Petition — Harrigill v. Mississippi

.

“Buprome Court, U. a : '

FILED !

MAR #4 (980

MICHAEL RODAK, R., CLERW |

J werk. |

|

In the Supreme Court of the United States

October Term, 1979

ALAN H. HARRIGILL, JR.,

Petitioner,

VS.

STATE OF MISSISSIPP1,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

OF MISSISSIPPI

SAMUEL H. WILKINS

WILKINS, ELLINGTON & JAMES

Post Office Box 504

Jackson, Mississippi 39205

Counsel for Petitioner

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8080

Opinion Below ...........-....-.-::::ss-scesessessseesseeeenseeneentnensenensees 1

a, risa drdmdacatnithiccnnonebianiiasds 2

ares cesnadensceeresennsiantinnsaivices:-cesertevenes 2

Constitutional Provisions and Statutes Involved ............ 2

Se i pcentcin chcnwnsnseseceventsees- 3

Reasons for Granting the Writ ...................................5.....0.. H)

Ne eis lss casioswesnpevsentseveoenses 8

Appendix A—Opinion of the Court 0.000.000.0002... Al

AUTHORITIES CITED

Blackburn v. Alabama, 361 U.S. 199, 4 L.Ed.2d 242, 80

in ale, Pee th Ae ee 7

Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747,

BA LDS A 7

Bram v. United States, 168 U.S. 532, 42 L.Ed. 568, 18

Nets evecserennncorcens 6-7

Brooks v. Florida, 389 U.S. 413, 10 L.Ed.2d 643, 88 S.Ct.

ssi sasensenopeccnecenes 5

Brown v. Mississippi, 297 U.S. 278, 80 L.Ed 682, 56

Cee ee. cinpenescoernsncsecnececes 5

Clewis v. Texas, 386 U.S. 707, 18 L.Ed.2d 423, 87 S.Ct.

Nee eas cadsncscnseqeecsenceces 5

Davis v. North Carolina, 384 U.S. 737, 16 L.Ed.2d 895,

BG A 7

Garrity v. New Jersey, 385 U.S. 493, 17 L.Ed.2d 562,

Nee ec ccamessvecnnccccnnes 7

Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84

EES ES EEE ES TTT 6,7

Mincey v. Arizona, 437 U.S. 385, 57 L.Ed.2d 290, 98 S.

a SENS AG 6

II

UNITED STATES CONSTITUTION CITED

EERSTE OORT: AN aOR So eT te EOL

PER ARE Salt ele IE Ses SEER R EES.

STATUTES CITED

Mississippi Code of 1972, §97-19-39 2.00...

28 United States Code, §1257(3) .... ...... "oe re ele RE

In the Supreme Court of the United States

October Term, 1979

ALAN H. HARRIGILL, JR.,

Petitioner,

VS.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

OF MISSISSIPPI

Petitioner, Alan H. Harrigill, Jr., respectfully prays

that a Writ of Certiorari issue to review the Judgment

herein of the Supreme Court of the State of Mississippi

entered on March 12, 1980.

OPINION BELOW

a

JURISDICTION

The Judgment of the Mississippi Supreme Court was

made and entered on March 12, 1980, and is appended

hereto. The jurisdiction of this Court is invoked under

28 United States Code, §1257(3).

QUESTIONS PRESENTED

Did the Court below err in holding that the admission

into evidence of oral statements made by the Defendant/

Petitioner while he believed he had been granted immu-

nity did not violate the Petitioner’s rights to a fair trial?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The Fifth Amendment, United States Constitution

which provides in part as follows:

* * * [NJor shall [any person] be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law;.. .

2. The due process and equal protection clauses of

the Fourteenth Amendment, United States Constitution

which provide as follows:

* * * [NJor shall any state deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

3. The statute under which Petitioner was _prose-

cuted, though nothing turns on its terms, was §97-19-39

of the Mississippi Code of 1972, which provides as follows:

3

Every person who, with an intent to cheat or defraud

another, shall designedly, by color of any false token

or writing or by another false pretense, obtain the

signature of any person to any written instrument, or

obtain from any person any money, personal property

or valuable thing, upon conviction thereof, shall be

punished by imprisonment in the penitentiary not ex-

ceeding three years, or in the county jail not exceeding

one year, and by fine not exceeding three times the

value of the money, property or thing obtained.

STATEMENT OF THE CASE

The Grand Jury for the First Judicial District of

Hinds County, Mississippi, returned its indictment No.

P-847 against the Petitioner on July 5, 1978. This indict-

ment charged that the Petitioner, from June 1, 1973,

through August 17, 1973, did wilfully, unlawfully and

feloniously, by common plan, scheme, design and by color

of certain false representations in writing, make false and

fraudulent representations to Bankers Trust Savings and

Loan Association in loan applications and that Bankers

Trust Savings and Loan Association was defrauded of

$99,000 in violation of §97-19-39 of the Mississippi Code

of 1972, Annotated. Prior to that time, on September 20,

1976, Petitioner’s attorney, Samuel H. Wilkins, conferred

with the chief investigator for the District Attorney in

the First Judicial District of Hinds County, Mississippi,

H. A. “Chip” Gusack, concerning potential criminal charges

against the Petitioner. At that time, Mr. Wilkins was

also representing William M. Faust who was indicted for

the same offense as the Petitioner. At a second conference

between Mr. Wilkins and Mr. Gusack that same day, Mr.

Wilkins prepared a written memorandum outlining the

fact that the Petitioner and William M. Faust were to

be given full immunity in return for their cooperation

4

vestigation into all matters related to Bankers Trust Sav-

ings and Loan Association.

Based on his understanding of the agreement with

the District Attorney’s office, Mr. Wilkins arranged for

his clients to meet with Mr. Gusack and make a full

disclosure of facts and documents which they had knowl-

edge of or which were in their possession. Pursuant to

the agreement, on September 21, 1976, Petitioner met with

Mr. Gusack in a lengthy conference, allowed himself to

be thoroughly interrogated by Mr. Gusack and provided

Mr. Gusack with all documentary and oral evidence con-

cerning the investigation of various Bankers Trust matters

which he had in his possession. In addition, Petitioner

provided certain documents and other written materials

to his co-indictee, William M. Faust, who in turn pro-

vided this material to the District Attorney’s office, Al-

though Mr. Harrigill’s immunity agreement was not up-

held, Mr. Faust was ultimately granted immunity and

was a witness for the State at the Petitioner’s trial.

On July 11, 1978, Petitioner filed his motion to quash

the indictment based on the immunity agreement which

had arisen between defense counsel, Samuel H. Wilkins,

and H. A. “Chip” Gusack. At the hearings on the motion

held on July 7, and 21, 1978, Mr. Gusack stated that he

could not have extended immunity to Mr. Harrigill and

Mr. Faust because he did not have statutory authority

to do so. Defense counsel, Samuel H. Wilkins, testified,

however, that Mr. Gusack represented to him on Septem-

ber 20, 1976, that if Mr. Harrigill and Mr. Faust would

make a full disclosure of the facts within their knowledge

concerning the Bankers Trust investigation, immunity from

any criminal charges would be extended to them. Mr.

Wilkins also testified that on numerous cecasions he had

had immunity extended to clients by law enforcement

Hy)

officials and prosecutors and that he had always, in the

past, been able to rely on such offers of immunity.

On July 21, 1978, Petitioner filed his motion to sup-

press the statements and the physical evidence he had

given H. A. “Chip” Gusack at their meeting on Septem-

ber 21, 1976. A hearing was held on the motion and it

was overruled by the trial judge. At the trial, defense

counsel renewed their objection to the introduction of

the Petitioner’s oral statements and to the evidence pro-

vided by the Petitioner with the understanding that he

was to be granted immunity. Nonetheless, the documents

were admitted and Mr. Gusack was allowed to testify

as to statements allegedly made to him by the Petitioner..

The jury returned a verdict of guilty and Petitioner

was sentenced to serve three years in the Mississippi

Department of Corrections, to pay a fine of $50,000 and

to be immediately disbarred from the practice of law.

REASONS FOR GRANTING THE WRIT

It is a well established rule that the Constitution does

not allow the prosecution to use an involuntary confes-

sion. Brooks v. Florida, 389 U.S. 413, 10 L.Ed.2d 643,

88 S.Ct. 541 (1967); Clewis v. Texas, 386 US. 707, 18

L.Ed.2d 423, 87 S.Ct. 1338 (1967), and Brown v. Mississippi,

297 U.S. 278, 80 L.Ed. 682, 56 S.Ct. 461 (1936). A defen-

dant’s constitutional rights are violated when his convic-

tion is based, in whole or in part, on an involuntary con-

fession. It does not matter if the confession is true or

false.

In the instant case the prosecution maintained through-

out all pretrial hearings as well as during the trial itself,

that Mr. Gusack lacked the authority to grant immunity

to Mr. Harrigill. Within the meaning of the rules ex-

cluding confessions made under a promise of immunity

EE EEE OO

6

held out by one in authority, a prosecutor, or a person

representing him is a person in authority. Confessions

induced by a promise of immunity made by prosecuting

attorneys, their agents and authorized investigators, are

inadmissible in evidence. Even so, Mr. Gusack’s authority,

or lack thereof, is not the crucial factor to be considered

in determining the admissibility of Mr. Harrigill’s state-

ment to him. What is crucial, is that Mr. HarrigilNbelieved

that he had been granted immunity.

At the pretrial hearing on the question of admissibility,

Mr. Wilkins, Mr. Faust and the Petitioner all testified

that they believed the Petitioner kad been granted immu-

nity prior to his interview with Mr. Gusack on Septem-

ber 21, 1976. Mr. Harrigill’s state of mind rendered any

statement of confession he made on that date inadmissible

in a subsequent trial because it cannot meet the standards

of a “voluntary” confession.

Any use at a criminal trial of the defendant’s invol-

untary statement is a denial of due process of law. Mincey

v. Arizona, 437 U.S. 385, 57 L.Ed.2d 290, 98 S.Ct. 2408

(1978). In Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d

908, 84 S.Ct. 1774 (1964), this Court said:

** * [T]he overall determination of the voluntariness

of a confession has thus become an exceedingly sen-

sitive task, one that requires facing the issue squarely,

in illuminating isolation and unbeclouded by other

issues and the effect of extraneous but prejudicial

evidence. (378 U.S. 390) (Citing cases)

The test to be applied in determining whether a

statement is admissible is that it not be

““* * * extracted by any sort of threats or violence,

nor obtained by any direct or implied promises, how-

ever slight, nor the exertion of any improper influ-

ence. * * *” Bram v. United States, 168 US. 532,

7

042-543, 42 L.Ed. 568, 18 S.Ct. 183 (1897). See also

Brady v. United States, 397 U.S. 742, 749-750, 25 L.Ed.

2d 747, 90 S.Ct. 1463 (1970).

Anything furnished Mr. Gusack by Mr. Harrigill was

done in reliance on Mr. Gusack’s promise or on his belief

that he was immune from prosecution.

In its opinion, the Mississippi Supreme Court stated

that where there is conflicting evidence concerning the

voluntariness of a confession, it will not set aside the

decision of the trial court. This Petitioner concedes that

there was conflicting evidence concerning the immunity

agreement but submits that it is not unusual for there

to be a conflict in the testimony regarding confessions.

This Court in Davis v. North Carolina, 384 U.S. 737, 16

L.Ed.2d 895, 86 S.Ct. 1761 (1966) notes that it is almost

invariably the case that there is a conflict in the testimony

as to the events surrounding the interrogation where con-

fessions are obtained through unobserved interrogations.

The Court went on to say in that case and in many sub-

sequent cases that it would examine the entire record in

order to make an independent determination of the ulti-

' mate issue of voluntariness.

In Garrity v. New Jersey, 385 US. 493, 17 L.Ed.2d

562, 87 S.Ct. 616 (1967), this Court held that the question

to be resolved is whether or not the accused was deprived

of his free choice to admit, deny or refuse to answer.

Mr. Harrigill agreed to make his statement in return for

a grant of immunity. In other words, he had a choice

between giving the statement or facing prosecution. There-

fore, at all times during his interview with Mr. Gusack,

this Petitioner believed he had been extended immunity.

The Petitioner believes that the following quote from

Jackson v. Denno, supra, wherein the Court quoted its

earlier decision in Blackburn v. Alabama, 361 U‘S. 199,

206, 4 L.Ed.2d 242, 247, 80 S.Ct. 274, applied to Petitioner’s

situation.

“As reflected in the cases in this Court, police

conduct requiring exclusion of a confession has evolved

from acts of clear physical brutality to more refined

and subtle methods of overcoming a defendant’s will.

‘(This Court has recognized that coercion can be

mental as well as physical, and that the blood of the

accused is not the only hallmark of an unconstitutional

inquisition. A number of cases have demonstrated,

if demonstration were needed, that the efficiency of

the rack and the thumbscrew -an be matched, given

tke proper subject, by more sophisticated modes of

“persuasion”.’” (378 U.S. 389, 390)

Regardless of whether or not an immunity agreement

existed, it is apparent that at the time the Petitioner gave

his oral statement and provided documents of Mr. Gusack,

he believed he had been granted immunity. Because of

the promises which had been made to the Petitioner and

the conditions under which his statements were made,

this Petitioner submits that the admission of his state-

ments at his trial violated his constitutional right to due

process.

CONCLUSION

For the reasons aforesaid, it is respectfully prayed

that a Writ of Certiorari be granted to review the Judg-

ment of the Supreme Court of the State of Mississippi.

Respectfully submitted,

SAMUEL H. WILKINS

WILKINS, ELLINGTON & JAMES

Post Office Box 504

Jackson, Mississippi 39205

Counsel for Petitioner

Al

APPENDIX

IN THE SUPREME COURT OF MISSISSIPPI

NO. 51,591

ALAN H. HARRIGILL

V.

STATE OF MISSISSIPPI

BEFORE SMITH, SUGG AND BOWLING

SMITH, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal by Alan H. Harrigill from his con-

viction in the Circuit Court of the First Judicial District

of Hinds County of the crime of false pretenses. For his

said offense, he was sentenced to serve three years in

the Mississippi Department of Corrections, to pay a fine

of $50,000 and to be immediately disbarred from the prac-

tice of law.

Although several grounds for reversal are assigned,

we agree with appellant’s counsel that the case does not

necessitate a lengthy ur detailed statement of the facts.

Harrigill, a lawyer, was a member of a prominent

firm and was serving as counsel for (now defunct) Bankers

Trust Savings And Loan Association. He, William Marvin

Faust and Ralph W. Blackmon were associated in formine

several corporations, including Timberlake Compary and

Skyview Company. At the times involved, Faust was vice

president and district loan manager for the Gulf Coast

District of Bankers Trust. Blackmon was executive vice

president in charge of financing and loans.

The ‘substance of the State’s case is set out in the

State’s brief as follows:

A2

One Morris “approached Faust in 1973 regarding a

loan to develop Beaumont Subdivision on property north

of Gulfport, Mississippi. Although Morris paid $2,500.00

per acre for the land, Faust directed him to borrow

$3,000.00 per acre for the purchase in order to give Faust,

Blackmon and appellant a kickback of $99,000.00 or $500.00

per acre, which sum they had agreed was feasible, (A.

100, 101, 160) In return a loan of $1,851,700.00 would

be approved for Gold Coast Enterprises, Inc., of which

Morris owned one-third interest. (A. 160, 165) Faust, as

the loan officer, prepared the loan and submitted it to

his superior Blackmon who in turn passed it to the Execu-

tive Committee. (A. 97) The kickback was concealed

on the closing statement within a $179,000.00 expenditure

for engineering, grubbing, and clearing the land. (A. 109,

161) Morris then wrote a check for $99,000.00 to Timber-

lake Company (A. 161) which Faust received and deliv-

ered to Blackmon and appellant in Blackmon’s office. It

was then deposited directly to Skyview Company. (A. 101)

Checks were later issued to Faust, Blackmon and appellant

(Harrigill) each in the amounts of $15,000.00 and $18,000.00.

According to Faust, appellant ( Harrigill) handed him his

two checks in a book while in Blackmon’s presence.”

The assignments of error will be dealt with separately.

(1) THE TRIAL COURT’S ACTION IN REFUSING

TO QUASH THE INDICTMENT.

The first assignment challenges the trial court’s action

in denying Harrigill’s motion to quash the indictment upon

the special plea of the two year statute of limitations.

Mississippi Code Annotated section 99-1-5 (1972).

It is argued that the indictment charges only a con-

spiracy, a crime not among those excepted from the opera-

tion of the two year period of limitations. There is no

merit in the contention. Conspiracy is a complete offense

A3

in itself, distinct from the commission of the crime con-

templated by the conspiracy and does not become merged

with that crime. Martin v. State, 197 Miss. 96, 19 So.2d

488 (1944), Moore v. State, 290 So.2d 603 (Miss. 1974),

U. S. v. York, 578 F.2d 1036 (5th Cir. 1978), cert. den.

439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1979), U. S.

v. Cheers, 439 F.2d 1097 (5th Cir. 1971).

In Prisock v. State, 244 Miss. 408, 141 So.2d 711 (1962),

Prisock was convicted of the statutory crime of false pre-

tenses under then Mississippi Code Annotated, section 2149

(1942). On appeal it was contended in his behalf that

the indictment was duplicitous in that it charged (1) a

conspiracy to commit the crime of false pretenses as well

as (2) an attempt to commit that offense. In Prisock

the indictment stated:

“[D]id willfully, unlawfully and feloniously conspire,

willfully scheme and design, and willfully plan in

concert with the other”...

a false automobile wreck to collect money under certain

insurance policies. In rejecting Prisock’s argument this

Court said:

The word “conspire”, used in conjunction with

“scheme, design and plan”, concerning all of the in-

dictees, was used in a generic sense to show the con-

cert of action of the parties in planning .the false

wreck, obtaining the insurance, causing the faked acci-

dent, and making the claims. A fair construction of

the indictment shows that defendant was charged and

convicted of the crime of an attempt to commit false

.pretenses. The indictment did not charge an offense

of conspiracy only. It averred overt acts manifestly

constituting an attempt to commit the offense.

(244 Miss. at 416, 141 So.2d at 714).

A4

The fact that two or more persons enter into an

agreement or plan to commit a felony, each playing a

part, whether it be murder, false pretenses or some other

felony, and carry out the plan and actually commit the

crime, does not change the nature of the offense com-

mitted nor lessen the exposure of the plotters to punish-

ment therefor.

It is next argued that the offense charged in the in-

dictment is barred by the two year statute because it

charges Barrigill with having been an accessory only, and

that being an accessory is a separate crime, one which is

not among those excepted from the operation of the

statute. This position is not well taken. Section 97-1-3

Mississippi Code Annotated (1972) provides:

Every person who shall be an accessory to any

felony, before the fact, shall be deemed and consid-

ered a principal, and shall be indicted and punished

as such; and this whether the principal have been

previously convicted or not.

Prosecution of one who has been an accessory before

the fact to the commission of one of the excepted felonies

is not barred by the two year statute of limitations. His

guilt is exactly the same as that of the principal and he

suffers the same exposure to prosecution and punishment.

The indictment charged Harrigill with the crime of

false pretenses proscribed by Section 97-19-39, a felony,

and it was of that crime that he was convicted. In

express terms, false pretenses is excepted from the two

year statute of limitations.

A5

(2) DENIAL OF APPELLANT’S MOTION FOR

CHANGE OF VENUE.

A motion was made for a change of venue, based

upon a contention that there existed such public resent-

ment because of the failure of Bankers Trust Savings And

Loan Association and such prejudice against those who

might be accused of having been implicated in its failure,

that the case could not be fairly tried in Hinds County.

An examination of the record made upon the motion,

the voir dire of prospective jurors, and the testimony of

witnesses, reflected that there was no widespread or sig-

nificant knowledge or information among members of the

public or among the prospective jurors, relating to the

failure of Cankers Trust, or associating Harrigill’s name

with it or as having been involved in it, as would make

it impossible or even difficult to select an impartial or

unprejudiced jury. Jurors who stated that they might

have read about it in the newspaper were not aware of

specific details and had no knowledge of the facts of

the case. There was no indication of prejudice on the

part of the jurors. The situation, as reflected by the

record, shows that the decision as to the change of venue

was a factual one, one resting within the sound judicial

discretion of the trial judge. There is nothing in the

record to indicate that, in denying the motion, there was

an abuse of such discretion or that Harrigill was prejudiced

thereby. Anderson v. State, 246 Miss, 821, 152 So.2d 702

(1963), Shimniok v. State, 197 Miss. 179, 19 So.2d 760

(1944), Irving v. State, 361 So.2d 1360 (Miss. 1978).

There is no merit in the assignment that there was

an abuse of judicial discretion by the trial court in the

denial of the motion for a change of venue.

A6

(3) THE ACTION OF THE TRIAL COURT IN AL-

LOWING ADDITIONAL QUESTIONING OF A JUROR.

Following selection of the jury, but prior to the be-

ginning of the trial, the district attorney discovered that

the son of one of the jurors was under an indictment

for burglary. A request was made that in the light of

that information, an inquiry be made as to the juror’s

competency by additional voir dire. The trial judge,

noting that no testimony had been taken and that the

juror’s competency should be determined prior to the

beginning of the trial, proceeded to _guestion the juror

upon the matter. The juror informed the judge that his

son had been convicted of armed robbery and charged

with other crimes but stated that nothing in these cir-

cumstances would cause him to favor the defense or be

prejudiced against the State. He assured the court that

he was not prejudiced against the judicial system or law

enforcement officers and expected no benefit by voting

for or against the State. The juror assured the district

attorney that his son’s charges and convictions would

not influence his verdict. At the conclusion of this voir

dire of the juror, appellant moved for a mistrial based

upon the overruling of his objection. The motion for a

mistrial was denied. There was no motion by the defense

to excuse the juror or to strike him for cause.

Reopening under similar circumstances has been dealt

with by this Court and the rule has been laid down

that the reopening for further voir dire is a matter resting

within the sound judicial discretion of the trial judge.

This Court will not interfere unless there has been an

abuse of that discretion. Sullivan v. State, 155 Miss.

629, 125 So. 115 (1929), Moser v. Brown, 249 N.W.2d

612 (Iowa 1977), State v. Kirkman, 293 N.C. 447, 238

S.E.2d 456 (1977), Foley v. Revlon, Inc., 200 So.2d 627

(Fla. App. 1967).

AT

In Sullivan v. State, swpra, relied upon by appellant

on this point, this Court said:

The power to stand jurors aside after they have been

accepted should be exercised with due caution, but

whenever there is adequate reason for so doing, and

where there is no error or harm apparent from the

record resulting therefrom, this Court will not inter-

fere with the discretion of the trial judge in his

rulings.

(155 Miss. at 637, 125 So. at 117).

The proper procedure under the circumstances related,

if appellant considered that the juror was prejudiced or

had been intimidated, was to move the trial judge to

strike or excuse the juror for cause, as was done in Walls

v. State, 371 So.2d 411 (Miss. 1979). This was not done,

however. Moreover, we cannot say from the record that

appellant was prejudiced by the action of the trial court

in refusing to order a mistrial.

(4) ADMISSION OF THE TESTIMONY OF IN-

VESTIGATOR GUSACK CONCERNING APPELLANT’S

STATEMENT.

There was introduced at the trial a detailed statement

given by Harrigill to investigator Gusack. In this state-

ment, Harrigill related at length and in very considerable

detail how he, Faust and Blackmon had collaborated in

obtaining the $99,000.00 which was the fruit of the crime

charged. He further told Gusack how he, Faust and

Blackmon had handled the proceeds for the crime and

how it eventually was divided between them - $33,000.00

each, paid in two checks, one for $15,000.00 and one for

$18,000.00. The facts related to Gusack by Harrigill, if

true, clearly established his guilt of the crime charged.

A8

The question raised on appeal is that Harrigill had been

induced to make the statement by a promise of immunity.

The statement was taken by Gusack after repeated

warnings to Harrigill as required by Miranda, and was

recorded on tape as it progressed. Testimony relating

to Harrigill’s contention that he had been promised immu-

nity in exchange for his confession, and that he had

given the statement only because of such promise, is in

direct conflict with opposing testimony, including that of

Gusack. Thus a factual issue was created as to admis-

sibility for determination by the trial judge, as trier of

facts. Evidence supporting the voluntary character of the

Statement and supporting the State’s contention that it

had not been induced by a promise of immunity, is neither

unreasonable nor implausible. It amply supports the find-

ing that the statement had been voluntary and that there

had been no promise of immunity. In this connection,

the testimony of Gusack is supported by the taped record

of his interview with Harrigill. A decision of such a

question of fact on conflicting evidence will not be set

aside by this Court where there is substantial and be-

lievable evidence supporting it as there was in this case.

We have considered each of the questions raised and

we find no merit in any of them. Harrigill’s statement

and the testimony of Faust overwhelmingly support the

jury’s finding that Harrigill was guilty of the crime

charged. It appears that Harrigill was properly indicted,

fairly tried and convicted and that no prejudicial error

occurred in the course of his trial. The conviction and

sentence must, therefore, be affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., SUGG,

WALKER, BROOM, LEE, BOWLING AND COFER, JJ.,

CONCUR.

—

AY

STATE OF MISSISSIPPI

HINDS COUNTY

I, Robert E. Womack, Clerk of the Supreme Court

of the State of Mississippi, do hereby certify that the

foregoing is a true and correct copy of the opinion de-

livered by the Court in the cause therein stated, as the

same appears of record on file in my office.

Given under my hand, with the seal of said Court

affixed, at office, in the City of Jackson, Miss., this the

13th day of March A.D., 1980

s’ Robert E. Womack

(Seal ) Clerk Supreme Court