Cansler v. State

• Decision Date: 18 October 1991
• Docket Number: No. S91A0875,S91A0875
• Parties: CANSLER v. The STATE.
• Court: Georgia Supreme Court

Page 504

409 S.E.2d 504

261 Ga. 693

CANSLER v. The STATE.

No. S91A0875.

Supreme Court of Georgia.

Oct. 18, 1991.

Reconsideration Denied Oct. 28, 1991.

Statement on Motion for Reconsideration

Nov. 18, 1991.

Susan B. Ellis, Decatur, for Cansler.

Robert E. Wilson, Dist. Atty., Desiree Sutton Peagler, Asst. Dist. Atty., Stone Mountain Judicial Circuit, Decatur, Michael J. Bowers, Atty. Gen., Atlanta, Nelly F. Withers, Asst. Dist. Atty., Decatur, for the State.

Thomas A. Cox, Jr., Dept. of Law, Atlanta, Atty. Register.

CLARKE, Chief Justice.

Appellant and his wife were arrested for the armed robbery and murder of Byron Jones. Appellant was convicted of murder and armed robbery and received two consecutive life sentences. ¹ He claims that he was questioned through the night following his arrest July 22. Conceding that he was read his Miranda rights, he says that he never signed a written waiver of attorney and in fact requested an attorney. Detectives left him briefly alone with his wife and afterwards told him that telling the truth could not hurt him. Appellant made two incriminatory statements and was booked at about 7 a.m. July 23, 1988. Appellant requested an attorney in writing at an appearance in magistrate court after 7 p.m. that evening. He was interrogated again on July 26 and admitted the murder and robbery.

At trial appellant's attorney moved to suppress all three statements. He raised the Fifth Amendment voluntariness, and the court raised OCGA § 24-3-50. A hearing was held and the statements were admitted. On motion for new trial, appellant's new attorney raised ineffective assistance of counsel. The primary basis for his claim of ineffective assistance is that his trial counsel failed to raise a Sixth Amendment objection to the third statement in which he admitted the murder and robbery.

1. Reviewing the evidence in the light most favorable to the jury's verdict, we hold that a rational trier of fact could have found appellant guilty of the crime for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant's first enumeration of error is that the trial court erred in failing to suppress appellant's statements in that they were obtained in violation of OCGA § 24-3-50, the Fifth Amendment, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He contends that the statements were not voluntary because he was told that the truth could not hurt him. He also argues that he was experiencing withdrawal during questioning.

In McKenzie v. State, 187 Ga.App. 840, 371 S. E.2d 869 (1988), the court held a confession obtained after a similar statement by police was voluntary in that the police did not hold out hope of benefit or gain in exchange for a confession. See also, Cooper v. State, 258 Ga. 234, 347 S.E.2d 553 (1986). Foster v. State, 256 Ga. 736, 374 S.E.2d 188 (1988), relied upon by appellant, concerned a prisoner who was assured over and over again that repeating his confession on videotape would not hurt him. That case is not applicable here. There was no error in the admission of these two statements.

3. After the first two statements were made, the appellant was taken before a magistrate for a first appearance hearing. The magistrate testified at appellant's motion for new trial that appellant requested an attorney. The magistrate granted a continuance so that appellant could be represented by an attorney. This occurred July 23. On July 26 Detective Kelhofer interviewed appellant and obtained a confession.

Police may not initiate interrogation of a prisoner who has requested an attorney until an attorney has been made available to him. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Furthermore, this protection does not cease simply because the prisoner has consulted an attorney. Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Roper v. State, 258 Ga. 847, 375 S.E.2d 600 (1989). Where a prisoner invokes the right of counsel and does not limit that request in any way, there is a presumption that the request includes any critical stage in the proceedings, including interrogation. Cf. Roper, supra. Therefore, the questioning of this appellant outside the presence of counsel was justified only if the appellant initiated the conversation. We must decide this question.

In the order denying the motion for new trial, the court found that 1) appellant initiated contact with the detective; 2) the detective did not know of the request for an attorney by appellant in his appearance before the magistrate; 3) appellant consistently denied making the statement. Knowledge of an appellant's invocation of the right to counsel by any of the state's agents is imputed to all others. Roper v. State, supra. Therefore, whether or not the detective knew of the request for an attorney is not dispositive. We are not persuaded that appellant's later denial of the statement refutes the contention that the detective initiated the interrogation. The trial court also apparently found credible the testimony of the detective that appellant initiated the interrogation because the court cites to specific portions of testimony. However, the testimony of the detective at the pages referred to in the order denying new trial indicates that the conduct which could be construed as initiating contact occurred before the first appearance hearing at which appellant unequivocally requested an attorney. Because the initiation of a contact does not survive a subsequent invocation of the right to counsel, the third statement is inadmissible.

In support of its argument that appellant waived his Fifth Amendment rights in connection with the third statement, the state relies upon testimony of Detective Kelhofer and appellant. Detective Kelhofer testified that appellant said he had consulted an attorney who had advised him that he could talk with detectives but that he should not sign anything. Appellant said that when he invoked his right to counsel, questioning stopped. We are not persuaded by the state's argument, which does not address the fundamental issue: whether appellant initiated the contact with the detective after he clearly invoked his right to counsel at the first appearance hearing. We find that the court erred in failing to grant a new trial.

4. In his second enumeration of error, appellant contends that his constitutional rights were violated in that the third statement was taken after his right to counsel under the Sixth Amendment attached. He also alleges ineffective...