Barksdale v. State, 62640
| Decision Date | 11 January 1982 |
| Docket Number | No. 62640,62640 |
| Citation | 161 Ga.App. 155,291 S.E.2d 18 |
| Parties | BARKSDALE v. The STATE. |
| Court | Georgia Court of Appeals |
A. Kristina Cook Connelly, Wade M. Crumbley, Summerville, for appellant.
David L. Lomenick, Jr., Dist. Atty., LaFayette, for appellee.
Following a jury trial appellant was convicted of robbery and sentenced to serve seventeen years in prison. He brings this appeal from the judgment entered on the jury verdict.
1. Appellant asserts as error that denial of his motion in limine to prohibit introduction by the state of a confession made by appellant on February 1, 1981. Citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant urges that this confession was inadmissible because it was the product of a custodial interrogation conducted subsequent to appellant's invocation of his right to counsel.
The record in the instant case reveals that appellant was apprehended and taken into custody by the Sheriff of Chattooga County on the night of January 27, 1981. According to the sheriff, that same night appellant was "advised of his rights, advised of what he was charged with, and placed in jail." The following day, appellant informed the sheriff that he wished to consult with an attorney. Prior to the appointment of counsel on February 9, 1981 appellant made the confession in question.
A Jackson v. Denno hearing was held to determine the voluntariness and admissibility of appellant's confession. At this hearing, the uncontradicted testimony of the officer who obtained the confession was as follows: The officer spoke with appellant on the night of his arrest and on three subsequent occasions, including February 1, 1981. On each occasion, these talks were held at the request of the appellant. Prior to making the confession on February 1, 1981, appellant was again advised of his Miranda rights and waived them by signing a "waiver of rights form". The officer further testified that appellant fully understood his rights, that appellant did not request the presence of an attorney, that appellant was not coerced in any manner and that the confession was made without the slightest hope of benefit. Both appellant's wife and mother testified, in essence, that they encouraged appellant to make a confession because they believed that such action would result in a less severe sentence. The appellant testified that he made the confession in the belief that it would help him in his request to have bond set so that he could get out of jail.
After considering the evidence presented at the Jackson v. Denno hearing the trial court ruled that the confession was admissible. This decision was based upon the trial court's findings "... by a preponderance of the evidence that the statement attributed to [appellant] by the [officer] was made freely and voluntarily ... without hope or benefit of reward ... [appellant] was under no threat or coercion or duress ... such statements were made freely and voluntarily, unsolicited after [appellant] ... had been fully advised of his constitutional rights under the Miranda warning, that [appellant] was under no mental or physical disability which would render him unable to fully understand and comprehend these rights, that [appellant] understood his rights, and that [appellant] freely and voluntarily waived these rights, and that [appellant] was completely aware of what was going on around him."
In the instant case we are confronted with the situation where the appellant invoked his right to counsel and thereafter made a confession without the benefit of counsel. Our determination of whether this confession was properly admitted into evidence is controlled by the recent U. S. Supreme Court decision Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Therein, the Court held: Edwards v. Arizona, supra at 484, 101 S.Ct. at 1884, 68 L.Ed.2d 386(4).
Applying the foregoing principles to the facts of the instant case, we find no error in the admission into evidence of appellant's confession. The record shows that appellant invoked his right to counsel. However, the record also shows that thereafter appellant himself initiated the conference which resulted in the confession. Prior to this appellant-initiated conference, appellant was advised of his Miranda rights and signed a "waiver of rights form". Thereafter, appellant made the confession. After considering the evidence presented at the Jackson v. Denno hearing, the trial court found the confession to be voluntary and unsolicited, and that appellant understood his right to counsel and knowingly relinquished this right. Edwards v. Arizona, supra at 483, 101 S.Ct. at 1884, 68 L.Ed.2d 385. After a thorough review of the evidence submitted to the trial court, we conclude that the trial court's determinations were not clearly erroneous. Gates v. State, 244 Ga. 587, 590-591, 261 S.E.2d 349 (1979). Therefore, this enumeration is without merit.
2. Appellant asserts that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment to the U. S. Constitution and due process of law by the denial of the right to counsel at the preliminary hearing. Contrary to appellant's contentions, the record shows that prior to preliminary hearing held on January 28, 1981, appellant was advised that no judge with authority to appoint him counsel was available on that particular day and was fully informed as to the possible hazards of proceeding with such a hearing without benefit of counsel. Nevertheless, it appears that appellant was insistent upon his demand for a preliminary hearing on that particular day and signed a waiver of attorney form evidencing his voluntary waiver of his...
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Golden v. State, 63981
...conference and the ensuing statement. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Barksdale v. State, 161 Ga.App. 155(1), 291 S.E.2d 18 (1982). The evidence further demonstrates that appellant was cognizant of his right to counsel and his right to remain sil......
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...instruction waives any error on appeal. Whitaker v. State, 246 Ga. 163, 167(11), 269 S.E.2d 436 (1980); Barksdale v. State, 161 Ga.App. 155, 158(4), 291 S.E.2d 18 (1982). 5. Cail contends that the 11-year delay in the appeals process violated his constitutional due process rights. It is und......
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...by a grand jury. Walker v. State, 144 Ga.App. 838 (1), 242 S.E.2d 753 (1978). He has shown no harm, as he must. Barksdale v. State, 161 Ga.App. 155, 157 (2), 291 S.E.2d 18 (1982). 2. Appellant contends that the verdicts of guilty are not supported by the evidence, that the state failed as a......
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Timberlake v. State, s. A91A0214
...incumbent upon them to seek curative instructions or move for a mistrial, which they did not do. See generally Barksdale v. State, 161 Ga.App. 155, 158(4), 291 S.E.2d 18 (1982). " 'Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.......