Hinkson v. State

FINAL COPY

                 S20A0887. HINKSON v. THE STATE.


      WARREN, Justice.

      Appellant Shane Hinkson appeals from his conviction for

felony murder predicated on aggravated assault stemming from the

death of his eight-month-old son, Alexander Cabanayan.1 Hinkson


      1 The crimes occurred in January 2012.     A Muscogee County grand jury
indicted Hinkson on July 3, 2012, for malice murder (Count 1), felony murder
based on aggravated assault (Count 2), aggravated assault (Count 3), felony
murder based on cruelty to children in the first degree (Count 4), cruelty to
children in the first degree (Count 5), felony murder based on cruelty to
children in the second degree (Count 6), and cruelty to children in the second
degree (Count 7). After a pre-trial hearing, the trial court nolle prossed Counts
6 and 7. At a jury trial in July 2015, Hinkson was found not guilty of malice
murder but guilty of the lesser included charge of involuntary manslaughter
on Count 1 and guilty of Counts 2 to 5. On August 20, 2015, the trial court
sentenced Hinkson to serve life in prison with the possibility of parole for felony
murder based on aggravated assault. The other felony murder count was
vacated by operation of law, and the trial court merged the remaining counts;
the State has not challenged the sentences. See Dixon v. State, 

 (

) (2017). Hinkson timely filed a motion for new trial on
August 20, 2015, which he amended on September 28, 2018. After a hearing
on December 3, 2018, the trial court denied Hinkson’s motion for new trial on
December 20, 2018. Hinkson purported to amend his motion for new trial a
second time on January 4, 2019. See OCGA § 5-5-40 (b) (providing that a
motion for new trial “may be amended any time on or before the ruling
thereon”). After being considered by the trial court without a hearing, the trial
court denied the purported second amended motion for new trial on January
22, 2019. A notice of appeal was filed on January 22, 2019, which was timely
claims that the jury returned invalid verdicts, that his indictment

was defective in several respects, and that the trial court erred in

admitting into evidence the pre-trial statement that he made to the

police and evidence of a gun found in his apartment. We affirm.

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

evidence presented at Hinkson’s trial showed the following.

Hinkson and Jennifer Cabanayan met in the fall of 2010, and by the

end of 2011, their son Alexander was eight months old and the

couple was engaged to be married. On December 31, 2011, Jennifer

dropped off Alexander at Hinkson’s apartment in Columbus on her

way to work. Hinkson, who was in the Army and stationed at Fort

Benning, had agreed to watch Alexander that day and also that

night while Jennifer went out with friends to celebrate New Year’s

Eve. However, Hinkson was upset that Jennifer was going out, and

the couple argued over text and phone calls late that evening and




from the December 20, 2018 denial of the motion for new trial because the due
date for the notice of appeal fell on a Saturday, and Monday, January 21, was
a legal holiday. See OCGA § 1-3-1 (d) (3). This case was docketed in this Court
to the April 2020 term and submitted for a decision on the briefs.
                                      2
into the early morning of New Year’s Day. Jennifer stayed at a

friend’s house that night and then went straight to work in the

morning. Alexander remained with Hinkson. After a missed call

and a few text messages from Hinkson while she was at work,

Jennifer received a phone call from Hinkson at 1:55 p.m. in which

he told her that she needed to come to his apartment “right away”

because “something bad had happened.” Jennifer arranged for a

ride there from her boss.

     At trial, Jennifer testified that she called Hinkson on the way

to his apartment and that she was “trying to calm him down”

because he was “very distraught” and saying “pretty horrific, scary

things,” like that Jennifer “couldn’t call anybody” and “that if [she

did call] anybody, that they would take him away.” Hinkson said if

she “called an ambulance and it wasn’t anybody but [her] that he

would shoot them.” When Jennifer arrived at Hinkson’s apartment

at about 2:30 p.m., she found him near the kitchen, holding a gun to

his head. She found Alexander on the bed, covered by a duvet. One

of his eyes was looking up while the other was looking down, and he

                                 3
was whimpering and had “things on his neck.”                Jennifer

immediately left the apartment with Alexander, leaving Hinkson

there, and her boss drove Alexander and Jennifer to a hospital in

Columbus.

     Alexander arrived at the hospital at approximately 2:55 p.m.

Dr. Mark Anders, the emergency room physician who treated

Alexander, testified that one of his eyes had swollen shut and that

he had bruising on his neck. A CT scan of Alexander’s head was

“[m]arkedly abnormal” and showed “severe diffuse” swelling of the

“entire right cerebral hemisphere” and “acute subdural hematoma

over the right cerebral hemisphere.”     Dr. Anders testified that

Alexander had a “severe amount of trauma to the entire right side

of the brain.” Alexander was then flown by helicopter to Children’s

Healthcare of Atlanta and underwent emergency brain surgery, but

he died several days later on January 6, 2012.

     Detective Andrew Tyner testified that the Columbus hospital

called police about an hour after Alexander arrived to notify them of

Alexander’s injuries.   Detective Tyner immediately went to the

                                 4
hospital, where he spoke to Jennifer and medical personnel. About

30 minutes after arriving at the hospital, the detective left and went

to Hinkson’s apartment.     Hinkson was not there, but Detective

Tyner found a handgun with a single bullet in it in the apartment.

Police officers ultimately brought Hinkson to their headquarters,

where Detective Tyner interviewed him.

     In Hinkson’s recorded interview, which was played for the jury

at trial, he said the following. He was angry with Jennifer, and

Alexander would not stop crying.      He became extremely angry,

“broke down,” and “lost it.” He “kept . . . picking [Alexander] up and

putting him down.” He did not “even know how long [he] was doing

that for,” but Alexander stopped crying. Then Hinkson went to

sleep. When he woke up in the morning, he realized something was

wrong with Alexander and called Jennifer to tell her that something

bad had happened and she needed to come to his apartment. He

thought he had “f***ed up” and he told Jennifer that “if anyone but

her went through the door [he would] shoot them.” He was holding

a gun in his hand when Jennifer arrived, and after Jennifer left with

                                  5
Alexander, he drove to Fort Benning, sought a chaplain, and turned

himself in to military police. Hinkson had a problem with anger, he

“picked [Alexander] up too hard . . . [and] put him down too hard,”

and he put his hand over Alexander ’s mouth and kept “picking him

up and putting him down.”

     Dr. Stephen Messner, a child abuse pediatrician, testified that

Alexander’s injuries were caused by external trauma and that his

injuries could be caused by someone picking Alexander up and

forcefully slamming him on a bed. The medical examiner testified

that Alexander died as a result of an “abusive head injury” and that

his manner of death was homicide.

     2.   Hinkson does not contest the legal sufficiency of the

evidence supporting his conviction for felony murder based on

aggravated assault.    Nevertheless, consistent 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 was sufficient to authorize

a rational jury to find Hinkson guilty beyond a reasonable doubt of

                                  6
that crime.2 See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). Hinkson does argue that the evidence

was legally insufficient to support his convictions for felony murder

based on cruelty to children in the first degree and cruelty to

children in the first degree, but he was not convicted of or sentenced

for those counts, and, accordingly, “his claims as to the sufficiency of

the evidence supporting those counts are moot.” Blackshear v. State,

 (

) (2020).

     Hinkson also contends that the case of Turner v. State, 

 (

) (2008), requires that we vacate the verdicts for

felony murder based on aggravated assault and for involuntary

manslaughter and remand the case for a new trial.                    Turner,

however, does not control this case. We have described Turner as a

case that involved repugnant verdicts; in other words, its “guilty and

not guilty verdicts reflect[ed] affirmative findings by the jury that


     2 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 

 (

) (2020). The Court began assigning cases to the
December term on August 3, 2020.
                                     7
[were] not legally and logically possible of existing simultaneously.”

McElrath v. State, 

 (

) (2020). In

Turner, there were repugnant verdicts because the jury found the

defendant not guilty of malice murder based on a verdict form that

specifically found that his action in shooting the victim was justified,

but guilty on two other counts based on a verdict form that

specifically found that the same assault against the same victim was

not justified. See Turner, 

. Here, on the other hand,

the jury did not return guilty and not guilty verdicts or make any

specific findings, and Turner is therefore inapplicable.

     Instead, Hinkson’s contention regarding the impropriety of the

involuntary manslaughter and aggravated assault verdicts is

squarely controlled against him by our decision in State v. Springer,

 (

) (2015).         There, the defendant was

convicted of involuntary manslaughter based on reckless conduct, as

was Hinkson, and was also convicted of committing an aggravated

assault against the same victim. See 

. Moreover, there,

like here, the jury’s verdicts did not specify whether the simple

                                   8
assault forming the basis of the aggravated assault was an attempt

to “commit a violent injury to the person of another,” OCGA § 16-5-

20 (a) (1), or the commission of “an act which places another in

reasonable apprehension of immediately receiving a violent

injury[,]” OCGA § 16-5-20 (a) (2). See Springer, 

.

Thus, it was possible that the jury in Springer found two different

levels of mens rea for the same conduct: a finding of criminal intent

for aggravated assault based on OCGA § 16-5-20 (a) (1) and a finding

of criminal negligence for involuntary manslaughter based on

reckless conduct. Previously, in Jackson v. State, 

 (

) (2003), we evaluated verdicts like those in Springer and

concluded that they were mutually exclusive because they

“represent[ed] a positive but illogical finding by the jury that [the

defendant] acted with both criminal intent and criminal negligence.”

Jackson, 

. In Springer, however, we reevaluated

Jackson, concluded that it had erred in its analysis, and overruled

it and its progeny. See Springer, 

-383 & n.4. In

overruling Jackson, we held in Springer that “multiple guilty

                                 9
verdicts for the same conduct that are based on varying levels of

mens rea are not mutually exclusive.” Springer, 

.

Accordingly, here, even if the jury found differing levels of mens rea

for the same conduct (Hinkson’s assault on Alexander), the verdicts

are not mutually exclusive under Springer. Hinkson’s contention

regarding the illegality of his verdicts is therefore without merit.

     3. Hinkson contends that the trial court erred by denying his

special demurrer. We disagree.

     In a special demurrer, a defendant claims that the charges in

the indictment are “imperfect as to form or that the accused is

entitled to more information.”    Bullard v. State, 

(

) (2019) (citation and punctuation omitted). “The true

test of the sufficiency of an indictment to withstand a special

demurrer is not whether it could have been made more definite and

certain,” but whether it alleges “the underlying facts with enough

detail to sufficiently apprise the defendant of what he must be

prepared to meet.”     

 (citations and punctuation

omitted). “And when a court considers whether an indictment is

                                  10
sufficient to withstand a special demurrer, it is useful to remember

that a purpose of the indictment is to allow a defendant to prepare

his defense intelligently.”   

 (citation and punctuation

omitted). “We review a ruling on a special demurrer de novo to

determine the legal sufficiency of the allegations in the indictment.”

.

     Hinkson contends that the trial court should have granted his

special demurrer as to all the crimes alleged in the indictment.

However, because he was only convicted of felony murder based on

aggravated assault, his complaints about the other charges in the

indictment are moot. See McKibbins v. State, 

, 848 n.11

(

) (2013) (holding that, because the defendant was not

convicted of felony murder, his complaint about the way the

indictment charged that offense was moot). We therefore review

only Hinkson’s contention regarding the one crime of which he was

convicted.

     Count 3 of the indictment charged Hinkson with aggravated

assault, specifying that he “did unlawfully make an assault upon the

                                 11
person of Alexander Cabanayan with an object, to wit: his hands,

which when used offensively against a person did result in serious

bodily injury by causing an abusive head injury to Alexander

Cabanayan.” OCGA § 16-5-21 (a) (2) provides that an aggravated

assault occurs when a person commits a simple assault, as defined

by OCGA § 16-5-20 (a),3 “[w]ith a deadly weapon or with any object,

device, or instrument which, when used offensively against a person,

is likely to or actually does result in serious bodily injury[.]”

     Hinkson contends that Count 3 did not provide him sufficient

notice to prepare for trial on that aggravated assault charge and its

related felony murder charge. More specifically, he argues that the

lack of detail in the indictment about what type of simple assault

formed the basis of the aggravated assault charge and about the

manner in which he used his hands to cause the “abusive head

injury” alleged in the aggravated assault count did not provide him




     3 OCGA § 16-5-20 (a) provides that “[a] person commits the offense of

simple assault when he or she either: (1) Attempts to commit a violent injury
to the person of another; or (2) Commits an act which places another in
reasonable apprehension of immediately receiving a violent injury.”
                                     12
adequate notice of what he had to defend against at trial. And,

noting our precedent holding that only a felony that is “inherently

dangerous” or “life-threatening” can be a predicate felony for a felony

murder charge, Eberhart v. State, 

 (

)

(2019) (citation and punctuation omitted), Hinkson contends that

the indictment had to, but did not, put him on notice of the

circumstances that made the assault on Alexander inherently

dangerous or life-threatening. We disagree with these contentions.

     Contrary to Hinkson’s contention that the trial court should

have granted his special demurrer to this count of the indictment

because it did not contain sufficient information about the type of

simple assault that he is alleged to have committed, we have held

that an indictment under OCGA § 16-5-21 (a) (2) “need not specify

the manner in which the defendant committed the simple assault,

when that is a lesser included offense within the greater offense of

aggravated assault.” State v. Wyatt, 

 (

) (2014) (citation and punctuation omitted).        Instead, “[a]n

indictment charging aggravated assault must allege the element

                                  13
that aggravates the crime above a simple assault,” 

 which, in this

case, was the use of objects (hands), “which, when used offensively

against a person . . . actually does result in serious bodily injury[.]”

OCGA § 16-5-21 (a) (2). Accordingly, the trial court did not err in

denying the special demurrer on this ground.

     Hinkson also contends that the aggravated assault count failed

to provide him notice of what he had to defend against at trial

because it did not adequately allege the manner in which he used

his hands to cause the “abusive head injury” alleged in the

aggravated assault count. Again, we disagree.

     We have held that an

     indictment need not say how the defendant used the
     weapon or object that aggravated the assault. See, e.g.,
     Arthur v. State, 

 (

) (2002)
     (affirming the denial of a special demurrer because, “by
     alleging [the defendant’s] general use of a gun, the State
     apprised him that he would have to defend against all of
     the possible ways of committing the assault that he
     himself had admitted in his statement”); Watson v. State,
     

 (

) (1986) (concluding
     that an indictment charging that the defendant assaulted
     the victim “with a metal pipe,” without specifying how the
     pipe was used, was sufficient).


                                  14
Wyatt, 

. In Wyatt, in which the defendant was

charged with committing an aggravated assault with an unknown

object, “which when used offensively against another person is likely

to result in serious bodily injury,” we held that the indictment was

sufficient to withstand the defendant’s challenge “that the lack of

detail about the dangerous object he allegedly used and the manner

in which he used it le[ft] him without adequate notice of what he

[had to] defend against at trial.” 

 (punctuation omitted).

We held that the indictment provided sufficient notice to the

defendant to prepare a defense because it told him that “he used an

object that is likely to result in serious bodily injury when used

offensively to fatally injure [the child] by causing damage to her

brain” and that the State “claim[ed] not to know — and thus d[id]

not intend to prove — what specific object he used to assault” the

child. 

.4 Here, we likewise conclude that the indictment


     4 Accord Hester v. State, 

 (

) (2008) (holding

that the felony murder count of an indictment that alleged that the defendant
caused the victim’s death “by striking her on and about the head with a lamp”
and an aggravated assault count that alleged that the defendant assaulted the

                                     15
provided Hinkson with adequate notice of what he had to defend

against at trial by telling him that he used his hands in an offensive

manner against his eight-month-old son and that he caused his son

“an abusive head injury” in doing so. This contention regarding the

indictment therefore fails.

      Finally, Hinkson’s contention that the indictment was subject

to a special demurrer because it did not allege the attendant

circumstances to put him on notice of how the assault was

“inherently dangerous” or “life-threatening,” Eberhart, 

, is waived because he did not raise this objection to the




victim “with a lamp, an object which when used offensively against a person,
is likely to and actually does result in serious bodily injury” were not subject
to a special demurrer on the ground that they failed “to specify how the lamp
was used,” concluding that the defendant “clearly was apprised that she would
have to defend against the allegation that she struck [the victim] on and about
the head with the lamp”); Arthur, 

 (holding that an aggravated
assault count that alleged that Arthur assaulted the victim “with a handgun,
a deadly weapon” was sufficient to withstand Arthur’s claim in his special
demurrer that the indictment failed to provide adequate notice because it
lacked specific allegations as to whether the defendant committed the crime by
“‘shooting at (the victim), pointing the gun at him, beating him with the gun,
or any other manner in which a handgun could be used to assault a person’”).
See also Kimbrough v. State, 

 (

) (2017)
(explaining that “an indictment does not have to contain ‘every detail of the
crime’ to withstand a special demurrer”) (citation omitted).
                                      16
indictment until his purported second amended motion for new trial.

See Miller v. State, 

 (

) (2019) (a special

demurrer claim “must be brought before trial, or it is waived”).

     For these reasons, the trial court did not err in denying

Hinkson’s special demurrer to Counts 2 and 3 of the indictment.

     4. Hinkson also claims that the trial court erred in denying his

general demurrer to Counts 2 and 3 of the indictment. We again

disagree.

     A general demurrer “challenges the sufficiency of the

substance of the indictment.” Kimbrough, 

 (citation,

punctuation and emphasis omitted). An indictment that simply

alleges a violation of a Code section but does not “set out all the

elements of the offense” or “allege all the facts necessary to

establish” a violation of the Code section is insufficient to withstand

a general demurrer. State v. Mondor, 

 (

) (2019) (citation and punctuation omitted).

     On the other hand, if an indictment does “recite the
     language of the statute that sets out all the elements of
     the offense charged” or “allege the facts necessary to

                                  17
     establish violation of a criminal statute,” then the
     indictment is sufficient to withstand a general demurrer
     because “the accused cannot admit the allegations of the
     indictment and yet be not guilty of the crime charged.”
     Indeed, we have before explained that “[t]he true test of
     the sufficiency of an indictment” to withstand a general
     demurrer is “‘[i]f all the facts which the indictment
     charges can be admitted, and still the accused be
     innocent, the indictment is bad; but if, taking the facts
     alleged as premises, the guilt of the accused follows as a
     legal conclusion, the indictment is good.’”

 (citations omitted).

     Hinkson contends that the aggravated assault count of the

indictment (and therefore its corresponding felony murder count)

was insufficient to withstand his general demurrer because it failed

to specify that his hands, “when used offensively against a person,”

were “likely to . . . result in serious bodily injury[.]” OCGA § 16-5-21

(a) (2) (emphasis supplied).

     Hinkson’s contention, however, fails. Although an allegation

that Hinkson’s hands were “likely to . . . result in serious bodily

injury[,]” id., would satisfy an essential element of aggravated

assault, Hinkson errs by contending that his indictment had to

contain that language. An indictment under OCGA § 16-5-21 (a) (2)

                                  18
must allege the “element that aggravates the crime above a simple

assault.” Wyatt, 

. But that aggravating element may

be that the assault was committed either “with a deadly weapon or

an object that was likely to or actually did result in serious bodily

injury.” 

 (emphasis supplied).        Hinkson’s indictment

alleged that he committed an aggravated assault by assaulting his

son with objects (his hands) that actually did “result in serious

bodily injury.” The fact that it did not also allege that the use of his

hands was likely to result in serious bodily injury was not a

successful ground for a general demurrer.

     Pointing to Smith v. Hardrick, 

 (

)

(1995), Hinkson contends that the trial court erred in denying his

general demurrer because his indictment, like that in Hardrick, did

not properly allege the grounds of the simple assault or the

aggravating element. Smith, however, does not control this case.

The indictment in that case charged the defendant “with the offense

of AGGRAVATED ASSAULT for (he) did make an assault upon (the

victim) by placing his hands around (her) neck and using his hands

                                  19
to apply pressure to her neck contrary to the law( ).” 

.

There, we noted that the indictment failed to allege any aggravating

element and failed to allege how the simple assault was committed,

and we concluded that the trial court should have granted the

defendant’s general demurrer. In other words, the defendant could

have admitted the facts alleged in the indictment and not been

guilty of the crime charged. 

. See also Mondor, 

.

       Here, by contrast, the indictment, as discussed above, clearly

alleged the aggravating element of the assault charge. Moreover,

we have explained on several occasions after our decision in

Hardrick that, although an aggravated assault charge must allege

the aggravating element, it need not allege how the simple assault

was committed. See, e.g., Bullard, 

 (“an indictment

for aggravated assault need not specify the manner in which the

simple assault was committed”); Wyatt, 

 (“an

indictment under OCGA § 16-5-21 (a) (2) ‘need not . . . specify the

manner in which the defendant committed the simple assault, when

                                  20
that is a lesser included offense within the greater offense of

aggravated assault’”) (quoting Simpson v. State, 

(

) (2003)). Furthermore, in State v. English, 

 (

) (2003), a case in which the aggravated assault

count of the indictment did not allege the manner in which the

simple assault was committed, but did allege the aggravating

element, we distinguished Hardrick and held that English, unlike

Hardrick, could not have pled guilty to the aggravated assault count

and not been admitting to an aggravated assault. See English, 

. So, although Hardrick was correctly decided based on

the failure of the indictment there to allege any aggravating

element, it is not controlling in this case.

     Hinkson also contends that the indictment had to, but did not,

allege facts that showed that the assault he committed was

dangerous per se or created a foreseeable risk of death. To support

this argument, he again relies on the proposition that only a felony

that is “inherently dangerous” or “life-threatening” can be a

predicate felony for a felony murder charge. Eberhart, 

262. He argues that he therefore could admit the facts alleged in

the indictment and not be guilty of an aggravated assault.

     This issue is not preserved for review.       Unlike a special

demurrer, which is waived if not “brought before trial,” Miller, 

, we have held that a count of an indictment which is

subject to a valid general demurrer is void, and we have explained

that “a general demurrer may be raised after jeopardy has attached

and at any time during trial,” as well as “in the form of a motion in

arrest of judgment after a verdict in the same term of court.” State

v. Heath, 

, 840 & n.2 (

) (2020). Hinkson

first raised this general demurrer issue in his purported second

amended motion for new trial.      That motion, however, was not

timely as an amendment to Hinkson’s motion for new trial because

it was filed after the trial court denied Hinkson’s motion for new

trial. See OCGA § 5-5-40 (b) (providing that a motion for new trial

“may be amended any time on or before the ruling thereon”).

Moreover, even treating Hinkson’s motion as a motion in arrest of

judgment, we cannot address the merits of the motion because it was

                                 22
not timely filed. “A motion in arrest of judgment must be filed

within the term of court in which the judgment was rendered.

OCGA § 17-9-61 (b).” Dasher v. State, 

 (

) (2009). The terms of court for the Superior Court of Muscogee

County begin on the “[f]irst Monday in February, April, June,

August, October, and December.” OCGA § 15-6-3 (8) (D). Hinkson’s

sentence was entered during the August 2015 term of court, and his

“motion in arrest of judgment” was filed in January 2019, well after

the deadline for filing a motion in arrest of judgment. Accordingly,

the issue is not preserved for review.

     5. Hinkson contends that the trial court erred in denying his

motion to suppress evidence of the recorded statement he made to

Detective Tyner at the police station. More specifically, Hinkson

contends that his statement should have been suppressed because

it was the fruit of an unlawful arrest and because he was not

properly advised of his rights under Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966). We conclude that there is

no merit to either contention.

                                 23
     (a) We turn first to Hinkson’s contention that his statement

should have been suppressed because he was under arrest at the

time of his interview and his arrest was not supported by probable

cause.5   The State does not contest Hinkson’s claim that he was

under arrest at the time of his interview,6 but contends that

Hinkson’s arrest was supported by probable cause. If the State is

correct about probable cause, the trial court did not err in admitting

Hinkson’s statement. See Devega v. State, 

 (

) (2010) (“Where probable cause exists, even an illegal,


     5 “In addition to arguing that suppression was required by the Fourth

Amendment, [Hinkson] also relies on OCGA § 17-4-20 and Article I, Section I,
Paragraph XIII of the Georgia Constitution.” White v. State, 

, 602
n.2 (

) (2020). However, Hinkson
      makes no argument that state law provides a rule substantively
      different as applied to this case from that of the Fourth
      Amendment.       This case therefore presents no occasion for
      consideration of whether Paragraph XIII differs from the Fourth
      Amendment in some circumstances. See Olevik v. State, 

 (2) (b) n.3 (

) (2017) (noting that the United
      States Supreme Court’s construction of the Fourth Amendment
      does not bind our construction of Paragraph XIII, and that any
      independent interpretation of Paragraph XIII must be grounded
      in the text, context, and history of the Georgia provision).
White, 

 n.2.

     6 The record shows that Hinkson was driven to police headquarters in

handcuffs and that, at the time of the interview, he was shackled and
handcuffed using a “belly chain.”
                                     24
warrantless arrest in a suspect’s home does not render inadmissible

subsequent statements made outside the premises.”) (citation and

punctuation omitted). For the reasons that follow, we conclude that

the arrest was supported by probable cause.

     “[P]robable cause” to justify an arrest means facts and
     circumstances within the officer’s knowledge that are
     sufficient to warrant a prudent person, or one of
     reasonable caution, in believing, in the circumstances
     shown, that the suspect has committed, is committing, or
     is about to commit an offense.

Westbrook v. State, 

 (

) (2020) (citation

and punctuation omitted). In denying Hinkson’s motion to suppress,

the trial court made no specific findings of fact regarding probable

cause, but the facts were largely undisputed and included an

account of events outlined by defense counsel. We will therefore

review de novo the trial court’s “application of the law to [those]

undisputed facts.” Williams v. State, 

 (

) (2017) (citation and punctuation omitted).

     Here, those facts showed that Detective Tyner knew that

Alexander arrived at the hospital with a severe brain injury and that


                                 25
he had been alone with Hinkson at the time of the injury. Moreover,

he knew that Hinkson had told Jennifer “he had done something to

the child, and that the child wasn’t acting right.” The detective was

also told that Hinkson might try “to do harm to himself.” Finally,

the detective knew that Hinkson had gone to see an Army chaplain

and that military police had turned Hinkson over to the Columbus

Police Department. The trial court could properly conclude that

when Detective Tyner detained Hinkson knowing the foregoing

information, the detective had probable cause to arrest him. See

White v. State, 

 (

) (2020) (holding

that probable cause existed for a warrantless arrest based on

statements by the defendant’s grandfather that the defendant “had

behaved oddly after the murder” and by another family member that

the defendant had said that he killed the victim); Stinski v. State,

 (

) (2007) (holding that probable cause

existed for the defendant’s arrest because “officers had been

informed by other residents in the home where [the defendant] was

living that he had admitted killing the victims”).

                                 26
     (b)   Hinkson also contends that the trial court erred in

concluding that he knowingly and intelligently waived his Miranda

rights. We disagree.

     “To use a defendant’s custodial statements in its case-in-chief,

the State must show that the defendant was advised of his Miranda

rights and that he voluntarily, knowingly, and intelligently waived

them.” Wells v. State, 

 (

) (2020). “Only

if the totality of the circumstances surrounding the interrogation

reveals both an uncoerced choice and the requisite level of

comprehension may a court properly conclude that the Miranda

rights have been waived.”    Young v. State, 

 (

) (2020) (citation and punctuation omitted). Moreover, “[a]

statement by an interrogating agent that contradicts the Miranda

warnings is a circumstance that can indicate a suspect did not

knowingly and intelligently waive his rights.”     

 (citation and

punctuation omitted).

          Generally, when reviewing a trial court’s ruling on a
     motion to suppress, this Court must accept the trial
     court’s factual findings unless they are clearly erroneous.

                                 27
     However, when, as here, [t]here is no dispute about what
     took place during the police interview in question, since it
     was recorded with both video and audio and when [t]he
     recording is part of the record on appeal, and the parties
     point to no evidence beyond the recorded interview to
     support their arguments regarding the admissibility of [a]
     confession, we review de novo the trial court’s
     determinations of both fact and law.

Dozier v. State, 

 (

) (2019) (citations and

punctuation omitted).

     Here, the record shows that Detective Tyner read Hinkson the

required Miranda warnings, including the warning that Hinkson

had the right to remain silent.       Hinkson acknowledged that he

understood those rights. Immediately after reading Hinkson his

rights, Detective Tyner orally informed Hinkson that he could waive

those rights, explaining that

     I got a waiver here that I want to read to you also. It says
     I’ve read or had read to me the above rights and
     understand what my rights are. I’m willing to make a
     statement and answer questions without having a lawyer
     present at this time. I understand and know what I’m
     doing. No promises or threats have been made to me. No
     pressure, coercion of any kind has been used against me.
     You understand all that Mr. Hinkson?

Hinkson acknowledged that he understood the waiver of his rights.

                                 28
     Detective Tyner then said: “If you, um, you want to talk to us

now, I appreciate it if you, ah, would just sign your name here. Ah,

which basically just says you’ve been advised of your rights, has no

bearing on anything else.” Hinkson then signed his name and talked

with Detective Tyner. At the hearing on the motion to suppress,

Tyner testified that Hinkson did not appear to be under the

influence of drugs, alcohol, or any other substance when he spoke

with him.

     Hinkson argues that, when Tyner told him that where he was

to sign “basically just says you’ve been advised of your rights, has no

bearing on anything else,” Detective Tyner vitiated his Miranda

rights by leading him to believe, mistakenly, that he was not

waiving those rights by signing his name and speaking with

Detective Tyner. Assessing the totality of the circumstances in the

case, we disagree.

     Detective Tyner correctly informed Hinkson of his Miranda

rights and explained that Hinkson could waive those rights and

speak with the detectives. Hinkson orally acknowledged that he

                                  29
understood his rights. He also said that he understood the waiver

form that was read to him, which stated that, understanding his

rights, he could effectively waive them by speaking with the

detective. Moreover, when Detective Tyner told Hinkson that if he

wanted to speak with Detective Tyner, he needed to sign a form that

“basically just says you’ve been advised of your rights, has no

bearing on anything else,” that did not diminish the fact that

Hinkson said that he understood the Miranda warnings that were

given to him orally and understood that he could, but did not have

to, speak with Detective Tyner. Even if Hinkson thought, as he

asserts, that he was signing a form acknowledging that he had been

read his rights, as opposed to a form acknowledging that he was

waiving his rights, that would only show that Detective Tyner did

not obtain an express waiver of rights from Hinkson. However, it is

well established “[t]he prosecution . . . does not need to show that a

waiver of Miranda rights was express.” Berghuis v. Thompkins, 

 (

, 176 LE2d 1098) (2010). “Where the

prosecution shows that a Miranda warning was given and that it

                                 30
was understood by the accused, an accused’s uncoerced statement

establishes an implied waiver of the right to remain silent.” 

      Moreover, this case is not like others in which this Court has

concluded that a statement by an officer vitiated Miranda warnings

that were previously given. See State v. Clark, 

 (

) (2017) (holding that after a detective had read the

defendant his Miranda rights and the defendant stated his belief

that the ensuing interview would be “off the record,” the detective’s

affirmative response to the defendant’s statement had the effect of

nullifying the Miranda warning previously given to the defendant);

Spence v. State, 

 (

) (2007) (holding

that when an officer informs a defendant of his Miranda rights, but

then tells him that the defendant’s interview would be kept

confidential, the defendant’s statement is inadmissible).7



      7 Furthermore, this case is unlike Benton v. State, 

 (

) (2017), on which Hinkson relies. There, an officer informed the defendant
of his Miranda rights and asked the defendant if he understood them. See 

. The defendant’s response indicated that he “did not understand the
Miranda warnings as read to him initially,” and the officer’s subsequent
attempt to explain those warnings was “inadequate because it failed to include

                                      31
      For these reasons, we conclude that the trial court did not err

in concluding that Hinkson made a knowing and intelligent waiver

of his Miranda rights.

      6. Hinkson contends that his Fourth Amendment rights were

violated by the search of his apartment and that the trial court

therefore erred in denying his motion to suppress evidence of the

gun that the police found. However, even if the trial court did err,

we conclude that any error was harmless beyond a reasonable doubt.

See Ensslin v. State, 

 (

) (2020) (a

constitutional error “may be deemed harmless if the State can prove

beyond a reasonable doubt that the error did not contribute to the

verdict”) (citation and punctuation omitted).

      First, the gun itself was not admitted into evidence at trial;

instead, Detective Tyner simply testified that he found the gun in




three of the four Miranda warnings.” 

. “Because the interrogating
officer’s subsequent explanation of those warnings was incomplete,” we held
that “we cannot say that [the defendant] knowingly and intelligently waived
his rights under Miranda.” 

. Here, unlike in Benton, Detective Tyner
accurately explained the Miranda warnings, and Hinkson indicated that he
understood them.
                                     32
the apartment and that it had one bullet in it. Moreover, evidence

that the gun was found in the apartment was cumulative of

Hinkson’s own statement that he was holding a gun when Jennifer

came to the apartment and of Jennifer’s testimony that he was

pointing the gun at his head when she arrived at the apartment. In

addition, the evidence of Hinkson’s guilt, including Hinkson’s

statement, Jennifer’s    testimony,   and   the   medical   evidence

introduced at trial, was strong. For these reasons, we conclude that

any error in permitting Detective Tyner to testify regarding the gun

was harmless beyond a reasonable doubt. See Ensslin, 

 (holding that the erroneous admission of evidence was

harmless beyond a reasonable doubt because of overwhelming

evidence against the defendant and because the evidence was

cumulative of other evidence admitted at trial); Jordan v. State, 

 (

) (2019) (holding that even if evidence

should not have been admitted, “it was cumulative of other (properly

admitted) evidence” and “was harmless beyond a reasonable doubt”);

McCord v. State, 

 (

) (2019) (holding

                                 33
that even if the trial court erred in admitting certain evidence, the

error was harmless beyond a reasonable doubt because of the

strength of the evidence against the defendant and because the

evidence was cumulative of other evidence admitted at trial).

     Judgment affirmed. All the Justices concur.




          Decided October 19, 2020 —Reconsideration denied
                      November 16, 2020.

          Murder. Muscogee Superior Court. Before Judge Land.
          L. David Wolfe, for appellant.
          Julia F. Slater, District Attorney, William D. Hocutt IV,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Kathleen L. McCanless,
Assistant Attorney General, for appellee.




                                 34