Krier v. State

• Decision Date: 23 February 1982
• Docket Number: No. 37809,37809
• Citation: 249 Ga. 80,287 S.E.2d 531
• Parties: KRIER v. The STATE.
• Court: Georgia Supreme Court

Page 531

287 S.E.2d 531

249 Ga. 80

KRIER v. The STATE.

No. 37809.

Supreme Court of Georgia.

Feb. 23, 1982.

[249 Ga. 90] Stroud P. Stacy, II, Decatur, for Wayne Ladd Krier.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Atlanta, for The State.

SMITH, Justice.

Appellant, Wayne Todd Krier, was indicted for the stabbing murder of Teresa Lavin. The jury found him guilty and also found that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim and recommended that the death penalty be imposed. The case is here on direct appeal and for mandatory review of the death sentence. We affirm.

1. In his first two enumerations of error, appellant contends that the trial court erred in denying his motion to exclude his confession. He claims a violation of his Miranda rights under Edwards v. Arizona, 450 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as well as a lack of probable cause to arrest at the time of the issuance of the arrest warrant.

a) In Edwards v. Arizona, supra, the U. S. Supreme Court held "that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id. at 1884. The court also held that "an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." Id. at 1885. We do not believe Edwards renders the confessions obtained in the instant case inadmissible.

Appellant was arrested in New Orleans at the request of Georgia authorities. The evidence is in conflict as to whether he exercised his right to remain silent, requested an attorney, or waived his rights. The following day, Georgia authorities arrived in New Orleans and went to the jail where appellant was being held. He was informed of his rights and signed a waiver. At this time, appellant was questioned about the whereabouts of one Daniel Cody, who had accompanied him to the victim's apartment complex. Appellant was not questioned as to his participation in the crime.

Counsel was appointed to represent appellant at his extradition hearing. Extradition was waived and appellant was brought back to Georgia. Upon his return, appellant was again advised of his rights, waived them, and made both a written and oral confession. These statements were introduced against him at trial.

From these facts, it is apparent that the instant case is distinguishable from Edwards in several important respects. First, it is not undisputed that appellant made a request for counsel while in the custody of New Orleans authorities. In addition, the confessions were obtained after appellant had been placed in the custody of Georgia authorities and brought back to this state, after extradition counsel had been discharged and appellant had been informed that he was entitled to counsel in Georgia, and after appellant had twice signed written waivers of his Miranda rights. See Cervi v. State, 248 Ga. 325, 282 S.E.2d 629 (1981); see also People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 (1981). In our view it would be unreasonable to hold that an assertion of rights in the asylum state (assuming one occurred) operated to prevent any further inquiry by authorities in the requesting state as to whether the accused would like to speak to them, where the requesting authorities reasonably understood that no request for counsel had been made.

Finally, unlike Edwards, there is no doubt that appellant's confessions were obtained only after the "intentional relinquishment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). One of the investigators in the case testified that appellant "opened up almost instantly." Appellant detailed his crime to authorities on a number of occasions, and he provided a lengthy confession at the trial of his case.

We find no error under Edwards.

b) Probable cause for the issuance of an arrest warrant consisted of the following: Appellant and a co-worker went to the victim's apartment complex and signed in with the guard at 1:55 p.m. They signed out at 2:08 p.m. A next-door neighbor of the victim heard noises coming from the apartment and estimated the time to be approximately 2:30 p. m. (Appellant had returned to the apartment about 2:15 p. m., but this was unknown to police until the day after the warrant was issued.) The police also knew at the time the warrant was issued that appellant had not returned the borrowed car he was driving, had not returned to work, nor had anyone seen him since the afternoon of the murder. The police thought that the neighbor was in error as to the time, since all the other known facts pointed to appellant.

Appellant does not argue that any testimony given to the issuing magistrate was false. Rather, he contends that probable cause to arrest could not exist because of the "inconsistency" between the neighbor's testimony as to when he heard noises coming from the victim's apartment and the sign-out time stated in the apartment guard's log.

We must agree with the trial court's conclusion that the arrest warrant was based upon probable cause. Notwithstanding the minor inconsistency referred to above, the evidence presented to the issuing magistrate was such as would lead a reasonably cautious person to believe that appellant had committed the offense. Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980).

2. Appellant also contends that the trial court impermissibly curtailed his right to cross examination in the course of pre-trial hearings and that this curtailment hindered his efforts in establishing a lack of probable cause to arrest. The record, however, shows that the basic facts relating to the existence of probable cause were stipulated, that appellant had been afforded extensive cross examination, and that the trial court's decision to deny appellant further cross examination was made at a time when further cross examination would have been pointless.

"The scope of cross examination lies largely within the discretion of the trial court. It will not be disturbed by this court The propriety of the trial court's action in the case at bar is highlighted by appellant's subsequent "offer of proof" as to what further cross examination would show. The offer included nothing that had not already been stipulated or established through testimony.

unless it is shown there has been an abuse of that discretion. No such abuse is disclosed by this record." Davis v. State, 230 Ga. 902, 904, 199 S.E.2d 779 (1973).

3. In his fourth enumeration of error, appellant contends that the trial court erred in excluding a juror as being unalterably opposed to capital punishment.

The following transpired on voir dire:

"Q. Are you conscientiously opposed to capital punishment?

A. I am.

Q. You are conscientiously opposed?

A. Yes.

THE COURT: Let me ask you some questions. Ms. Henry, are your reservations about the death penalty or capital punishment such that you could never impose the death penalty, regardless of the evidence and the instructions of the Court.

A. I wouldn't say never.

THE COURT: Are there some circumstances in some cases then in which you would impose the death penalty?

A. I believe I could.

Q. So, Ms. Henry, when you said to my question it was just out of the blue, and I realize that, that you were conscientiously opposed to the death penalty, is what you meant that you have serious reservations about it?

A. Yes, I do.

Q. Well, in this case, Mr. Krier is charged with the offense of murder for killing an individual with a knife, and you, of course, have not heard any of the evidence in the case, can you say whether or not you would, it is possible that you could, if the circumstances and law warranted it, is it possible that you could vote for a death in this case?

A. I don't think so.

Q. If you would, please, ma'am, I'm just trying to find out exactly what your feelings are. How do you distinguish this particular case, the one that you would sit on as a juror, as compared to what the Court asked you about, if you could impose the death penalty in some circumstances?

MS. HENRY: Will you rephrase that?

THE COURT: What he is getting at, I asked you if your reservations about the death penalty was such that you could never impose the death penalty and you said no, and you said there were some instances in which you could impose the death penalty. Not knowing anything about this case about which you are about to try, in answer to the question Mr. Peters just asked you, you said that you didn't think that you could impose it in this case. What we are wondering is how do you know you can or can't or you could impose it in this case?

MS. HENRY: I reckon I should say I don't think I could in any case, really.

THE COURT: Are your own personal feelings such that you could personally never impose the death penalty?

MS. HENRY: I believe so.

THE COURT: Are you saying that you believe that the death penalty is proper in some cases, but just you could never personally be a part of imposing it?

MS. HENRY: I believe so.

THE COURT: Well, excuse me for pressing you on this, but is it your position now that you would vote against the death penalty regardless of the facts and evidence presented to you in this case?

MS. HENRY: In this particular case?

THE COURT: Yes.

MS. HENRY: I really don't think I could ever vote for the death penalty in any case.

THE COURT: And you have already made up your mind, then, that if this defendant was...