O'KELLEY v. State

• Decision Date: 25 October 2004
• Docket Number: No. S04A1227.,S04A1227.
• Citation: O'KELLEY v. State, 604 S.E.2d 509, 278 Ga. 564 (Ga. 2004)
• Parties: O'KELLEY v. The STATE.
• Court: Georgia Supreme Court

604 S.E.2d 509

278 Ga. 564

O'KELLEY v. The STATE.

No. S04A1227.

Supreme Court of Georgia.

October 25, 2004.

Weiner, Shearouse, Weitz, Greenberg & Shawe, Michael L. Edwards, Zipperer, Lorberbaum &Beauvais, Steven L. Beauvais, Daly, Bowen & Calhoun, Brian L. Daly, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

HUNSTEIN, Justice.

This Court granted interim review in the pending death penalty prosecution of Dorian Frank O'Kelley and directed the parties to address the following question:

Whether appellant's indicating, at an initial appearance before a magistrate judge, his desire to have an attorney represent him renders his subsequent statement to an interrogator inadmissible at trial.

For the reasons set forth below, we answer this question in the affirmative and, accordingly, reverse the judgment of the trial court refusing to suppress the statement in question.

1. On April 12, 2002, O'Kelley was arrested with a warrant on several of the charges now pending against him. He was interviewed twice that day; however, none of the statements he made in those first two interviews are in dispute. Later that same day, O'Kelley was taken before a magistrate judge in a jailhouse courtroom. No prosecutor or defense counsel was present, no testimony or evidence was presented, and O'Kelley was informed that he was not to enter a plea. When asked, O'Kelley indicated his desire for a court-appointed attorney. A form listing the allegations against O'Kelley (which now included the murders), his desire for court-appointed counsel, the fact that bail could only be set by a superior court judge, and the magistrate's setting of a hearing for two days later was then signed by the magistrate, by O'Kelley, and by a detective who was present at the proceeding.

On April 14, 2002, two detectives, including the detective who had been present at the proceeding before the magistrate judge, initiated further questioning of O'Kelley. O'Kelley argues that the statement made during this final interrogation should be suppressed because it was received in violation of his Sixth Amendment right to the assistance of counsel in criminal proceedings and in violation of his Fifth Amendment right to have counsel present during interrogation.

2. The United States Supreme Court has held as follows:

Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."

Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion)). A review of earlier United States Supreme Court cases suggests that the point at which the Sixth Amendment right to counsel attaches was originally determined by examining whether having counsel present could meaningfully affect the defendant's rights. See, e.g., Coleman v. Alabama, 399 U.S. 1, 7-10(II), 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (addressing a preliminary hearing where evidence was presented); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (addressing a preliminary hearing where the defendant was allowed to plead guilty); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (addressing an arraignment where, under state law, certain defenses could be waived if not raised). However, as the preceding quotation from Brewer v. Williams suggests, in determining what triggers the attachment of the Sixth Amendment right to counsel, the case-by-case analysis of whether a defendant's rights could be affected in a particular proceeding has given way to a more simplified analysis based on categories of proceedings, regardless of the critical nature of the proceedings. The United States Supreme Court clearly enunciated such a simplified approach when it held the following:

The question whether arraignment signals the initiation of adversary judicial proceedings, moreover, is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel, absent a valid waiver.

Michigan v. Jackson, 475 U.S. 625, 629-630 n. 3, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

This Court has previously held that a "first appearance" did not constitute an "adversary judicial proceeding" that triggers the attachment of the Sixth Amendment right to counsel. Ross v. State, 254 Ga. 22, 26-27(3)(b), 326 S.E.2d 194 (1985). If Ross could be considered the last word on the subject, it would be clear that O'Kelley's hearing before the magistrate did not trigger the attachment of the Sixth Amendment right to counsel, because the following was true of both proceedings:

There was no prosecutor there, and no issues to resolve except to set a date for such a confrontation [with the prosecutor], at which time [the defendant] would be represented by an attorney, and to determine if [the defendant] needed the court to appoint an attorney....

Id. at 27, 326 S.E.2d 194.

This Court has repeatedly held since Ross that a defendant's completing a form requesting the appointment of counsel does not, in itself, cause the attachment of the Sixth Amendment right to counsel; however, in none of those decisions is it clear whether or not the completing of the form involved the participation of a judge. Fleming v. State, 269 Ga. 245, 249(9), 497 S.E.2d 211 (1998); Raulerson v. State, 268 Ga. 623, 628(2)(b), 491 S.E.2d 791 (1997); Turner v. State, 267 Ga. 149, 156(5), 476 S.E.2d 252 (1996). In one case in which this Court found that the completion of such a form was insufficient to cause the attachment of the Sixth Amendment right to counsel, the Court noted as follows:

It is apparent that the form at issue was offered by the police and completed by appellant as a housekeeping measure....

State v. Hatcher, 264 Ga. 556, 558, 448 S.E.2d 698 (1994) (emphasis supplied). In two other opinions since Ross this Court has explicitly declined to address, because it was unnecessary to do so, whether a first-appearance hearing before a magistrate, as contrasted with the out-of-court completion of a form, triggers the attachment of the Sixth Amendment right to counsel. See Cansler v. State, 261 Ga. 693(4), 409 S.E.2d 504 (1991); State v. Simmons, 260 Ga. 92, 94, 390 S.E.2d 43 (1990). In Simmons, this Court noted the State's argument that, under Ross, an initial appearance hearing should not be regarded as triggering the attachment of the Sixth Amendment right to counsel; however, this Court also noted that Ross has been called into question in light of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631. Simmons, 260 Ga. at 93-94, 94 n. 2,390 S.E.2d 43. In fact, as we noted in Simmons, one legal treatise explicitly addresses Ross and states that it "appear[s] to be inconsistent with the Supreme Court's more recent analysis in Jackson. ..." 2 LaFave, Israel & King, Criminal Procedure § 6.4(e), pp. 487-488 n. 75 (2d ed.1999). Presumably, the treatise takes this view because Jackson held, as is discussed above, that the Sixth Amendment right to counsel attaches at the beginning of "formal legal proceedings" and that it is not necessary that the "formal legal proceeding" in question be a "critical stage" of the criminal proceedings requiring the actual presence of counsel. Jackson, 475 U.S. at 629-630(3),106 S.Ct. 1404. See also McNeil v. Wisconsin, 501 U.S. 171, 181-182, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) ("The Sixth Amendment right to counsel attaches at the first formal proceeding against an accused...."); Mitzel v. Tate, 267 F.3d 524, 532-533 (6th Cir.2001); State v. Carter, 664 So.2d 367, 373 n. 4 (La.1995). Being now confronted with a case in which an explicit holding on the matter is appropriate, we overrule Ross and hold that an initial appearance hearing,...