Chamberlin, 989 So. 2d at 332 (“The State has the burden of proving all facts prerequisite to admissibility beyond a reasonable doubt.”). On the record before this Court, it is clear that the State did not, and could not, prove admissibility beyond a reasonable doubt.
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