Brenneman v. State

407 S.E.2d 93, 200 Ga. App. 111, 1991 Ga. App. LEXIS 781
CourtCourt of Appeals of Georgia
DecidedJune 21, 1991
DocketA91A0750
StatusPublished
Cited by12 cases

This text of 407 S.E.2d 93 (Brenneman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brenneman v. State, 407 S.E.2d 93, 200 Ga. App. 111, 1991 Ga. App. LEXIS 781 (Ga. Ct. App. 1991).

Opinions

McMurray, Presiding Judge.

Brenneman was indicted for burglary as a repeat offender and appeals his conviction and sentence.

At about 2:00 a.m. on August 12, 1986, a woman’s third floor apartment was entered by an intruder who cut through a screen door. When the woman awakened and turned on the light the intruder fled. Although the woman did not see the intruder’s face she described him as a white male with dark hair and wearing camouflage clothing. She immediately called the police, who arrived shortly thereafter. Appellant’s car was found before morning in a parking lot next to the apartment complex, with the engine still warm and a camouflage patterned shirt in the front seat. After the Cobb County police unsuccessfully attempted to find appellant at his residence to question him, Detective Larry Watkins left a note requesting appellant to contact him.

On September 8, 1986, appellant’s attorney, George Asinc, called Watkins to set up an interview and accompanied appellant to police headquarters. On Asinc’s advice, appellant admitted being in the apartment on the night in question, but claimed he thought it was [112]*112occupied by a drug dealer named Carlos who had tried to recruit him as a drug runner and had obtained his name and address for that purpose. Appellant told Watkins he thought Carlos had entered his name and address in his laptop computer, and when he decided to back out of the arrangement he went to retrieve this information from the computer because he had an extensive criminal record. Asinc tried to arrange a deal whereby appellant would provide information about Carlos in return for a break on the charge, but subsequent investigation revealed that no one named Carlos lived in the apartment complex and the information given by appellant could not be verified. A warrant was taken out against appellant for burglary and he was indicted as a repeat offender. Appellant did not appear in court on the date scheduled for trial, but he delivered a letter to Asinc’s office addressed to “To Whom It May Concern” explaining to the court that he was leaving because with his past criminal history the cards were stacked against him.

Appellant was arrested again in 1989 and contacted Ray Gary, Jr., an attorney with whom Asinc had practiced in 1986. Although he was unable to pay Gary’s fee, Gary was appointed to represent him at trial. At trial, the State presented evidence consisting of the testimony of Detective Watkins, appellant’s statement to the police and the letter he left with Asinc in 1986. He was found guilty by the jury and sentenced to serve 20 years without parole. Through another appointed attorney appellant filed a motion for new trial, which was amended to allege ineffective assistance of counsel. He was also granted permission to represent himself and further amended the motion to set forth specific allegations of ineffective assistance. Upon denial of the motion this appeal ensued. Held:

1. Appellant contends that the trial court improperly allowed the State to introduce evidence of his prior statement because there was no showing that Detective Watkins apprised him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The trial court found, and the evidence supports its finding, that appellant came to the police station on his own accord accompanied by his attorney for the express purpose of “trading information” by inculpating himself in regard to the burglary and then providing evidence of Carlos’ drug dealing in exculpation; that it would not have been reasonable for appellant to believe that he was in custody when he made his statement until Watkins revealed he was not going to make a deal; and that appellant made no inculpatory statements after that point for the purposes of Miranda.

“ ‘It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with a formal arrest.” (Cit.)’ Berkemer v. McCarty, 468 U. S. 420, 440 (104 SC 3138, 82 LE2d 317). Short of that point, [113]*113Miranda warnings need not be given. [Cit.] As it is said: ‘For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in some significant way.’ [Cit.]” Riviera v. State, 190 Ga. App. 823, 824-825 (1) (380 SE2d 353). “Crucial is whether a statement results from a custodial interrogation. If an accused volunteers a noncoerced statement then it is not necessary to invoke the tests which only apply to information obtained as a result of interrogation. This was recognized in Miranda, [supra, at 478], where it was held: ‘. . . Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ Id. at 478.

“All statements obtained by the police after a person has been taken into custody are not to be considered the product of interrogation. Rhode Island v. Innis, 446 U. S. 291, 300 (100 SC 1682, 64 LE2d 297) (1980) explains: ‘It is clear . . . that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.’ ” Zubiadul v. State, 193 Ga. App. 235, 237 (387 SE2d 431).

Whether or not appellant was in custody or under interrogation was a question of fact to be resolved by the trial court, and we cannot say that the trial court abused its discretion under the circumstances. Davis v. State, 191 Ga. App. 566 (4) (382 SE2d 396). This enumeration of error is without merit.

2. Appellant complains that he received ineffective assistance of counsel prior to trial from his first attorney George Asinc because Asinc advised him to incriminate himself and brought him to the police department without determining beforehand if there was any possibility of working out a deal. He also suggests that Asinc was somehow responsible for his letter explaining why he was not going to appear at trial in 1986 ending up in the State’s possession. Asinc testified at the hearing on the motion for new trial that appellant had told him he was certain the victim could identify him because they had previously met on several occasions; and that based on this and the fact that appellant said he was unable to make bond, he advised appellant it would be in his best interest to voluntarily talk to the police rather than wait for them to run a photo line-up and have him [114]*114arrested and placed under bond.

It is clear from the testimony of both appellant and Asinc that the decision to talk to the police was a tactical one arrived at by mutual agreement based upon Asinc’s professional judgment concerning the information supplied by appellant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harris v. State
606 S.E.2d 248 (Supreme Court of Georgia, 2004)
Zackery v. State
586 S.E.2d 346 (Court of Appeals of Georgia, 2003)
Zachery v. State
586 S.E.2d 346 (Court of Appeals of Georgia, 2003)
Ogle v. State
567 S.E.2d 700 (Court of Appeals of Georgia, 2002)
Phagan v. State
533 S.E.2d 757 (Court of Appeals of Georgia, 2000)
Scott v. State
518 S.E.2d 468 (Court of Appeals of Georgia, 1999)
Moore v. State
456 S.E.2d 708 (Court of Appeals of Georgia, 1995)
Moclaire v. State
451 S.E.2d 68 (Court of Appeals of Georgia, 1994)
Nolan v. State
419 S.E.2d 72 (Court of Appeals of Georgia, 1992)
Melton v. State
418 S.E.2d 428 (Court of Appeals of Georgia, 1992)
Brenneman v. State
407 S.E.2d 93 (Court of Appeals of Georgia, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
407 S.E.2d 93, 200 Ga. App. 111, 1991 Ga. App. LEXIS 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brenneman-v-state-gactapp-1991.