Colbert v. State
| Decision Date | 16 July 1971 |
| Docket Number | No. 46259,No. 1,46259,1 |
| Citation | 183 S.E.2d 476,124 Ga.App. 283 |
| Parties | Little David COLBERT v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Statements and admissions by a defendant subjected to in-custody interrogation who has not been instructed of his constitutional right to remain silent if he so desires and of his right to counsel, or who, having been so informed, does not clearly and affirmatively waive such rights, are not admissible against him to prove his guilt.
2. If on the trial of his case the defendant takes the witness stand and swears to a state of facts contrary to his prior statements, they may be given in evidence solely for purposes of impeachment, the burden being on the court to caution the jury that such evidence is to be considered only for the purpose of assessing the defendant's credibility and not to establish his guilt of the offense for which he is on trial; however, where the evidence is not offered solely for this purpose nor does the trial judge instruct the jury to consider it solely for purposes of impeachment, its admission is error.
The defendant was indicted and convicted of burglary. The State presented evidence that a house from which tenants had moved out on October 21, 1970, had been found on November 3 to have been broken into. Two gas heaters were missing. One was found in the defendant's home, and there was testimony that it had been brought there by the defendant and a co-indictee. The defendant then took the stand and presented his sworn testimony that he did not burglarize the house, that on the morning of November 3 he was walking down the street and saw the heater with a pile of trash, including old chairs, a mattress and a one-armed sofa, on the lawn in front of the house, that he assumed the furnishings had been discarded and he brought the heater home for his mother to use. The State recalled to the stand a city detective who had arrested the defendant, who then testified that the defendant had voluntarily stated he would show them where he had found the heater; that he had led them to the house which had been burglarized and indicated a wall in the front room inside the house, at a place where there was in fact a heater connection.
On cross examination the detective then stated that this conversation and trip took place the day after the defendant had been arrested for investigation in connection with a theft of pecans; that on his arrest he had been informed of his right to counsel and to remain silent under interrogation but that this was in connection with the pecan larceny case; that the warning had been originally read t him but not repeated in connection with the case for which he was on trial, and that the defendant's statement about finding the heater had been made during an interrogation about this and another offense and in reply to a statement by the officer, after the defendant said he did not want to talk about the other offense: 'We are going to charge you with burglary, I want you to know we're going to charge you with that.' He further stated that the defendant signed no waiver, that 'after I advised him of his...
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