Ignаcio Vergara and his co-defendant, Brigido Soto, were indicted for the murders of Alejandro Santana and Francesco Saucedo *176 and for related crimes, which occurred on March 13, 2002. The State gave notice of its intent to seek the death penalty. This Court granted interim review to determine whether the trial court erred in failing to suppress Vergara’s March 28, 2002 custodial statement and all evidence obtained as a result thereof. Vergarа has also addressed whether the trial court erred in failing to suppress statements he made to police on March 26, 2002 and in the early morning of the following day, and the evidence seized as a result of those statements.
In responding to a 911 call on March 13, 2002, police discovered the bodies of the two male victims, shot multiple times, in a parked vehicle on a road in Hall County. On March 26,2002, Georgia Bureau of Investigation (GBI) Agent Blackwell and Investigators Evans and Spindola went to Vergara’s residence in connection with their investigation of the victims’ deaths. After Spindola told Vergara that his home telephone number had been found in the cellular telephone of one of the victims, Vergara accompanied the officers to the Law Enforcement Center (LEC), where he was interviewed after receiving in Spanish his rights under
Miranda v. Arizona,
Following this interview, while riding with Blackwell, Spindola, and Lead Investigator Couch, Vergara retraced his and Soto’s movements on the day of the murders, visited the scene where the murders occurred, and aided the officers in retrieving the cellular telephone belonging to one of the victims. After returning to the LEC, Vergara made a telephone call to Soto, which the officers audiotaped. Vergara then accompanied the officers on another ride, and, after he pointed out Soto’s apartment, the police took him to a nearby church to wait in the parking lot while Couch obtained a warrant for Soto’s arrest. At approximately 12:45 a.m. on Marсh 27, after Soto’s arrest and interview, Vergara was again given the Miranda warnings and interviewed. During this interview, he disclosed the location of the handgun allegedly used to commit the murders, and he accompanied the officers as they retrieved it. At 1:55 a.m., after reminding Vergara of his Miranda rights, the police resumed the interview. Couch obtained a warrant for Vergara’s arrest at 3:40 that morning. Vergara was re-interviewed on March 28, 2002.
The trial court determines the admissibility of a defendant’s stаtement under the preponderance of the evidence standard considering the totality of the circumstances.
Fowler v. State,
*177 The issue presents a mixed question of fact and law. [Cit.] On appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the legal principles to the facts. [Cit.]
Linares v. State,
1. Vergara contends that his March 26 interview and his subsequent statements to police throughout that afternoon and evening and in the early morning of March 27 were involuntary and, therefore, inadmissible under OCGA § 24-3-50, and that the evidence discovered as a result of those statements should also be suppressed. OCGA § 24-3-50 states 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.”
At the outset, we reject the State’s argument that OCGA § 24-3-50 does not apply to Vergara’s statemеnts to law enforcement because they constitute incriminating statements rather than a confession. See
Clarke v. State,
Applying the nine factors found in
Reinhardt v. State,
Because Vergara was 20 years old at the time of his statements, they are admissible if, considering the totality of the circumstances, they were “made voluntarily, without being induced by hope of benefit or coerced by threats. [Cit.]”
Reynolds v. State,
The trial court found that Vergara’s March 26 statements were voluntary because he was not in custody at the time of that interview and, therefore,
Miranda
was inapplicable. See
Wiggins v. State,
The trial court alternatively found that Vergara voluntarily waived his
Miranda
rights. Such a waiver would not be voluntary if, as Vergara contends, the police made a promise to him that was inconsistent with his constitutional rights. See
Foster v. State,
*179
The evidence presented at the hearings held pursuant to
Jackson v. Denno,
As for Vergara’s allegation of an unqualified promise that his statements would not be made known in court, the relevant portions of the interview reveal that the alleged promise was made to him in response to his expressed fear of retribution for speaking with the officers. When Spindola encouraged Vergara to be honest in telling the officers what he had witnessed, Vergara said that he was afraid. Spindola told him that he did not want Vergara’s children “to go through life with [Vergara] hiding, in fear,” and that the officers knew that the situation was difficult for him, because one of the victims had been his friend. When Vergara acknowledged this friendship with one of the victims and reiterated his fear, Spindola responded by assuring him as follows:
No one is going to know that you spoke to us. Like I told you, and I give you my word,... if this one day goes to court... no one is going to know that [Vergara] said anything— [N]o one is going to receive information that you gave us.
*180 Moments later, Spindola told Vergara, “We have to get the person that killed them. What is it that happened that day?” Vergara responded, “I know if I tell you, if they find out, they’re going to want to do something to me.” Spindola assured him that “no one is going to know your name.” Almost immediately, Spindola asked Vergara again, “What happened? Who was it that killed those guys?” Vergara asked, “Do you promise you’re not going to tell him?” In response, Spindola stated, “I’ll shake your hаnd.” As he did so, he promised Vergara that nothing would happen to him. Then the other officers also shook his hand. Following this exchange, Vergara implicated Soto as the one who killed the victims. Throughout the remainder of the approximately one and a half hour interview, the officers continued to assure Vergara that Soto would not know that he had “talked to anybody” until Soto was in jail.
Vergara contends that his case is analogous to that of
Spence v.
State, supra, in which the defendant’s confession was obtained during a post-arrest custodial interrogation during which the detective made a statement to the defendant that their interview was “confidential.” Finding that it would have been reasonable for the defendant in that case to understand the statement to mean that what the defendant told the detective “would be kept confidential between the two of them, and would not be disclosed to anyone else,” this Court held that the detective’s statement was inconsistent with the
Miranda
warnings and, thus, that the defendant’s confession was inadmissible.
Spence v. State,
supra. See also
Foster v. State,
supra;
Hopkins v. Cockrell,
Based on the same analysis, we also conclude that the statements made to Vergara were not such as to vitiate his
Miranda
warnings and waiver that occurred immediately prior to his 12:45 a.m. custodial interview. Moreover, Vergara’s statements at that interview were quite remote from, and not prompted by, the alleged promise at the earlier interview.
Carswell v. State,
2. On March 27,2002, Vergara made his “first appearance” before the Magistrate Court of Hall County, where he was formally charged with two counts of murder and where he made a request for counsel, who was appointed on that date. The following day, Spindola interviewed Vergara again. As a result of that interview, police obtained a quantity of cocaine from Vergara’s residence.
Where a defendant asserts his right to counsel at his initial appearance, his Sixth Amendment right to counsel attaches.
O’Kelley v. State,
The undisputed evidence shows that Spindola neither reread nor reminded Vergara of his
Miranda
rights. While Spindola did tell Vergara that he did not have to speak with him, neither the investigator nor Vergara mentioned an attorney or whether Vergara intended to speak without one. Before Vergara said anything regarding when or why he had summoned Spindola, the investigator thoroughly reprimanded Vergara for not being truthful during the March 26 interview. Spindola immediately inquired about the current location of the cocaine. Moreover, most of Vergara’s statements were in response to Spindola’s recommencement of the interrogation. “Based upon the totality of the circumstances, we cannot conclude that [Vergara] wished to waive his previously-invoked right to counsel and resume answering questions about the case.”
McDougal v. State,
supra (no waiver of previously invoked right to counsel where suspect summoned detectives but made no mention of an attorney, and his only statements were in response to detective’s interrogation). Compare
Sanders v. State,
The State contends that, even if this Court finds that Vergara’s statement must be suppressed, the cocaine obtained as a result of that statement is still admissible because the exclusionary rule does not apply to evidence derived from a voluntary statement obtained in violation of prophylactic rules, which, while designed to protect suspects’ constitutional rights, are not themselves constitutional. See
Taylor v. State,
supra at 276 (4). However, Vergara argues that, if his statement is held inadmissible, the cocaine should also be suppressed under the fruit of the poisonous tree doctrine because it was derived from a constitutional violation. See
Nix v. Williams,
467
*183
U. S. 431, 442 (II) (B) (104 SC 2501, 81 LE2d 377) (1984);
Wilson v.
Zant,
It is true that Michigan v. Jackson, supra,
established a prophylactic rule that once a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right — even if voluntary, knowing, and intelligent under traditional standards — is presumed invalid if secured pursuant to police-initiated conversation.
Michigan v. Harvey,
It appears that neither this Court nor the Supreme Court of the United States has addressed the scope of relief to be afforded a defendant who has suffered a constitutional violation in this precise context. Seе
Michigan v. Harvey,
supra at 354 (holding that a voluntary statement taken in violation of the
Jackson
prophylactic rule may be used to impeach a defendant’s inconsistent testimony, but noting that the Court did not have before it facts presenting the issue of “the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel”); 3 LaFave, supra at § 9.6 (a), p. 492 (noting the importance of the fact that the
Harvey
majority “did
not
hold that the fruits of a violation of the Sixth Amendment right to counsel may be used for purposes of impeachment” (emphasis in original)). However, the fruit of the poisonous tree doctrine has been applied in other Sixth Amendment right to counsel cases. See
Nix v. Williams,
supra (incriminating statements obtained in violation of right to counsel by police-initiated conversation from defendant who had been arraigned and had retained lawyer);
United States v. Wade,
*184 In taking this approach, courts have recognized that, because the Sixth Amendment right to counsel is fundamental to our adversarial system of justice, once that right
has attached and been asserted, the State must. . . honor it. ... [A]t the very least, the prosecutor and police have an affirmative obligation not to аct in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.
Maine v. Moulton,
to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.
Nix v. Williams, supra at 443 (II) (B). At the same time, “the prosecution is not [to be] put in a worse position simply because of some earlier police error or misconduct.” (Emphasis in original.) Nix v. Williams, supra (adopting the inevitable discovery exception to the fruits doctrine). Accordingly, under the fruits doctrine as explicated by the Supreme Court and adopted by this Court, we
need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. . . . [T]he more apt question . . . is “whether . . . the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” [Cit.]
Wong Sun v. United States,
A review of the evidence shows that, during the March 28 interview, Vergara indicated that the cocaine might be at his home, and Spindolа told him that he would arrange for them to go there together to retrieve it. Directly after the interview, Spindola and another officer escorted Vergara to his residence. After Vergara’s wife allowed them inside, Spindola followed Vergara throughout his house and then outside to the front yard as he searched for the cocaine, which was eventually located in a large plastic trash can in the driveway. Spindola himself testified that the discоvery of the cocaine was a direct result of his interview with Vergara, and the State has offered no evidence to establish that the cocaine “had ‘ “become so attenuated [from the primary illegality] as to dissipate the taint.” ’ [Cit.]”
Spence v. State,
supra at 700 (3). See
also Brown v. Illinois,
We also find no merit in the State’s argument that the cocaine is admissible because Vergara had abandoned it in the trash and “[t]he Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection at the curb outside the home.”
Perkins v. State,
Judgment affirmed in part and reversed in part.