Opposition Brief — Willie Cory Godbolt, Petitioner v. Mississippi
Supreme Court briefMar 12, 2025
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No. 24-6257
IN THE
Supreme Court of the United States
————
WILLIE CORY GODBOLT,
Petitioner,
v.
THE STATE OF MISSISSIPPI,
————
Respondent.
On Petition for a Writ of Certiorari to the
Supreme Court of Mississippi
————
BRIEF IN OPPOSITION
————
LYNN FITCH
Attorney General
ALLISON KAY HARTMAN
Special Assistant
Attorney General
Counsel of Record
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, MS 39205-0220
Allison.Hartman@ago.ms.gov
(601) 359-3840
Counsel for Respondent
CAPITAL CASE
QUESTION PRESENTED
Petitioner murdered eight people during an hours-long killing spree. A jury
convicted him of capital murder (among other crimes) and sentenced him to death.
The Mississippi Supreme Court affirmed, rejecting (among other claims) petitioner’s
challenges to four evidentiary rulings, to a ruling on a psychiatric evaluation of
petitioner, and to trial counsel’s performance. The petition for certiorari presses those
six challenges.
The question presented is whether this Court should review the Mississippi
Supreme Court’s fact-bound rejection of petitioner’s claims when that decision
correctly applies settled legal standards, does not raise any lower-court conflict, and
does not present any recurring question of federal law warranting this Court’s
intervention?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................................................................. i
TABLE OF AUTHORITIES ......................................................................................... iii
OPINION BELOW......................................................................................................... 1
JURISDICTION............................................................................................................. 1
STATEMENT ................................................................................................................. 1
REASONS FOR DENYING THE PETITION ............................................................ 12
CONCLUSION............................................................................................................. 27
BIO APPENDIX
Feb. 7, 2018 Report, State of Mississippi Office of the Attorney General Cyber
Crime Center, Mississippi v. Godbolt, Case No. 2018-064-LS (Def.’s Ex. 26)
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abel v. United States,
362 U.S. 217 (1960) ................................................................................................. 20
Ake v. Oklahoma,
470 U.S. 68 (1985) .............................................................................................. 24, 25
Anderson v. Suiters,
499 F.3d 1228 (10th Cir. 2007) ................................................................................ 15
Arizona v. Youngblood,
488 U.S. 51 (1988) .................................................................................................... 23
Berger v. Hanlon,
129 F.3d 505 (9th Cir. 1997), vacated and remanded by 526 U.S. 808 (1999),
judgment reinstated by 188 F.3d 1155 (9th Cir. 1999) ........................................... 15
Brady v. Maryland,
373 U.S. 83 (1963) ........................................................................................ 11, 21, 22
Branzburg v. Hayes,
408 U.S. 665 (1972) ............................................................................................ 15, 16
Brentwood Academy v. Tennessee Secondary School Athletic Ass’n,
531 U.S. 288 (2001) ............................................................................................ 14, 15
California v. Carney,
471 U.S. 386 (1985) .................................................................................................. 20
Chimel v. California,
395 U.S. 752 (1969) .................................................................................................. 19
Edwards v. Arizona,
451 U.S. 477 (1981) .................................................................................................. 18
Fellers v. United States,
540 U.S. 519 (2004) .................................................................................................. 18
Franks v. Delaware,
438 U.S. 154 (1978) .................................................................................................. 19
Haynes v. Washington,
373 U.S. 503 (1963) .................................................................................................. 18
iv
Hester v. United States,
265 U.S. 578 (1924) .................................................................................................. 20
Horton v. California,
496 U.S. 128 (1990) .................................................................................................. 20
In re Roche,
448 U.S. 1312 (1980) ................................................................................................ 15
Kentucky v. Stincer,
482 U.S. 730 (1987) .................................................................................................. 14
Maine v. Moulton,
474 U.S. 159 (1985) .................................................................................................. 18
Massaro v. United States,
538 U.S. 500 (2003) .................................................................................................. 26
Miranda v. Arizona,
384 U.S. 436 (1966) .................................................................................... 5, 9, 16, 17
New York v. Quarles,
467 U.S. 649 (1984) .................................................................................................. 17
Nix v. Williams,
467 U.S. 431 (1984) .................................................................................................. 21
Ross v. State,
288 So. 3d 317 (Miss. 2020) ..................................................................................... 26
Strickland v. Washington,
466 U.S. 668 (1984) .................................................................................................. 25
Strickler v. Greene,
527 U.S. 263 (1999) ............................................................................................ 21, 22
Texas v. Brown,
460 U.S. 730 (1983) .................................................................................................. 20
United States v. Agurs,
427 U.S. 97 (1976) .................................................................................................... 22
United States v. Briscoe,
101 F.4th 282 (4th Cir. 2024)................................................................................... 22
United States v. Erickson,
561 F.3d 1150 (10th Cir. 2009) ................................................................................ 22
v
United States v. Nixon,
418 U.S. 683 (1974) .................................................................................................. 16
United States v. Ramos,
27 F.3d 65 (3d Cir. 1994).......................................................................................... 22
Wood v. Bartholomew,
516 U.S. 1 (1995) (per curiam) ................................................................................. 22
Constitutional Provisions
U.S. Const. amend. I ........................................................................................ 13, 14, 15
U.S. Const. amend. IV ..................................................................................... 11, 18, 19
U.S. Const. amend. V................................................................................................... 16
U.S. Const. amend. VI ......................................................................... 13, 14, 16, 18, 25
U.S. Const. amend. VIII .............................................................................................. 24
U.S. Const. amend. XIV ............................................................................. 13, 16, 21, 24
Statute
28 U.S.C. § 1257 ............................................................................................................. 1
1
OPINION BELOW
The Mississippi Supreme Court’s opinion affirming petitioner Willie Cory
Godbolt’s convictions and sentences (Petition Appendix (App.) 1-84) is not yet
reported but is available at 2024 WL 976588.
JURISDICTION
The Mississippi Supreme Court entered judgment on March 7, 2024, and
denied rehearing on May 23, 2024. App.1, 85. A petition for certiorari was filed on
August 21, 2024. This Court’s jurisdiction is invoked under 28 U.S.C. § 1257(a).
STATEMENT
Petitioner murdered eight people. A jury convicted him of four counts of capital
murder, four counts of first-degree murder, two counts of kidnapping, one count of
attempted murder, and one count of armed robbery. He was sentenced to death for
each capital-murder conviction and to six life sentences and two 20-year terms for his
other convictions. On direct appeal, the Mississippi Supreme Court affirmed the
convictions and sentences. The petition for certiorari arises from that decision.
1. On May 27, 2017, petitioner dropped off his two children at a Memorial Day
barbeque at the home of his in-laws, Vincent and Barbara Mitchell, in Bogue Chitto,
Mississippi. App.2. Petitioner’s estranged wife Sheena, who was living at the Mitchell
home, attended the barbeque with her parents Vincent and Barbara, sister Tocarra
May, aunt Brenda May, niece Tamarya May, and others. App.2-3. That evening,
petitioner texted Sheena that he was coming back for their children and that he loved
his family and wanted it to remain intact. App.3. Sheena replied that she “no longer
2
wanted to be with [him] because he had hurt her” and that she would call the police
if he returned. Ibid. Petitioner came back anyway and Sheena called 911. Ibid.
Sheriff’s Deputy William Durr responded to the 911 call at the Mitchell home
after 11 pm. App.3. He told petitioner to leave the house. Ibid. Petitioner pulled out
a concealed pistol and shot Deputy Durr in the face. App.3-4. As the deputy lay dying,
petitioner began shooting at other people in the house. App.4. Petitioner then went
back to his car, retrieved two assault rifles, and reentered the house to continue
shooting. App.4, 6. He shot and killed Tocarra May and Brenda May near the kitchen
and Barbara Mitchell in the living room. App.4, 14. Sheena went into a bedroom,
broke a window, and ran with her children into the surrounding woods to hide. App.4.
Vincent Mitchell hid in a bathroom and called 911. Ibid. Tamarya May, who hid in a
parked car in the driveway, also called 911. App.4-5.
A second deputy, Timothy Kees, soon arrived at the Mitchell home and heard
gunshots. App.5. As Deputy Kees got out of his car, petitioner exited the house and
began shooting at him. Ibid. After trading fire with petitioner, Deputy Kees returned
to his car to retrieve his own rifle but lost sight of petitioner. Ibid. More officers then
arrived. Ibid. They believed that petitioner had barricaded himself inside the house.
Ibid. In fact, petitioner had escaped into the woods on foot. App.5-6.
Around midnight, petitioner arrived at the home of the Mitchells’ neighbor,
Lapeatra Stafford. App.6. He was still armed with the pistol and assault rifles. App.6,
8. After forcing his way into Lapeatra’s home, petitioner told her, “I done fucked up.
I done shot the police.” App.6. He then made Lapeatra get into her van and drive him
to the home of his friend, Marvin Brumfield, at gunpoint. App.6-7. During the drive,
3
petitioner called his sister and told her that he had shot a police officer and Sheena’s
family members. App.6. Petitioner’s sister added a cousin—who was chief deputy of
the sheriff’s department—to a three-way call. Ibid. Petitioner told the chief deputy
that he “wasn’t coming out of the house.” Ibid. After the call, petitioner told Lapeatra
that he “had time” because police “think that I’m [still] in the [Mitchells’] house.” Ibid.
Petitioner and Lapeatra arrived at Marvin Brumfield’s home later that night.
App.7. Petitioner told Marvin that “he had shot four people” and that “he was tired
of people interfering in his marriage.” Ibid. Marvin tried to convince petitioner to turn
himself in. Ibid. Marvin, Lapeatra, and petitioner then got into Lapeatra’s van. Ibid.
Petitioner confirmed to Marvin that he had killed Deputy Durr, Brenda May, Tocarra
May, and Barbara Mitchell. Ibid. Petitioner then forced Lapeatra to drive to the home
of Shon (petitioner’s cousin) and Tiffany Blackwell (a friend of Sheena’s). Ibid.
When they arrived at the Blackwells’ home, petitioner approached the house
armed with the pistol and assault rifles. App.8. Shon and Tiffany were not home: they
had learned about the shooting at the Mitchell house and left to pick up Sheena.
App.7-8. But several children remained at their house, including the Blackwells’ son
J.B., Tiffany’s nephews A.E. and C.E., and family friends X.L. and K.P. App.8. After
Marvin unsuccessfully tried to restrain him, petitioner shot through the door and
went inside. Ibid. As the children ran for cover, petitioner asked 18-year-old J.B.
where his parents were. Ibid. After J.B. said that they had gone to the Mitchells’
home, petitioner shot and killed J.B. and 11-year-old A.E. App.8-9. Petitioner then
forced X.L. at gunpoint to drive him away in a different car. App.9. During the drive,
petitioner logged into his wife Sheena’s Facebook account and messaged Tiffany, “Pay
4
back bitch fuck up my family now it’s yours hoe.” Ibid. The children who survived the
shooting at the Blackwells’ house called 911. Ibid.
Petitioner next forced X.L. to make several stops and to change cars. App.9-10.
During one stop, petitioner held his neighbors Henry and Alfred Bracey at gunpoint
and demanded keys to a car, which they handed over. App.10. During a stop at
petitioner’s aunt’s house, petitioner threatened to shoot X.L. unless he was given keys
to yet another car, which he also received. Ibid. Petitioner then forced X.L. to drive
him to the home of Shelia (at times incorrectly called “Sheila” in the record and
opinion below) and Ferral Burage, friends of petitioner and Sheena. App.10-11.
Petitioner and X.L. arrived at the Burages’ home early in the morning, and
petitioner let X.L. leave. App.10-11. When petitioner was not immediately let inside
the house, he began shooting through the door. App.11. Shelia, Ferral, and another
person in the house, O.M., ran for cover. Ibid. Once petitioner broke in, he fatally shot
both Shelia and Ferral while O.M. hid. Ibid. Before petitioner killed him, Ferral
managed to retrieve his gun and shoot petitioner in the arm. App.11, 12-13. Shelia
had been on the phone when petitioner arrived. App.11. The person Shelia was
talking to heard gunshots and called 911. Ibid.
Before leaving the Burages’ home, petitioner called his older brother. App.11.
He told his brother that “he had shot and killed [Shelia] and Ferral” and that Ferral
“had shot him.” Ibid. Petitioner also told his brother “to take care of his kids.” Ibid.
Around 6 am, police were dispatched to the Burage residence. App.11-12. When
they arrived, they saw petitioner standing just off the road. App.12. The officers
5
ordered him to lie on his stomach and arrested him. Ibid. Two officers pressed on
petitioner’s back while a third put pressure on his legs to keep him from kicking. Ibid.
As petitioner was arrested, a reporter with the Clarion-Ledger newspaper,
Therese Apel, arrived at the scene and began filming. App.12. Apel’s videos, which
were played at petitioner’s trial, depicted exchanges petitioner had with Apel and
with police. Ibid.; see App.42-45. While petitioner was held on the ground, an officer
asked him “exactly where the scene was located.” App.12. Petitioner’s “response in
the video [was] unintelligible,” but “officers repeated the number of the home
belonging to the Burages” and “rushed to the scene.” Ibid. Petitioner then told police
exactly where Shelia’s and Ferral’s bodies were in the house. Ibid. An officer next
asked petitioner if he had been shot; petitioner said yes. Ibid. The officer directed a
medic to attend to him. Ibid. Another officer then asked petitioner, “who shot you?”
App.13. He responded, “the guy in the house.” Ibid. Petitioner also told officers that
“he could tell [them] where more victims were located” if they stopped holding his
legs. Ibid. A sergeant then read petitioner his Miranda rights. Ibid. Petitioner
“responded that he understood his rights” and he “continued to speak to law
enforcement.” Ibid. The officers moved petitioner into a seated position, and the medic
attended to his gunshot wound. Ibid. Petitioner then stated that “there were no more
victims” and that he said there were only because he “wanted to sit up.” Ibid.
Petitioner soon noticed Apel filming and asked her, “you the police, ma’am?” Ibid.
Apel responded, “I’m the media.” Ibid. Petitioner told Apel, “I fucked my eardrum up,
man, shooting that gun.” Ibid. Apel asked petitioner, “Do you want to say why you
did all this?” Ibid. Petitioner replied, “Because I love my wife and I love my children.”
6
Ibid. Apel asked, “So what about Deputy Durr’s wife and children?” Ibid. Petitioner
responded, “I’m sorry ... . My pain wasn’t designed for him. He was just there.” Ibid.
Petitioner killed eight people. App.13-14. He shot all of them multiple times:
Deputy Durr three times; Brenda May five; Tocarra May nine; Barbara Mitchell
eight; J.B. four; A.E. four; Ferral Burage twelve; and Shelia Burage two. App.14.
2. Petitioner was indicted on twelve counts: four counts of capital murder
(Deputy Durr, J.B., A.E., and Shelia Burage); four counts of first-degree murder
(Tocarra May, Brenda May, Barbara Mitchell, and Ferral Burage); two counts of
kidnapping (Lapeatra Stafford and X.L.); one count of attempted murder (Deputy
Kees); and one count of armed robbery (the Braceys). App.17.
Before trial, petitioner’s counsel moved to suppress statements he made during
his arrest to reporter Therese Apel and to police (App.42-43, 44-45) as well as evidence
recovered from searches of petitioner’s home, car, and electronic devices (App.45-46).
The State decided not to use at trial any evidence from petitioner’s phones (App.45),
and the trial court otherwise denied petitioner’s motions to suppress (App.42, 44, 45).
For its part, the State moved for petitioner to undergo a mental evaluation, but
petitioner’s counsel objected to that request. App.52. Counsel also declined to ask the
trial court to enforce an initial order for petitioner’s psychiatric evaluation entered by
the justice-court judge who handled petitioner’s preliminary hearing. Ibid.
Petitioner’s case proceeded to trial. At the guilt phase, the State introduced
evidence (described above) that petitioner committed four capital and four firstdegree murders, two kidnappings, attempted murder, and armed robbery. App.13-18.
7
Besides eyewitness testimony from survivors of petitioner’s attacks, several
witnesses connected petitioner to the weapons and killings. A weapons expert
confirmed that projectiles found at all three murder scenes were fired from a handgun
and two rifles that police recovered from the Burage residence. App.14-15. A pawnshop owner testified that he sold two of those guns to petitioner and one to petitioner’s
wife Sheena. App.15. And a crime-scene investigator testified that DNA evidence
recovered from a blood trail at the Burage residence matched petitioner’s DNA. Ibid.
The State also introduced evidence of petitioner’s past acts “to show motive.”
App.15-17. Sheena testified that petitioner “physically abused her throughout their
marriage, resulting in at least one trip to the hospital.” App.16. That testimony was
corroborated by Sheena and petitioner’s daughter, M.G., who testified that she saw
petitioner “hit her mother numerous times.” Ibid. M.G. testified that she too was
“physical[ly] abuse[d]” by petitioner, who “always used to beat [her] with a bat.” Ibid.
M.G. also told the jury that petitioner had placed a gun in his car and several guns
on his bed on the day of the murders—which was “unusual”—and that she saw
petitioner watching instructional videos about his guns hours before the murders.
Ibid. She testified that, just before dropping her and her brother off at the Mitchells’
house on the day of the murders, petitioner said that “he would die or kill before he
let [his children] stay with anybody else.” Ibid.
Last, Sheena, M.G., and Vincent Mitchell testified about a prior assault on
M.G. at the Mitchells’ house, which “provide[d] some context” for petitioner’s crimes.
App.16-17. A year before the murders, M.G.’s male cousin “touched her
inappropriately.” App.16. Vincent saw the assault and removed the cousin. Ibid.
8
Petitioner wanted to press charges against the cousin for assault and against Barbara
and Vincent Mitchell for failing to prevent it, but Sheena refused. App.16-17.
Defense counsel argued to the jury that petitioner lost control due to pressure
on his marriage and family life. E.g., Pet. 3; App.3, 7, 16-17, 25-26. Counsel tried to
convince the jury to convict petitioner of manslaughter rather than capital and firstdegree murder. See Pet. 17, 26.
The jury found petitioner guilty on all counts. App.17.
At the penalty phase, the State reintroduced “all” the guilt-phase evidence and
“presented two victim impact witnesses for each capital[-]murder victim.” App.17.
Defense counsel introduced mitigation testimony from a clinical psychologist and
from petitioner’s siblings, aunt, pastor, former teacher, and friend. App.17-18. Those
witnesses “developed themes of three traumatic events” in petitioner’s life: “the
separation of his parents prior to his birth and his father’s subsequent remarriage”;
“his father’s murder perpetrated by [petitioner’s] step-mother”; and “an occurrence of
sexual abuse” of petitioner “when he was a young man.” App.18.
Petitioner was sentenced to death for each capital-murder conviction and to six
life sentences and two 20-year terms for his other convictions. App.2, 18.
3. Petitioner appealed, raising 19 issues—some pro se and some through
counsel. App.18-20. The Mississippi Supreme Court affirmed across the board. App.2,
66; see App.20-66. Six of the court’s rulings matter here.
First, the supreme court rejected petitioner’s claim that the trial court should
have excluded from trial the statements he made to reporter Therese Apel. App.4243. Petitioner claimed that Apel acted as an agent of law enforcement and improperly
9
questioned him on the State’s behalf without a knowing waiver of his rights. App.42.
The supreme court rejected that claim. At a pre-trial hearing, Apel testified that she
went to the scene of petitioner’s arrest after “receiv[ing] a phone call” during the night
“informing her that a deputy had been killed.” App.42. She said that she had “friends
[in] law enforcement,” that “officers were often her sources,” and that she “previously
worked for the department of public safety.” App.42-43. Apel refused to disclose her
source but testified that “she was not directed by any member of law enforcement to
go to the scene” of petitioner’s arrest “or to ask [him] any questions.” App.42.
(emphasis omitted). Upholding the trial court’s admission of petitioner’s statements,
the supreme court emphasized that Apel testified that “no law enforcement [official]
directed her to ... ask [petitioner] any questions” and that she “went to the scene
looking for a news story, not as an agent of the state”; that Apel “explicitly told
[petitioner] that she was a member of the media before he answered her questions”;
and that petitioner “was able to connect Apel to law enforcement through crossexamination” without knowing her source’s identity. App.42-43.
Second, the supreme court rejected petitioner’s claim that the trial court erred
in admitting statements he made to police during his arrest. App.44-45. Petitioner
claimed that those statements resulted from an improper custodial interrogation
without a waiver of rights, were coerced using physical pain, and were obtained in
violation of his right to counsel. App.44. The supreme court held that petitioner’s preMiranda responses to questions about the location of the shootings at the Burages’
home and his gunshot wound fell “under the public safety exception” to Miranda v.
Arizona, 384 U.S. 436 (1966). App.44. Officers asked those questions, the court said,
10
to determine “where potential victims were located,” “if [petitioner] required medical
attention,” and “if there were other active shooters.” Ibid. The court also rejected
petitioner’s claims that “he continuously requested an attorney while he was [being]
detained” and was “coerced into making self-incriminating statements” because
officers “were causing him pain.” App.44-45. The court observed that “the video
record” of petitioner’s arrest did not show “a single instance” of petitioner requesting
an attorney; that officers “shifted themselves and eventually transitioned [petitioner]
into a seated position” when he “complained of pain”; and that “other than the
questions about where the scene was located and if [petitioner] had been shot, the
officers never made any inquiry of [petitioner] during the arrest.” Ibid.
Third, the supreme court held that the trial court properly rejected petitioner’s
motion to suppress evidence obtained from his vehicle, home, electronic devices, and
person. App.45-46. Petitioner claimed that the State lacked valid warrants for those
searches and that no exigencies applied. App.45. The supreme court explained,
however, that the State obtained valid warrants to search petitioner’s home and
devices (and did not use data from petitioner’s phones at trial anyway), and that
petitioner himself “was lawfully searched pursuant to his arrest.” App.45. The State
also obtained evidence—“a duffle bag containing multiple boxes of ammunition”—
from a search of petitioner’s car, which he left at the scene of the first shootings.
App.45-46. A crime-scene investigator saw a “bag full of live rounds ... through the
open hatchback of [petitioner’s] car” and “removed the bag from the vehicle when it
began to rain” due to concern that “the evidence might become damaged.” Ibid. The
supreme court held that the evidence was properly admitted under the “automobile,
11
plain view, exigent circumstances[,] and abandonment exceptions” to the Fourth
Amendment’s warrant requirement. App.46; see App.45-46.
Fourth, the supreme court rejected petitioner’s claim that the State violated
its duty to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83
(1963), when it allegedly “destroyed” his cell phone “during ... data extraction.”
App.51; see App.51-52. Petitioner speculated that the phone contained exculpatory
evidence that could have impeached state witnesses. App.51. The supreme court
observed, however, that petitioner “received the data and information extracted from
[his] cell phone prior to trial” and that he otherwise “fail[ed] to demonstrate that the
State” actually “possessed [undisclosed] evidence that was favorable to him.” App.52.
Fifth, the supreme court held that the trial court did not err by failing to
enforce the pre-trial justice-court order for a psychiatric evaluation of petitioner.
App.52-53. As noted, before petitioner was indicted, a justice-court judge granted a
motion for a psychiatric evaluation filed by petitioner’s initial defense counsel.
App.52. Petitioner claimed that the trial court was required to enforce that order.
App.52-53. Rejecting that argument, the supreme court explained that petitioner was
later appointed new counsel who “did not move to renew the order for a psychiatric
evaluation” in trial court (though counsel did move to renew other justice-court
orders); “opposed” the State’s own motion to conduct a “mental evaluation” of
petitioner; and “never raised [petitioner’s] competency as an issue.” App.52-53. The
supreme court also rejected petitioner’s claim that the trial court should have ordered
him “to submit to a mental examination” sua sponte under state law and declined to
resolve his claim that defense counsel erred by not “request[ing] a competency
12
evaluation” or “plac[ing] [petitioner’s] competency in issue.” Ibid. The court noted that
the record was “devoid of evidence indicating whether a mental examination was
necessary” for petitioner “to stand trial.” App.53. And the question whether defense
counsel “should have raised the issue of competency” was “best reserved” for postconviction review. Ibid.
Sixth, the supreme court declined to resolve petitioner’s claims that he received
ineffective assistance of trial counsel. App.59-60. Petitioner argued that his counsel
unreasonably failed to: “investigate potentially exculpatory evidence contained in his
sent text messages”; “sufficiently cross-examine State witnesses”; “review and utilize
police and lab reports”; and “obtain a psychiatric evaluation [of petitioner].” App.60.
The supreme court explained that “the record [does not] affirmatively show[ ]
ineffectiveness of constitutional dimensions” and that there was no indication that
“findings of fact” were “not needed” to resolve petitioner’s claims. App.59. So there
was no reason to depart from the general rule that “ineffective-assistance-of-counsel
claims are more appropriately brought during post-conviction proceedings” “with the
benefit of a more complete record.” App.53, 59.
REASONS FOR DENYING THE PETITION
Petitioner asks this Court to grant review on six questions. Pet. i. None of those
questions warrants further review. And the Mississippi Supreme Court correctly
resolved every issue that petitioner presses. The petition should be denied.
1. This case does not satisfy any of the traditional certiorari criteria. Petitioner
does not claim any lower-court conflict. He does not claim that this case presents a
recurring question of federal law. This case is not a sound vehicle for deciding any
13
legal question. The petition seeks only fact-bound, case-specific error correction. The
Court should deny review on these grounds alone.
2. The decision below is correct. Indeed, the evidence is overwhelming that
petitioner wantonly murdered eight innocent people, including a police officer and an
11-year-old child. Petitioner does not seriously argue otherwise. None of his
arguments has merit. Nor does he show that success on any of his claims would be
sufficient to undermine his convictions or sentences given the overwhelming evidence
against him. There is no basis for further review.
First, petitioner asks this Court to decide whether “a news reporter’s First
Amendment privilege to shield her source trumps a criminal defendant’s Sixth
Amendment right to confrontation and Fourteenth Amendment due[-]process
right[s].” Pet. i; see Pet. 6-10. This case does not present that question. And the
Mississippi Supreme Court correctly rejected petitioner’s claim that the trial court
erred in admitting the statements he made to reporter Therese Apel. App.42-43.
Petitioner argues that Apel’s “refusal” to disclose the source who told her of
petitioner’s crimes “doomed” the defense’s theory that Apel was acting on the State’s
behalf when she questioned him during his arrest and so violated his Sixth and
Fourteenth Amendment trial rights. Pet. 9. But it was not Apel’s “refusal” to disclose
her source that doomed that theory. It was Apel’s valid testimony that doomed that
theory. Apel testified that she “was not directed by any member of law enforcement
to go to the scene” of petitioner’s arrest “or to ask [him] any questions.” App.42
(emphasis omitted). So, as the state supreme court ruled, it was “irrelevant” if Apel’s
source were in law enforcement: she was acting as a reporter “looking for a news
14
story, not as an agent of the state.” App.43. The court thus did not need to consider
whether Apel’s First Amendment rights “trump[ed]” petitioner’s confrontation or
due-process rights. Pet. i. Indeed, petitioner’s counsel was able to cross-examine Apel
and “connect” her “to law enforcement” without knowing her source’s identity, since
Apel testified that she had “friends [in] law enforcement,” often used “officers” as
“sources,” and “previously worked for the department of public safety.” App.42-43. So
petitioner was not denied his “rights to confront and cross-examine witnesses.” Pet.
6; cf. Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (Sixth Amendment “guarantees
only ‘an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish’”).
Petitioner claims that establishing the identity of Apel’s source could have
shown that she had a sufficient “nexus” with law enforcement to be a state actor. Pet.
9. Private parties “may be” considered state actors if: (a) there was a sufficiently “close
nexus between the State and ... seemingly private behavior” such that the behavior
“may be fairly treated as that of the State itself”; (b) the State “exercise[d]” “coercive
power” over the private parties or “provide[d]” them “significant encouragement”;
(c) the private parties “operate[d] as ... willful participant[s] in joint activity with the
State”; or (d) the private parties exercised a “public function” traditionally reserved
to the State. Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531
U.S. 288, 295-96 (2001) (cleaned up). Apel’s testimony shows that no such factors
were present here. Petitioner speculates that defense counsel “may have been able to
establish that
Apel
and law
enforcement
had other communications or
understandings (short of ‘directing’ her to do something).” Pet. 10. But even if that
15
were true, it falls far short of showing the “close nexus,” “coerci[on],” “significant
encouragement,” “joint activity,” or “public function” (Brentwood Academy, 531 U.S.
at 295-96) necessary to show state action. Compare Anderson v. Suiters, 499 F.3d
1228, 1233 (10th Cir. 2007) (rejecting claim that journalists “became state actors
because they agreed with” a police officer “to receive” and “air” “leaked portions of [a]
videotape” depicting criminal activity), with Berger v. Hanlon, 129 F.3d 505, 515 (9th
Cir. 1997), vacated and remanded by 526 U.S. 808 (1999), judgment reinstated by 188
F.3d 1155 (9th Cir. 1999) (journalists plausibly engaged in “joint action” with police
when they were “‘inextricabl[y]’ involve[d]” with “planning and execut[ing]” a search
and had “a written contractual commitment [with] the government ... to [act] jointly”).
Petitioner invokes Branzburg v. Hayes, 408 U.S. 665 (1972), which he claims
held that “the First Amendment does not relieve a reporter of the obligation to reveal
her sources and testify relevant to a criminal investigation.” Pet. 7. But “[t]he sole
issue” in Branzburg was “the obligation of reporters to respond to grand jury
subpoenas as other citizens do and to answer questions relevant to an investigation
into the commission of crime.” 408 U.S. at 682; cf. In re Roche, 448 U.S. 1312, 131415 (1980) (Brennan, J., in chambers) (Branzburg “held that the First Amendment
does not provide newsmen with an absolute or qualified testimonial privilege to be
free of relevant questioning about sources by a grand jury”). Branzburg does not say
that a reporter must reveal a protected source where (as here) the source’s identity
would not meaningfully advance any claims or defenses at a criminal trial. Indeed,
in providing the deciding vote in Branzburg, Justice Powell stressed “the limited
nature of the Court’s holding” and that “claim[s] to privilege should be judged” “on a
16
case-by-case basis” by striking “a proper balance between freedom of the press and
the obligation of all citizens to give relevant testimony with respect to criminal
conduct.” 408 U.S. at 709-10 (Powell, J., concurring). The “proper balance” here shows
that the identity of Apel’s source was not “relevant” to petitioner’s defense. Id. at 710.
Petitioner also invokes United States v. Nixon, 418 U.S. 683 (1974), in claiming that
his constitutional “right to the production of all relevant evidence” outweighed Apel’s
“general privilege of confidentiality.” Pet. 7, 8; see also Pet. 10. Nixon held that a
“generalized assertion of privilege must yield to [a] demonstrated, specific need for
evidence in a pending criminal trial.” 418 U.S. at 713. But again, petitioner did not
show a “specific need” to know the source’s identity given the rest of Apel’s testimony.
Second, petitioner asks this Court to decide whether his “confession was
obtained in violation of the Fifth, Sixth[,] and Fourteenth Amendment[s].” Pet. i; see
Pet. 27-29. He claims that statements he made to police while he was arrested but
before he was Mirandized—which he calls “confession[s]”—resulted from improper
“custodial interrogation,” were not “freely and voluntarily given,” and were obtained
in violation of his Sixth Amendment right to counsel. Pet. 27; see Pet. 27-29. These
claims fail. The Mississippi Supreme Court correctly held that the trial court properly
admitted the statements that petitioner made to police during his arrest. App.44-45.
To start, the state supreme court correctly held that petitioner’s preMirandized statements to arresting officers were properly admitted. App.44. Under
Miranda v. Arizona, 384 U.S. 436 (1966), a suspect’s “self-incriminating statements”
made during “custodial interrogation” are generally inadmissible unless the suspect
was given prior “full warnings of [the] constitutional rights” to silence and to counsel
17
and made an “effective waiver” of those rights. Id. at 445, 446, 477. But there is an
“exception” to that rule where “overriding considerations of public safety justify” a
delay in “provid[ing]” Miranda warnings. New York v. Quarles, 467 U.S. 649, 651,
655-56, 657 (1984). As the state supreme court ruled, that exception applies here.
When officers found petitioner near the Burage residence, they detained him and
asked him where the scene was located, whether he had been shot, and who had shot
him. App.12-13. Petitioner responded by telling them the location of the Burages’
house, where Shelia and Ferral Burage’s bodies could be found, and that Ferral
Burage had shot him. Ibid. The officers’ evident purpose in questioning petitioner
was to determine “where potential victims were located,” whether petitioner
“required medical attention,” and “if there were other active shooters.” App.44. The
questions were “reasonably prompted by a concern for the public safety” and meant
to “neutralize [a] volatile situation.” Quarles, 467 U.S. at 656, 658. The officers’
exchanges with petitioner thus fell within the public-safety exception to Miranda,
and petitioner does not claim otherwise.
Next, the state supreme court correctly held that petitioner’s statements to
police were freely and voluntarily given. App.44-45. Petitioner claims that there is
“evidence” of “coercion or threat[s]” because the arresting officers “appl[ied] pressure
to an injured and already subdued suspect.” Pet. 28. That claim is belied by the video
of petitioner’s arrest and detention. App.44. As the supreme court explained, “when
[petitioner] complained of pain from the detention, the officers shifted themselves and
eventually transitioned [him] into a seated position.” Ibid. And after the brief initial
questioning, police “never made any [further] inquiry of [petitioner] during the
18
arrest”; rather, petitioner chose to “continue[ ] ... speak[ing] to law enforcement” after
he was read his rights. App.13, 44-45. Petitioner points to nothing to rebut these facts
or to suggest that his “will was overborne” while speaking to police. Haynes v.
Washington, 373 U.S. 503, 513 (1963). Invoking Edwards v. Arizona, 451 U.S. 477
(1981), petitioner also claims that officers ignored his “constant[ ]” “request[s]” for an
attorney. Pet. 28; see Pet. 27-28. Even putting aside the public-safety exception
discussed above, that claim fails on the facts: A “thorough review of the video record”
by the court below failed to reveal “a single instance in which [petitioner] requested
an attorney” while being detained. App.44; compare Edwards, 451 U.S. at 479-80,
485 (confession inadmissible where police “reinterrogate[d]” defendant in jail after he
“clearly asserted his right to counsel”).
Last, there is no merit to petitioner’s claim that police violated his Sixth
Amendment right to counsel by “knowing[ly] exploit[ing]” the opportunity to question
him “without counsel being present.” Pet. 29. That right did not attach until the
“initiat[ion]” of “judicial proceedings” against petitioner (Fellers v. United States, 540
U.S. 519, 523 (2004))—which occurred long after he made the statements at issue.
Compare Maine v. Moulton, 474 U.S. 159, 161-68 (1985) (discussing statements made
to “secret government informant” “after indictment”). In any event, as explained
above, video evidence belies petitioner’s claim that he invoked any right to counsel.
Third, petitioner asks this Court to decide whether the trial court erred by
“admitting into evidence” the contents of “searches” that violated the Fourth
Amendment. Pet. i. He claims that the searches of his vehicle, home, electronic
19
devices, and person were made without proper warrants or exigent circumstances.
See Pet. 30-36. The state supreme court correctly rejected these claims. App.45-46.
To start, the state supreme court correctly held that police lawfully searched
petitioner’s home, devices, and person. Petitioner appears to claim that his
“residence” and “devices” “were searched” “without a warrant” or, alternatively, that
they were searched under warrants that were “improperly obtained” without
“probable cause.” Pet. 30; see Pet. 30-33. But as the court below explained, police
searched petitioner’s home and devices under “valid warrants.” App.45. (The State
ultimately declined to use at trial any information from petitioner’s phones. Ibid.).
Petitioner does not identify any flaws in the warrants that the police relied on or in
the facts supporting those warrants, so his claim fails. Cf. Franks v. Delaware, 438
U.S. 154, 171-72 (1978). Petitioner also alludes to the search of his person. See Pet.
30. But petitioner was “lawfully searched pursuant to his arrest” (App.45), and he
does not claim otherwise. E.g., Chimel v. California, 395 U.S. 752, 762-63 (1969).
Next, the state supreme court correctly held that the police lawfully seized
evidence from petitioner’s car, which he left at the scene of the first murders. App.4546. While searching the Mitchell residence under a valid warrant, a crime-scene
investigator saw a partially opened “duffle bag containing multiple boxes of
ammunition” through the open hatchback of petitioner’s station wagon. App.45. The
investigator removed the bag “when it began to rain” due to concern that “the
evidence might become damaged.” App.45-46. The state supreme court held that the
ammunition was properly admitted under the “automobile, plain view, exigent
circumstances[,] and abandonment exceptions” to the Fourth Amendment’s warrant
20
requirement. App.46; see App.45-46. Even if petitioner’s car were not covered by the
warrant for the Mitchell residence, petitioner gives no reason for this Court to review
the fact-bound application of these well-established exceptions, any one of which is
sufficient to reject petitioner’s claim. Petitioner argues, for example, that the plainview doctrine does not apply because “no incriminating characteristic[s]” were
“immediately apparent” from the seized evidence. Pet. 35. But a bag of ammunition
at the scene of a mass shooting clearly has “incriminating characteristic[s].” Cf. Texas
v. Brown, 460 U.S. 730, 738 (1983) (plurality opinion) (plain view requires only “that
there is probable cause to associate the property with criminal activity”). And
petitioner does not allege that the investigator observed the bag from a place she was
not lawfully allowed to be. See Horton v. California, 496 U.S. 128, 136-37 (1990). So
the plain-view exception applies. Petitioner also argues that the automobile exception
does not apply because his “car was not searched incident to a lawful arrest.” Pet. 35.
But the automobile exception is distinct from searches incident to arrest, and it
applies not only because cars are “immediately mobile” but “because the expectation
of privacy” in cars “is significantly less than [in] one’s home or office.” California v.
Carney, 471 U.S. 386, 391 (1985). Petitioner also disputes the application of the
abandonment exception, arguing that his car was not abandoned because a witness
to petitioner’s crimes allegedly “t[ook] the keys out of the car without [his] instruction
or knowledge.” Pet. 36. But the fact that petitioner left his car open with the keys
inside reinforces that he abandoned the car during his crime spree and thus lacked
any expectation of privacy in its contents. Cf. Abel v. United States, 362 U.S. 217, 241
(1960); Hester v. United States, 265 U.S. 57, 58 (1924). Again, any of these exceptions
21
defeats petitioner’s argument. And there is one more independent reason to reject
petitioner’s view: Petitioner admits that his car was impounded after his arrest and
that an “inventory [search] of an impounded vehicle” is “lawful.” Pet. 35. The
ammunition in petitioner’s car would have been found during a post-arrest inventory
search. So even if the exceptions to the warrant requirement described above did not
apply, the evidence still would have been admissible under the inevitable-discovery
exception. See Nix v. Williams, 467 U.S. 431, 443-44 (1984).
Fourth, petitioner asks this Court to decide whether the “right of access [to]
evidence of exculpatory value and the Fourteenth Amendment require preservation
of [a defendant’s] cell phone and [its] contents.” Pet. i; see Pet. 21-26. The Mississippi
Supreme Court correctly rejected petitioner’s claim that the State violated its duties
to turn over or preserve exculpatory or potentially useful evidence. App.51-52.
Under Brady v. Maryland, 373 U.S. 83 (1963), a State must disclose certain
evidence that “is material either to guilt or to punishment.” Id. at 87. A State violates
that duty if it “suppresse[s]” evidence; the evidence is “favorable to the accused”
“because it is exculpatory” or “impeaching”; and “prejudice ... ensue[s]” from the
nondisclosure—i.e., there is “a reasonable probability that the suppressed evidence
would have produced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281-82
(1999). Petitioner claims that the State “prejudiced his defense” by “[n]ot disclosing
contents from his cell phone.” Pet. 22. But petitioner did “receive[ ] the data and
information extracted from [his] cell phone prior to trial.” App.52. And he does not
identify any further evidence that the State failed to disclose. He speculates that a
more “thorough investigative review” of his phone would have produced “[e]vidence
22
related to” his “personal relationships and biases” and his “only daughter” who “had
been ‘sexually assaulted.’” Pet. 22. This, he says, “would have revealed ... maybe a
potential motive” for his crimes. Ibid. Such speculation does not meet petitioner’s
burden to identify favorable evidence that the State in fact possessed and failed to
disclose. Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam) (“mere speculation”
that “additional evidence” may exist “that could have been utilized” by defense is
insufficient); United States v. Agurs, 427 U.S. 97, 109-10 (1976) (“mere possibility
that an item of undisclosed information might have helped the defense” “does not
establish” a Brady violation); United States v. Briscoe, 101 F.4th 282, 297 (4th Cir.),
cert. denied, 145 S. Ct. 382 (2024) (“rank speculation as to the nature of the allegedly
suppressed materials ... cannot establish a Brady violation”); United States v.
Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009) (“A Brady claim fails if the existence
of favorable evidence is merely suspected. That the evidence exists must be
established by the defendant.”); United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994)
(“mere speculation that Brady material might be present is insufficient”).
Petitioner also cannot show prejudice. He speculates that “evidence” on his
phone could have supported the “defense of ‘Heat of Passion Manslaughter.’” Pet. 26.
But given the “considerable” and “powerful” evidence against petitioner, the fact that
the jury heard testimony about an alleged assault involving his daughter, and the
speculative nature of his claims about alleged evidence on his phone, petitioner’s
allegations do not come close to “undermin[ing] confidence in the verdict.” Strickler,
527 U.S. at 290, 293. At bottom, “[t]he record provides strong support for the
conclusion that petitioner would have been convicted of capital murder and sentenced
23
to death” even if the claims about his phone had some basis. Id. at 294; see App.27
(“Each crime for which [petitioner] was indicted benefitted from the testimony of at
least one eye (or ear) witness.”); App.13-17 (discussing expert and forensic evidence).
A State may also violate a defendant’s due-process rights by failing to “preserve
evidentiary material” that is “potentially useful” to the defense. Arizona v.
Youngblood, 488 U.S. 51, 57, 58 (1988). But a defendant can succeed on such a claim
only by “show[ing] bad faith.” Id. at 58. Petitioner accuses the State of failing to
“analyze” his cell phone; of improperly using “different” “methods” and “procedures”
for handling his phone than for “other phones in th[e] case”; and of “destroy[ing]” his
phone and its contents. Pet. 23, 25, 26. His claims do not withstand scrutiny. A report
prepared by the State’s cyber-crime center, which was disclosed to the defense before
trial, explained that data was recovered from the two phones recovered from
petitioner upon arrest. BIO App.1-2. Due to passcode protection, only “partial” data
was recovered from one phone—the “Galaxy Note 5” that petitioner cites. BIO App.2;
see Pet. 25. Petitioner points to nothing that suggests that the State used improper
methods to analyze the phone or that the State improperly caused any data loss. Cf.
Youngblood, 488 U.S. at 58-59 (rejecting view that “the Due Process Clause is violated
when the police fail to use a particular investigatory tool” or “perform any particular
tests”). Before the state supreme court, petitioner’s counsel alleged that the State
“rais[ed] the barrier for [the defense’s] efforts to find [helpful] evidence” “on
[petitioner’s] phone” by “us[ing] a method of data extraction ... that made its data
impossible for the defense to read without expert analysis.” Appellant Br. 7
(bit.ly/3Dk59jd) (emphasis added). But counsel did not claim that the defense was
24
unable to use the data that was recovered or that the State failed to preserve any
other evidence. Petitioner’s speculation that the “destruction” of his phone deprived
him of “[h]is one opportunity to defend himself” (Pet. 26) does not change the outcome
or remove his burden to show bad faith—a burden he does not attempt to carry.
Fifth, petitioner asks this Court to decide whether “failure to ... complete” a
“court[-]order[ed]” psychiatric examination “den[ies] Due Process” under “the
[F]ourteenth and [E]ighth Amendment[s].” Pet. i; see Pet. 11-15; see also Pet. 16-18,
20. This claim is meritless. Before petitioner was indicted, his initial attorney “filed
a motion for a psychiatric evaluation,” “which was granted by the justice[-]court
judge” assigned to his preliminary hearing. Pet. 11. Petitioner claims that, by later
failing to “respect[ ]” that “mandatory” order, the trial court violated his “due[]process” rights. Ibid. But petitioner’s trial counsel “did not move to renew the order
for a psychiatric evaluation.” App.52. Petitioner points to no law requiring the trial
court to enforce an order from an inferior court (the justice court is inferior to the trial
court)—let alone an order that defense counsel did not seek to renew. Separately,
when the State later “filed its own motion for [petitioner] to undergo a mental
evaluation” in the trial court, petitioner’s counsel “object[ed]” to that request. Ibid.
The trial court “h[e]ld the motion in abeyance until ... the defense indicated that
[petitioner’s] competency was in question,” but “[t]he defense never raised
competency as an issue.” Ibid.; see App.53. The trial court did not err in failing to
enforce an initial order for a psychiatric evaluation in these circumstances.
Petitioner invokes Ake v. Oklahoma, 470 U.S. 68 (1985), which held that a
State must give an indigent defendant access to a psychiatrist when the defendant
25
“demonstrates to the trial judge that his sanity at the time of the offense is to be a
significant factor at trial,” id. at 83, and claims that that requirement applied here.
Pet. 14-15. That is not so. As noted, petitioner’s counsel “never raised [petitioner’s]
competency as an issue” and “object[ed]” to the State’s request for a mental evaluation
of petitioner. App.52. So the defense did not establish to the trial judge that
petitioner’s sanity would “be a significant factor at trial.” Ake, 470 U.S. at 83.
Petitioner also claims that the trial court erred by failing to sua sponte order
a competency hearing under state law and that his trial counsel was ineffective for
not requesting such a hearing. Pet. 13, 20; see Pet. 16-18. But, as the Mississippi
Supreme Court observed, the record is “devoid of evidence indicating whether a
mental examination was necessary for [petitioner] to stand trial.” App.53. And any
claim that trial counsel “should have raised the issue of competency” is, as that court
recognized, “best reserved for a future petition for post-conviction relief with the
benefit of a more complete record.” Ibid. Petitioner does not call those rulings into
question, and there is no basis for this Court to review petitioner’s claims here.
Sixth, petitioner asks this Court to decide whether his trial counsel performed
deficiently in “violation of [the] Sixth Amendment.” Pet. i; see Pet. 16-20. The
Mississippi Supreme Court soundly declined to resolve petitioner’s ineffectiveassistance claims and this Court should too. To succeed on such a claim, petitioner
must show that counsel’s performance “fell below an objective standard of
reasonableness” and “prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687, 688 (1984). As in many States, Mississippi law provides that ineffectiveassistance
claims
“[g]enerally
...
are
more
appropriately
brought
during
26
postconviction proceedings” rather than on direct appeal. App.59 (quoting Ross v.
State, 288 So. 3d 317, 324 (Miss. 2020)); cf. Massaro v. United States, 538 U.S. 500,
504-05, 508 (2003). Mississippi courts “address such claims on direct appeal when
[1] the record affirmatively shows ineffectiveness of constitutional dimensions, or
[2] the parties stipulate that the record is adequate and the Court determines that
the findings of fact by a trial judge able to consider the demeanor of witnesses, etc.,
are not needed.’” Ibid. (quoting Ross, 288 So. 3d at 324) (cleaned up). Neither factor
is present here, and “[t]he record” before the state supreme court “lack[ed] sufficient
evidence and information” to address petitioner’s ineffective-assistance claims “on
direct appeal.” App.60. Petitioner’s claims are “preserved” for “potential future ...
petitions” for “post-conviction relief.” Ibid. Petitioner gives no reason to question the
lower court’s application of state law or its view of the record, nor does he identify
any federal question warranting this Court’s review now.
27
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
LYNN FITCH
Attorney General
ALLISON KAY HARTMAN
Special Assistant
Attorney General
Counsel of Record
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, MS 39205-0220
Allison.Hartman@ago.ms.gov
(601) 359-3840
Counsel for Respondent
March 12, 2025
APPENDIX TO RESPONDENT’S BRIEF IN OPPOSITION
. ...
I,
STATE OF MISSISSIPPI
OFFICE OF THE ATTORNEY GENERAL
CYBER CRIME CENTER
REPORT
CASE NUMBER:
CC-18-00022 & B 1700000244
SUBJECT:
Technical Assistance Related to Mobile Devices
DATE:
February 7, 2018
INVESTIGATOR:
Charlie Rubisoff, CFCE, CFE
Pursuant to a request from the Mississippi Bureau oflnvestigation and the Lincoln
County District Attorney's Office, I have provided technical assistance in the form of data
collection and reporting from two mobile devices related to alleged homicides. The devices
submitted are a Samsung Galaxy S5, model SM-G900R7, Mobile Equipment Identifier
99000466985002, Item 1; and a Samsun Note 5, model SM-N920R7, Mobile Equipment
Identifier 990005 84948161, Item 2.
·
·
· d from
Fe
opes
On submission of the devices for examination, District Attorney Investigator John
Whitaker completed an Advanced Data Extraction Waiver permitting the use of Chip Off
methods for data collection from the devices.
In the course of the examination, the devices were surveyed and photographed.
Item 1, the Samsung Galaxy S5, was found to have damage to the screen and what
appeared to be dried blood on the casing. Data collection from Item 1 was attempted using
Cellebrite tools. In this attempt the device gave indications of power related issues which caused
the device to power off. An external power source was used to power the phone in an effort to
mitigate this power issue. With the external power supply the device continued to power off.
Based on the phone's inability to remain powered during the data collection, I determined it was
a candidate for Chip Off methods. I contacted MBI Special Agent Jason Leggett to discuss the
use of Chip Off methods on the device and recommended their use. SA Leggett agreed. The
phone was disassembled and the eMMC chip containing the device's stored user data was
identified. The chip was removed using a hot air source to melt the underlying solder and
adhesive. The chip was cleaned to remove remaining adhesive. The chip was then read using a
chip adapter and a write block device. A digital copy, or forensic image, of the chip's contents
was made using FTK Imager. The resulting forensic image was then examined using Cellebrite
tools. The available recoverable data from the chip has been included in a report for Item 1.
Page lof2
~ DEFENDANT'S
l
l NO. A
EXHIBl(O
)
~
'I
Item 2, the Samsung Galaxy Note 5, was found to be in working order. Access to the
device was blocked by an alpha-numeric user passcode. A partial file system collection from the
device was successful using Cellebrite tools. I contacted SA Leggett to discuss alternative data
collection methods which might potentially provide more data than was collected in the partial
file system extraction. The methods I discussed each included the potential permanent loss of
data on the device. Based upon these risks and discussion with the District Attorney's Office,
SA Leggett requested no potentially destructive methods be employed on Item 2. The data
recovered in the partial file system extraction has been included in a report for Item 2.
These reports are being made available for investigative review to the submitting law
enforcement officers. If, in the course of this review, additional analysis or explanation is
needed I can be contacted at chrub@ago:state.ms.us.
Page 2of2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.