James Randall Jordan was convicted by a jury of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. 1 The felony murder was merged into the malice murder conviction, and sentence was imposed on all other counts. Jordan appeals from the judgment of conviction and sentences entered thereon, asserting primarily that the trial court erred in admitting into evidence a custodial statement taken after he had invoked his right to counsel, and in refusing to allow Loretta Leyva to assert a marital privilege on the bаsis of a common-law marriage. Finding no reversible error, we affirm the convictions for malice murder and possession of a firearm. But because there was no evidence of an independent aggravated assault, we conclude that the aggravated assault merged into the maliсe murder conviction as a matter of fact. Accordingly, we reverse the judgment of conviction and sentence for aggravated assault.
Jordan does not dispute that he shot and killed his next-door neighbor and long-time friend, Jason Underwood, but claims that the shooting was accidental. Jordаn initially reported to police that he heard arguing at Underwood’s residence, followed by a gunshot, and that he ran over there to find the victim lying in a pool of blood on the patio. The investigating officers discovered Underwood’s body as described by Jordan. Jordan subsequently admitted shoоting Underwood with a semi-automatic assault rifle, but claimed that the weapon discharged accidentally. He informed the officers that he had hidden the rifle and gun clip at various locations in his home, and he *443 gave his consent to search the residence. The items were found in the locаtions he described. The cause of death was a bullet fired at a range of six to ten inches through the victim’s mouth. A firearms examiner with the State Crime Lab testified that the rifle was in good working order; and that it “will not fire accidently . . . [but] only when the trigger is pulled rearward,” requiring three pounds of pressure to the trigger. Jordan’s girl friend, Loretta Leyva, testified he admitted to her that he deliberately shot Underwood because Underwood “kept ragging him.” While in the presence of another friend, Jordan threatened to kill Leyva if she revealed this admission.
1. A Jackson v. Denno hearing was held prior to trial to determine the admissibility of Jordan’s custodial statements. The evidence adduced at that hearing showed the following: After Jordan reported his initial account of the crime to police, he was asked to give a statement to a stenographer at the police station in connection with the investigation. He was considered a witness to the events, and was not then a suspect. He first informed the stenographer that he had been at Underwood’s house earlier that day, but returned home for dinner. After dinner he heard hollering outside accompanied by a gunshot, at which time he went to investigate аnd found Underwood’s body. He further stated: “I grabbed his hand and I shook him and I was calling his name and he didn’t answer . . . and then I ran back to my house and my mama called the police. ... I ran out to the street to flag in the officers.” The stenographer’s report continues: “At this time Mr. Jordan became nervous, beсame very nervous and said fuck it, I might as well tell you the truth. It was an accident. I shot him. It was an accident.” The stenographer immediately stopped the interview and summoned the investigating officers. A detective arrived and advised Jordan of his Miranda rights. Jordan told that detective that he “wanted to tell the truth,” and “thought he might need a lawyer,” but he continued to volunteer that the shooting had been accidental, and that he wanted to cooperate with the officers. Jordan was taken to another interrogation room where he reiterated, without further questioning, that the shooting was an acсident and that he wanted to cooperate with the investigating officers. A second detective entered the room, re-administered Miranda warnings, explained their content, obtained a signed waiver of rights form, and proceeded to interrogate the defendant. During this interview, Jordan explained his conduct in further detail, while continuing to maintain that the shooting was accidental. He disclosed that earlier in the day he had taken his SKS semi-automatic assault rifle to Underwood’s house. Underwood had a .357 revolver in his waistband. Jordan continued: “I set my rifle on the wall and Jason was playing with me . . . slaрped me on the back of my neck once or twice, we *444 was [sic] just playing and I moved and Jason grabbed my rifle by the barrel. . . and I grabbed the rifle between the clip and trigger guard and I guess my finger slipped in the trigger and when I was pulling the rifle back, it discharged.” He then ran home, told his mother that he had aсcidentally shot Underwood, and she telephoned for help.
The trial court determined that Jordan’s mention of a lawyer did not constitute a clear invocation of the right to counsel, and that his subsequent statements to police were freely, voluntarily, and intelligently made and would be admissible at trial.
Jordan asserts that his statement, that he “might need a lawyer” is an unambiguous assertion of the right to counsel which required the cessation of questioning, and that any statements which followed were inadmissible because they were derived in violation of the right to counsel and the prohibition agаinst compelled self-incrimination. 2
Law enforcement officers must immediately cease questioning a suspect who has
clearly
asserted a right to have counsel present during custodial interrogation.
Edwards v.
Arizona,
Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” [Cit.] But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the сircumstances would have understood only that the suspect might be invoking the right to counsel, our 'precedents do not require the cessation of questioning. [Cits.]
Rather, the suspect must unambiguously request counsel. As we have observed, “a statement either is such an assertion of the right to counsel or it is nоt.” [Cit.] ... [A suspect] must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.
Id., 114 SC at 2355. Davis’ statement, “Maybe I should talk to a lawyer,” did not communicate an unambiguous request for counsel. Neither was Jordan’s reference to an attorney a clear invocation of his right to counsel as would require the cessation of questioning under
Edwards v. Arizona.
See also
Luallen v. State,
Even if Jordan’s request were unambiguous, his claim fails for another reason. His responses to subsequent questions wоuld be admissible if he initiated further discussions with police and he knowingly and intelligently waived the right he had invoked.
Edwards v. Arizona,
supra,
In the alternative, Jordan asserts that his reference to counsel is at least an ambiguous or equivocal request which mandates clarification before any interrogation may continue. That issue was squarely addressed in Davis, contrary to Jordan’s position.
[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney. . . . [W]e decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.
Davis v. United States, supra, 114 SC at 2356. 3 Thus, clarification of Jordan’s ambiguous request was not required under the federal constitution. But even if it were, by administering Miranda warnings for the second time after the reference to counsel, carefully reviewing the waiver of rights form, and obtaining Jordan’s signature thereto, the officers resolved any possible ambiguity that may have been created by his previous statement. Seе Luallen v. State, 266 Ga., supra.
Hall v. State,
2. Jordan contends the trial court erred in finding the absence of a common-law marriage between himself and Loretta Leyva, thereby refusing to allow Leyva to invoke the marital privilege under OCGA § 24-9-23. 5 We disagree.
“The deсision of the trial court as to the fact question of the existence vel non of a common-law marriage, should not be disturbed on appeal if there is any evidence to support its finding.”
Conyers v. State,
3. At a hearing outside the presence of the jury, the state established that it had provided notice under Uniform Superior Court Rule 31.3 (B) of its intent to introduce evidence of similar transactions, consisting of the testimony of various named individuals that Jordan had on several specified occasions pointed fireаrms at others. The evidence was offered to show course of conduct. The sole objection was that the notice was insufficient because it contained an incorrect indictment number. The trial court correctly determined that the typographical error did not render the evidence inadmissible. The spirit of USCR 31.3 was satisfied; Jordan was provided with fair and adequate notice of the State’s intent and a meaningful opportunity to rebut that evidence and to resolve questions regarding
*447
its admissibility prior to trial. See generally
Wilkins v. State,
4. Jordan contends that the trial court impermissibly placed his character in issue by allоwing the State to inquire into his tendency for violence, in violation of OCGA § 24-9-20 (b). But Jordan opened the door to this line of questioning during cross-examination of Leyva when his counsel asked and obtained affirmative responses to questions concerning frequent physical fights between Jordan and Underwood, and between Leyva and Jordan. On re-direct, the prosecutor merely followed up on the issues injected by Jordan by asking Leyva whether Jordan is violent. She was permitted to respond, over objection, that he frequently hit her with his fists and hands. Because Jordan elected to initiate the issue оf his propensity for violence, the prosecution was authorized to further explore that area. OCGA § 24-9-20 (b);
Mulkey v. State,
5. The sole shot that was fired was the one which caused the death of the victim.
[Ajpplying the “actual evidence” test of our substantive double jeopardy provisions, see OCGA §§ 16-1-7 (a), 16-1-6, we find that [appellant’s] conviction for [aggravated assault of the deceased victim] must be set aside. The “actual evidence” test, in effect, means “ ‘that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under . . . OCGA § 16-1-6 (1).’ ”
(Citations omitted.)
Montes v. State,
6. The evidence was sufficient under the standard of
Jackson v. Virginia,
7. Jordan failed to preserve his remaining enumerations of error by not making timely objections at trial. See
Prince v. State,
257 Ga.
*448
84 (7) (
Judgment affirmed in part and reversed in part.
Notes
The crimes occurred on March 27, 1994. Jordan was charged on June 17, 1994 in a four-count indictment with malice murder, felony murder with the underlying felony being aggravated assault, aggravated assault and possession of a firearm during the commission of a felony. Trial commenced on November 21, 1994, and he was found guilty of all of the charged offenses on November 23, 1994. He was sentenced on the same day to life imprisonment for malice murder, twenty years for aggravated assault to run concurrently, and five consecutive years for the firearm possession conviction. A motion for new trial was filed on December 16, 1994, amended on October 20, 1995, and denied on January 9, 1996. The case was docketed in this Court on June 13, 1996, and oral argument was heard on October 15, 1996.
Jordan asserts these claims only under the United States Constitution.
See also Equivocal Requests for an Attorney: Caveat Emptor Comes to the Fifth Amendment, 45 Emory L.J. 673 (1996).
The Davis Court also observed that “it will often be good police practice for the interviewing officers to clarify whether or not [the suspect] wants an attorney.” Davis v. United States, supra, 114 SC at 2356. While greater protections may be afforded citizens under the Georgia Constitution, this issue is not now before the court.
We note that effective January 1, 1997, “No common-law marriage shall be entered into in this state .... Otherwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected . . . and shall continue to be recognized in this state.” OCGA § 19-3-1.1 (Ga. L. 1996, p. 1414, § 1).