Boyd v. State

726 S.E.2d 746, 315 Ga. App. 256, 2012 Fulton County D. Rep. 1415, 2012 WL 1021043, 2012 Ga. App. LEXIS 351

Opinions

Adams, Judge.

Darrell Emmanuel Boyd, Jr., was convicted by a jury of armed robbery, possession of a firearm during the commission of a felony and violating the Georgia Firearms and Weapons Act by possession of a sawed-off shotgun; he was sentenced to 20 years to serve 12.¹ He appeals following the denial of his motion for new trial, arguing that the trial court erred by admitting his in-custody statement into evidence at trial and by admitting show-up identification testimony.

1. Boyd first argues that the trial court erred by finding that he knowingly and voluntarily waived his constitutional right to self-incrimination so as to authorize the admission of his in-custody incriminating statement. We agree and reverse.

Although the State had the burden of proving the admissibility of the incriminating statement by a preponderance of the evidence,

[confessions of juveniles must be scanned with more care and received with greater caution than those of adults. Crawford v. State, 240 Ga. 321, 323 (1) (240 SE2d 824) (1977). (T)he question of a voluntary and knowing waiver depends on the totality of the circumstances(,) and the (S)tate has a heavy burden in showing that the juvenile did understand and waive his rights. ... Id.

(Punctuation omitted.) Swain v. State, 285 Ga. App. 550, 551-552 (647 SE2d 88) (2007). E.g., Nelson v. State, 289 Ga. App. 326, 328 (1) (657 SE2d 263) (2008).

However, as our Supreme Court has further explained, “age alone is not determinative of whether a person can waive his rights. Instead, the question of waiver must be analyzed by a consideration of several factors.” Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976). Those factors include

(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge . . . and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8)whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

Id.

On appeal, we accept the trial court’s findings on disputed facts and credibility issues unless clearly erroneous. Norris v. State, 282 Ga. 430, 431 (2) (651 SE2d 40) (2007); State v. Rodriguez, 274 Ga. 728 (559 SE2d 435) (2002). “However, (w)here controlling facts are not in dispute, . . . such as those facts discernible from a videotape, our review is de novo. (Cit.)”² (Citation and punctuation omitted.) Sosniak v. State, 287 Ga. 279, 280 (1) (695 SE2d 604) (2010) (involved both conflicting testimony at suppression hearing and videotaped interviews). Vergara v. State, 283 Ga. 175, 178 (657 SE2d 863) (2008); State v. Brown, 308 Ga. App. 480, 482 (708 SE2d 63) (2011); State v. Roberts, 273 Ga. 514, 514-515 (1) (543 SE2d 725) (2001), overruled on other grounds by Vergara, 283 Ga. at 178 (1) (videotape of an interrogation viewed as “demonstrative objective proof of the circumstances surrounding [an] inculpatory statement”). In any event, we independently apply the legal principles to the facts.

Turning to the facts here, the record and transcripts show that Boyd was 15 years old and in the ninth grade at the time he was interviewed.³ Boyd was arrested and taken into custody within hours of the crime, after he had been identified by the victim as the person who brandished the sawed-off shotgun during the robbery. He was handcuffed and placed alone in an interview room; the recording equipment was activated at approximately 2:08 a.m., and the officer conducting the interview, Corporal Eric Osterberg, began interviewing Boyd at about 2:20 a.m.

Osterberg began by asking Boyd general background questions, and Boyd could not tell the officer his street address or whether he lived in Norcross or Lilburn, but described generally for the officer where his home was located. He gave the officer his mother’s cell phone number, but said he did not live with his mother and that she lived in College Park. He told the officer he lived with his father, gave the officer his father’s cell phone number, and said his father “should be” home at that time.

Osterberg then told Boyd he was going to read him his Miranda rights as if Boyd was reading them to himself; in other words, Osterberg read Boyd his rights, using a form which was intended to be read by the suspect, in the first person singular, using the pronoun “I,” instead of using the pronoun “you.”

Osterberg then asked Boyd if he understood his rights, and Boyd gave a slight nod of his head; Osterberg asked Boyd if he had any questions, and Boyd indicated he did not by a slight shake of his head, again giving a slight nod of his head when Osterberg asked him if he understood his rights fully. Osterberg then asked Boyd if he was ready, “with those rights in mind, ... to go ahead and continue this interview and kind of straighten out what in the hell happened this evening.” Boyd did not respond, and Osterberg queried “Understand?” and Boyd slightly nodded his assent. Osterberg then asked Boyd again whether he wanted to go ahead and get it straightened out now, and Boyd hesitated and then responded “Yeah.”

Osterberg proceeded to question Boyd about the events of that night. While pressing Boyd about who owned the gun used during the robbery, Boyd stated he did not know but then blurted out that “he did it though,” meaning he was the one who held it during the robbery. Boyd also mentioned several times in the interview that the gun was not loaded.

Placing these facts in the context of the Riley factors, we note first that Boyd was only 15 years old and in the ninth grade and, for whatever reason, could not provide the officer with certain details such as his street address. The interview did not start until almost 2:30 a.m., and Osterberg acknowledged that Boyd appeared tired but said Boyd was not so tired that he lost track of what was going on during the interview. It does not appear that Osterberg asked Boyd if he wanted anything to drink before he began the interview, and when the interview was over Boyd immediately asked for something to drink.

The recording further reveals that Boyd gave Osterberg the necessary contact information for his parents and Osterberg stated at the hearing that he thought one of the other officers may have tried to contact Boyd’s father, but Osterberg did not mention that fact to Boyd or ask him if he wanted to wait until his father had been reached before proceeding with the interview. As our Supreme Court has held, “[a] parent’s presence... is a significant factor in support of a finding of waiver,” Norris, 282 Ga. App. at 431 (2), although it is equally true that a parent’s presence is not required and that we do not have a per se rule that such statements should be excluded. Further, although Osterberg informed Boyd of his rights, including his right to have a parent or attorney present, these rights were unnecessarily read in a way that might have confused an adult, much less a 15-year-old being interviewed at 2:30 a.m.⁴ And although Boyd did acknowledge understanding his rights, he did so using minimal head gestures, even though up to that point he had been verbalizing his responses to the officer.

While the above circumstances might give us cause to question whether the waiver of rights here was knowingly and intelligently made, it is the next part of the interview, coupled with these circumstances, that leads us to conclude that Boyd’s statement should not have been admitted at trial. At this juncture of the interview Boyd had been arrested but not charged, and more importantly, Osterberg had not revealed to Boyd that he might be charged with serious felony offenses, such as armed robbery and various weapons violations,⁵ before the officer entreated him to “straighten out what in the hell happened this evening.” When Boyd did not immediately respond, Osterberg pressed Boyd to go ahead and “get it straightened out now.” Boyd continued to hesitate, but then responded “Yeah.” As our Supreme Court has noted “the method that police used in the interrogation, including whether they made threats or promises, is a significant factor in evaluating the voluntariness of the waiver ....” Rodriguez, 274 Ga. at 729. Osterberg’s statement, while not an outright promise,⁶ could easily have caused a juvenile offender, uninformed about what serious charges he might be facing, and knowing that the shotgun was not loaded, to believe that the situation could be “straightened out” if he talked to the officer. Further, it is apparent Osterberg knew prior to starting the interview that Boyd was going to be charged whether he talked to him or not since the victim had already identified Boyd as the person who brandished the shotgun during the robbery. And although this method of interrogation may be permissible, particularly when interviewing an adult, we believe these methods may be ill-advised when interviewing a juvenile, in light of the additional scrutiny to which these procedures must be subjected.⁷ This is particularly true where, as here, the juvenile was interrogated without the aid of an attorney or a parent, and without being advised of the very serious charges he could be facing. Cf. Allen v. State, 283 Ga. 304, 305 (2) (a) (658 SE2d 580) (2008) (15-year-old was directly asked concerning whether he wanted his mother present, not just advised he could have her present, and juvenile was told that he was under arrest for murder and was going to be held at a juvenile detention center whether he talked to them or not); Norris, 282 Ga. at 431-432 (2) (trial court did not err by finding knowing and voluntary waiver of rights when interview conducted at 3:30 a.m., juvenile had access to food, drink and a restroom, juvenile’s parent was present for the entire interview, and the mother was told the juvenile was a suspect prior to the interview).

Based on the foregoing, and considering the totality of the circumstances,⁸ we cannot agree with the trial court that the State met its burden of showing that the statement here was made voluntarily after a knowing and intelligent waiver of rights. Although it would be easy to find otherwise if we ended our analysis at the point where Boyd gave an affirmative indication that he understood and waived his rights, such a result would, in our opinion, mean that only mere lip service need be paid to consideration of the factors that are relevant in determining the admissibility of an in-custody statement of a juvenile. As the United States Supreme Court recently explained in finding that age is a factor in determining whether a juvenile is in custody for purposes of Miranda:

A child’s age is far more than a mere chronological fact. It is a fact that generates commonsense conclusions about behavior and perception. Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.

Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children generally are less mature and responsible than adults, [cit.]; that they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them, [cit.]; that they are more vulnerable or susceptible to . . . outside pressures than adults, [cit.]; and so on. Addressing the specific context of police interrogation, we have observed that events that would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. [Cits.] ... Describing no one child in particular, these observations restate what any parent knows — indeed, what any person knows — about children generally. [Cit.]

J. D. B. v. North Carolina,_U. S._(131 SC 2394, 2403, 180 LE2d 310) (2011).

We think these observations provide pertinent perspective to the present case, and compel us to conclude that the trial court erred by admitting Boyd’s statement under the totality of the circumstances of this case.

2. However, we find no error in the admission of evidence that the victim identified Boyd as the person who brandished the shotgun during a show-up identification procedure conducted shortly after the crime was committed. Although the victim was told by an officer that there were some “similarities,” the officer also testified that he told the victim that police did not know if the people they had detained were involved or “related” to the crime, and testified that he did not at any time during the show-up attempt to lead the victim toward an identification. Having considered all the circumstances surrounding the show-up procedure, we find that the trial court did not clearly err by admitting the identification evidence in this case. E.g., Billingsley v. State, 294 Ga. App. 661, 662 (1) (669 SE2d 699) (2008); Horne v. State, 260 Ga. App. 640, 643 (4) (580 SE2d 644) (2003). Moreover, the fact that the victim could not identify Boyd at trial, while certainly something for the jury to consider, did not render this evidence inadmissible particularly since the pre-trial identification was based at least in part on Boyd’s clothing and hairstyle at that time, and his facial features were at least partially concealed during the robbery. This enumeration thus affords no basis for reversal.

Judgment reversed.

Ellington, C. J., Barnes, P. J., Phipps, P. J., Doyle, P. J., and Miller, J., concur. Blackwell, J., concurs in part and dissents in part.

Footnotes

1

The record shows that two of Boyd’s co-defendants entered guilty pleas to the lesser included offense of robbery and the other offenses were nol-prossed. The co-defendants received sentences of seven to serve three and ten to serve four respectively and were also accorded first offender treatment. Another defendant, with whom Boyd was tried, was found not guilty.

2

By quoting this statement, we are in no way failing to give proper deference to the trial court’s factual and credibility determinations concerning testimony presented at the motion to suppress hearing, although we do note that the trial court in this case did not make any specific factual findings in its order denying the motion to suppress. Further, in our view the “controlling facts” in this case are discerned from the recording of the interrogation.

3

Presumably Boyd was in the early part of his ninth grade year since the crime occurred in September.

4

The dissent “doubt[s] that 2:30 a.m. is an especially late hour for many teenagers.” But the videotape shows, and Osterberg admitted, that Boyd was tired.

5

The dissent states that the record “supports the conclusion that Boyd understood the basis of the charges against him....” But the trial court did not make any findings about what Boyd may or may not have understood concerning the charges he might be facing, and in light of Boyd’s statements to the officer that he and his co-defendants knew the gun was not loaded, we should not assume that this 15-year-old knew that he was facing armed robbery charges.

6

Although it did not explicitly do so, the trial court implicitly rejected Boyd’s testimony, which Osterberg disputed, that the officer threatened to ‘bury him under the jail” if he did not talk to him, and we defer to that credibility determination on appeal.

7

Although the dissent opines that it is not our job to grade the police, it is our job to consider the method used during the interrogation when we are determining the admissibility of a juvenile’s statement. Further, we stress that it is not just the method of interrogation here, but the totality of the circumstances that has led us to conclude the statement should not have been admitted. And, in our view, it is the dissent’s piecemeal approach which misses the mark. Further, in light of the fact that the admissibility of an incriminating statement of a juvenile is analyzed differently than that of an adult, see Vergara, 283 Ga. at 177-178(1), we fail to see how it is a stretch to say that certain interrogation methods may he permissible for an adult but not for a juvenile. See J. D. B. v. North Carolina,_U. S._(131 SC 2394, 2403, 180 LE2d 310) (2011) (quoted infra).

8

While not specifically addressing several of the factors, we note that there is no evidence that Boyd refused to give a statement on prior occasions or repudiated the statement which is under review.