Ryals v. State

¶1concurring specially.

¶2I concur specially with the majority opinion for two reasons: (1) This court can consider error not enumerated in exceptional cases where no exception is taken, if the error is obvious, and seriously affects the fairness, integrity or public reputation or judicial proceedings, and (2) this is a Fourth Amendment error, based upon egregious police conduct, which should not be condoned by the judicial system.

¶3(1) “The United States Supreme Court has stated the general rule many times: ‘ “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S. 157, 160.’ Silber v. United States, 370 U. S. 717, 718 (82 SC 1287, 8 LE2d 798); accord Rogers v. United States, 422 U. S. 35, 41 (95 SC 2091, 45 LE2d 1); Lamb v. Cramer, 285 U. S. 217, 222 (52 SC 315, 76 LE 715); United States v. Tenn. &c. R. Co., 176 U. S. 242 (20 SC 370, 44 LE 452).” Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482). The error is obvious and it seriously affects the fairness, integrity and public reputation of judicial proceedings. This court is authorized to consider the error. Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633).

¶4(2) The U. S. Supreme Court, in Brown v. Illinois, 422 U. S. 590 (95 SC 2254, 45 LE2d 416), considered the admissibility of a suspect’s statement following his detention, without probable cause, and held that the warnings required by the Miranda decision in no way inform a person of his Fourth Amendment rights, including his right to be *460released from unlawful custody following an arrest made without a warrant or without probable cause. Id. at 601. In the instant appeal, there was only a search warrant, not an arrest warrant — and for good reason as there was no probable cause to arrest. Although Ryals was detained at the police station for approximately seven hours and warned of his Miranda rights, Miranda warnings alone cannot make a suspect’s statement following an illegal arrest a product of free will, and serve to break the causal connection between the illegal arrest and the confession. Id. at 603. The question whether a confession made after an illegal arrest is the product of a free will must be answered on the facts of each case, and no single fact is dispositive; in determining whether a confession is obtained by exploitation of an illegal arrest, the giving of the warnings required by the Miranda decision, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. Id. And, even if the trial court finds the confession voluntary under the Fifth Amendment, the Fourth Amendment issue remains.

¶5The Supreme Court again, in Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824), found that “[t]he Rochester police violated the Fourth and Fourteenth Amendments, when, without probable cause to arrest, they seized petitioner and transported him to the police station for interrogation,” as in the instant appeal. The suspect was “seized” within the meaning of the Fourth Amendment, “when he was taken involuntarily to the police station” if the police lacked probable cause to arrest. It was held that “detention” for custodial interrogation, regardless of its label, intrudes so severely on the interests protected by the Fourth Amendment, as to invoke the traditional safeguards against illegal arrest. Id. “Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’ ” Davis v. Mississippi, 349 U. S. 721, 726 (89 SC 1394, 22 LE2d 676).

¶6Brown, supra, settled the argument that “ ‘Miranda warnings ... do not alone sufficiently deter a Fourth Amendment violation. . . . Consequently, although a confession after proper. Miranda warnings may be found “voluntary” for purposes of the Fifth Amendment, this type of “voluntariness” is “merely a threshold requirement” for Fourth Amendment analysis. . . .’” Dunaway, supra at 217. Appellate courts focus upon “ ‘the causal connection between the illegality and the confession’. . . . When there is a close causal connection between the illegal seizure [of the person] and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.” Id. at 217-218. “And the bur*461den of showing admissibility rests, of course, on the prosecution.” Id.

¶7I have found no event of any significance to establish attentuation of the primary illegality. To the contrary, there are many elements establishing exacerbation of the primary taint — the illegal arrest: (1) The illegal detention continued over a period of almost seven hours. (2) The police also held the suspect’s wife in detention for that same period. (3) The police refused to permit the suspect or his wife to care for their children during the detention period, although they were out of school during the latter part. (4) Neither the suspect nor his wife were fed the noon meal, although one officer said he purchased them a coke and a package of crackers out of his own pocket. (We will only note in passing: (a) This was a snack and not a meal, and (b) it was personal action of the individual and not the official act of the State.) (5) Water was not furnished to either the suspect or his wife during the detention period, although the police said a water fountain was available. (Here we will note that the availability of water elsewhere in the building from where a suspect is being detained and questioned is not “making available” a suspect’s minimal needs of sustenance.) The suspect stated that he was permitted to visit the water fountain once during the seven hours. (6) The suspect stated that he was denied rest room facilities, and this allegation was not refuted. (7) The police admitted that custody of the suspect’s children was discussed with him in the context that they would be placed in the custody of the Department of Family and Children’s Services, if both the suspect and his wife were confined.

¶8One cannot but conclude from the totality of the evidence that the police intended to detain the suspect for an indefinite period, and at least until he talked to them. Moreover, the suspect agreed to make a statement only after approximately seven hours of detention of himself and his wife, only after he was unable to make satisfactory arrangements for care of his children, only after custody of the children was discussed with the police, and only after the suspect agreed to make a statement provided his wife would be released. This court should not countenance illegal arrest, unlawful detention of the suspect and his wife, and the prolonged and coercive nature of the tactics used by the police, while denying him minimal sustenance and rest room privileges, so as to extract a statement obviously in violation of Brown, supra,Dunaway, supra, and Davis, supra.

¶9Accordingly, I would find that we should consider the obvious constitutional error, and that such error requires reversal, unless this court desires to sanction illegal arrest, unlawful detention, and obvious and prolonged police tactics to coerce a suspect into making a statement.

¶10I am authorized to state that Judge Pope joins in this special concurrence.

¶11concurring in part and dissenting in part.

¶121. I concur in the conclusion of inadmissibility because it is clear from the record, as a matter of law, that the trial court erred in finding that the alleged confession was voluntary. That is the issue that was raised below and the ruling that is urged as error here. Deciding it does not require second-guessing defendant’s counsel by sua sponte raising other issues and rendering decisions as to them.

¶13During the course of the trial, when a police officer began to testify about defendant’s custodial statement, defendant moved “for a Jackson-Denno hearing,” thus invoking his federal constitutional right to the “due process” procedure set out in Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) to assure that his Fifth and Fourteenth Amendments right against compelled self-incrimination was not violated by the introduction of the confession. The Court in Jacksonrecognized: “The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions.” Id. at 391. He argued, after the evidence was presented out of the presence of the jury, that it showed that the statement was not voluntarily made, “absolutely not.” The court disagreed and found, to the legal degree necessary as a threshold matter to allow the jury to consider it, that it was voluntary. And so, despite defendant’s urging that it was not voluntary and should not be put before the jury, it was admitted.

¶14Defendant again challenged the court’s ruling, in the motion for new trial, still insisting that the alleged confession was not voluntary. The court, however, denied the motion.

¶15On appeal, defendant enumerates as error the court’s finding of voluntariness. He argues that the evidence from the Jackson-Denno hearing which is not disputed shows that the court could not find that the statement was voluntary. While he does not expressly recite that what he stands on is the right against compelled self-incrimination in state courts which is protected by the Fifth and Fourteenth Amendments, it is patent that this is his ground.1 He is simply repeating what he claimed below. He does, of course, in addition cite and rely in this court on the Georgia statute on the subject, OCGA § 24-3-50.

¶16The trial court erred in its finding of voluntariness, reaching this *463result because the judge did not believe defendant’s version, which differed only in some respects from that given by the investigating officer and the police chief. However, the uncontested objective facts did not give berth to such a finding. The other special concurrence ably lists some of them.

¶17Some deserve elaboration. The warrantless arrest of both defendant and his wife, while they were walking along the railroad track towards town that morning was itself a circumstance to be considered in determining voluntariness because it set the abrupt and power-exhibiting tone of the long detention. This was exacerbated by the thorough search of their trailer home which took place with defendant and his wife in police custody there, before they were taken to the police station.

¶18Another fact contributing to coercion as opposed to voluntariness is that they were detained at the police station, except when taken in mid-afternoon to another city for a polygraph test instigated by the police chief, for over six hours. So, too, is the fact that defendant’s mother had gone off to get an attorney after talking with defendant, his wife, and the police chief, yet the questioning continued, the attorney was not available, and sometime later the alleged confession was obtained.

¶19The burden was on the State to prove that the confession was voluntary, not on defendant to prove it was involuntary. Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972). For applications of this rule, see Jones v. State, 245 Ga. 592, 598 (8) (266 SE2d 201) (1980); State v. Osborne, 174 Ga. App. 521 (330 SE2d 447) (1985). The trial court’s finding was clearly erroneous, as it was counter to a preponderance of the evidence, and I agree that the alleged confession should have been excluded.

¶202. That is not to say that the motion for directed verdict should have been granted. It was denied because the alleged confession was in evidence, albeit we have found that it was erroneously admitted. We cannot go back, exclude the alleged confession, and on the basis of the remaining evidence substitute our judgment for the trial court’s. The state is entitled to retry the case without the inadmissible evidence. Defendant is entitled to a new trial, as prayed for in his motion for new trial based on the ground here discussed.