Kosal v. State

• Decision Date: 29 June 1992
• Docket Number: No. A92A0099,A92A0099
• Citation: 204 Ga.App. 708,420 S.E.2d 621
• Parties: KOSAL et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 621

420 S.E.2d 621

204 Ga.App. 708

KOSAL et al. v. The STATE.

No. A92A0099.

Court of Appeals of Georgia.

June 29, 1992.

John A. Pickens, Atlanta, for appellants.

David McDade, Dist. Atty., William H. McClain, Asst. Dist. Atty., for appellee.

SOGNIER, Chief Judge.

Pyda and Chanary Kosal were convicted of arson in the burning of their Douglas County residence, and they appeal from the denial of their motion for new trial.

Late on the night of March 21, 1988, the Douglas County Fire Department received calls from appellant Pyda Kosal and another person who was driving through the neighborhood that the back of appellants' split-level home was on fire, and fire fighters arrived at the scene five minutes later. Fire Department Division Chief Scott Spencer testified that as he scrutinized the fire scene while the fire fighters were working to bring the fire under control, he observed conditions that caused him to suspect the fire had been deliberately set. He noted that the house seemed to contain few family photographs or other personal belongings the size and rate of burning of the fire were consistent with the use of an accelerant; and he could ascertain no apparent accidental cause of the blaze. County and state arson investigators testified that they had concluded from an examination of the scene that the fire had been intentionally set by the pouring of a flammable liquid onto the floor and carpet in the stairway and bedrooms. Each witness testified extensively concerning the bases for his conclusion, listing as primary indicators the presence of obvious pour patterns at several points in the house, which shows an accelerant was used; the fact that the fire obviously had multiple points of origin; and the presence of burn patterns consistent with the pour patterns and use of an accelerant and inconsistent with an accidental fire. The investigators ruled out all other causes of the fire, including the explanation Mr. Kosal had given police. The investigators also testified that the two-story addition appellants had recently built themselves was poorly constructed, and noted that in their experience the desire to obtain insurance proceeds to rebuild an inferior structure was a common motivation for arson.

The conclusions of the arson investigators were consistent with the findings of an investigator engaged by appellants' insurer to determine the cause of the blaze and by a private arson investigator originally employed by appellants' counsel. In addition, the insurance investigator testified that he tested the kerosene heater in the bedroom and affirmatively determined that it did not cause the fire. The evidence also established that appellants regularly used that and two other kerosene heaters in the portion of the house in which the fire occurred and that they stored kerosene, a flammable liquid, in the house.

Additional evidence was adduced that appellants were experiencing financial problems at the time of the fire and that the house was fully insured. Both appellants had worked for a furniture manufacturer for several years, but Mr. Kosal had resigned his position the previous summer to start a residential construction business. The evidence established that at the time of the fire appellants had numerous past due bills; foreclosure proceedings had been instituted by their second mortgage holder two months earlier and halted after appellants borrowed the necessary funds from a friend; appellants had written a number of bad checks in the months prior to the fire; and several lawsuits had been filed against Mr. Kosal in connection with his construction business. Ms. Kosal testified that for several months before the fire, she worked a full day at the factory and then went to her husband's construction job sites to help so that he could finish the jobs and get paid.

Appellants testified that on the night of the fire they awoke around midnight and discovered a blaze between the kerosene heater and the wall in their bedroom. Mr. Kosal testified that he unsuccessfully attempted to put out the fire with water and a fire extinguisher. He ran downstairs to phone for help, but the telephone was not working. Appellants then fled the home with their small son and drove to a nearby pay phone and called the fire department. Appellants denied intentionally setting the fire.

1. Appellants contend in three enumerations of error that the trial court erred by denying their motions to suppress the evidence seized in three searches of their residence. They contend Mr. Kosal's consent to the first two searches was not freely and voluntarily given, and that evidence obtained in the third search, made pursuant to a warrant, should be suppressed as fruit of the unlawful first searches.

(a) Mr. Kosal's consent to the first search was obtained in the early morning hours while the fire was being brought under control. He was seated with fire department investigator Don Leasher in the front seat of Leasher's marked car, and two other fire department officials stood beside the car on appellant's side. Leasher testified that he made no threats or promises of benefit to appellant and that he did not detain appellant in order to obtain his consent. Leasher stated that appellant, a Cambodian national with two years of college education, spoke English well and appeared to have no problems understanding Leasher's conversation. Leasher testified that he read the consent form, which included the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to appellant one section at a time, ascertaining after each section that appellant understood. Leasher stated that appellant consented to the search, stated he did not want an attorney, and never withdrew his consent.

Mr. Kosal signed the consent form for the second search two days later after being questioned for several hours at the sheriff's office by Leasher, another fire department official, and two detectives. Appellants went to the sheriff's office in response to a telephone request from a detective, and Mr. Kosal was escorted through a locked door into an office in the back of the building. Detective Scott Cosper testified that he gave the Miranda warnings at the beginning of the interrogation, that he made no threats or promises of benefit, and that he read the consent form to Mr. Kosal and ascertained that he understood it. Cosper testified further that Mr. Kosal spoke good English and had no communication problems and that he never mentioned having an attorney or wanting an attorney present during the interrogation. Cosper stated Mr. Kosal was not under arrest and was free to leave at any time, and that he did leave with Ms. Kosal after the questioning was concluded. Other participants in the questioning corroborated Cosper's recollection of the events.

Mr. Kosal testified that he signed the first consent form only because Leasher told him this was "just procedure" that "everybody ha[d] to do." As to the second consent, Mr. Kosal testified that during the interrogation he did not feel he was free to leave; that he had called his attorney to come to the sheriff's office and so informed the detectives, but they told him he did not need counsel; that the detectives screamed at and threatened him; and that he felt he had to sign whatever they asked. However, Mr. Kosal also testified that he did not object to the officers searching his house and that he had been willing to answer their questions. Ms. Kosal testified that as she waited in the lobby while her husband was being questioned at the sheriff's office, she saw their attorney arrive in the lobby and confer with an officer. She stated the attorney left about an hour later without having been allowed to see Mr. Kosal.

The State bears the burden of proving that consent to a warrantless search was freely and voluntarily given, and voluntariness is determined by looking to the totality of the circumstances. E.g., Hunter v. State, 190 Ga.App. 52, 53, 378 S.E.2d 338 (1989). Factors to be considered include the age, education, and intelligence of the accused, the length of any detention of the accused, whether the accused was advised of his constitutional rights, the prolonged nature of the questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. Id. When a defendant moves to suppress evidence, the trial judge sits as trier of the facts, and the judge's findings are analogous to a jury verdict and should not be disturbed by an appellate court if there is any evidence to sustain them. Jones v. State, 200 Ga.App. 519(1), 408 S.E.2d 823 (1991).

As to the first search, Mr. Kosal testified that his wife and a friend who spoke excellent English also were present while he talked with Leasher and that he understood he was not under arrest. Under these circumstances, and considering also Leasher's testimony concerning appellant's consent, we reject appellant's contention that the presence of several fire department officials was so oppressive as to require a finding of coercion. See Williamson v. State, 142 Ga.App. 177(1), 235 S.E.2d 643 (1977); see also Suddeth v. State, 162 Ga.App. 460(1), 291 S.E.2d 430 (1982). Likewise, given the totality of the circumstances, Mr. Kosal's testimony that he did not understand he could refuse to authorize the search provides no basis for reversal. See United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820, 828- 829, 46 L.Ed.2d 598 (1976); see also Suddeth, supra.

With regard to the second search, we need not decide whether Mr. Kosal was in custody at the time he signed the consent form because "the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to...