Foster v. State

• Decision Date: 14 April 2008
• Docket Number: No. S07A1668.,S07A1668.
• Citation: 283 Ga. 484,660 S.E.2d 521
• Parties: FOSTER v. The STATE.
• Court: Georgia Supreme Court

660 S.E.2d 521

283 Ga. 484

FOSTER v. The STATE.

No. S07A1668.

Supreme Court of Georgia.

April 14, 2008.

Reconsideration Denied May 6, 2008.

Mitchell D. Durham, Marietta, for appellant.

Patrick H. Head, Dist. Atty., Jesse David Evans, Dana J. Norman, Asst. Dist. Attys., Marietta, Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., Department of Law, Atlanta, for appellee.

BENHAM, Justice.

Waylon George was fatally shot in the parking lot of a Cobb County apartment complex where he had arranged to meet someone to purchase cocaine.¹ A woman who had accompanied the victim to the meeting place testified that a white sport utility vehicle with tinted windows drove up and parked on her side of the vehicle in which she and the victim sat. The driver of the SUV then moved the SUV so that the SUV's passenger side was next to the victim's side of the car. The victim left the car to throw away some trash and was shot in the chest as he returned to the car. The woman saw a person holding a gun lean out the window of the SUV at the time the victim was shot, and a .223-caliber cartridge casing was recovered from the scene. The victim's cellular phone records reflected phone calls from a resident of the apartment complex, and the resident told investigating officers the victim had contacted both him and appellant in an effort to purchase several ounces of cocaine. The resident had arranged to meet the victim in the apartment complex's parking lot to complete the drug transaction and had told appellant of the arrangement shortly before the victim was shot. Appellant told police he had sent two men to meet the victim in the parking lot and rob him, and gave police information about the weapon used to kill the victim. Telephone records indicated that appellant and one of the men he had sent to meet the victim had been in touch telephonically at least sixteen times the day the victim was killed, including one phone call about twelve minutes before the police dispatch concerning the shooting and another phone call approximately four minutes after the dispatch. The two men sent by appellant, Lanny Frazier and Travis Wilson, were indicted with appellant and were found guilty of the charges in a trial that took place before appellant's trial.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Contending that two incriminating statements he made during custodial interrogations were involuntary because they were improperly induced by hope of benefit, appellant sought suppression of the statements.² Following a hearing held pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the trial court denied the motion after finding that neither statement was induced by an improper hope of benefit. Appellant now asserts that ruling as error.³

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial, and the State has the burden of proving the voluntariness of a confession by a preponderance of the evidence. State v. Ritter, 268 Ga. 108(1), 485 S.E.2d 492 (1997). OCGA § 24-3-50 requires that an admissible confession "must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." "The promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect." White v. State, 266 Ga. 134(3), 465 S.E.2d 277 (1996). Generally, the "hope of benefit" to which the statute refers has been construed as a hope of lighter punishment. Preston v. State, 282 Ga. 210(2), 647 S.E.2d 260 (2007) (in the absence of an explicit promise of a lighter sentence, officer's discussion of the death penalty and life without parole was not a hope of benefit but an explanation of the seriousness of the defendant's situation); Brown v. State, 278 Ga. 724(3), 609 S.E.2d 312 (2004) (no evidence of hope of benefit in the absence of evidence a detective led defendant to believe he would receive a lighter sentence or immediate freedom if he confessed); Evans v. State, 277 Ga. 51, 53, 586 S.E.2d 326 (2003) (no evidence of hope of benefit in the absence of evidence an officer referred to any possibility of a lighter sentence when questioning defendant); State v. Roberts, 273 Ga. 514(3), 543 S.E.2d 725 (2001) (exhortations to tell the truth are not a hope of benefit that renders a confession inadmissible under OCGA § 24-3-50); State v. Ray, 272 Ga. 450(2), 531 S.E.2d 705 (2000) (officer's promise of "years of freedom" in response to defendant's query of what would he get for naming his accomplice was a hope of benefit); State v. Ritter, supra, 268 Ga. 108(1), 485 S.E.2d 492 (implied promise that defendant could not be charged with murder but only aggravated assault if he incriminated himself resulted in an inadmissible confession based upon the hope the defendant faced a lighter possible criminal penalty than he actually faced); Cooper v. State, 256 Ga. 234(2), 347 S.E.2d 553 (1986) (officer's stated desire to help suspect is not a hope of benefit); Caffo v. State, 247 Ga. 751(3), 279 S.E.2d 678 (1981) (admonition to tell the truth is not a hope of benefit); Richardson v. State, 265 Ga.App. 711, 715, 595 S.E.2d 565 (2004) (an impermissible hope of benefit may also include the reward of no charges being filed against the defendant).

The statements at issue were made by appellant during the second and third interviews he had with investigating detectives. The first two interviews were conducted while appellant was in custody on a probation violation, and the third interview took place after the issuance of an arrest warrant for appellant in connection with the victim's death, charging appellant with conspiracy to commit armed robbery, conspiracy to commit aggravated assault, and felony murder. During the first interview, appellant acknowledged knowing the victim, admitted having spoken on the telephone with the victim three times the day the victim was killed and three times with one of the men who was later indicted with appellant, and acknowledged he knew the victim had arranged to purchase drugs from a resident of the apartment complex where the victim was killed.

The second interview took place a week later, and the detectives confronted appellant with his telephone records which were at odds with appellant's earlier statements concerning his contact with the victim the day of the shooting. During that interview, the detectives twice told appellant he could be a witness or a defendant. Each time, appellant made an incriminating statement shortly thereafter. Two days later, after obtaining an arrest warrant for appellant, the detectives interviewed appellant for the third time and were focused on finding the weapon. When appellant was not forthcoming about the location of the weapon, the detectives executed a document in which they promised not to press additional charges related to the weapon against appellant. Thereafter, appellant admitted he had provided the co-indictees with the murder weapon and told the detectives the gun could be found at his father's home.⁴

Appellant contends the interrogators' statements in the second interview that appellant could be a witness or a defendant were implied promises of lighter punishment, including the possibility of escaping punishment altogether. See State v. Ritter, supra, 268 Ga. 108(1), 485 S.E.2d 492. However, in Duke v. State, 268 Ga. 425(2), 489 S.E.2d 811 (1997), where interrogating officers described the defendant's situation as one in which he could be a witness or a defendant, this Court affirmed the trial court's denial of the motion to suppress, concluding that the officers "clearly did not imply that [the defendant] would not be charged if he was himself involved in the murder[,]" but were only encouraging him to tell the truth. Exhortations to tell the truth are not a hope of benefit that renders a confession inadmissible under OCGA § 24-3-50. Id.

Appellant maintains that statements he made in the third interview after he and the detectives executed the document promising not to press against him any additional charges related to the weapon were the basis of a detective's trial testimony that appellant was the source of the murder weapon.⁵ He contends the detective's testimony should have been suppressed because the written document...