Burnham v. State

• Decision Date: 13 February 1995
• Docket Number: No. S94A1468,S94A1468
• Citation: 453 S.E.2d 449,265 Ga. 129
• Parties: BURNHAM v. The STATE.
• Court: Georgia Supreme Court

Page 449

453 S.E.2d 449

265 Ga. 129

BURNHAM v. The STATE.

No. S94A1468.

Supreme Court of Georgia.

Feb. 13, 1995.

Reconsideration Denied March 10, 1995.

Verna L. Smith, Dublin, for Burnham.

Lydia J. Sartain, Dist. Atty., Gainesville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Rachelle L. Strausner, Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

BENHAM, Presiding Justice.

Appellant Burnham was convicted of murder, armed robbery and aggravated assault in connection with the shooting of a convenience store clerk in Hall County. ¹ At the time of the crimes, appellant was 16 years old, and his two co-indictees were 15.

1. Through the testimony of one co-indictee who had pled guilty, appellant's recorded statement to police, and a letter written by appellant to his girlfriend while awaiting trial, the State presented evidence that the three co-indictees entered the convenience store with intent to rob it. When the store clerk opened the cash register to complete the sale of a soft drink to one of the co-indictees, appellant and the other co-indictee drew their weapons and each shot the clerk once in the chest. Appellant then leaned over the counter and fired the fatal shot into the fallen man's head. The trio fled the scene in the direction of a shopping center one-half mile away. They placed the two guns in a plastic bag which they secreted near a tree, and went to see a movie. It was established by expert testimony that two of the three bullets fired into the store clerk were fired from the .22-caliber revolver identified as appellant's gun, with the remaining shot fired by the .25-caliber semi-automatic pistol identified as the co-indictee's gun. The youths were apprehended upon exiting the theater at the end of the movie, and $125 in $5 bills was found in appellant's underwear. The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant argues that his post-arrest inculpatory statement was taken in violation of the Fourth and Fifth Amendments to the U.S. Constitution and should have been suppressed. He contends his warrantless arrest outside the movie theater was without probable cause and the statement made thereafter was fruit of the illegal arrest, and that his post-arrest statements were not freely and voluntarily made. The trial court denied the motions, ruling that law enforcement officers had sufficient probable cause to arrest appellant and his companions, and that appellant's in-custody statement was freely and voluntarily given without hope of benefit or fear of injury.

If appellant's warrantless arrest was supported by probable cause, then appellant's enumeration grounded on the Fourth Amendment is without merit. We examine first whether the law enforcement officers had probable cause when they arrested appellant and his companions after they exited the movie theater.

Based on testimony given at the hearing on appellant's motion to suppress, the trial court found that the police watch commander was told by a fellow officer that a man had seen three young males, one of whom was wearing a tan or light brown jacket, running from the vicinity of the convenience store toward a local shopping center just before the police arrived at the convenience store. As soon as the watch commander radioed the information to other officers, a county deputy sheriff responded that he had seen a trio matching the broadcast description walking toward the shopping center. Due to inclement weather conditions, there were few pedestrians in the area. The watch commander ordered a door-to-door canvas of the businesses in the area, and a theater ticket clerk reported that three youths matching the broadcast description had purchased tickets for a movie that had started 15-20 minutes earlier, had acted "strangely," and had spent a long time in the theater restroom before going in to the screening room. Aware that the movie was scheduled to end in 30-45 minutes, the watch commander decided to apprehend the youths after they exited the theater. As appellant and his co-indictees left the theater, the deputy sheriff who had responded to the radio lookout indicated that they were the three he had seen earlier, and they were arrested approximately 100 yards from the theater. The watch commander testified that the youths were not charged with anything when they were arrested, but were taken into custody for questioning. The trial court concluded that sufficient probable cause existed for the arrest of the threesome.

"[E]very arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause." Michigan v. Summers, 452 U.S. 692, 700, 101 S.Ct. 2587, 2593, 69 L.Ed.2d 340 (1981). It is without question that appellant and his companions were seized without a warrant when they were apprehended after leaving the theater.

A "warrantless arrest" is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense. [Cits.] Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense. [Cits.] [Brown v. State, 262 Ga. 728(2a), 425 S.E.2d 856 (1993).]

When the youths were arrested, their only connections with the crimes committed at the convenience store were that they had been seen running from the area where the store was located shortly after the crime was committed, and that they had acted strangely at the movie theater shortly thereafter. ² There was no eyewitness to the crime who saw the trio at the scene of the crime (compare Callaway v. State, 257 Ga. 12(2), 354 S.E.2d 118 (1987); Phillips v. State, 233 Ga. 800, 213 S.E.2d 664 (1975); Morgan v. State, 195 Ga.App. 732, 394 S.E.2d 639 (1990); Hamilton v. State, 162 Ga.App. 116, 290 S.E.2d 478 (1982) (where probable cause was provided by eyewitness descriptions of the perpetrators); Williams v. State, 251 Ga. 749, 792, 312 S.E.2d 40 (1983); and Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975) (where probable cause was provided by multiple factors linking the defendant to the crime)). While police had an articulable suspicion sufficient to authorize them to stop the youths briefly for questioning, they did not have sufficient facts and circumstances for a prudent person to believe the trio had committed the crimes. See Hunt v. State, 212 Ga.App. 217, 441 S.E.2d 514 (1994). Cf. State v. Harris, 256 Ga. 24, 343 S.E.2d 483 (1986) (discovery in the household well of the body of defendant's missing roommate killed by shotgun blast was not probable cause to authorize arrest of defendant).

3. Even if appellant made the statement while in custody pursuant to an unlawful arrest, that fact alone would not require exclusion of appellant's incriminating statement. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Thompson v. State, 248 Ga. 343(2), 285 S.E.2d 685 (1981). The question then is whether the evidence sought to be suppressed is the result of exploitation of the illegality or is sufficiently attenuated from the illegality to be purged thereof. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, supra, 422 U.S. at 599, 95 S.Ct. at 2259-60; Thompson, supra, 248 Ga. at 344, 285 S.E.2d 685. The burden of showing admissibility rests on the prosecution. Brown v. Illinois, supra, 422 U.S. at 604, 95 S.Ct. at 2262; State v. Harris, supra, 256 Ga. at 26, 343 S.E.2d 483. Factors to be considered are: the presence of the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the voluntariness of the incriminating statement, the temporal proximity of the arrest and the statement, the presence of intervening circumstances between the arrest and the statement, and the purpose and flagrancy of the official misconduct. Brown v. Illinois, supra, 422 U.S. at 603-04, 95 S.Ct. at 2261-62. See also Thompson v. State, supra. With these factors in mind, we examine the post-arrest proceedings in this case.

After their arrest, the youths were transported to the Gainesville police headquarters where, upon learning their ages, the police contacted their guardian. ³ The guardian was present during every police interview conducted with each youth, and executed a waiver of rights form along with each youth. One of appellant's co-indictees was questioned first, approximately 90 minutes after the arrests, and he implicated appellant and the third youth in the incident. The youth also led officers to the site where the threesome had hidden the two weapons. As a result of the first youth's statement, appellant was "strip-searched" and the $125 in $5 bills was found in his underwear. ⁴ Four hours after they were arrested, appellant and the third youth were read their rights, charged with armed robbery, and taken to a regional youth development center. The following evening, 22 hours after his arrest, investigating officers repeated the Miranda warnings to appellant who then described the youths' robbery plan and admitted shooting the store clerk twice, taking the money, and hiding the guns.

4. A "threshold requirement" for Fourth Amendment analysis is the Fifth Amendment question: whether the incriminating statement made after proper Miranda warnings was voluntary. If the Fifth Amendment has been violated, the Fourth Amendment issue need not be reached. Dunaway v. New York, 442 U.S. 200, 217, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979). In the case at bar, the additional factor of appellant's status as a juvenile was considered by the trial court in determining the voluntariness of his...