Kunis v. State
| Decision Date | 27 May 1999 |
| Docket Number | No. A99A0961.,A99A0961. |
| Citation | 518 S.E.2d 725,238 Ga. App. 323 |
| Parties | KUNIS v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Albert L. Watson III, for appellant.
Herbert E. Franklin, Jr., District Attorney, Elizabeth A. Overcamp, Assistant District Attorney, for appellee.
Gregory S. Kunis appeals from his conviction of misdemeanor theft by taking, following a jury trial, contending that the trial court erred by: (1) admitting an incriminating custodial statement made by him and (2) denying his motion for directed verdict. He also contends that there was insufficient evidence to support the verdict. For the reasons set forth below, we affirm.
1. Kunis contends that the trial court erred by admitting an incriminating custodial statement made by him because the statement was not given voluntarily.
[W]hether a waiver of rights and a subsequent statement have been voluntary and knowing depends on the totality of the circumstances. The totality of the circumstances is determined through a consideration of nine factors: 1) age of the accused; 2) education of the accused; 3) knowledge of the accused as to both the substance of the charge and the nature of his right to consult an attorney and remain silent; 4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; 5) whether the accused was interrogated before or after formal charges had been filed; 6) methods used in interrogation; 7) length of interrogation; 8) whether or not the accused refused to voluntarily give statements on prior occasions; and 9) whether the accused has repudiated an extrajudicial statement at a later date.
(Citation omitted.) Reinhardt v. State, 263 Ga. 113, 115(3)(b), 428 S.E.2d 333 (1993).
The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.
(Citation and punctuation omitted.) Tucker v. State, 231 Ga.App. 210, 212(1)(a), 498 S.E.2d 774 (1998).
The evidence at Kunis' Jackson-Denno hearing shows that Kunis was informed of and understood his rights; that he was questioned only once by one investigator while one other police officer was present; that the questioning lasted no more than fifteen or twenty minutes; that he showed a willingness to cooperate and that he never repudiated his statement. Thus, the trial court's findings are supported by the evidence and are not clearly erroneous.
2. In three enumerations of error, Kunis contends that the evidence was insufficient to support the verdict. Kunis specifically argues
that the State failed to produce either the victim of the theft or the items stolen.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Kunis] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility....
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