Durden v. State, 38873

• Decision Date: 16 November 1982
• Docket Number: No. 38873,38873
• Citation: 297 S.E.2d 237,250 Ga. 325
• Parties: William Amos DURDEN v. STATE.
• Court: Georgia Supreme Court

Page 237

297 S.E.2d 237

250 Ga. 325

William Amos DURDEN v. STATE.

No. 38873.

Supreme Court of Georgia.

Nov. 16, 1982.

Rehearing Denied Nov. 29, 1982.

G. Theron Finlayson, Dist. Atty., Edward D. Lukemire, Asst. Dist. Atty., Perry, Michael J. Bowers, Atty. Gen., Michael S. Bradley, for the State.

Harry J. Fox, Jr., Perry, for William Amos Durden.

HILL, Chief Justice.

Defendant was found guilty of felony murder, burglary and aggravated assault in connection with a break-in at Barfield's Bait and Tackle Shop in Houston County. He was sentenced to life in prison on the felony murder conviction. Evidence introduced at trial showed that the perpetrator had pried off a vent cover on the roof of the store and dropped through to the floor. He then set off a movement-sensitive alarm in the owner's home behind the store. The owner responded to the alarm by notifying police and going to the store. The owner and the intruder exchanged shots with the owner wounding the intruder. The owner was not wounded in the exchange but within minutes after the police arrived he had a heart attack and died. Deceased had suffered from arteriosclerotic cardiovascular disease. The medical examiner testified that the cause of death was cardiac arrest caused by the victim's small coronary arteries and the stress of events before the victim's death.

Shortly after the events at the bait shop, defendant was admitted to the emergency room of a local hospital for treatment of gunshot wounds. After being notified of this, the police went to the hospital. They first spoke with defendant's wife who identified a green hat found on the bait shop floor as similar to one belonging to her husband. In response to questions by police, Mrs. Durden said her husband and a friend had been loading ammunition that evening. Between 10:00 and 10:30 defendant took the friend home. Defendant arrived home shortly after the time of the burglary, screaming and bleeding from the gunshot wound. Mrs. Durden drove him to the hospital immediately.

After advising him of his Miranda rights, investigators began questioning defendant regarding his knowledge of the incident. Defendant told the investigating officers he had been shot while walking across the street from Barfield's store. He was returning home after an evening at the Duck's Breath Saloon where he had become too intoxicated to drive. He was then asked if he recognized the green baseball cap; he replied that it was similar to one he wore. When asked how his hat got on the floor inside Barfield's, the defendant made no response.

After talking with defendant, police took possession of several articles of defendant's clothing and examined defendant's car and apartment with defendant's wife's permission. The next day officers found guns taken from the store under shrubbery near defendant's apartment.

1. Defendant contends his warrantless arrest was unlawful under federal and state law and that the results of the search and seizure of his clothing should have been suppressed. Defendant claims he was arrested when police began questioning him in the emergency room. He asserts, and the investigating officer conceded on cross-examination, that he was not free to leave had he attempted to do so.

There are two focal points in determining whether a warrantless arrest is valid. The first is referred to as the "probable cause" test. This test determines whether the arrest met the requirements of the federal constitution. Under this standard an arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Evidence obtained in connection with an arrest which does not meet this requirement is subject to the federal exclusionary rule and will not be admissible at trial.

The police officers here had ample evidence of probable cause to arrest defendant without a warrant. They knew a burglary and an aggravated assault had been committed and the perpetrator of these crimes had been shot. The perpetrator had left his hat in the store. Defendant was in the emergency room shortly thereafter suffering from a gunshot. Defendant's wife identified the hat as similar to one worn by defendant. We find the evidence meets the federal standard of probable cause; i.e., the facts and circumstances within the knowledge of the arresting officers were sufficient to warrant a prudent man in believing that the defendant had committed the offenses.

The second focal point is the Georgia law. Code Ann. § 27-313(a)(1) creates a statutory exclusionary rule for searches and seizures without a warrant. Code Ann. § 27-207 lists three situations in which a warrantless arrest is permissible: (1) where the offense is committed in the presence of the arresting officer; (2) where the offender is trying to escape; or (3) under other circumstances where there is likely to be a failure of justice if the officer is required to delay the arrest until a warrant is obtained.

We find that these dual inquiries, one under federal law and one under state law, serve no useful purpose and result in complicating the law in an area which needs to be readily understood by law enforcement officers. Hence we hold that if an officer, while in the presence or vicinity of the accused, acquires "probable cause" (federal) to arrest the accused outside his or her home, and fails to make such arrest, there is likely to be a failure of justice as a matter of law if the officer is required to delay the arrest until a warrant is obtained. That is to say, we find the state rule to be the same as the federal rule. An arrest and search, legal under federal law, are legal under state law. Thus, defendant's motion to suppress the evidence was properly denied.

2. Defendant also lists as error the trial court's determination that he had waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He claims any purported waiver was not knowingly and voluntarily made because he was under the influence of alcohol and drugs and was suffering a great deal of pain.

When officers questioned defendant at the hospital, he made coherent, logical statements. The officers testified they determined from defendant's demeanor that he understood his rights and his actions in waiving those rights. We find no error in the trial judge's determination that the defendant's statement was admissible.

3. In the state's direct case, the investigating officer testified about the conversation with defendant at the hospital. The officer was allowed to testify over defendant's objection that defendant made no response to his question, "How did your hat get in Barfield's store?" Defendant enumerates this as error.

Here defendant had been advised of his right to remain silent and warned that any statement he made could be used against him. He answered several of the officer's questions but declined to answer one. We find that evidence of defendant's decision not to answer is inadmissible and should have been excluded upon objection. The defendant was advised of his right to remain silent, and the prosecution may not use against him the fact that he exercised that right. Miranda v. Arizona, supra, 384 U.S. at 468, fn. 37, 86 S.Ct. at 1624 fn. 37; Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); and U.S. v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); see also Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976).

The recent United States Supreme Court case of Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), is inapplicable to the facts here. Weir had not been advised of his Miranda rights, and the state sought, on cross-examination, to impeach his testimony at...