Driver v. State

• Decision Date: 13 January 2020
• Docket Number: S19A1298
• Court: Georgia Supreme Court
• Parties: DRIVER v. The STATE.

307 Ga. 644

837 S.E.2d 802

DRIVER

v.The STATE.

S19A1298

Supreme Court of Georgia.

Decided: January 13, 2020

Jerry W. Chappell II, for appellant. Leigh E. Patterson, District Attorney, Luke A. Martin, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.

Warren, Justice.

Frederick Duane Driver was convicted of felony murder and possession of a firearm during the commission of a felony in connection with the shooting death of Randy Diamond.¹ On appeal, Driver contends only that the trial court erred in admitting into evidence an admission he made to police while in custody. We disagree and affirm.

1. Viewed in the light most favorable to the jury’s verdicts, the evidence presented at Driver’s trial showed that on the evening of June 17, 2017, Driver attended a party at Diamond’s home on East Main Street in Rome. Diamond and Driver were not close friends, but Driver occasionally visited Diamond’s house. Soon after Driver’s arrival, he and Diamond got into an argument over money that Driver allegedly owed Diamond. At that time, nobody at the party possessed a weapon. Driver "got smart" with Diamond and, in response, Diamond punched Driver one time. Diamond then demanded that Driver leave, and Driver left the house. About 15 minutes later, Driver returned to the driveway of Diamond’s house. Driver still did not have a weapon. He was told to leave, and he again left.

Seven or eight minutes later, Driver—who was at that point armed with a gun—returned a third time and approached Diamond’s house. Diamond’s brother was standing in the doorway of the home and, upon seeing Driver, yelled into the house "he’s got a gun." Diamond, who had been seated on his couch, got up and walked to the door. He did not display any weapon, threaten or argue with Driver, or become violent. Driver fired four shots, hitting Diamond twice in the chest. Diamond died shortly after paramedics arrived. All three witnesses present at the time identified Driver as the shooter.

Jerry Chisolm, a neighbor of Diamond’s, testified that before the shooting, earlier on the same evening, Driver told him that he had been in an altercation and had a "swelled eye." After the shooting, Driver told Chisolm that he had killed someone by shooting him in the chest. Chisolm testified that Driver looked as if he had been in "another altercation" apart from the one resulting in Driver’s swollen eye because "he was bleeding on the other side." Chisolm further explained that Driver’s "eye was still swelled up like it was swollen more. But his lip was busted." After hearing police sirens, Driver told Chisolm he had to go and left.

That night, police obtained a warrant for Driver’s arrest. Driver turned himself in to the police three days later, telling a 911 operator that the police had warrants for his arrest because he had "shot somebody." And in a body camera recording from the officer dispatched to arrest Driver, Driver introduced himself to the officer as the person who "shot the guy on East Main." Later, during an interview after Driver’s arrest, he told Investigator Pete Sailors that Diamond "just told me to get the f**k out of his house, and ... he punched me. So then I shot him." Driver also said that they were at Diamond’s house and "it was like he was coming out the door to come at me, ... and he’s a big guy. ... It was like he was bullying me, ... and ... it just happened."

Driver does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court’s general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Driver guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Driver’s sole enumeration is that the trial court erred in admitting an incriminating statement he made to police while in custody after invoking his right to counsel.²

After reviewing the record, we see no error in the trial court’s ruling and affirm.

(a) "It is well established that a suspect who asks for a lawyer at any time during a custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation." Dozier v. State , 306 Ga. 29, 35, 829 S.E.2d 131 (2019) (citation and punctuation omitted). See also Edwards v. Arizona , 451 U.S. 477, 484-486, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). And in the absence of either the suspect’s reinitiation of the conversation or the presence of his counsel, "police must immediately cease interrogation, or its functional equivalent, including any words or actions by law enforcement calculated to elicit an incriminating response." Taylor v. State , 303 Ga. 225, 231, 811 S.E.2d 286 (2018). "In determining whether the actions of law enforcement constitute an interrogation, courts look primarily to the perceptions of the suspect and not the intent of the officer." Id. (citation and punctuation omitted). Even where the accused reinitiates the conversation, it must be determined, under the totality of the circumstances, whether he "freely and voluntarily waive[d] [his] right to counsel." Id. See also Rowland v. State , 306 Ga. 59, 62, 829 S.E.2d 81 (2019). Moreover, "where the issue is ... a suspect’s purported initiation of renewed contact, rather than the propriety of interrogation clearly instigated by police," case law applying the definition of "initiation" applies whether the suspect invoked his right to counsel or his right to silence. Mack v. State , 296 Ga. 239, 245-246 n.5, 765 S.E.2d 896 (2014) (discussing applicability of Edwards , 451 U.S. at 481-487, 101 S.Ct. 1880, and its progeny in evaluating a defendant’s "post-invocation ‘initiation’ of contact with police"). As an initial matter, " ‘initiation’ requires not only that the defendant speak up first but also that his words reflect a desire to discuss the investigation at hand," and a suspect has " ‘initiated’ renewed contact with law enforcement authorities, so as to permit further interrogation, only if the renewed contact by the suspect was not the product of past police interrogation conducted in violation of the suspect’s previously-invoked rights." Mack , 296 Ga. at 246, 248, 765 S.E.2d 896. "[W]e review de novo the trial court’s determinations of both fact and law" where, as here, the police interview in question was recorded with both video and audio, the recording is part of the record on appeal, and the parties point to no evidence beyond that interview to support their arguments regarding the admissibility of a confession or admission. Dozier , 306 Ga. at 33, 829 S.E.2d 131 (citation and punctuation omitted).

The recordings in this case show the following: after Driver was arrested and transported to the police station, a patrol officer took Driver into an interview room, moved Driver’s handcuffs from behind his body to the front of his body, and then left Driver and Investigator Sailors together in the interview room. At the beginning of the interview, Investigator Sailors told Driver to call him "Pete" and asked Driver for a number of basic details: his name, address, date of birth, Social Security number, phone number, education, and current employment. Investigator Sailors explained that he wanted to talk about what happened between Driver and Diamond, but that Sailors had to inform Driver about his rights first. Driver asked if he had to talk, and Investigator Sailors answered "No." Investigator Sailors read Driver his rights under Miranda³ from the waiver-of-rights form and told Driver, "you don’t have to talk to me today. It doesn’t, you know, it’s not going to get any worse if you don’t, and nothing bad is going to happen to you." Investigator Sailors also told Driver that, "bearing that in mind, I want to talk to you about what happened so I can hear your side of the story, OK, because I’ve heard some of the witnesses down there and some people that you talked to after it happened." After referring to his experience as an investigator, Sailors said, "there’s always two sides to everything, and I want to hear it straight from you about what happened. But, you don’t have to tell me, and I can’t make you; it’s your choice." Investigator Sailors then asked, "bearing that in mind, would you like to tell me what happened between you and Mr. Diamond?" Driver responded, "Really, my brother’s getting me a lawyer so, I really don’t want to say nothing until I have my lawyer." Investigator Sailors responded, "OK, that’s fine. That’s your right. You’ve got my card," and "once you’ve talked to your attorney and y’all want to talk and tell us what happened from your point of view, we’ll be glad to listen."

As Investigator Sailors gathered his paperwork to leave, Driver then said, "Speaking of something, Pete," and asked the investigator if he had personally talked to witnesses. Investigator Sailors said "yes, sir," and Driver asked if Sailors thought "it could be self-defense." Investigator Sailors responded, "Not from what I’ve heard, but, you know, without hearing it from your side ...." Driver inquired whether Sailors was obligated to tell him what he heard. Investigator Sailors answered "No," but he could say that Driver was "identified as the person who shot Mr. Diamond." Driver nodded his head and then said that Diamond "just told me to get the f**k out of his house, and ... he punched me. So then I shot him." Investigator Sailors responded by asking Driver where he was when he shot Diamond. Driver answered that they were at Diamond’s house and "it was like he...