Ford v. State

359 S.E.2d 435, 183 Ga. App. 566, 1987 Ga. App. LEXIS 2721
CourtCourt of Appeals of Georgia
DecidedJuly 7, 1987
Docket74031; 74032
StatusPublished
Cited by2 cases

This text of 359 S.E.2d 435 (Ford 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
Ford v. State, 359 S.E.2d 435, 183 Ga. App. 566, 1987 Ga. App. LEXIS 2721 (Ga. Ct. App. 1987).

Opinion

McMurray, Presiding Judge.

Defendant Ford appeals his conviction of the offense of burglary in Case Number 74031 and in Case Number 74032 defendant Blair appeals her conviction of the offense of theft by receiving stolen property (with a value exceeding $500). Held:

1. Defendant Ford contends the trial court erred in admitting in evidence his statement when the evidence in the Jackson-Denno (378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing strongly suggests that he did not understand his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). During the Jackson-Denno hearing, out of the presence of the jury, an investigator for the Sheriff’s Department testified that he spoke to defendant on April 15, 1986. The investigator stated that he advised defendant of his constitutional rights by reading the Miranda warnings from a printed form and that defendant appeared to understand those rights. However, defendant was not questioned at that time as he appeared to be intoxicated. The investigator spoke to defendant Ford again the following day, April 16, 1986. The investigator testified that at that time defendant Ford was again advised of his rights and subsequently gave the statement at issue. The investigator was asked, in relation to his again advising [567]*567defendant Ford of his Miranda rights on April 16: “Did he appear to understand his rights then?” This enumeration of error is predicated upon the investigator’s negative response to this question. However, at trial before the jury, the investigator testified that after defendant was advised of his Miranda rights on April 16 defendant did appear to understand those rights. While the State suggests that the negative answer relied upon by defendant is “[apparently, ... a typographical error” there has been no attempt to correct the transcript as provided under OCGA § 5-6-41 (f). Nonetheless, in reviewing the trial court’s determination as to the voluntariness of defendant’s statement we must look to all of the evidence contained in the record. Stapleton v. State, 235 Ga. 513, 516 (1) (220 SE2d 269). Thus, the record presents a contradiction in the testimony of the investigator as to whether defendant appeared to understand his Miranda rights on April 16. This presented a factual issue for determination by the trial court. “It is axiomatic that factual and credibility determinations by the trial court as to the voluntary and intelligent waiver of a Miranda right will not be disturbed on appeal unless clearly erroneous. Evans v. State, 176 Ga. App. 818 (338 SE2d 48) (1985); McCright v. State, 176 Ga. App. 486 (336 SE2d 361) (1985).” Pierce v. State, 180 Ga. App. 847, 848 (1) (350 SE2d 781). In the cases sub judice, there was evidence to support the trial court’s ruling that the statement of defendant Ford was admissible.

2. The charges against defendant Blair are predicated upon her possession of a video cassette recorder (VCR) and a pistol taken in the burglary of which defendant Ford was convicted. The video cassette recorder was obtained by law enforcement officers during a search of defendant Blair’s house. Defendant Blair enumerates as error the denial of her motion to suppress the evidence found during the search of her home.

Two video cassette recorders were taken in the underlying burglary. In the affidavit for a search warrant one of the video cassette recorders identified by make, model and serial number, was included in the list of stolen goods believed to be concealed on the premises of defendant Blair’s home. The search warrant for defendant Blair’s home authorized the seizure of the fruits of the burglary, specifically including the video cassette recorder which was identified by make, model and serial number in the affidavit. Upon executing the search warrant the officers discovered that the video cassette recorder actually present in defendant’s home was not the one identified in the affidavit and warrant, but the other one which had been taken in the burglary. The officers then decided “to hold up on any search at the time ...” The sheriff’s investigator proceeded to obtain the sales receipt of the video cassette recorder actually found, which he took to the judge who had issued the search warrant, and whereupon the [568]*568search warrant was altered with the approval of the issuing judge to show the identity of the video cassette recorder which had been found in defendant Blair’s home. Defendant Blair’s first argument in support of this enumeration of error challenges the above procedure apparently on the grounds that an impermissible second search was conducted under authority of the same warrant. See Delaney v. State, 135 Ga. App. 612 (218 SE2d 318). However, our interpretation of the circumstances which occurred is somewhat different. The sheriff’s investigator testified that he left an individual, apparently another law enforcement officer, at defendant Blair’s home while he left to accomplish the alteration of the search warrant. As a practical matter, the video cassette recorder was already seized when the alteration of the search warrant occurred. However, as the video cassette recorder actually found in defendant Blair’s home was found during a search for the video cassette recorder originally identified on the face of the search warrant when it was served, the search and seizure of the evidence at issue was legal. Whittington v. State, 165 Ga. App. 763 (302 SE2d 617); Dugan v. State, 130 Ga. App. 527, 531 (2) (203 SE2d 722). Under our view of the circumstances we need not address the issues arising from the alteration, or attempt to alter the search warrant.

Defendant Blair’s remaining arguments in regard to the motion to suppress are in support of her contention that under the totality of the circumstances there was no probable cause for the issuance of the search warrant. The sheriff’s investigator’s affidavit for search warrant sets forth as facts supporting the issuance of a search warrant: “Received information from a confidential informer that he has seen said merchandise in the past 24 hours. Informer states that he was told about the burglary by the offenders; Robert Blair and a person by the nickname of ‘Red,’ both black males.”

While the affidavit does not establish the reliability of the informant under the totality of the circumstances test this deficiency may be compensated for with a strong showing of some other factor establishing a reasonable cause for belief of the informant’s tip. In the cases sub judice, this is established by the contemporaneous nature of the information and by the informant’s personal observation of the stolen items. See Illinois v. Gates, 462 U. S. 213, 234 (103 SC 2317, 76 LE2d 527), and Felker v. State, 172 Ga. App. 492, 495 (4) (323 SE2d 817).

Defendant Blair also argues that the sheriff’s investigator took the information he obtained from an informant and “bolstered it by adding serial numbers and other pertinent information obtained from other sources,” the net effect being to reflect that information gained from several sources was given by a single confidential informant. However, affidavits for search warrants must be interpreted in a common sense and realistic fashion. State v. Babb,

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Bluebook (online)
359 S.E.2d 435, 183 Ga. App. 566, 1987 Ga. App. LEXIS 2721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-state-gactapp-1987.