PRICE v. THE STATE.
S18A1491
Supreme Court of Georgia
March 4, 2019
Reconsideration denied March 27, 2019
305 Ga. 608
BENHAM, Justice.
FINAL COPY. Murder. Morgan Superior Court. Before Judge Prior.
Appellant George Edward Price was convicted of malice murder in connection with the shooting death of his estranged wife, Jackie Price. Appellant now contends that his statement to law enforcement should have been excluded at trial, that the trial court failed to consider his motion for new trial on the “general grounds,” and that trial counsel was ineffective. Finding no error, we affirm.1
Viewing the record in a light most favorable to the verdicts, the evidence adduced at trial established as follows. At the time of the murder, Appellant and the victim had been married for approximately fifteen years but were recently separated, with the victim living at the Morgan County residence of her friend Virginia Blanton. The jury learned that, though the couple had separated before, Jackie had become set on divorcing and had informed Appellant of her decision in a phone call on the evening before the murder. On the day of the murder, Blanton left the residence at approximately 11:20 a.m., while Jackie remained in bed because she reportedly felt unwell. Shortly thereafter, Appellant‘s conspicuously large, red van was observed in the area by neighbors who were familiar with both Appellant and his vehicle. Later that afternoon, a child stopped by the Blanton residence for a snack and discovered Jackie on the floor in a pool of blood. The jury heard testimony that, at the time her body was discovered, the victim had been dead for “quite some time” and, further, that the residence bore no signs of forced entry, burglary, or struggle. The medical examiner testified that the victim had died as a result of gunshot wounds and that the manner of death was homicide.
Appellant was subsequently questioned by law enforcement. After initially giving various vague and inconsistent accounts of the day, he ultimately admitted that he had shot his estranged wife when he visited her to discuss their marriage. Appellant accurately described details of the murder scene — including the victim‘s clothing, her location in the residence, and the number of times she had been shot — and his hands tested positive for gunshot residue.
1. Though not raised by Appellant as error, in accordance with this Court‘s standard practice in appeals of murder cases, we have reviewed the record and find that the evidence, as summarized above, was sufficient to enable a rational trier of fact to find
2. Appellant first contends that his statement to law enforcement was involuntary under Georgia law and, consequently, inadmissible. Specifically, Appellant complains that an investigator suggested that she was going to personally discuss the case with “the judge,” that Appellant would not see the “light of day,” and, further, that Appellant‘s hands had tested positive for gunshot residue even though the results of that test were not yet available. These arguments are without merit.
The relevant statutory provision concerning confessions, as it existed at the time of Appellant‘s trial in 2011, provided that, “[t]o 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.” See former
As for “remotest fear of injury,” it is “[p]hysical or mental torture . . . that prevents a confession from being admissible[.]” See Browner v. State, 296 Ga. 138, 142 (765 SE2d 348) (2014). Further, the employment of trickery or deceit to obtain a confession does not render the resulting statement inadmissible so long as those tactics are not designed to procure an untrue statement and also do not amount to “a slightest hope of benefit or remotest fear of injury.” (Citation and punctuation omitted.) State v. Ritter, 268 Ga. 108, 110 (485 SE2d 492) (1997); Moore v. State, 230 Ga. 839, 840 (199 SE2d 243) (1973).
“Whether a statement was made voluntarily is to be determined by assessing the totality of the circumstances.” Johnson v. State, 295 Ga. 421, 424 (761 SE2d 13) (2014). Though the trial court entered an order with findings of fact and conclusions of law following a Jackson-Denno3 hearing, the relevant facts here arise solely from Appellant‘s video-recorded interview with investigators and, thus, are not in dispute. Accordingly, we review this claim de novo. See Brown, 290 Ga. at 865; Vergara v. State, 283 Ga. 175 (657 SE2d 863) (2008).
As an initial matter, though Appellant had been advised of his Miranda4 rights numerous times on the day in question (and had executed a written waiver), his interview was non-custodial; the video-recorded statement plainly reflects that both Appellant and law enforcement understood that Appellant was free to leave at any time during the interview. See, e.g., Heckman v. State, 276 Ga. 141 (1) (576 SE2d 834) (2003). During the course of the interview, investigators implored Appellant to tell the truth and to help himself, which was not improper. See Stinski v. State, 281 Ga. 783 (2) (a) (642 SE2d 1) (2007). Though an investigator intimated that she would go directly to “the judge” concerning Appellant‘s honesty and make a recommendation as to whether Appellant would “get out,” it is permissible “for the police to
Appellant “getting out” is, at most, a possible “collateral benefit” since “no one promised [A]ppellant that he would not be charged with a crime or that he would receive reduced charges, sentencing or punishment if he made incriminating statements.” Woodall v. State, 294 Ga. 624, 629 (4) (754 SE2d 335) (2014). Cf. Brown, 290 Ga. at 869 (no hope of benefit where investigators told defendant he could “go home” after questioning); In the Interest of D. T., 294 Ga. App. 486 (2) (669 SE2d 471) (2008) (same).
With respect to an investigator suggesting during the interview that Appellant would never “see the light of day” if he were not truthful, this, again, was an exhortation to tell the truth, not a promise of a lighter punishment. See Johnson v. State, 295 Ga. 421, 424 (761 SE2d 13) (2014) (no hope of benefit where defendant was warned not to lie because the investigator could, among other things, “get up and walk out this door and send [his] a** to the county jail“). Moreover, the remark “amounted to no more than an explanation of the seriousness of [Appellant]‘s situation.” Preston v. State, 282 Ga. 210, 212 (647 SE2d 260) (2007). Sosniak v. State, 287 Ga. 279, 289 (1) (C) (695 SE2d 604) (2010) (investigator‘s remark that defendant could “get a needle” simply an expression of the seriousness of the situation). Regarding the deception concerning the gunshot residue on Appellant‘s hands, there is no indication that this ruse was intended to elicit an untrue confession or that it offered “a slightest hope of benefit or remotest fear of injury.” As such, it, too, was permissible. See Drake v. State, 296 Ga. 286 (3) (766 SE2d 447) (2014) (exaggerations of incriminating evidence and false representations concerning the victim not impermissible during non-custodial interview); Johnson, 295 Ga. at 425 (interrogator‘s false claim concerning DNA evidence did not affect voluntariness of statement); Daniel v. State, 285 Ga. 406 (5) (677 SE2d 120) (2009) (deception in interview concerning whether defendant was suspect permissible tactic).
Finally, though Appellant was interviewed over the course of approximately six hours, he was offered food and drink, and nothing in the video suggests “excessively lengthy interrogation, physical deprivation, brutality, or other such hallmarks of coercive police activity” that would result in the remotest fear of injury. (Citation and punctuation omitted.) Drake, 296 Ga. at 291. Accordingly, after examining the totality of the circumstances, the trial court did not err in concluding that Appellant‘s statement was voluntary.
3. Appellant next claims that the trial court erred by failing to consider his motion for new trial on the “general grounds.” Specifically, he contends that the order denying his motion for new trial does not reflect that the trial court evaluated the credibility of the witnesses and weighed the evidence in deciding whether to exercise its discretion to grant a new trial in its role as the “thirteenth juror.” See White v. State, 293 Ga. 523, 524 (753 SE2d 115) (2013) (“In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.“). We disagree.
The order denying Appellant‘s motion for new trial states as follows: “The Defendant‘s Motion for New Trial, having regularly come on to be heard before me this day, argument of counsel for the State and the Defendant having been heard and considered, IT IS HEREBY ORDERED AND ADJUDGED that Defendant‘s Motion for New Trial is DENIED.” While the order does not specifically reflect that the trial judge exercised its broad discretion as the
Here, there is nothing to suggest that the trial court did not properly exercise its discretion. “The court did not state the incorrect standard in its order, and nothing in the record indicates that the court was unaware of its responsibility.” (Citations omitted.) Allen v. State, 296 Ga. 738, 741 (770 SE2d 625) (2015). Likewise, “[t]his is not a case where the trial court explicitly declined to consider the credibility of the witnesses in denying the defendant‘s motion for new trial on the general grounds” or where the trial court expressed “its belief that it had no discretion to grant a new trial despite disagreeing with the jury‘s verdict.” (Citations omitted.) Butts, 297 Ga. at 772. Accordingly, this claim is without merit.
4. Finally, Appellant contends that trial counsel was ineffective by failing to investigate or present mitigation evidence at sentencing or to make any such argument on his behalf. To succeed on his claim, Appellant bears the heavy burden of showing “both that his counsel performed deficiently and that, but for the deficiency, there is a reasonable probability that the outcome would have been more favorable.” Slaton v. State, 303 Ga. 651, 652 (814 SE2d 344) (2018). See also Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984).
To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel‘s conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.
(Citation omitted.) Slaton, 303 Ga. at 652-653. Even if we were to presume that trial counsel acted deficiently by failing to investigate or present mitigation evidence or argument, Appellant‘s claim fails on prejudice grounds.
Though Appellant faults trial counsel for failing to conduct a mitigation investigation and speculates that there were “family members” who could have provided mitigation testimony, “he made no proffer [at the hearing on his motion for new trial] as to what a thorough investigation would have uncovered or what the essential witnesses would have said.” Domingues v. State, 277 Ga. 373, 374 (589 SE2d 102) (2003). Indeed, at a motion for new trial hearing, ““(e)ither the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness‘s testimony.“” (Citation omitted.) Crowder v. State, 294 Ga. 167, 169-170 (751 SE2d 334) (2013). Without having made such an evidentiary showing at the hearing, Appellant cannot demonstrate prejudice on his claim that counsel was ineffective. Id. See also Bell v. State, 287 Ga. 670 (697 SE2d 793) (2010) (“Bell did not offer any evidence at the motion for new trial hearing as to whether the witnesses would have testified, offered only speculation as to the possible testimony of one of the witnesses, and did not offer even speculation about the possible testimony of the other witness. He again has shown no prejudice.“). Accordingly, Appellant is not entitled to relief on this claim.
Judgment affirmed. All the Justices concur.
Decided March 4, 2019 — Reconsideration denied March 27, 2019.
Murder. Morgan Superior Court. Before Judge Prior.
Benjamin A. Pearlman, for appellant.
Stephen A. Bradley, District Attorney, Jeff P. Burks, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Vanessa T. Sassano, Assistant Attorneys General, for appellee.