Hatcher v. State, 46271

• Decision Date: 25 May 1989
• Docket Number: No. 46271,46271
• Citation: 379 S.E.2d 775,259 Ga. 274
• Parties: HATCHER v. The STATE.
• Court: Georgia Supreme Court

Page 775

379 S.E.2d 775

259 Ga. 274

HATCHER v. The STATE.

No. 46271.

Supreme Court of Georgia.

May 25, 1989.

Reconsideration Denied June 22, 1989.

David P. Oliver, Stephen C. Steele, Moore & Rogers, Marietta, for Ricky Dane Hatcher.

Thomas J. Charron, Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for the State.

GREGORY, Justice.

Ricky Dane Hatcher pled guilty in Cobb County to an indictment charging him with the murder of Lisa McMichen and her mother, Francis McMichen. A sentencing hearing was conducted before a jury and Hatcher was sentenced to death for the murder of Lisa McMichen, and to life imprisonment for the murder of Francis McMichen. ¹

Lisa McMichen and her daughter Tonya lived with Hatcher until December 3, 1987, when they left after a violent argument and spent the night with Lisa's mother. Lisa and Tonya McMichen returned the next day for their belongings. Another argument ensued. When Hatcher's mother, who had just been released from treatment for alcohol dependency, attempted to intercede, Hatcher threatened to kill both her and Lisa McMichen. Hatcher then left. Lisa and Tonya McMichen left soon thereafter and returned to Francis McMichen's apartment.

Hatcher spent the afternoon drinking with his friends and bemoaning his situation. He was "upset" and "tired of the way things were going," and he had a "belly full" of the way Lisa, Francis, and Tonya McMichen were "doing," and he threatened to kill them all.

At 3:00 p.m., Hatcher went to Francis McMichen's apartment. Tonya testified that she was in a bedroom when she heard her grandmother call her name and tell her to call the police. Tonya went to the door of the bedroom and saw her grandmother trying to close the front door of the apartment to prevent Hatcher from entering. Hatcher forced his way in.

Hatcher claimed afterward that he merely had come for twenty dollars Lisa McMichen owed him and for his telephone book, which Lisa had taken, and on which he had written certain numbers important to his business.

Tonya ran to the bathroom and locked the door. She heard Hatcher say that no one would "call the damn police on him." Soon afterward, Tonya heard a shot and then another. She heard the sound of running footsteps and then another shot.

After Hatcher left, Tonya went to the telephone to call the police, but the line had been cut. She went next door and called.

Francis McMichen was shot once in the back of the head. Lisa McMichen was shot once in her left side and once in the back of the head.

The jury found the presence of two statutory aggravating circumstances to support the death sentence for the murder of Lisa McMichen: (1) "The offense of murder was committed while the offender was engaged in the commission of burglary," and (2) "The offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, [and] depravity of mind." See OCGA § 17-10-30(b)(2) and (b)(7).

1. Hatcher's present attorney was appointed to represent him at the post-trial proceedings and on appeal. At the hearing on the motion for new trial, and again on this appeal, Hatcher has contended his trial attorneys were ineffective because their remarks during voir dire effectively conceded the issue of guilt, leaving him (he now claims) "no alternative but to plead guilty."

Neither Hatcher nor his trial attorneys testified at the hearing on the motion for new trial. See Dawson v. State, 258 Ga. 380(3), 369 S.E.2d 897 (1988). The transcript of the guilty plea hearing, including Hatcher's own testimony, supports the trial court's determination that Hatcher's plea of guilty was voluntarily entered. Compare Morrison v. State, 258 Ga. 683(1), 373 S.E.2d 506 (1988). Hatcher has failed to show that he felt compelled to plead guilty because of any action or inaction of his trial attorneys. Hence, even assuming arguendo some deficient attorney performance in the conduct of the voir dire, Hatcher has failed to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," i.e., that he would not have pled guilty. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, he has failed to show ineffectiveness of trial counsel.

2. Hatcher was interrogated the evening of December 4, 1987 (the date the murders occurred), after he told the police he wanted to confess. The first interview began at 5:07 p.m. Hatcher related some of the events leading up to his visit to Francis McMichen's apartment, and then began to describe what happened. He stated that Francis McMichen had seized his gun after it fell out when he pushed open the apartment door, and that he had "grabbed it." Then, he stated:

It went off. Oh God. I don't know where it hit her, but it's a 44 magnum. And Lisa, she gets extremely upset at everything. Oh my God. She ran, uh, Lord, I don't know. I don't want to talk about it no more.

The interrogation ceased. Hatcher asked for and received a cup of coffee. He was asked if he wanted to lie down, and he answered in the negative, and then indicated his willingness to proceed with the interrogation. After a ten-minute break, the interrogation resumed. It concluded at 5:39 p.m.

Five hours later, Hatcher was re-interrogated. A few minutes into the interrogation, Hatcher stated that he did not "want to talk about it." He was told to "just take it easy and control yourself," and the interrogation continued. Later, when asked about the first shot, Hatcher asked, "Why do you have to put me through all that?"

After some colloquy concerning the importance of the statement, the interrogators again asked about the first shot, and then asked "about Lisa." At this point, Hatcher stated, "I don't want to talk about it no more, please. No, no, no." The interrogators did not respond to this assertion except to continue the interrogation, which lasted another 30 minutes.

Hatcher contends here, as he did below, that his right to cut off questioning was not "scrupulously honored," and that his statements should have been suppressed.

In Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966), the U.S. Supreme Court held:

If the [person in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Emphasis supplied].

The Court later explained:

Through the exercise of his option to terminate questioning [a person in custody] can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.... [T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda103 on whether his "right to cut off questioning" was "scrupulously honored."

Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Although the right to silence is not protected by a per se rule of "permanent immunity" against further police-initiated interrogation, id., 423 U.S. at 102, 96 S.Ct. at 326, nevertheless, "a suspect's request to cut off questioning serves as a complete bar to any questioning [initiated by the police] ... for a 'significant period of time' after the request." Christopher v. Florida, 824 F.2d 836, 844 (11th Cir.1987).

The trial court did not err by allowing the admission of Hatcher's first statement. When Hatcher stated he did not "want to talk about it" anymore, the police immediately halted the interrogation. The evidence authorizes a finding that after a break, Hatcher...