Boyd v. State

• Decision Date: 28 March 2012
• Docket Number: No. A11A2381.,A11A2381.
• Citation: 726 S.E.2d 746,12 FCDR 1415,315 Ga.App. 256
• Parties: BOYD v. The STATE.
• Court: Georgia Court of Appeals

315 Ga.App. 256

726 S.E.2d 746

12 FCDR 1415

BOYD

v.The STATE.

No. A11A2381.

Court of Appeals of Georgia.

March 28, 2012.

G. Richard Stepp, for Boyd.

Daniel J. Porter, David Keith Keeton, Lawrenceville, for The State.

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,

[c]onfessions 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 S.E.2d 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 S.E.2d 88 (2007). E.g., Nelson v. State, 289 Ga.App. 326, 328(1), 657 S.E.2d 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 S.E.2d 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 S.E.2d 40 (2007); State v. Rodriguez, 274 Ga. 728, 559 S.E.2d 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 S.E.2d 604 (2010) (involved both conflicting testimony at suppression hearing and videotaped interviews). Vergara v. State, 283 Ga. 175, 178, 657 S.E.2d 863 (2008); State v. Brown, 308 Ga.App. 480, 482, 708 S.E.2d 63 (2011); State v. Roberts, 273 Ga. 514, 514–515(1), 543 S.E.2d 725 (2001), overruled on other grounds by Vergara, 283 Ga. at 178(1), 657 S.E.2d 863 (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 officer's 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. at 431(2), 651 S.E.2d 40, 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,⁵before 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 whether they made threats or promises, is a significant factor in evaluating the voluntariness of the waiver....” Rodriguez, 274 Ga. at 729, 559 S.E.2d 435. 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 S.E.2d 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...