Dealing With Those Pesky Pre-Arrest Admissions in Georgia DUI Cases
Posted by Ben Sessions | | Uncategorized
We all have cases where our clients make statements that are horribly incriminating are being gently prompted by an officer. These pre-arrest admissions can become pesky. Most of those conversations between officers and our clients go something like this:
Officer: I have been making DUI cases for the last 20 years. I am certified as a drug recognition expert. Now, you know and I know that people don’t have the type of accident that you did without something going on with them. I help people that are honest with me. But I don’t have patience for people that BS me. So, are you gonna be straight with me or not?
After this “polite” nudge, many (most) suspects make statements that could be very harmful to the defense. However, there is some favorable Georgia law that can help you attack the admissibility of these statements in your DUI cases. O.C.G.A. § 24-3-50 states, “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” Cases supporting exclusion of admissions made under the scenario discussed above include the following:
Turner v. State, 203 Ga. 770, 48 S.E.2d 522 (1948).
1. While under the Code, § 38–411, a confession is admissible only if made voluntarily, without being induced by another by the slightest hope of benefit or the remotest fear of punishment, and it was held in Green v. State, 88 Ga. 516, 15 S.E. 10, 30 Am.St.Rep. 167, Dixon v. State, 113 Ga. 1039, 39 S.E. 846, King v. State, 155 Ga. 707, 118 S.E. 368, and McLemore v. State, 181 Ga. 462, 182 S.E. 618, 102 A.L.R. 634, that the confessions there dealt with were inadmissible because of the nature of the statements made to the accused, to- gether with the circumstances surrounding the accused at the time he made the confession, yet in the Code, § 38–412, it is provided that ‘The fact that a confession shall have been made under a spiritual exhortation, or a promise of secrecy, or a promise of collateral benefit, shall not exclude it’; and it was held in Hicks v. State, 178 Ga. 561, 173 S.E. 395, and Watkins v. State, 199 Ga. 81, 33 S.E.2d 325, 335, that confessions otherwise admissible are not rendered inad- missible because the accused was told by another in substance that it was always best to tell the truth. Thus is illustrated the necessity of deciding each case upon its particu- lar facts and circumstances, the applicable rule of law being that an involuntary confession is inadmissible, and a voluntary confession is admissible. The voluntary character of the confession depends on the question whether the making of the statement was voluntary, and not whether the particular communication contained in it was voluntary. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.
2. While the plain provisions of the Code, § 38–412, forbid a ruling that to be ad- missible a confession must be spontaneous, as was said in King v. State, supra, the provisions of § 38–411, require the exclusion from evidence of any confession that is induced by another by the slightest hope that the confession would make his punishment lighter. Accordingly, the confession or incriminatory statement in the present case, in which the accused was convicted of murder with a recommendation of mercy, was inadmissible, inasmuch as it is shown by the record that the sheriff, to whom it was made and who had arrested the accused, testified that ‘All I told him was if he would tell the truth it would be lighter on him,’ and the confession or incriminatory statement followed that statement of the sheriff. Such a statement by the arrest- ing officer was improper and no doubt gave the accused, not merely the ‘slightest hope,’ but a real hope for lighter punishment. The court erred in admitting the alleged confession or in- criminatory statement of the accused over objection.
3. While we have ruled on the admissibility of the statement of the accused according to the law applicable to confessions, though it may amount to no more than an incriminatory statement, the rule as to its admissibility is the same as that applied to a confession. See Fuller v. State, 109 Ga. 809, 35 S.E. 298; Mill v. State, 3 Ga.App. 414, 60 S.E. 4.
4. The above ruling, which will exclude the alleged confession, makes it unnecessary to rule on the special ground excepting to the failure to charge relative to a confession. Other special grounds complaining of the failure to charge are without merit.
Richardson v. State, 265 Ga. App. 711, 595 S.E.2d 565 (2004).
A Gwinnett County jury found Willie Richardson guilty of rape and aggravated sexual battery. He appeals, claiming that the trial court erred in permitting the introduction of his statement to the police and that he received ineffective assistance of counsel at trial. For the reasons that follow, we affirm Richardson’s conviction.
Following the sexual acts Richardson perpetrated against the female victim, she reported the incident to the police. Investigation corroborated portions of the victim’s version of the event, including Richardson’s admissions to at least two other people that he had sex with the victim while she was highly intoxicated. Investigation also showed that the victim suffered a laceration in her vaginal area and bruising around her arms as a result of Richardson’s acts.
Further investigation of Richardson’s admissions to others showed that Richardson be- lieved his sexual encounter with the victim was consensual; that the victim had indicated she wanted to have sex with Richardson when she “raised up, turned around” and made her body available for a sexual encounter; and that during the sex act, the victim suddenly “freaked out” and “just went berserk.”
Based upon these investigations, Gwinnett County Police Officer T. Benning contacted Richardson by telephone and asked him to come into the station for an interview. Although Richardson believed the sex act with the victim was consensual, he had heard from others *712 that the victim had “told the police that [he] raped her and beat her.” Richardson agreed to talk to the police, but could not go to the station immediately. Benning made an appoint- ment to speak with Richardson the next morning. That afternoon, Benning obtained warrants for Richardson’s arrest on the charges of rape and sexual battery. At trial, Benning testified that he intended to arrest Richardson on the warrants, but not until after Richardson had given a statement.
The next morning, Richardson’s fiancée, Donna Martin, drove him to the station for the in- terview. It is undisputed that Richardson went to the station voluntarily. Officer Benning greeted both of them, and all three briefly sat in the interview room together. There, Martin specifically asked Benning if he planned to arrest Richardson. Benning demurred, stating he would “see how the interview went before a decision was made as to whether or not he would be taken into custody.” At trial, Benning candidly testified that this statement was untrue. He testified that he made such statement,[b]ecause I wanted [Richardson] to tell me what happened. I wanted to put him in [an] as in- timidation free environment as I could. It’s already intimidating knowing that you are a sus- pect of a crime, that you’re at police headquarters. I didn’t want to put him in custody where I would be forced to have to mirandize him making him even more intimidated about the in- terview. I was simply after the truth. I wanted him to be in a position to where he would tell me the truth about what happened, so this is the way I chose to go about it.
After making his misleading statement, Benning escorted Martin to a waiting area. On the way there and out of earshot of Richardson, Benning told Martin that he intended to arrest Richardson.
Thereafter, during the interview, Richardson agreed to give a taped statement; his state- ment corroborated the admissions he had earlier made to others, i.e., that the victim, although intoxicated, had physically indicated to him that she desired a sexual encounter; that she did so by deliberately positioning her body so as to be available for a sexual encounter; and that thereafter, during the sex act, the victim “just went crazy, started hollering and [he] couldn’t tell—just you raped me.” Richardson stated that he immediately stopped the sex act and “was trying to fight her off … to block where she was swinging at [him] trying to hit [him]”; he stated that he drove her directly to a friend’s apartment.
It is uncontested that, during the course of the interview, Officer Benning never gave Richardson the impression that he was under arrest or in police custody. On the inter- view tape, Richardson specifically apparently stated *713 he did not believe he was in custody or under arrest. The evidence is equally undisputed that, unbeknownst to Richardson, he was not free to leave the station and he was to be placed under arrest on the outstanding warrants after he gave his statement.
We do, however, find specific circumstances surrounding the giving of Richardson’s state- ment to be problematic. Our concerns go to the voluntary aspect of the statement and are raised by Officer Benning’s deceptive act of informing Richardson that a decision had not been made as to whether he would be arrested and that such decision was dependent on “how the interview went.”
The purpose of Miranda warnings are prophylactic in that they serve to insure that an in-custody statement is still voluntary and not compelled by circumstances. Certainly, then, the failure to communicate an officer’s true intent with regard to taking a suspect into custody will not control the need for Miranda warnings, since the compulsive aspect of custody is not present so as to impact on the voluntary nature of the statement. It does not follow, however, that an officer’s communication of a false intent engenders the same “voluntary” result.
To make a confession admissible, it must have been made *715 voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.FN10
FN10. OCGA § 24–3–50.
In that vein, “[t]he law is well established that use of trickery and deceit to obtain a confession does not render it inadmissible, so long as the means employed are not calculated to procure an untrue statement. [Cit.]” FN11 This principle, although well established, is not without exception. A reviewing court must examine the effect of any deceit upon the voluntar- iness of a confession.
FN11. State v. Ritter, 268 Ga. 108, 110(1), 485 S.E.2d 492 (1997).
Thus, while deceit may not on its own render a statement inadmissible (where not calculated to procure an untrue statement), we hold that in looking to the totality of the circumstances, the employment of deceit may result in the inadmissibility of a statement in those situations where the particular deception used, by constituting a “slightest hope of benefit or remotest fear of injury” under OCGA § 24–3–50, has induced a party to confess, thereby rendering the confession involuntary.FN12
FN12. (Citations omitted.) Id.
In this case, Officer Benning falsely represented that the decision to arrest and charge Richardson would hinge upon the content of his interview. This false representation was made based upon Benning’s assessment that Richardson would be “intimidated” and might not speak freely if Benning “put him in custody where [the officer] would be forced to have to mirandize him making him even more intimidated about the interview.” As such, Officer Ben- ning’s deceptive statement was made to induce Richardson to speak, to “tell [him] what happened.” And, most importantly, implicit in Benning’s statement is the false promise that Richardson would not be arrested and charged depending on “how the interview went.” FN13 Under these circumstances, the inescapable conclusion is that the voluntariness of Richard- son’s statement was compromised because it was “induced by another by the slightest hope of benefit or remotest fear of injury.” FN14 *716 While the term “hope of benefit” contained in **570OCGA § 24–3– 50 has been interpreted generally as a reward of lighter punishment on the charges,FN15 we find that “hope of benefit” may also include, as in this case, the reward of no charges at all.
FN13. Id. at 110–111, 485 S.E.2d 492.
FN14. OCGA § 24–3–50; State v. Ray, 272 Ga. 450, 451–452, 531 S.E.2d 705 (2000) (officers induced confession by holding out a hope of benefit in the form “years of freedom”); compare Moore v. State, 230 Ga. 839, 840, 199 S.E.2d 243 (1973) (an of- ficer’s false statement that murder weapon had been found did not require an answer from defendant, held forth no benefit or threat, and thus did not “compel” subsequent statement); accord Harris v. State, 274 Ga. 422, 424(3), 554 S.E.2d 458 (2001); see also Davis v. State, 245 Ga.App. 508, 509, 538 S.E.2d 159 (2000) (making defendant aware of potential legal consequences associated with charges against him does not render statement inadmissible).
FN15. State v. Ritter, supra at 109, 485 S.E.2d 492.
Even as we recognize the involuntary aspect of Richardson’s statement, our considera- tion does not end there. This is so because the erroneous admission of an involuntary statement is subject to a harmless error analysis. FN16 From the record, it appears clear that Richardson’s statement to Officer Benning was substantively the same as the statements he made to two other State’s witnesses, both of whom testified at trial. His statement was also consistent with his theory of defense, i.e., the victim consented to the sex act and then inexplicably “went crazy,” and Richardson’s own trial testimony mirrored his statement in furtherance of this “consensual” defense. Under these circumstances and “[i]n light of the cumulative nature of the confession, any error in its admission was harmless.” FN17
FN16. See Arizona v. Fulminante, 499 U.S. 279, 309–311, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also McIntyre v. State, 266 Ga. 7, 22(6), 463 S.E.2d 476 (1995) (Sears, J., dissenting in part).
FN17. (Citation omitted.) Burnham v. State, 265 Ga. 129, 134(6), 453 S.E.2d 449 (1995); accord Borders v. State, 270 Ga. 804, 809(3), 514 S.E.2d 14 (1999); Tankersley v. State, 261 Ga. 318, 321(2)(b), 404 S.E.2d 564 (1991); McLendon v. State, 259 Ga. 778, 780(4), 387 S.E.2d 133 (1990).
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