Joshua Charles Miller v. State of Mississippi ( 1997 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-KA-01221-SCT
JOSHUA CHARLES MILLER
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 07/02/1997
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: LESLIE D. ROUSSELL
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: RICHARD LAWRENCE DOUGLASS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/06/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 5/27/99
BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.
WALLER, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. This appeal arose from a conviction in the Lamar County Circuit Court. Appellant Joshua Charles
Miller was charged with the murder of Kristin Aultman. Miller, a fourteen-year-old boy, had an on-again,
off-again romantic relationship with Aultman, a thirteen-year-old girl. On August 18, 1996, Miller shot and
killed Aultman with a twelve-gauge shotgun. The trial was moved to Canton because of undue publicity in
Lamar County. A Madison County jury found Miller guilty of murder. He was sentenced to life in prison.
Miller now appeals, listing the following five assignments of error:
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE STATE OF MISSISSIPPI TO MAKE A SUBSTANTIVE
AMENDMENT TO THE INDICTMENT HEREIN WITHOUT FURTHER ACTION OF
THE GRAND JURY
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO INSTRUCT THE JURY ON THE DEFINITION OF DELIBERATE
DESIGN WHEN ASKED TO DO SO BY THE DEFENDANT
III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE STATE OF MISSISSIPPI TO INTRODUCE A PICTURE OF THE
VICTIM'S BODY AS IT LAY AT THE CRIME SCENE EVEN THOUGH THERE WAS
NO DISPUTE AS TO THE CAUSE OF DEATH, THE PLACE AND TIME OF DEATH,
THE NAME OF THE DECEDENT, AND AT WHOSE HANDS SHE DIED.
FURTHERMORE, WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY ALLOWING THE STATE OF MISSISSIPPI TO INTRODUCE INTO
EVIDENCE A PRE-DEATH PHOTO OF THE THIRTEEN YEAR OLD VICTIM IN HER
CHEERLEADER UNIFORM
IV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO REMAND THIS CASE TO YOUTH COURT, AND WHETHER OR NOT
THE MISSISSIPPI YOUTH COURT ACT VIOLATES THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE MISSISSIPPI AND UNITED STATES
CONSTITUTIONS
V. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO SUPPRESS STATEMENTS MADE BY THE DEFENDANT HEREIN
FACTS OF THE CASE
¶2. On the day of the shooting, August 18, 1996, Miller was concerned because Aultman had rejected him.
After discussing his problem with Elliot Smith, a classmate and friend, Miller went to the Oloh Baptist
Church in Lamar County, Mississippi, to see Aultman, but there were a lot of people around so he left. He
came back before church started and asked her to talk with him outside. When the two walked outside,
Miller sat on the side of his van and talked with her. When Aultman told Miller she did not want to see him
anymore, Miller retrieved the shotgun from his van and shot Aultman in the head, immediately causing death.
Miller stated he only intended to scare Aultman with the shotgun, but was startled by children playing in the
churchyard.
¶3. After he shot Aultman, Miller was scared and sped away in his van toward a friend's house. Miller
wrecked the van and got out to meet his friend. After telling his friend he had killed Aultman, Miller walked
back toward the church.
¶4. As he was walking back, Miller met two officers on the road. Officers Terry Roseberry and L.W.
Warden saw Miller coming toward them and ordered him to stop and put his hands up. Roseberry asked if
he was Josh Miller. Roseberry stated Miller responded by saying, "Yes, I am the one who shot her."
Roseberry placed Miller under arrest. As he was putting Miller under arrest, Roseberry said "you are under
arrest." Miller then said "Yes, I know because I shot her." Roseberry told Miller not to make any further
statements.
¶5. The officers took Miller to the Lamar County Jail and placed him in the booking room to await
interrogation by an investigator. After being alone in the booking room for about ten to fifteen minutes,
Miller sent word to Officer Roseberry that he needed to see him. When Roseberry went to the booking
room to speak with Miller, Miller handed Roseberry a note and said, "You need this." According to
Roseberry, Miller must have written the note before he was arrested, because Miller did not have the
opportunity or the materials to write the note once he was taken into custody. Miller stated he wrote the
note while he was in the booking room waiting to be interrogated.
¶6. The note read:
Police or anybody who cares:
If you receive this from Joey, it probably means I already killed her. I loved her. She didn't. She hurt
me. I couldn't take. If she can't be mine she can't be anybody. I love God, but Satan has a hold of
me. I love you mom. I love Joey and all my family. What I have done is wrong. Forgive me.
/s/ Josh Miller(1)
¶7. Investigator Fred Steele arrived at the jail some time later and read Miller his Miranda rights and
questioned him. Steele stated Miller told him he had killed Aultman because she "hurt me real bad." Miller
also asked Steele if he was going to hell for killing Aultman. Steele stopped questioning Miller when Miller's
brother, an attorney, called the Sheriff's office to instruct Miller not to answer any more questions.
¶8. At trial Elliott Smith, with whom Miller had talked immediately prior to the murder, testified Miller told
him he wanted to kill Aultman. Smith stated he did not believe Miller would kill her. Miller denied making
the statement.
¶9. At the conclusion of the case, the jury was instructed on the requirements for murder and manslaughter.
After deliberations, the jury returned a verdict of guilty on the charge of murder. Miller was sentenced to life
in prison.
DISCUSSION OF LAW
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE STATE OF MISSISSIPPI TO MAKE A SUBSTANTIVE
AMENDMENT TO THE INDICTMENT HEREIN WITHOUT FURTHER ACTION OF
THE GRAND JURY
¶10. The case against Miller was initiated with the following indictment:
Joshua Charles Miller did wilfully, unlawfully, feloniously without authority of law and of his malice
aforethought, kill and murder one Kristen Aultman, a human being, contrary to and in violation of
Section 97-3-19 of the Mississippi Code of 1972, as amended; against the peace and dignity of the
State of Mississippi.
¶11. Upon motion by the State, the indictment was amended to read:
Joshua Charles Miller did wilfully, unlawfully, feloniously without authority of law and by his deliberate
design to effect the death of the person killed, or of any human being, and the defendant did shoot, kill
and murder one Kristin Aultman, a human being by shooting her with a shotgun, contrary to and in
violation of Section 97-3-19 (1)(a) of the Mississippi Code of 1972, as amended; against the peace
and dignity of the State of Mississippi.
¶12. The trial court granted the State's motion to amend, finding the change in the indictment was one of
form and not substance. Miller argues the trial court erred in finding the change in the indictment was not a
substantive change.
¶13. An indictment may not be amended to change the nature of the charge, except by action of the grand
jury which returned the indictment. Greenlee v. State, 725 So. 2d 816, 819 (Miss. 1998) (citing Akins v.
State, 493 So. 2d 1321, 1322 (Miss. 1986) (citing Jones v. State, 279 So. 2d 650, 651 (Miss.1973))).
Amendment of the indictment is permissible if the change is to the form of the indictment and not to the
substance. Greenlee at 821. (citing Rhymes v. State, 638 So. 2d 1270, 1275 (Miss. 1994)).
It is well settled in this state . . . that a change in the indictment is permissible if it does not materially
alter facts which are the essence of the offense on the face of the indictment as it originally stood or
materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's
case.
Greenlee at 821 (quoting Wilson v. State, 574 So. 2d 1324, 1333 (Miss. 1990) (quoting Ellis v. State,
469 So. 2d 1256, 1258 (Miss. 1985) (quoting Shelby v. State, 246 So. 2d 543, 545 (Miss.1971)))).
"The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it
originally stood would be equally available after the amendment is made." Greenlee at 822 (citing Griffin
v. State, 584 So. 2d 1274, 1276 (Miss. 1991).
¶14. The changes to the indictment sought by the State in the case sub judice are the same changes sought
by the State in Greenlee. In Greenlee, we held those changes were to the form and not to the substance of
the indictment. See Greenlee at 822. Miller cannot credibly claim he did not know for what crime he was
to be tried, nor can Miller claim the amendment did not afford him an opportunity to prepare and present a
proper defense. This assignment has no merit.
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO INSTRUCT THE JURY ON THE DEFINITION OF DELIBERATE
DESIGN WHEN ASKED TO DO SO BY THE DEFENDANT
¶15. Deliberate design is an element the State is required to prove beyond a reasonable doubt before a
defendant can be convicted of murder. See Miss. Code Ann. § 97-3-19 (1)(a) (1994).
¶16. Miller offered the following jury instruction, D-12, defining deliberate design.
D-12: The Court instructs the Jury that Deliberate Design means intent to kill without authority of law,
or killing without legal justification, legal excuse or under circumstances that reduce the act to a lesser
crime. Deliberate design indicates full awareness of what one is doing, and generally implies careful
and unhurried consideration of the consequences.
The trial court refused Miller's instruction. The State did not offer an instruction defining deliberate design.
Miller now argues the trial court committed reversible error in refusing to grant the offered instruction
because the jury was not adequately instructed on the meaning of deliberate design.
¶17. Miller relies on our decision in Catchings v. State, 684 So. 2d 591 (Miss. 1996), to support his
argument that his conviction should be reversed because the jury was not adequately instructed on the
elements of murder. In Catchings, the defendant requested a definitional instruction on deliberate design,
but the court refused to grant the instruction because the elements of murder were sufficiently defined by
other accepted instruction. Catchings, 684 So. 2d at 599. Miller asserts that, although his case is similar to
Catchings, the fundamental difference is that the Catchings jury was fully instructed on all the elements of
murder, while Miller's jury was not.
¶18. In Catchings we refused to reverse the defendant's murder conviction because the manslaughter
instruction given was not warranted under the facts of the case. Id. at 595. Catchings sought reversal
because the trial court had refused an instruction defining deliberate design. Id. However, we reasoned that
because there was so little evidence supporting manslaughter, the failure to grant the definitional instruction
on deliberate design made no difference in the outcome of the case. Id. at 595.
¶19. Recently in Williams v. State, No. 95-CT-01199-SCT, 1998 WL 852598 (Miss. Dec. 10, 1998),
we addressed a similar situation. Williams was convicted of murder and challenged his conviction based on
improper instructions. The Williams jury was instructed on the elements of murder and manslaughter, but
was not given an instruction which adequately described the required elements of deliberation or
premeditation for murder. We described the evidence of deliberate design against Williams as "weak" and
reversed and remanded for a new trial. Williams, at *1. We summed up the focus in Williams this way:
What is under consideration in this case is whether, in a prosecution for deliberate design murder,
where a manslaughter instruction is warranted and granted, the jury should be instructed as to how to
determine the "aforethought" portion of "malice aforethought" or the "deliberation" portion of
"deliberate design." We hold that such an instruction is proper in such a case as this, and error in this
case to refuse a proper instruction. . . .
Williams, at *4.
¶20. The reversal of the murder conviction in Williams was distinguished from the affirmance of the murder
conviction in Catchings because the manslaughter instruction in Williams "was clearly warranted as there
is ample evidence from which the jury could infer that Williams acted on impulse or in the heat" of passion.
No such evidence existed in Catchings. Id. at *4.
¶21. In the case sub judice, the evidence supporting the State's theory of murder is overwhelming. Miller
told a friend he was going to kill Aultman because she rejected him. Miller called Aultman outside the
church to his van. Miller pulled the shotgun out of his van and shot Aultman. Miller gave police a note he
had written stating that he killed her because "she hurt me" and "If she can't be mine she can't be anybody."
Miller confessed that he had killed Aultman during an interrogation by Investigator Steele. Miller agrees
with this description of events, except that he says the gun went off when he was startled by kids playing in
the churchyard. . The particular defense asserted by Miller, an accidental shooting occurring after a
deliberate confrontation, was fully put by the particular manslaughter instruction he received. That
manslaughter instruction did not require a jury to distinguish between a deliberate act done on sudden
impulse in the heat of passion and one done according to some preformed intent. In these circumstances,
the jury did not need the additional guidance of the deliberate design instruction proffered.
¶22. Based on our prior rulings in Catchings and Williams, this assignment has no merit.
III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE STATE OF MISSISSIPPI TO INTRODUCE A PICTURE OF THE
VICTIM'S BODY AS IT LAY AT THE CRIME SCENE EVEN THOUGH THERE WAS
NO DISPUTE AS TO THE CAUSE OF DEATH, THE PLACE AND TIME OF DEATH,
THE NAME OF THE DECEDENT, AND AT WHOSE HANDS SHE DIED.
FURTHERMORE, WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY ALLOWING THE STATE OF MISSISSIPPI TO INTRODUCE INTO
EVIDENCE A PRE-DEATH PHOTO OF THE THIRTEEN YEAR OLD VICTIM IN HER
CHEERLEADER UNIFORM
¶23. Miller argues the trial court committed reversible error when it admitted into evidence two photographs
of the victim. Miller challenges the admission of a pre-death photograph of Aultman and a blow up of a
photograph of Aultman's body as it was found at the crime scene. Miller asserts the admission of these
photographs constituted reversible error because their admission was more prejudicial than probative.
¶24. We have held the trial judge has very broad discretion concerning the admission of photographs.
Gosset v. State, 660 So. 2d 1285, 1292 (Miss. 1995). Even where the issue for which the photograph is
introduced is ultimately stipulated to, "[a]s a general rule, the fact that a photograph of the deceased in a
homicide case might arouse the emotions of jurors does not of itself render it incompetent in evidence so
long as introduction of the photograph serves some legitimate, evidentiary purpose." Walker v. State, 671
So. 2d 581, 601 (Miss. 1995) (quoting May v. State, 199 So. 2d 635, 640 (Miss. 1967)).
¶25. The State argues the photographs were probative of the distance from which the victim was shot and
how the shooting occurred. Considering Miller argued the shooting was accidental, the State's argument on
this point is well taken. A pre-death photograph of the victim compared to a photograph of the victim at the
crime scene could be said to be probative on the issue of how the shooting occurred. The trial judge did not
abuse his discretion in admitting these photographs. This assignment has no merit.
IV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO REMAND THIS CASE TO YOUTH COURT, AND WHETHER OR NOT
THE MISSISSIPPI YOUTH COURT ACT VIOLATES THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF THE MISSISSIPPI AND UNITED STATES
CONSTITUTIONS
¶26. In this assignment of error, Miller asserts that the jurisdictional provisions of the Youth Court Act in
Miss. Code Ann. § 43-21-151 (Supp. 1998) are unconstitutional because they violate his due process and
equal protection rights under the United States Constitution and the Mississippi Constitution.
¶27. Miller cites only Mississippi Bd. of Nursing v. Belk, 481 So. 2d 826 (Miss. 1985), for the
proposition that the State cannot provide protection to one class of individuals while at the same time
excluding from protection another class of individuals similarly situated. In Belk, we held the State denied
experienced nurse anesthetists their full equal protection rights by requiring nurse anesthetists to follow a
more rigorous certification procedure while requiring registered nurses to pay a fee for the same
certification. The Belk Court found the State's separate classification of nurse anesthetists and registered
nurses to be arbitrary under the circumstances and to violate the equal protection clause of the fourteenth
amendment to the United States Constitution. Belk, 481 So. 2d at 830-31. Miller attempts to stretch the
holding in Belk to support his proposition that the jurisdictional provisions of the Youth Court Act
arbitrarily and unconstitutionally distinguish between juvenile offenders charged with crimes punishable by
death or life imprisonment and juvenile offenders charged with lesser crimes.
¶28. The jurisdictional provisions of the Youth Court Act in § 43-21-151 state:
(1) The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent
child, a child in need of supervision, a neglected child, an abused child or a dependent child except in
the following circumstances:
(a) Any act attempted or committed by a child, which if committed by an adult would be punishable
under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit
court;
(b) Any act attempted or committed by a child with the use of a deadly weapon, the carrying of which
concealed is prohibited by Section 97-37-1, or a shotgun or a rifle, which would be a felony if
committed by an adult, will be in the original jurisdiction of the circuit court;
Miss. Code Ann. § 43-21-151(1) (a)&(b) (Supp. 1998).
¶29. We have previously addressed the constitutionality of these provisions in the death penalty context
where a juvenile defendant challenged circuit court, as opposed to youth court, jurisdiction on cruel and
unusual punishment grounds. See Foster v. State, 639 So. 2d 1263, 1295-96 (Miss. 1994) (per Smith, J.,
with three Justices concurring and two Justices concurring in result only) ("[w]hich court has jurisdiction
over a capital death case dealing with a seventeen year old cannot constitute cruel and inhuman punishment
as the issue of which court has jurisdiction fails to constitute any punishment whatsoever."). We have not yet
addressed the constitutionality of the jurisdictional provisions based on the type of equal protection claim
Miller raises on appeal.
¶30. The State directs us to Hoops v. State, 681 So. 2d 521 (Miss. 1996), where we addressed the
burden placed on a defendant who challenges the constitutionality of a statute:
With regard to the duties cast upon the assailant of a legislative enactment, the rule is fixed that a party
who alleges the unconstitutionality of a statute has the burden of substantiating his claim and must
overcome the strong presumption in favor of its validity. It has been said that the party who wishes to
pronounce a law unconstitutional takes on himself the burden of proving this conclusion beyond all
doubt, and that a party who asserts that the legislature has usurped its power or has violated the
Constitution must affirmatively and clearly establish his position.
Hoops, 681 So. 2d at 536 (quoting Touart v. Johnston, 656 So. 2d 318, 321 (Miss. 1995)).
¶31. Miller has failed to make the required showing that his equal protection rights have been violated.
Miller has failed to show the Legislature has usurped its power by requiring original circuit court jurisdiction
for all cases where a juvenile has committed a crime punishable by death or life imprisonment. Other than
the reasoning from Belk, Miller has offered no authority supporting his claim that the State has arbitrarily
separated juveniles into two separate classes. This assignment has no merit.
V. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO SUPPRESS STATEMENTS MADE BY THE DEFENDANT HEREIN
¶32. After his arrest, Miller was taken to the Lamar County Sheriff's office and placed in the booking room
to await the arrival of Investigator Fred Steele. After being alone in the booking room for about ten to
fifteen minutes, Miller sent word to Officer Roseberry that he needed to see him. When Roseberry went to
the booking room to speak with Miller, Miller handed Roseberry a note and said, "You need this."
According to Roseberry, Miller must have written the note before he was arrested because Miller did not
have the opportunity or the materials to write the note once he was taken into custody. Miller stated he
wrote the note while he was in the booking room waiting to be interrogated. When Investigator Steele
arrived, he Mirandized Miller and asked why he killed Aultman. Miller told Steele he killed Aultman
because, "she hurt me real bad." Miller sought to have this statement and the note suppressed.
¶33. Miller first challenges the admission of the note by arguing he was not properly Mirandized before the
note was turned over to police. Miller next challenges the admission of his statements to Steele and the note
by arguing he cannot intelligently waive his rights as a juvenile.(2)
¶34. We have held when the trial court expressly or implicitly resolves the issue of admissibility of a
confession against a defendant, the scope of review of that decision is limited.
In Stokes v. State, 548 So. 2d 118, 122 (Miss. 1989), we held that when the circuit court expressly
or implicitly resolves the issue of admissibility of a confession against a defendant, the scope of review
is confined to the established limits. In Alexander v. State, 610 So. 2d 320 (Miss. 1992), we set out
those limits:
This is essentially a fact-finding function. So long as the court applies the correct legal standards, we
will not overturn a finding of fact made by a trial judge unless it be clearly erroneous or contrary to the
overwhelming weight of the evidence.
Where, on conflicting evidence, the lower court admits a statement into evidence this Court generally
must affirm.
Dancer v. State, 721 So. 2d 583, 587 (Miss. 1998) (internal citations & punctuation omitted).
¶35. In Greenlee v. State, a case involving a fifteen-year-old juvenile, we discussed Miranda
requirements. The threshold question in a Miranda rights analysis is whether the defendant was in custody
and being interrogated when the statement in question was made. Greenlee, 725 So. 2d at 825 (citing
Hunt v. State, 687 So. 2d 1154, 1159 (Miss. 1996)). Neither general on the scene questioning, nor
voluntary statements made by a defendant are enough to trigger the requirements of Miranda. Greenlee,
725 So. 2d at 825 (citing Hunt, 687 So. 2d at 1159 (citing Miranda v. Arizona, 384 U.S. 436, 477-78
(1966))).
¶36. The State has the burden of proving beyond a reasonable doubt that any confession given, was given
voluntarily. Haymer v. State, 613 So. 2d 837, 839 (Miss. 1993). The State can make a prima facie case
that it has met this burden through, "testimony of an officer, or other persons having knowledge of the facts,
that the confession was voluntarily made without any threats, coercion, or offer of reward." Cox v. State,
586 So. 2d 761, 763 (Miss. 1991). When the prima facie case is made, it is up to the defendant to present
evidence to rebut the State's argument. Cox, 586 So. 2d at 763.
¶37. The State presented ample evidence to show that Miller was not interrogated until Investigator Fred
Steele went to the booking room, read Miller his rights and questioned him. In fact, when Miller was
arrested the officers cautioned Miller not to make any statements. Officer Roseberry testified that after
Miller was arrested, Miller had neither the materials nor the opportunity to write the note Miller turned over
to police, so the note must have been written before Miller was arrested. Miller presented no evidence,
other than his own statement, to show he wrote the note while in the booking room. Even assuming
arguendo Miller did, as he claims, write the note in the booking room, the note was not the product of an
interrogation and must be considered voluntary.
¶38. Miller also challenges the admission of the note and the admission of his statement to Officer Steele on
the basis that a minor cannot intelligently waive his rights. This argument was rejected by this Court in
Morgan v. State, 681 So. 2d 82 (Miss. 1996) and most recently in Clemons v. State, No. 97-KA-
00373, 1999 WL 62782 (Miss. Feb. 11, 1999). We decline to adopt it today. This assignment is without
merit.
CONCLUSION
¶39. The conviction of Joshua Miller for the murder of Kristen Aultman is affirmed. The amendment to the
indictment was to form and not to substance and did not affect Miller's ability to present a defense. The trial
court's refusal to grant an instruction defining deliberate design was not error because the jury was properly
instructed and there was little evidence supporting the manslaughter instruction. The trial court did not abuse
its discretion in admitting the photographs of Kristen Aultman into evidence. Miller has failed to demonstrate
that the jurisdictional provisions of the Mississippi Youth Court Act violate his rights to due process and
equal protection under the United States and Mississippi Constitutions. Miller's statement and the note he
gave police were properly admitted into evidence. The judgment of the Lamar County Circuit Court is
affirmed.
¶40. CONVICTION OF MURDER AND SENTENCE TO SERVE A TERM OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH AND MILLS, JJ.,
CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION. COBB, J., NOT
PARTICIPATING.
McRAE, JUSTICE, DISSENTING:
¶41. The defendant in this case was fourteen years old at the time of the crime. A fourteen year old cannot
knowingly and intelligently waive his Miranda rights. Therefore, I dissent.
¶42. I find it anomalous that we continue to adhere to the fiction that a minor does not possess the
sophistication to make informed decisions in civil matters but is intelligent enough to do so in all matters
criminal, especially considering that in this country we profess to believe that a person's freedom should
have greater protections than his pocketbook. Persons fourteen and under cannot consent to sexual
intercourse [Miss. Code Ann. § 97-3-65(1)(b) (1998)](3); if they are under eighteen, they cannot legally
enter into contracts, buy or sell property, vote, maintain a residence or even choose the parent with whom
they wish to live when their parents divorce. Under the age of twenty-one, a person cannot drink alcohol,
purchase tobacco, or enter a casino.
¶43. Indeed, many jurisdictions consider anyone under the age of fourteen to be of "tender years"(4) and
thus, deserving of special protection from the legal system. For instance, a child of tender years is entitled to
invoke the attractive nuisance doctrine to recover from a landowner who permits the existence of a
dangerous condition on his property of the sort likely to attract children. Hughes v. Star Homes, 379
So.2d 310, 304 (Miss. 1980). Because of their immaturity, children may not testify without the trial court
having first satisfied itself that the child is capable of testifying. Brent v. State, 632 So.2d 936, 942
(Miss.1994) ("[b]efore allowing a child witness to testify, the trial judge should determine 'that the child has
ability to perceive and remember events, to understand and answer questions intelligently and to
comprehend and accept the importance of truthfulness"); M.R.E. 803(25).
¶44. The legislature has defined a "minor" as well as an "infant" as anyone under the age of twenty-one.
Miss. Code Ann. § 1-3-27 (defining minor); § 1-3-21 (defining infant). A child or youth has been defined
by the legislature as anyone under the age of eighteen. Miss. Code Ann. §43-16-3(a); § 43-17-3(c); §43-
21-105(d); § 43-23-3(c).
¶45. Therefore, I maintain, as I did in my dissent in Clemons v. State, No. 97-KA-00373-SCT, 1999
WL 62782 (Miss. 1999), that this Court is in error when it fails to extend the special protections given
minors to the criminal arena.
¶46. Accordingly, for the same reasons I expressed in Clemons, I dissent.
1. Joey apparently refers to Joey Robertson, described by Miller as his best friend.
2. Miller does not argue his statements to Officer Roseberry and Officer Warden at the time he was
arrested are inadmissible.
3. Indeed, mistake as to the victim's age is no defense to statutory rape. Collins v. State, 691 So.2d 918(Miss. 1997). "The age of the victim makes or breaks the conviction." Washington v. State, 645 So.2d
915, 919 (Miss. 1994).
4. See Comment to Miss.R.Evid. 803(25). The Comment advises that children over fourteen may be
considered to be of tender years where they have a mental age of less than fourteen. See, e.g., Hashtani
v. Duke Power Co., 578 F.2d 542 (4th Cir. 1978) (14 year old who had flunked first grade was of tender
years and entitled to invoke attractive nuisance doctrine).