Mayberry v. State, A04A0602.

• Decision Date: 27 May 2004
• Docket Number: No. A04A0602.,A04A0602.
• Citation: 600 S.E.2d 703,267 Ga. App. 620
• Parties: MAYBERRY v. The STATE.
• Court: Georgia Court of Appeals

267 Ga. App. 620

600 S.E.2d 703

267 Ga.App. 620

MAYBERRY v. The STATE.

No. A04A0602.

Court of Appeals of Georgia.

May 27, 2004.

Daniel L. Henderson, Temple, for appellant.

Patrick H. Head, District Attorney, H. Maddox Kilgore, Amy H. McChesney, C. Lance Cross, Assistant District Attorneys, for appellee.

RUFFIN, Presiding Judge.

A jury found Donald Gene Mayberry guilty of aggravated assault, burglary, and obstruction. Mayberry appeals, asserting that the trial court erred in denying his motion to suppress certain custodial statements he made to the police. The trial court found that Mayberry was not in custody when the statements were made and thus admitted the statement. For reasons that follow, we affirm.

"The issue presented, as to whether appellant was in custody for Miranda purposes, is a mixed question of law and fact. We will not reverse the trial court's fact findings which underpin its legal conclusion made at a suppression hearing, unless they are clearly erroneous."¹

At the hearing on the motion to suppress, the evidence showed that on the night of October 3, 2002, Mayberry was driving himself to the hospital to treat an injury to his head. A police officer, responding to a call involving a domestic dispute and on the "look-out" for Mayberry's vehicle, pulled him over. Mayberry turned into a parking lot and was surrounded by four or five police cars. He exited his car with his hands up. He was wearing an all black outfit. One police officer handcuffed him, and Mayberry testified that the others had their guns drawn. He did not ask the officers to take him to the hospital, but "[t]he next thing" he knew an ambulance had arrived. A police officer handcuffed him to both sides of the gurney. When Mayberry arrived at the hospital and was transferred to a stretcher, the officers handcuffed him to the stretcher and used hospital restraints on his legs.

Officer Peacock arrived at the hospital to interview Mayberry and his wife, who was also at the hospital, regarding a possible "domestic violence situation." Another officer told Officer Peacock that no one was under arrest. He first went to the room of Mayberry's wife, and he observed that she had a laceration to the head. He then went to another room where he observed that Mayberry was handcuffed to a stretcher. Officer Peacock said that Mayberry was secured to the stretcher due to the way he was "physically acting."²

Officer Peacock told Mayberry that he needed to ask him a few questions. He did not read Mayberry his rights under Miranda v. Arizona.³ Mayberry told the officer that he and his wife were having domestic problems and had been living apart. He said that he entered his wife's house that night by using a key he had duplicated and that he entered his wife's bedroom. He then climbed on top of her and shined a light in her face to scare her. At this point, she woke up and hit him in the head with an iron pipe. They wrestled, and he grabbed the iron pipe from her and in turn hit her in the head.

Officer Peacock testified that he did not have probable cause to arrest Mayberry until after he questioned him and that Mayberry was not a suspect when he began questioning him. After interviewing Mayberry, however, Officer Peacock placed him under arrest.

Mayberry admitted that he was on an "adrenalin high" that night, but he denied that the medical staff had a hard time keeping him under control. He admitted that Officer Peacock simply asked him if he would tell his side of the story, and that the officer did not threaten him or place him under arrest. However, he testified that he was handcuffed to the gurney and later the stretcher and that "[i]t was obvious [he] was under arrest."

The trial court found that Officer Peacock's questioning was purely investigatory in nature, that none of the officers had placed Mayberry under arrest, and that Mayberry had not been told he was under arrest. The court also noted that hospitals restrain people to give them proper treatment and to keep them from hurting themselves. It found that Mayberry was not in custody at the time of Officer Peacock's questioning and that Officer Peacock's testimony was admissible.

At trial, Mrs. Mayberry testified that she awoke to find Mayberry in her bedroom, dressed in black. He told her that he was there to kill her, and he struck her in the head with a pipe.

Mayberry took the stand and denied hitting his wife with a pipe. He said that he and his wife were playing a sexual fantasy game. When he entered the bedroom dressed all in black as part of the game, she turned the light on and he climbed onto the bed, but then she suddenly "clocked" him in the head with a pipe. They struggled, and then he heard her run outside, pound on her neighbor's door and yell "[h]e tried to kill me."

Because this testimony contradicted Mayberry's hospital statement, the State recalled Officer Peacock to impeach Mayberry's testimony. Officer Peacock testified that Mayberry had admitted striking his wife with a pipe and shining a light in her face to scare her. He also testified that Mayberry never mentioned the alleged fantasy game during the hospital interview.

Mayberry contends that the trial court clearly erred in making the factual finding that Mayberry was not in police custody at the time he gave the statements to Officer Peacock. We agree.

"In resolving this issue, the relevant inquiry is how

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