Driver v. State

FINAL COPY

                  S19A1298. DRIVER v. THE STATE.


      WARREN, Justice.

      Frederick Duane Driver was convicted of felony murder and

possession of a firearm during the commission of a felony in

connection with the shooting death of Randy Diamond.1 On appeal,

Driver contends only that the trial court erred in admitting into

evidence an admission he made to police while in custody. We

disagree and affirm.

      1. Viewed in the light most favorable to the jury’s verdicts, the



      1 The crimes were committed on June 17, 2017.      On August 25, 2017, a
Floyd County grand jury indicted Driver for malice murder, one count of felony
murder predicated on both aggravated assault and aggravated battery, two
counts of aggravated assault, aggravated battery, and possession of a firearm
during the commission of a felony. At a trial held from June 11 to 13, 2018, a
jury found Driver not guilty of malice murder but guilty of all remaining
counts. On June 13, 2018, the trial court sentenced Driver to life in prison for
felony murder and a consecutive term of five years for the firearm offense. The
remaining counts were merged into the felony murder conviction. Driver filed
a timely motion for new trial on June 18, 2018, which was later amended
through new counsel on December 11, 2018. The amended motion was denied
on March 7, 2019, and Driver filed a timely notice of appeal on March 22, 2019.
The case was docketed in this Court for the August 2019 term and submitted
for a decision on the briefs.
evidence presented at Driver’s trial showed that on the evening of

June 17, 2017, Driver attended a party at Diamond’s home on East

Main Street in Rome. Diamond and Driver were not close friends,

but Driver occasionally visited Diamond’s house. Soon after Driver’s

arrival, he and Diamond got into an argument over money that

Driver allegedly owed Diamond. At that time, nobody at the party

possessed a weapon.    Driver “got smart” with Diamond and, in

response, Diamond punched Driver one time.          Diamond then

demanded that Driver leave, and Driver left the house. About 15

minutes later, Driver returned to the driveway of Diamond’s house.

Driver still did not have a weapon. He was told to leave, and he

again left.

     Seven or eight minutes later, Driver — who was at that point

armed with a gun — returned a third time and approached

Diamond’s house. Diamond’s brother was standing in the doorway

of the home and, upon seeing Driver, yelled into the house “he’s got

a gun.” Diamond, who had been seated on his couch, got up and

walked to the door. He did not display any weapon, threaten or

                                 2
argue with Driver, or become violent. Driver fired four shots, hitting

Diamond twice in the chest. Diamond died shortly after paramedics

arrived. All three witnesses present at the time identified Driver as

the shooter.

     Jerry Chisolm, a neighbor of Diamond’s, testified that before

the shooting, earlier on the same evening, Driver told him that he

had been in an altercation and had a “swelled eye.”         After the

shooting, Driver told Chisolm that he had killed someone by

shooting him in the chest. Chisolm testified that Driver looked as if

he had been in “another altercation” apart from the one resulting in

Driver’s swollen eye because “he was bleeding on the other side.”

Chisolm further explained that Driver’s “eye was still swelled up

like it was swollen more. But his lip was busted.” After hearing

police sirens, Driver told Chisolm he had to go and left.

     That night, police obtained a warrant for Driver’s arrest.

Driver turned himself in to the police three days later, telling a 911

operator that the police had warrants for his arrest because he had

“shot somebody.” And in a body camera recording from the officer

                                  3
dispatched to arrest Driver, Driver introduced himself to the officer

as the person who “shot the guy on East Main.” Later, during an

interview after Driver’s arrest, he told Investigator Pete Sailors that

Diamond “just told me to get the f**k out of his house, and . . . he

punched me. So then I shot him.” Driver also said that they were

at Diamond’s house and “it was like he was coming out the door to

come at me, . . . and he’s a big guy. . . . It was like he was bullying

me, . . . and . . . it just happened.”

     Driver does not contest the legal sufficiency of the evidence

supporting his convictions. Nevertheless, in accordance with this

Court’s general practice in murder cases, we have reviewed the

record and conclude that, when viewed in the light most favorable

to the verdicts, the evidence presented at trial and summarized

above was sufficient to authorize a rational jury to find Driver guilty

beyond a reasonable doubt of the crimes for which he was convicted.

See Jackson v. Virginia, 

 (

, 61 LE2d

560) (1979).

     2. Driver’s sole enumeration is that the trial court erred in

                                     4
admitting an incriminating statement he made to police while in

custody after invoking his right to counsel.2 After reviewing the

record, we see no error in the trial court’s ruling and affirm.

     (a) “It is well established that a suspect who asks for a lawyer

at any time during a custodial interrogation may not be subjected to

further questioning by law enforcement until an attorney has been

made available or until the suspect reinitiates the conversation.”

Dozier v. State, 

 (

) (2019) (citation and

punctuation omitted). See also Edwards v. Arizona, 

 (

, 68 LE2d 378) (1981). And in the absence of

either the suspect’s reinitiation of the conversation or the presence

of his counsel, “police must immediately cease interrogation, or its

functional equivalent, including any words or actions by law

enforcement calculated to elicit an incriminating response.” Taylor

v. State, 

 (

) (2018). “In determining


     2 In his appellate brief, Driver makes the fleeting assertion that the trial

court erroneously decided that his custodial statement was “freely and
voluntarily made.” But neither Driver’s motion to suppress nor his appellate
brief makes any argument that his statement was not voluntary within the
meaning of the Due Process Clause of the Fourteenth Amendment.
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whether the actions of law enforcement constitute an interrogation,

courts look primarily to the perceptions of the suspect and not the

intent of the officer.” 

 (citation and punctuation omitted). Even

where the accused reinitiates the conversation, it must be

determined, under the totality of the circumstances, whether he

“freely and voluntarily waive[d] [his] right to counsel.” 

 See also

Rowland v. State, 

 (

) (2019). Moreover,

“where the issue is . . . a suspect’s purported initiation of renewed

contact, rather than the propriety of interrogation clearly instigated

by police,” case law applying the definition of “initiation” applies

whether the suspect invoked his right to counsel or his right to

silence. Mack v. State, 

, 245-246 n.5 (

)

(2014) (discussing applicability of Edwards, 

,

and its progeny in evaluating a defendant’s “post-invocation

‘initiation’ of contact with police”). As an initial matter, “‘initiation’

requires not only that the defendant speak up first but also that his

words reflect a desire to discuss the investigation at hand,” and a

suspect has “‘initiated’ renewed contact with law enforcement

                                    6
authorities, so as to permit further interrogation, only if the renewed

contact by the suspect was not the product of past police

interrogation conducted in violation of the suspect’s previously-

invoked rights.” Mack, 

. “[W]e review de novo

the trial court’s determinations of both fact and law” where, as here,

the police interview in question was recorded with both video and

audio, the recording is part of the record on appeal, and the parties

point to no evidence beyond that interview to support their

arguments regarding the admissibility of a confession or admission.

Dozier, 

 (citation and punctuation omitted).

     The recordings in this case show the following: after Driver was

arrested and transported to the police station, a patrol officer took

Driver into an interview room, moved Driver’s handcuffs from

behind his body to the front of his body, and then left Driver and

Investigator Sailors together in the interview room.           At the

beginning of the interview, Investigator Sailors told Driver to call

him “Pete” and asked Driver for a number of basic details: his name,

address, date of birth, Social Security number, phone number,

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education, and current employment. Investigator Sailors explained

that he wanted to talk about what happened between Driver and

Diamond, but that Sailors had to inform Driver about his rights

first.     Driver asked if he had to talk, and Investigator Sailors

answered “No.” Investigator Sailors read Driver his rights under

Miranda3 from the waiver-of-rights form and told Driver, “you don’t

have to talk to me today. It doesn’t, you know, it’s not going to get

any worse if you don’t, and nothing bad is going to happen to you.”

Investigator Sailors also told Driver that, “bearing that in mind, I

want to talk to you about what happened so I can hear your side of

the story, OK, because I’ve heard some of the witnesses down there

and some people that you talked to after it happened.”               After

referring to his experience as an investigator, Sailors said, “there’s

always two sides to everything, and I want to hear it straight from

you about what happened. But, you don’t have to tell me, and I can’t

make you; it’s your choice.”          Investigator Sailors then asked,



         3 See Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966).
                                      8
“bearing that in mind, would you like to tell me what happened

between you and Mr. Diamond?” Driver responded, “Really, my

brother’s getting me a lawyer so, I really don’t want to say nothing

until I have my lawyer.” Investigator Sailors responded, “OK, that’s

fine. That’s your right. You’ve got my card,” and “once you’ve talked

to your attorney and y’all want to talk and tell us what happened

from your point of view, we’ll be glad to listen.”

     As Investigator Sailors gathered his paperwork to leave, Driver

then said, “Speaking of something, Pete,” and asked the investigator

if he had personally talked to witnesses. Investigator Sailors said

“yes, sir,” and Driver asked if Sailors thought “it could be self-

defense.” Investigator Sailors responded, “Not from what I’ve heard,

but, you know, without hearing it from your side . . . .” Driver

inquired whether Sailors was obligated to tell him what he heard.

Investigator Sailors answered “No,” but he could say that Driver was

“identified as the person who shot Mr. Diamond.” Driver nodded his

head and then said that Diamond “just told me to get the f**k out of

his house, and . . . he punched me. So then I shot him.” Investigator

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Sailors responded by asking Driver where he was when he shot

Diamond. Driver answered that they were at Diamond’s house and

“it was like he was coming out the door to come at me, . . . and he’s

a big guy. . . . It was like he was bullying me, he bullied me . . . and

. . . it just happened.” Investigator Sailors asked whether Driver

wanted to talk some more about it or wait for his lawyer, and Driver

responded, “I want to wait on my lawyer. I just wanted you to know

that.” Investigator Sailors then said “OK,” asked Driver to let him

know if he changed his mind, and left the room.

     (b) Driver makes a number of arguments to support his

contention   that,   under   the   totality   of   the   circumstances,

Investigator Sailors improperly interrogated Driver at various

points during the interview, that Driver did not freely and

voluntarily waive his right to counsel, and that Driver’s custodial

admission therefore should have been suppressed at trial.           We

address each argument in turn.

     First, Driver argues that Investigator Sailors’s initial

questions, prior to giving Driver the Miranda warnings, amounted

                                   10
to a “psychological ploy” to “build a rapport with [him] and make

him feel more at ease . . . likely lead[ing] to an incriminating

response,” and that those initial questions therefore amounted to a

custodial interrogation before administration of the required

Miranda warnings. But we disagree, because “[t]he controlling case

law excludes from the ‘functional equivalent’ of interrogation those

police statements and actions normally attendant to arrest and

custody.” Thompson v. State, 

 (

) (2014)

(citation and punctuation omitted). “Basic biographical questions

asked in relation to an arrest are an exception to Miranda because

such ‘booking’ questions are unrelated to the investigation and serve

a legitimate administrative need and therefore do not qualify as

‘interrogation.’” Kirby v. State, 

 (

)

(2018).    Thus, we “‘have allowed questions seeking basic

biographical data, such as the suspect’s name, age, address,

educational background, marital status, and other information

required to complete an arrest form,’” either before or after a

defendant has invoked his right to counsel. 

 (citation omitted).

                                 11
Here, Investigator Sailors’s initial background and biographical

questions and conversation with Driver “about non-case-related

matters did not constitute ‘express questioning [about the crimes]

by law enforcement officers or its functional equivalent,’ and thus

was not an improper interrogation.” Gray v. State, 

(

) (2018) (citation omitted) (non-case-related matters

in conversation between the accused and a detective included the

accused’s dog and where the accused was currently living).

Moreover, there is no evidence to suggest that, for example,

Investigator Sailors telling Driver he could call Sailors by his first

name amounted to an impermissible “psychological ploy” that

Sailors should have realized would result in an incriminating

response. See Kirby, 

; Thompson, 

.

     Second, Driver argues that after advising him of his rights

under Miranda (but before he invoked his right to counsel),

Investigator Sailors further interrogated Driver in a “cajoling”

manner by expressing a desire to hear Driver’s “side of the story.”

But the record shows that Investigator Sailors’s comment was

                                 12
merely part of his explanation that Driver did not “have to talk,”

that it was “not going to get any worse” if he did not, and that it was

“[his] choice” whether to talk or not.     These comments did not

amount to an attempt to pressure or coerce Driver.            Nor did

Investigator Sailors suggest that Driver’s defense would be

somehow harmed if Driver decided to invoke his right to counsel.

When Driver in fact invoked his right to counsel, Investigator

Sailors again confirmed that right, expressed his willingness to

honor Driver’s decision, and made no further attempt to talk about

the case in the absence of Driver’s attorney. See Kirby, 

 (“When [the accused] clearly invoked his right to counsel, [the

officer] had an obligation to stop interrogating [him] about [the]

murder, and the [officer] complied with that duty.”). Cf. Anderson

v. State, 

 (

) (1997) (holding

that after the defendant invoked his right to counsel, an officer

improperly interrogated him by saying that he wanted the

defendant’s “side of the story” and “perspective” on the events and

that he might want to “go ahead and tell” anything that would help

                                  13
the investigation) (punctuation omitted).

     Third, Driver argues that Investigator Sailors continued his

interrogation even after Driver invoked his right to counsel (but

before Driver inquired about the investigation) by stating that he

would be glad to listen to Driver and his attorney tell what happened

from Driver’s “point of view.”    Viewed in context, however, this

statement does not rise to the level of interrogation because there is

no evidence to suggest that the statement was designed to elicit an

incriminating response or that Sailors should have known it was

reasonably likely to do so. See State v. Brown, 

 (

) (2010) (conversation between the defendant and

detectives was not reasonably likely to elicit an incriminating

response when, in context, the conversation related to future

discussions that they could have about the case after the defendant

had a lawyer).

     Finally, Driver argues that after he invoked his right to

counsel, but just before his admission that he shot Diamond,

Investigator Sailors’s disclosure of incriminating evidence to Driver,

                                 14
followed by Sailors’s silence in apparently waiting for Driver’s

response,   amounted    to   continued   interrogation.    However,

Investigator Sailors’s responses did not violate Driver’s previously

invoked right to counsel under Edwards here because Driver’s

questions initiated a renewed conversation and “evinced a

willingness and a desire for a generalized discussion about the

investigation.” Oregon v. Bradshaw, 

 (

, 77 LE2d 405) (1983). See also Gray, 

.

Driver relies on the holding of Gardner v. State, 

(

) (2003), to argue that disclosure of incriminating

evidence can constitute improper custodial interrogation, but the

defendant in that case, unlike Driver, had not been advised of his

rights under Miranda, let alone waived his right to silence or his

right to counsel either by reinitiating contact with law enforcement

after invoking one of those rights or by some other means. Driver,

by contrast, was advised of his Miranda rights, invoked his right to

counsel, and then reinitiated discussion of his case. Under these

circumstances, Investigator Sailors was “not obliged . . . to stop

                                 15
listening to what [Driver] chose to say or to immediately leave the

room so that [Sailors] could not hear him.” Kirby, 

(citation and punctuation omitted). See also Taylor, 

(after the accused had invoked her right to counsel, an officer whose

actions were not calculated to elicit an incriminating response and

who did not ask, encourage, or engage the accused to talk about the

victim’s death “followed [the officer’s] duty not to question, but had

no duty not to listen”). Moreover, “[a] police officer’s response to a

direct inquiry by the defendant does not constitute ‘interrogation.’”

Brown, 

 (citation and punctuation omitted). Thus,

“[a]n accused’s response to an officer’s answer to a question posed by

the accused is not the product of custodial interrogation.” Gray, 

 (citation and punctuation omitted). In sum, Investigator

Sailors’s response to questions Driver initiated and posed to Sailors

when Sailors was preparing to walk out of the room did not render

Driver’s unsolicited and incriminating admission the product of

interrogation that must be suppressed at trial. See Rigsby v. State,

 (

) (2019) (affirming trial court’s

                                 16
admitting into evidence an incriminating statement the defendant

spontaneously and voluntarily made after previously invoking his

right to counsel, where the defendant reinitiated a discussion about

his charges and an investigator “merely tried to respond”).

Considering the totality of the circumstances as reviewed above, we

conclude that Driver voluntarily waived his right to counsel when

he reinitiated the conversation with Investigator Sailors and made

an incriminating admission.     See Rowland, 

.

Accordingly, the trial court did not err in deciding not to suppress

Driver’s statements to Investigator Sailors.

     Judgment affirmed. All the Justices concur.




                   DECIDED JANUARY 13, 2020.
     Murder. Floyd Superior Court. Before Judge Colston.
     Jerry W. Chappell II, for appellant.

                                 17
     Leigh E. Patterson, District Attorney, Luke A. Martin, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Ashleigh D. Headrick, Assistant
Attorney General, for appellee.




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