Lead Opinion
Rоbert Foster Wilson was convicted of malice murder, robbery, and kidnapping with bodily injury in the stabbing death of Tracie Deaton.
1. The evidence when viewed in a light most favorable to the verdict shows that during the early morning hours of July 16, 1990, Wilson robbed the White Columns Inn in Thomson, Georgia, forcibly dragged the night clerk into the kitchen and stabbed her to death with a butcher knife. A vehicle with a description matching Wilson’s was placed at the scene between the hour the clеrk was last seen alive and the time her body was found, and fingerprints identified as Wilson’s were discovered at the scene.
After the discovery of the homicide, law enforcement officers interviewed Wilson on four occasions: November 20, 1990, November 21, 1990, December 13, 1990 and July 16, 1991. Wilson was advised of
Within days of the fourth interview, Wilson was transferred to the maximum seсurity facility (Georgia State Prison) at Reidsville, Georgia and placed in a cell next to Thomas Alton Brown. Brown was asked by prison authorities to listen for Wilson to make incriminating statements. Brown engaged Wilson in several conversations over the next week to ten days during which Wilson made several incriminating admissions.
Under the standard of review found in Jackson v. Virginia,
2. Wilson contends that the court erred when it refused to suрpress his inculpatory statements made to Brown because the state’s use of an inmate to “interrogate” him after his request for the assistance of counsel violated his right to counsel under the fifth amendment to the United States Constitution and the corresponding right in Art. I, Sеc. I, Par. XVI of the Constitution of the State of Georgia.
In Escobedo v. Illinois,
Although Escobedo is based on the accused’s Sixth Amendment right to counsel, later opinions recognized that the right to counsel during in-custody interrogations prior to the initiation of adversary proceedings stems from the Fifth Amendment right against self-incrimination. See Kirby v. Illinois,
In Miranda v. Arizona,
“that the lawyer occupies a critical position in our legal system bеcause of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary рrocess, the . . . ‘right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system’ established by the Court. [384 U. S.] at 469.”
Arizona v. Roberson,
Despite the breadth of a suspect’s Fifth Amendment right to counsel, Miranda did not hold that these' rights could not be waived. Rather, the Suрreme Court has recognized that statements elicited during a custodial interrogation are admissible if the prosecution establishes that the suspect knowingly and intelligently waived his privilege against self-incrimination or his right to counsel. Miranda,
In the instant case, there was a seven-month break in custody between the December 13, 1990 interrogation when Wilson invoked his right to counsel and the time Wilson made the incriminating statemеnts to Brown, and Wilson did not reassert his right to counsel at the July 16, 1991 interrogation. This break in custody precludes Wilson’s claim that his incriminating admissions were obtained in violation of his Fifth Amendment right to counsel and the court properly refused to suppress such statements on this ground.
3. Wilson contends that even if his incriminating statements are not inadmissible as violative of his Fifth Amendment rights, they are nevertheless inadmissible as violative of his right to due process. Relying upon the due process clause of the Fourteenth Amendment, the Supreme Court has held that
certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned ....
Miller v. Fenton,
4. Wilson asserts that both the robbery by force charge and the kidnapping with bodily harm charge merged with his murder conviction.
(b) Kidnapping with bodily injury is not an included offense of malice murder as a matter of law. Pryor v. State,
Judgment affirmed.
Notes
The homicide occurred on the nights of July 16-17, 1990. Wilson was indicted on August 27, 1991, tried on July 19 through July 23, 1993, and sentenced on July 23, 1993. He filed a notice of appeal on August 6, 1993 and the case was orally argued on January 10, 1994.
Wilson does not contend that his Fifth Amendment rights were violated because Brown did not provide Miranda warnings. It is now clearly established that a fellow inmate or an officer posing as a fellow inmate need not give Miranda warnings befоre asking questions that may elicit an incriminating response. Illinois v. Perkins,
As in Bymes, there is no evidence here that Wilson’s release from custody was a ploy to seek a waiver of his Fifth Amendment rights.
Concurrence Opinion
concurring specially.
I concur fully in the affirmance of appellant’s convictions. However, my analysis of thе admissibility of the incriminating admissions made by appellant to his fellow inmate Brown differs somewhat from that of the majority.
In Division 2, the majority holds that appellant’s incriminating admissions to Brown are not inadmissible under Edwards v. Arizona,
[B]ecаuse there was a [7]-month break in custody between the initial interrogation [of December 13, 1990, wherein appellant clearly invoked his right to counsel] and [appellant’s conversations with Brown after July 16, 1991], and because there is no indication [appellant’s] rеlease from custody [on December 13, 1990] was a mere ploy in order to seek another waiver, his Fifth and Fourteenth Amendment rights were not violated under Edwards v. Arizona.
State v. Bymes,
However, it should also be recognized that, even if this break in custody were not dispositive, appellant’s subsequent incriminating admissions to Brоwn still would not be inadmissible under Edwards
The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would [be] no infringement of the right [to counsel] that [a defendant has previously] invoked and there would [be] no occasion to determine whether there had been a valid waiver [of that previously asserted right].
(Emphasis supplied.) Edwards v. Arizona, supra at 485-486 (II).
“Custodial interrogation” means “questioning initiated by law enforcement оfficers after a person has been taken into custody . . . .” Miranda v. Arizona,
had no reason to feel that [Brown] had any legal authority to force him to answer questions or that [Brown] could affect [appellant’s] future treatment. [Appellant] viewed [Brown] as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting thе details of the [instant crimes, appellant] was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril.
Illinois v. Perkins,
The essential ingredients of a “police-dominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone [whom] he believes to be a fellow inmate.
Illinois v. Perkins, supra at 296 (II). Since “custodial interrogation” is “absent” in the instant case, there was “no infringement” of appellant’s previously asserted right to counsel and there is “no occasion” to determine whether appellant made a vаlid waiver of that previously asserted right. Edwards v. Arizona, supra at 486 (II).
In Division 3, the majority holds that the incriminating admissions to Brown are not inadmissible as violative of appellant’s due process rights because “Brown’s activity in eliciting the incriminating
However, it should also be recognized that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” (Emphasis supplied.) Colorado v. Connelly,