Wilson v. State

432 S.E.2d 211, 208 Ga. App. 812, 93 Fulton County D. Rep. 1835, 1993 Ga. App. LEXIS 704

Opinions

McMurray, Presiding Judge.

Via indictment, defendant was charged with murder, felony murder, armed robbery and burglary. The jury acquitted defendant on the murder, felony murder and armed robbery charges; it could not reach a unanimous decision on the burglary charge. The trial court declared a mistrial on the burglary charge and defendant was re-indicted and tried for burglary. Following a conviction on the burglary charge, defendant appeals. Held:

1. The testimony of an accomplice, coupled with defendant’s statements to the police, a deputy sheriff and a cellmate, were sufficient to enable any rational trier of fact to find defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Murphy v. State, 203 Ga. App. 152, 155 (4) (416 SE2d 376). See also Thurston v. State, 186 Ga. App. 881 (1) (368 SE2d 822).

2. Defendant voluntarily accompanied the police to the sheriff’s office in Sevier County, Tennessee, where he was interviewed in connection with the burglary. The police officers were in plain clothes and they were not armed. Defendant was told he was not under arrest and he was not restrained. In a small room at the sheriff’s office, the police asked defendant general questions about his background and they asked him what he knew about the burglary. Defendant began telling the officers what he had “heard.” When it became apparent to the officers that defendant “knew too much about what was supposed to have been taken, where the house had been entered, and the gauge of shotgun that was actually used in the crime,” they gave him Miranda warnings. See Miranda v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694).

Defendant asserts the trial court erred in refusing to suppress his pre-Miranda statement. We disagree. The statement was made before defendant was taken into custody. “For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in any significant way. Shy v. State, 234 Ga. 816 (1) (218 SE2d 599) (1975); Miranda v. Arizona, [supra]. Miranda warnings are not required simply because questioning takes place in a building containing jail cells. Woods v. State, 242 Ga. 277, 280-281 (248 SE2d 612) (1978); Oregon v. Mathiason, 429 U. S. 492, 495 (97 SC 711, 50 LE2d 714) (1977). . . . [T]here is no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action in any significant way by action of the officers when he made his first statement to the police. The defendant’s statement was admissible as a statement made prior to any in-custody interrogation. Davis v. State, 242 Ga. 901 (5) (252 SE2d 443) (1979).” Hardeman v. State, 252 Ga. 286, 287 (1), 288 (313 SE2d 95).

Judgment affirmed.

Birdsong, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., concurs specially. Beasley, P. J., Cooper, Blackburn, JJ., and Senior Appellate Judge John W. Sognier dissent.