*1 918) Here, (1977). Duvall v. a Ga. 325 SE2d missible. witnesses, including perpetrators, one of the testified couple of perpe- apartment to the one that the was similar gun found at Thus, of the murder. counsel’s failure carrying night was on trator Hammond object cannot be deemed deficient. (3) (b) (452
(c) Aрpellant was ineffective for argues further that his counsel witness, object prosecutor’s only one failing to fact, Gates, when, in an- supported appellant’s of the events version witness, Johnson, Brown supported appellant’s statement other Pretermitting question person killed victim. of was the who deficient, object counsel’s failure to to this statement was we whether prejudiced he appellant conclude that has failed to show how was see Roberts Ga. 604 from this 689) (1979), case, is the of the in the jury, judge since the which facts privy of the wit- wаs the correct information via the this lacks Accordingly, nesses. assertion merit.
Judgment All the Justices concur. affirmed. 22, 1996. January
Decided Daley, Venice R. appellant. Slaton, Attorney, Bowers, R. Attorney
Lewis J. District Michael General, Boleyn, Attorney General, Susan Senior Assistant Wes- V. ley Homey, General, S. Attorney Assistant appellee.
S95A1678. LUALLEN v. THE STATE. Justice. Hunstein, Mary Carolyn guilty Luallen found of the malice murder was niece, 19-year-old Angie Jernigan, and was sentenced to life in prison. She appeals from the denial of her motion for new trial.1
1.
jury
Evidence was adduced from which a
was authorized to
Luallen,
infant,
temporary custody
Jernigan’s
find that
who
had
upset
Jernigan’s plan
regain custody
was
over
of her
On
child.
27,
July
Jernigan.
afternoon of
met
in Lual-
Luallen
with
While
seat,
baby
len’s car with
shot Jernigan
the back
twice
Chattooga
Her motion for new
June
1995. Oral
26,1995.
The homicide occurred on
County.
A
arguments
notice of
She was found
trial,
filed
were heard on October
appeal
April
was filed
July
guilty
2,1993
on March
1992. Luallen was indicted on
amended
14,1995.
11,1993,
November
and was
appeal
sentenced
16,1994,
was
February
docketed on
was deniеd
the same
1993 in
July
day.
on
(which
single
required
in the head with
and
sic evidence established that the muzzle of the revolver was
action
the
fire).
revolver
hammer
pulled
trigger
gun
each to
back before the
Foren-
contact
body
placed
skin for
with
victim’s
both shots. The
placed
home,
trunk of the car and taken to Luallen’s
the
where
backyard
evening
and covered it with mattress. That
*2
persuaded
help
parking
a
her
the
from
friend
move
victim’s car
place
grandpar-
near
lot
the victim’s work
to the home of the victim’s
(but
purporting
A
ents.
note
the
in
be frоm
victim
not
her hand-
writing)
claiming
and
that she
left town
in
had
was found
the car.
Expert
body
evidence established that
the victim’s
sustained
post-mortem injuries
nearly decapitated
in that the head had been
with cuts
with the
A
consistent
use of a saw.
circular saw rendered
inoperable by
bloody clothing
entwined
on
was found
covering
the scene.
body
There was also
surrounding
that
evidence
the mattress
the
and the
gasoline.
early
soil had been
with
In the
saturated
hours
decomposing
30, 1992,
of
Luallen tried to remove the victim’s
body
backyard
put
body
from
in
her
but was
the
unablе
the
trunk
her
work,
of
about
car. When her husbanO returned from
she informed him
together they
police,
crime and
went to the
where she made
a.m.,
two statements. In the first
that while
made at
she
4:38
claimed
talking
backyard,
in
to the victim
a male
her
and
friend
warning
in
she fired a
shot
the air which hit the victim. She also told
police
weapon
searching
the
Luallen’s
was
in
under the seat
her car. After
car,
trunk,
where blood was found
the interior and
and
police
investigating
fully,
questioned
again
the matter more
p.m.,
picking
up
7:15
at
at which time
that
she stated
after
victim
acсidentally
work,
from
retrieving
shot the victim twice
the head while
gun
from the back seat of the car.
We find the evidence
sufficient
enable a rational trier
fact to
guilty
beyond
find Luallen
of murder
doubt under
reasonable
Virginia,
standard set
in Jackson v.
forth
by denying
2. Luallen contends the trial
erred
court
motion
newly
for new trial
pert
at
because
evidence
trial and
discovered ex-
evidence established that Luallen’s
statements
were
voluntary.
not
The evidence showed that
time of
at the
her statements Luallen
(the
taking
pills”
Xanax),
prescription drug
recently
was
“nerve
had
teenage
accident,
of her
sustained the loss
son
an automobile
and
sleeping
testimony
not
had
been
well.
of the
Based on
officerwho
videotaped
conducted the
and
interviews
a review the
interviews
hearing2
themselves,
Jackson-Dеnno
auth
evidence adduced
appellant
finding
and
and that
that
rational
coherent
orized
knowingly
voluntarily.
given
See Corn v.
and
her statements were
State,
(1977);
generally Henson v.
see
(1)
State,
since Luallen has not shown that was not from want acquire diligence earlier; that she this information due did has shown the information is so that it Luallen would have resulted material judgment. a different is not entitled to newly a new trial on the basis of discovered evidence. Timberlake *3 supra.3 her 3. Luallen contends denial of new trial motion was error be- (a) regards: she assistance of counsel in two cause received ineffective psychologists, have who her counsel’s failure to the two had evaluated insanity ability regard to her her at the time the crime and to trial, assist counsel at statements she also examine as to the voluntariness of the (b) police; gave and counsel’s failure introduce mitigation. expert psychological evidence (a) regard record of Lual- establishes admission statement, len’s reviewed one obtained and but two respected psychologists, mental from evaluations inter- (which witnesses, viewed tapes reviewed the State’s file included video- statements) thoroughly of Luallen’s and cross-examined wit- during hearing. nesses Jackson-Denno Under the circumstances relying presumption” “strong case, in this that counsel’s and (1) (325 performance Francis, deficient, was not Smith v. (104 362) (1985); Washington, Strickland v. SC 674) (1984), ruling 2052, 80 LE2d trial court’s that trial we affirm the State, 262 counsel was ineffective asserted. See Hosick v. Ga. as 2 Denno, Jaсkson v. U. S. SC 12 LE2d expert’s We thus claim defense lacked need not address State’s that the statements, credibility, expert videotaped in that did the witness not review Luallen’s testimony, perform any psychological testing arriving opinion. or trial or at statements (b) hearing trial, At the on motiоn for new trial counsel testified they mitigation solely through chose to introduce evidence cross- testify examination of a State witness who knew Luallen and could changes about the behavioral she had observed Luallen since the clearly part death of her son. This decision was of counsel’s trial tac- strategy “may unwise, tics and not and while [it did] have been wise or Carter, constitute ineffective assistance of counsel.” Austin v. by admitting 4. Luallen contends the trial court erred her second police interrogated statement becausе the her after she had invoked right during her that when randa to counsel her first statement. The record reveals initially questioned a.m., at 4:25 Luallen was read her Mi-
rights4 right ending interroga- counsel, and invoked her being off, tion. As Luallen was led she initiated conversation about seeing police. the victim’s infant and indicated she would talk to the begun videotaped statement, a.m., This first at 4:38 and Luallen tape confirmed on the talk, had reconsidered and wanted to com- menting you tonight, my lawyer “I will talk to I but will still talk to rights again, signed tomorrow.” She was waiver, read a written Nearly p.m. later, and day, the statement. 15 hours at 7:15 the same questioning. reinitiated their It is uncontroverted that attorney as of that time no had been contacted or on behalf of rights signed Luallen. Luallen was read her waiver before a third time and a written giving her second statement. [her] asserts that her comment that she would “talk to
lawyer po tomorrow” was a clear invocation of counsel such that the by reinitiating questioning obtaining lice, her second Arizona, acted violation of Edwards 451 U. S. 477 SC 378) (1981), States, 68 LE2d U. as further in Davis v. refined United S.__(114 362) (1994).5 agree. We do not right “requires, Invocation of the Miranda to counsel reasonably minimum, some statement that can be con- expression strued to be an attorney.” of a desire for the assistance of an [Cit.] ifBut makes a reference an at- torney ambiguous equivocal that is in that a reasonable *4 light in оfficer only of the circumstances would have understood suspect might invoking right counsel, that the the precedents require questioning. our do not the cessation of [Cits.] unambiguously request
Rather, the must coun- 4 Arizona, 694) (1966). Miranda v. SC 5 solely Luallen raises this contention under the U. S. Constitution. observed, such as- “a either is an
sel. As we have suspect] not.” the it is right sertion of counsel [A [Cit.] sufficiently present to have counsel must articulate his desire in officer the circumstances clearly police a reasonable that request for an attor- the statement to be a would understand ney. States, supra, 114
Davis v. 2355. United SC at right to counsel after she initiated clearly Luallen waived her required clarification was police the and no further contact with proceed interrogation. with that Her police were entitled to before solely speaking attorney to an “tomorrow” indicated comment about might merely at a time and right that she invoke the to counsel later pre that wish counsel to be reflected a “likelihood [Luallen] future, ap comment which does meet test sent” Wisconsin, Arizona, v. McNeil v. of Edwаrds plicability supra. At the time the U. S. LE2d right no assertion of a questioning, reinitiated there was clear her Mi Luallen, by police, by reading and the randa rights obtaining a third time and a written waiver those rights, properly any possible ambiguity may have been clarified State, Baird v. by created Luаllen’s earlier comment. See (1) (440 (1994). 190) There was no error the admission SE2d thus of Luallen’s second statement. error the trial court committed reversible contends testimony by when Luallen and
admitting Sergeant Patterson that morning entered the Sheriffs office the husband them, response help he sergeant’s question whether could killed presence stated in that Luallen had husband Luallen’s hearsay niece. The trial based court admitted exception presence. Luallen’s How- the statement made ever, Jarrett hearsay disapproved exceрtion Court this has (1995), holding Ga. 28 that “a witness criminal may to a statements based on testify trial as declarant’s (1). acquiescence Id. or silence of the accused.”
Nevertheless,
error
for the reason that
no reversible
exists
testimony by
the husband was
sergeant as to what was said
silеnce,
admissible,
impermissible
upon
not as
Luallen’s
comment
(b)
prerequisites
necessity.”
but
The two
under OCGA 24-3-1
“from
§
1) necessity,
hearsay
necessity
admission of
because of
are
McKissick v.
particularized
of trustworthiness.
guarantees
(3) (429
is
prerequisite
263 Ga.
The first
satis-
24-9-23,
privilege,
fied
OCGA
since the husband claimed the marital
§
Patterson
compelled
testify
wife. See
against
and could not be
895) Higgs
See also
App.
202 Ga.
*5
448) (1987).
6. The
support
record does not
Luallen’s contention that certain
(namely,
forensic evidence
that hair found on the circular saw blade
hair)
at the crime scene was head
was admitted in violation of OCGA
17-7-211. We also find
no error
§
trial court’s denial of Lual-
len’s motion for
regarding
a mistrial
testimony
capabilities
about the
inoperable
of an
chain saw found on the scene. The trial court sus-
objections
tained defense
to the
gave adequate
curative
instructions
jury.
generally
See
Stanley
(2)
Judgment All the Justices concur. affirmed. Justice,
Fletcher, Presiding concurring. Relying Constitution, on the Georgia I adopt the rule that investigating questions officers must ask clarify suspect whether a lawyer wants a when he ambiguous or she makes an equivocal re- quest for counsel.6 provide This rule would that “when a under interrogation custodial makes ambiguous might reasonably be expressing lawyer understood as a wish that a (and cease), summoned questioning interrogators’ questions should be verifying confined to whether the individual meant to ask for a law- yer.”7 Because challenge the defendant did not the admission of her second statement under our State Constitution and U. S. Su- preme Court has held that require Federal Constitution does not clarifying questions, officers to ask I reluctantly concur Division 4. January
Decided Palmour, Cook, Johnson, Cook & Bobby Lee Todd appellant. Pelt, Ralph Jr., Attorney, Bowers, Van District Michael J. At- torney General, Boleyn, Susan Attorney V. Senior Assistant Gen- eral, Wesley Homey, General, S. Attorney appellee. Assistant (Souter, J., concurring). Hall v. See Davis v. United See States, 512 U. S.__(114 2350, 2364, 362) (1994)