LeMay v. State

• Decision Date: 27 February 1995
• Docket Number: No. S94A1527,S94A1527
• Citation: 265 Ga. 73,453 S.E.2d 737
• Parties: LeMAY v. The STATE.
• Court: Georgia Supreme Court

Page 737

453 S.E.2d 737

265 Ga. 73

LeMAY v. The STATE.

No. S94A1527.

Supreme Court of Georgia.

Feb. 27, 1995.

J. Michael Treadway, Marietta, for LeMay.

Jack E. Mallard, Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., Thomas J. Charron, Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Rachelle L. Strausner, Asst. Atty. Gen., Atlanta, for the State.

HUNT, Chief Justice.

John Richard LeMay was found guilty of the burglary, armed robbery and murder of Dr. Cecil Grogan. ¹ He appeals, and we affirm.

1. After reviewing the evidence in a light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found the defendant guilty of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979).

2. LeMay argues that the trial court violated his Fifth Amendment right to counsel by admitting into evidence a statement he made to police while in custody. Specifically, LeMay claims that his confession was obtained despite his repeated requests that an attorney be present before he answered any questions.

Prior to trial, the court conducted a Jackson-Denno hearing to determine if LeMay's confession should be suppressed. A Cobb County detective testified that he arrested LeMay outside his trailer on the day after the murder. At that time, according to the detective, LeMay was given his Miranda warnings but, though he indicated that he was willing to talk with police, no statement was taken. When it began to rain, LeMay entered a trailer with the detective and several agents of the Georgia Bureau of Investigation. Inside the trailer a GBI agent advised LeMay of his rights. LeMay again said that he understood his rights and wished to make a statement; that statement was recorded in the reports of both the detective and the GBI agent. Both officers testified that LeMay made no request for an attorney while in their custody. At the police station, LeMay was advised of his rights by another detective; he acknowledged understanding his rights, signed a written waiver of rights form, and made a statement which was also recorded in the police reports. Police officers present during the making of this second statement testified that LeMay made no request for an attorney at this time.

"Unless clearly erroneous, a trial court's findings relating to the admissibility of an incriminating statement will be upheld on appeal." Carter v. State, 257 Ga. 510, 513, 361 S.E.2d 175 (1987). Thus, though LeMay's version of the events was "remarkably different" from that presented in the testimony of the police officers, there was sufficient evidence to support the trial court's determination that the police officers were more credible witnesses. Davis v. State, 255 Ga. 598, 607, 340 S.E.2d 869 (1986). We find no error in the admission of the confession.

3. LeMay also argues that the trial court erred in admitting his confession because the state failed to lay a proper foundation as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At trial a detective testified that when he arrested LeMay outside his trailer, he advised him of his Miranda rights from memory. On cross-examination, defense counsel asked the detective to repeat to the jury the rights he had enumerated for LeMay. The detective said:

I advised him, "You are under arrest. You have the right to remain silent. Anything you say in court can be used against you. You have the right to have an attorney and have that attorney present before any questioning, if you wish. If you cannot afford an attorney, one can be appointed before any questioning, if you wish. If you decide to talk to us now without an attorney present, you'll still have the right to stop talking and ask for an attorney."

It appears that neither the prosecutor nor defense counsel noticed that the detective had said, "Anything you say in court can be used against you." However, the trial court, sua sponte, excused the jury and inquired into the detective's recitation of the Miranda warnings. Further, the trial court allowed the state in the presence of the jury to question the detective concerning his knowledge of the proper language of the warning. LeMay maintains that it was improper for the trial court to allow the state to clarify the detective's slip of the tongue and that admission of his confession was error since the state failed to show that LeMay's rights were correctly explained to him.

An examination of the record reveals, as set forth above, that after the detective informed him of his rights, LeMay indicated a willingness to speak with police but that he did not in fact make a statement at that time. When LeMay and the officers took shelter in the trailer, a GBI agent again read LeMay the Miranda warnings to make sure that he did wish to speak with them, and examination of the agent at trial indicated that those warnings had been correctly enumerated. Thus, it appears that the safeguards required by Miranda were provided. Further, the trial judge held a...