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Mississippi Supreme Court: Failure to Timely File Motion to Suppress Confession Obtained as Result of Police Threats and Promises Constitutes Ineffective Assistance of Counsel

by Matt Clarke

The Supreme Court of Mississippi held that a defendant’s trial counsel was ineffective for failing to timely object to the introduction of a video recording of her client’s confession, which showed police officers making threats and promises to the defendant in order to elicit the confession.

A house that was under renovation was burglarized in Clarke County, Mississippi. Two days later, a car being chased by law enforcement crashed into a fence on property owned by Cynthia Burford’s mother. The occupants of the car, Burford and Casey Dunnigan, fled on foot. Identification belonging to Casey Dunnigan and items stolen during the burglary were found in the car, which was registered to a relative of Burford. Dunnigan and Burford were living in a shed behind her mother’s house. Deputies searched the shed and found more items stolen during the burglary.

Burford was arrested and held without bond while she was interrogated by Clarke County Sheriff’s Deputy Eric O’Neil, who recorded the 53-minute interrogation on two DVDs. Burford repeatedly denied any involvement in the burglary or knowledge of who committed the crime. O’Neil and other law enforcement personnel kept demanding that she “tell the truth,” but she continued to claim no knowledge of the burglary.

Her interrogators falsely told her that the evidence against her was stronger than it was and included felony charges for the car chase. She was threatened with the loss of her children and the maximum penalty of 25 years in prison for the burglary if she didn’t “tell the truth.” O’Neil told her that he could help her get a low bond, keep her children, and have the fleeing charge dismissed, and “not stay in jail until you go to the grand jury or go to trial or whatever, ok, we need the truth.” Burford still insisted that she knew nothing about the crime.

Finally, another deputy started a “bad cop” routine after which Burford eventually admitted she only waited in the car while Dunnigan burglarized the house and helped load stolen items into the car. O’Neil typed up what was purported to be a written summary of what Burford had said, which Burford signed, but it stated that Burford fully participated in the burglary and entered the house.

Burford’s trial counsel did not file a pretrial motion to suppress the confession and allowed the prosecution to admit into evidence two DVDs of the interrogation as well as the written statement prepared by O’Neil and signed by Burford.

The first DVD, which ended before the confession, was played to the jury, but the second turned out to be a duplicate of the first. When the prosecutor moved to substitute the second DVD with the correct one, Burford’s attorney objected on the grounds that Burford had been promised a lower bond and threatened with a higher bond, having her children taken, and getting 25 years in prison, thus rendering her confession involuntary. The trial court overruled the objection as untimely.

On cross-examination, O’Neil admitted making promises and threats to elicit a confession. Burford was convicted and sentenced to 15 years and fined. On appeal, her ineffective assistance of counsel claim was unsuccessful as the Court of Appeals held the record was insufficiently developed, so it should be raised in habeas corpus, not on direct appeal. Burford filed a petition for a writ of certiorari in the Supreme Court.

The en banc Court began its discussion by noting that both the U.S. and Mississippi Constitutions guarantee the right to effective assistance of counsel during criminal proceedings. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. A two-pronged test is used to determine whether defense counsel was constitutionally ineffective. See Strickland v. United States, 466 U.S. 668 (1984). The defendant bears the burden of proof to show that (1) “counsel’s performance was deficient[,]” and (2) “the deficient performance prejudiced the defense.” Taylor v. State, 167 So.3d 1143 (Miss. 2015) (quoting Strickland). The standard for performance “is that of reasonably effective assistance,” which is “an objective standard of reasonableness.” Strickland. To satisfy the prejudice prong, the “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

As to the voluntariness of confessions, the Court quoted the following from Manix v. State, 895 So2d 167 (Miss. 2005): “If a confession is the result of threat, inducements or promises—however slight—it is not voluntary,” and it is “inadmissible under the constitutional standards.” The Court explained that the test for whether the inducement is sufficient to render the confession involuntary is whether it’s “of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity.” Robinson v. State, 157 So.2d 49 (1963).

For example, demands by the police that the suspect “tell the truth” or to “come clean” are permissible. Flowers v. State, 601 So.2d 828 (Miss. 1992). On the other hand, police promising to help secure a bond or lighter sentence for the accused in exchange for a confession are impermissible. McNeil v. State, 308 So.2d 236 (Miss. 1975). “A confession made after the accused has been offered some hope of reward if he will confess or tell the truth cannot be said to be voluntary.” Abram v. State, 606 So.2d 1015 (Miss. 1992). Similarly, the threat of a harsher punishment if the suspect doesn’t confess can also amount to an improper inducement. See id.

The Court concluded that Burford’s trial counsel rendered deficient performance based on the fact that the record contains strong evidence that Burford’s confession “had been induced by threats and promises by the interrogating officers,” yet counsel failed to timely move to suppress the introduction of the DVDs and signed statement into evidence. The threats and promises made by the interrogators to obtain a confession are the very types prohibited by the case law. In fact, the Court characterized their threats and promises as “classic examples of the types of improper inducements to confess that have been found to render a confession involuntary.” Thus, the Court ruled that “any competent lawyer would have sought exclusion of Burford’s confessions as involuntary, and the failure to do so was deficient performance.”

As to the prejudice prong, the Court stated that there was a reasonable probability that a timely motion to exclude the confessions would have been granted. The Court pointed out that O’Neil actually testified that he, in fact, did make promises to Burford, and his “candid acknowledgment of his misconduct was not contradicted by anyone,” the Court stated. It concluded that “there is a reasonable probability that the trial court” would have ruled the confessions inadmissible “if presented with a timely opportunity” to do so, and “a reasonable probability exists that the outcome of Burford’s trial would have been different” but for counsel’s deficient performance. Thus, the Court held Burford’s defense counsel provided constitutionally deficient performance, and Burford was prejudiced because of counsel’s deficiency.

Accordingly, the Court reversed the decision of the Court of Appeals and Circuit Court and remanded for a new trial. See: Burford v. State, 2021 Miss. LEXIS 167 (Miss. 2021). 

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Related legal cases

Burford v. State

Taylor v. State

Manix v. State

Strickland v. Washington

McNeil v. State

Robinson v. State



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