SPENCE v. THE STATE
S06A1850
Supreme Court of Georgia
MARCH 19, 2007
281 Ga. 697 | 642 SE2d 856
SEARS, Chief Justice
Hunter suggests that because this is his first opportunity to raise this issue, it may be necessary for this Court to remand the case to the trial court for further proceedings on this claim. Assuming that a remand would be an appropriate procedure in this case, it is not necessary to remand an appeal when the appellate court can determine from the record whether the appellant has satisfied the test to establish ineffective assistance of counsel. See Hammond v. State, 260 Ga. 591, 599-600 (10) (398 SE2d 168) (1990); Stuart v. State, 274 Ga. App. 120, 121 (616 SE2d 855) (2005). And here, as stated in Division 5, supra, not instructing the jury on false swearing was harmless. Accordingly, trial counsel‘s failure to request the instruction did not affect the outcome of Hunter‘s trial, and the failure of prior appellate counsel to raise a claim of ineffective assistance of counsel based upon this issue could not prejudice Hunter.
Judgments affirmed. All the Justices concur.
DECIDED MARCH 19, 2007.
Jackson & Schiavone, Steven L. Sparger, for appellant.
Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, Thurbert E. Baker, Attorney General, Edwina A. Watkins, Assistant Attorney General, for appellee.
S06A1850. SPENCE v. THE STATE.
(642 SE2d 856)
SEARS, Chief Justice.
We granted an application for interlocutory appeal filed by the appellant, Lemuel Spence, to consider whether the trial court erred in ruling that Spence‘s confession was admissible in evidence and that evidence discovered during a search of Spence‘s residence was admissible. For the reasons that follow, we conclude that the trial court erred in ruling that Spence‘s confession was admissible in evidence, but that the court properly ruled that the evidence discovered during the search was admissible. Accordingly, we affirm the trial court‘s judgment in part and reverse it in part.
1. On September 20, 2003, Spence was arrested for the rape of Latasha Files. The rape case is unrelated to the present murder case, which stems from the stabbing death of Tereon Grant. After his arrest
Quinn: Just you and me, just you and me.
Spence: I‘m just scared when I go to jail, everybody gonna know I said something.
Quinn: Lem, ain‘t nobody saying nothing, this is confidential. Nobody knows what you‘re there for. What are you talking about? I don‘t understand.
Spence: I mean, not [what I‘m] there for. I mean I don‘t want anybody to think that I (unintelligible).
Quinn: No, that‘s not going to happen. This is confidential what we‘re doing right here. Do you understand that? This is confidential.
Spence: . . . what happened.
Quinn: Tell me what happened down there, Lem. What happened down there.
After this last statement by Detective Quinn, Spence gave a statement incriminating himself in the murder.
Later on the same day as the interrogation, Detective O‘Brien, who was investigating the rape case, received a warrant to search “4900 Delano Road Apartment D-2” in Fulton County. O‘Brien‘s affidavit in support of the warrant specified the address of the premises to be searched, the items sought, and briefly described the alleged rape to which the items related.
At the hearing on the motion to suppress, Detective Quinn testified that he “tagged along” with Detective O‘Brien when the search warrant was executed, and that Airrion Moore, Spence‘s roommate, was present when the search occurred. Quinn testified that he watched O‘Brien conduct his search; that O‘Brien found a pair of shoes relating to the rape charge in a kitchen closet; that the closet where the shoes were found was dark; that he (Quinn) wanted to look further in the closet; and that he then had Moore execute a consent-to-search form so that he could search the closet. Quinn added that he searched the kitchen closet and found a purse that fit the description of a purse that belonged to the murder victim. O‘Brien testified that Quinn had Moore sign the consent form after he (O‘Brien) had finished his search.
Following his indictment, Spence moved to suppress his statement on the ground that it was made in response to a false representation that the statement would be kept confidential. The trial court denied the motion, finding that Quinn promised Spence that his statement would be kept confidential from other people in jail, but did not promise Spence that his statement would not be used against him at trial.
Spence also moved to suppress the evidence found at the apartment on the ground that the search warrant failed to contain sufficient facts to establish probable cause that evidence of a crime would be found at the residence. The trial court denied the motion finding that the evidence was found pursuant to a valid search warrant and that Detective Quinn‘s search was pursuant to a valid consent-to-search form signed by Moore.
2. Spence contends that his confession was inadmissible in evidence because it was made in response to a false representation that the interrogation was confidential. In this regard, Spence relies on Hopkins v. Cockrell.1 In that case, the police detective conducting an interview with the defendant assured the defendant that “their conversation was confidential telling [the defendant], ‘This is for me and you. This is for me. Okay. This ain‘t for nobody else.’ ”2 The court ruled that the defendant‘s confession was involuntary, stating that “[a]n officer cannot read the defendant his Miranda warnings and then turn around and tell him that despite those warnings, what the defendant tells the officer will be confidential and still use the resultant confession against the defendant.”3
Spence also relies on this Court‘s decision in Foster v. State.4 In Foster, the defendant made a confession “after he was told repeatedly that it was not going to hurt ‘a thing,’ and that it would be ‘as much for your benefit as ours.’ ”5 We held that “[a]n accused must be warned that anything he says can and will be used against him in court. Telling him that a confession is not going to hurt and, on the contrary, will benefit him as much as the police, is not consistent with the warnings required by Miranda.”6
We find that the present case is controlled by the rationale of the foregoing cases. Although the State contends that Detective Quinn‘s statement regarding confidentiality meant that what Spence told him would be confidential only as it related to other prisoners and not
3. Spence next contends that the trial court erred by denying his motion to suppress all the evidence that was found at his home pursuant to the police search. More specifically, Spence contends that the officer‘s affidavit given in support of the search warrant failed to establish probable cause that evidence of the crime would be found at the residence. We conclude, however, that we need not resolve this issue, as, even assuming that Spence‘s contention is correct, we conclude that the evidence discovered pursuant to the search was sufficiently attenuated from any illegality to be admissible.
In this regard, the issue is whether, assuming the illegality of the search, the evidence discovered was the result of the illegality or had ” ‘become so attenuated [from the primary illegality] as to dissipate the taint.’ ”9 In Brown v. Illinois, the Supreme Court held that this issue must be “answered on the facts of each case” and that “[n]o single fact is dispositive.”10 To make this determination, the Court in Brown set forth several factors for courts to consider, including “the time elapsed between the illegality and the acquisition of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct.”11
Several courts have considered the effect of a third party‘s consent to conduct a search after the police have entered a defendant‘s residence pursuant to an invalid warrant. For example, in Parker, the defendant‘s roommate consented to a search of their
Analyzing the attenuation factors set forth in Brown to the present case, we turn first to the time factor. In this regard, Moore‘s consent to search occurred during the ongoing, assumed illegal search of the apartment. Thus, there is effectively no lapse of time between the assumed illegal conduct and Moore‘s consent. The record, however, shows that the duration of the search had no bearing on Moore‘s consent.
As for intervening circumstances, the record shows that Moore executed a consent-to-search form that informed him that he had the right to refuse the consent to search; that he could revoke the consent to search at any time; that he had not been promised anything in exchange for his consent; and that he had not been threatened or compelled to give the consent.16 Moreover, the Supreme Court in Brown specified that the attenuation analysis must be “answered on the facts of each case.”17 In the present case, a significant factor supporting a finding that Moore‘s consent was not a product of the illegal conduct, but was instead a product of his free will is that he was not the target of the officer‘s investigation.18
As for the police misconduct in this case, even though we have assumed that the officer‘s affidavit given in support of the search warrant failed to establish probable cause that evidence of the crime would be found at Spence‘s residence, the illegality lacks any of the purposefulness or flagrancy that the Supreme Court weighed against
Evaluating the foregoing attenuation factors, we conclude that Moore‘s consent to search was an act of free will that was sufficiently attenuated from any assumed illegality of the officer‘s search. Accordingly, the evidence discovered pursuant to the search was admissible.21
4. For the foregoing reasons, we conclude that the trial court erred in ruling that Spence‘s statement was admissible in evidence, but did not err in ruling that the evidence discovered pursuant to the search was admissible.
Judgment affirmed in part and reversed in part. All the Justices concur, except Carley, J., who concurs in part and dissents in part.
CARLEY, Justice, concurring in part and dissenting in part.
After conducting hearings, the trial court found that Spence‘s confession to murder was admissible against him and that a search of his apartment was valid. Today, a majority of this Court affirms the denial of Spence‘s motion to suppress evidence obtained in the search, and I concur fully in that holding. As to the confession, however, the majority substitutes its own contrary findings for those reached by the trial court, and holds that Spence‘s statement is inadmissible at trial. Because I believe that the trial court was correct in its ruling on the admissibility of the confession, I respectfully dissent to the reversal of the judgment in that regard.
The majority acknowledges that, prior to his interrogation, Spence received the warnings mandated by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) and that he expressly waived his rights. Thus, it is undisputed that, before being questioned, he was advised that anything he said to Detective Quinn could be used against him in court and that, notwithstanding this admonition, he agreed to waive his right to remain silent and to proceed with the interrogation.
Spence nevertheless urges, and the majority agrees, that his confession is inadmissible because, in the course of the ensuing questioning, Detective Quinn told him that the statement would remain “confidential.” In accepting this argument, the majority
trickery or deceit is only prohibited to the extent that it deprives the defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. [Cit.] “Neither mere emotionalism and confusion, nor mere trickery will alone necessarily invalidate a confession.” [Cit.]
Hopkins v. Cockrell, 325 F3d 579, 584 (5th Cir. 2003). Accordingly, the Miranda warnings having been given and Spence having waived his rights, the confession should not be suppressed unless
[i]t is clear from the context of the confession itself and its surrounding circumstances that [Detective Quinn‘s] conduct... passed the line into the sort of lying that deprives a defendant “of the knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” [Cit.] . . . An officer cannot read the defendant his Miranda warnings and then turn around and tell him that despite those warnings, what the defendant tells the officer will be confidential and still use the resultant confession against the defendant.
Hopkins v. Cockrell, supra at 584-585. Therefore, “[t]elling [an accused] that a confession is not going to hurt and, on the contrary, will benefit him as much as the police, is not consistent with the warnings required by Miranda.” Foster v. State, 258 Ga. 736, 742 (8) (b) (374 SE2d 188) (1988).
However, in this case, the trial court found that the officer had not crossed the veracity line and that, consequently, Spence had not been deprived of the benefit of the Miranda warnings which preceded the interrogation. In making that determination, the trial court, unlike the majority, correctly focused on the context in which Detective Quinn made the “confidential” comment. He neither explicitly nor implicitly promised that, contrary to the previously given Miranda
it is clear that the promise of confidentiality made to [Spence] by Detective Quinn was in direct response to [Spence‘s] concern that anything he said would get back to the people in jail and they would know he had talked. This is not the same as promising [Spence] that his statement would be kept confidential in the context of what would or would not be used against him in a court of law. To this extent, . . . [Spence‘s] confession was not made in response to a false police representation that the confession would not be used against [him] at trial, nor was the promise of confidentiality made to [Spence] by Detective Quinn inconsistent with his Miranda warnings such that the confession should be suppressed.
The majority does not hold that, under the totality of the circumstances, the trial court‘s finding was clearly erroneous. Instead, in determining the meaning of Detective Quinn‘s responses the majority simply dismisses the context in which the promise as to confidentiality was made. I respectfully submit that, in doing so, the majority fails to follow the long-standing controlling standard for determining the admissibility of an accused‘s confession.
“The standard for determining the admissibility of confessions is the preponderance of evidence. To determine whether the [S]tate has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court‘s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” [Cit.]
Bell v. State, 280 Ga. 562, 564 (2) (a) (629 SE2d 213) (2006). The totality of the circumstances, which must include the expression of the fear of disclosure expressed by Spence himself, did not demand a finding that the promise as to confidentiality was an unqualified and
DECIDED MARCH 19, 2007.
Pate & Brody, Bernard S. Brody, for appellant.
Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Bettieanne C. Hart, Assistant District Attorneys, Thurbert E. Baker, Attorney General, for appellee.