McDougal v. State, No. S03A1475.
| Decision Date | 12 January 2004 |
| Docket Number | No. S03A1475. |
| Citation | 277 Ga. 493,591 S.E.2d 788 |
| Parties | McDOUGAL v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Mitchell D. Durham, Marc D. Cella, Marietta, for appellant.
Patrick H. Head, Dist. Atty., Dana J. Norman, Russell J. Parker, Laura J. Murphree, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Madonna M. Heinemeyer, Asst. Atty. Gen., for appellee. SEARS, Presiding Justice.
Howard McDougal is charged with malice murder, armed robbery, and other crimes. The State is seeking the death penalty. McDougal moved before trial to suppress his statements to the police, and the trial court, after an evidentiary hearing, denied the motion. This Court granted the application for interim review on this issue and directed the parties to answer the following question: Did the trial court err by denying McDougal's motion to suppress his statements? Having reviewed the record, we conclude that McDougal's statements must be suppressed. Therefore, we reverse in part and affirm in part.
Just after midnight on Monday, May 8, 2000, police found the body of Richard Jorgenson, who had been the only clerk working the Sunday shift at the Olympic Mart on South Cobb Drive, on the floor of the store. He had been shot once in the head and a .25 caliber shell casing was found nearby. The front door was locked and money was missing from the store. The cash register showed that the last transaction, for three dollars worth of lottery tickets, took place at 7:10 p.m. on May 7. Since the convenience store generally made sales transactions every few minutes, the police surmised that the murder took place shortly after 7:10 p.m.
On May 8, Detective Lee received a phone call from Mr. Hester, who said he had gone to the Olympic Mart at 7:15 p.m. on May 7 and observed through the front glass two African-American males in the store with the clerk. One black male, thin, young and of medium height, was walking around the store wearing a black baseball cap. The second black man stood behind the clerk and forced the clerk to lock the front door. This man was holding a gun and Hester described him as 6' 2" and 250 pounds. The men then moved to the back of the store and doused the light. Hester turned around and went home. He did not call the police until he heard about the murder.
On the morning of May 9, Detective Lee received a call from a supervisor at American Industrial Chemical Corporation ("AICC"), which is located about a mile from the Olympic Mart. The supervisor said the day before, a .25 caliber pistol had been found in a dumpster in an area only accessible to employees. Detective Lee went to AICC and obtained the gun; the people who worked there said they knew the gun belonged to employee Howard McDougal because he had tried to sell them the gun the previous week. McDougal had been late for work on May 8; he was nervous when he arrived that morning and he only stayed at work an hour before leaving, saying he was sick. The dumpster is only 40 feet from McDougal's work station and an employee found the gun a few hours after he left. Several employees also told the detectives that McDougal was penniless.
The detectives went to McDougal's apartment at 1:00 p.m. and he agreed to accompany them to the police station for an interview. He told them, however, that he had a 2:00 p.m. job interview. He rode in the front seat of Detective Lee's car, and he was not handcuffed or searched. The officers testified that because he did not match Mr. Hester's initial physical description, McDougal was not yet considered a suspect for the murder and therefore was not in custody. While Mr. Hester had described the robber with the gun as a large man, 6' 2" and 250 pounds, McDougal, who also goes by the nickname "Heavy," is an enormous man at 6' 4" and 450 pounds. Detective Lee did not believe that Mr. Hester could have been so badly mistaken about the suspect's weight, and believed that McDougal might have supplied the robbers with his gun. McDougal was not advised of his Miranda1 rights; as noted, the officers testified that he was not in custody. McDougal told the police he was a regular customer at the Olympic Mart and that he had been there on Sunday between 5:30 and 6:00 p.m. Because he was a convicted felon, he refused to say whether he owned a gun. Detective Lee told McDougal, "I have enough now on you that I don't have to let you go home today," because he knew McDougal had possessed a .25 caliber pistol. He also told McDougal that the store clerk had been shot with a .25 caliber pistol. The detectives asked McDougal if he had sold or given the gun to someone, but McDougal again balked at admitting anything about the gun because he thought he might be arrested. Detective Lee said the police were not interested in a mere possession charge because they wanted to apprehend the shooter. McDougal asked if he was going to be arrested for gun possession, and Detective Lee responded that he could not "make a commitment" to McDougal about that. McDougal then said he gave a neighbor named Todd his gun on Friday, and that Todd never returned the gun. Detective Lee told McDougal the gun had turned up where he worked, and McDougal speculated that Todd must have slipped into AICC and disposed of the gun. McDougal denied having shot anybody, and Detective Lee said he believed him because his size did not match the description. Detective Lee insisted, however, that McDougal knew the identity of the shooter. McDougal then asked for the time, but Detective Lee told him "we're going to be here a little longer" and that McDougal was not going to make his 2:00 p.m. job interview. When asked if he wanted to call the prospective employer, McDougal said he just wanted to "get this over."
The police then told McDougal they were not interested in his being a felon in possession of a firearm, but they could "put that gun in [his] hand already." When McDougal insisted he did not commit the robbery, Detective Lee told him they were just "trying to help [him] out of this." Detective Lee repeated that McDougal did not match the description of the shooter because he would "stick out like a sore thumb," and that they were not interested in the possession charge or he would already be in handcuffs. Eventually, Detective Lee told McDougal that "we're getting to the point now where maybe we should inform you of your Miranda rights."
Lt. Waldrop told McDougal that he was going to read him his rights and ask him to sign the waiver form so they could continue to talk. McDougal asked if he was under arrest, and Detective Lee said no. Lt. Waldrop concurred and said, "I'm reading you this to protect you." McDougal then said, Lt. Waldrop read McDougal his Miranda rights, and said he wanted him to sign a waiver form to indicate he understood the rights. McDougal replied, Questioning continued even though McDougal had not signed the waiver or been provided the opportunity to call his wife or a lawyer. The officers became increasingly insistent that he sign the waiver. Lt. Waldrop said, "Then sign that you just understand so that later on when you contact your attorney, he can't say, well, they had him in this little bitty room and they beat him." McDougal did not sign the waiver. Questioning continued. The officers told him they had evidence that he was in possession of the murder weapon before and after the murder and that he had motive because he was broke, and that they had probable cause to arrest him for murder. Lt. Waldrop insisted,
The officers then declared a break in the interrogation, and Detective Geter, who had been pursuing other leads, told Detective Lee that he thought McDougal was the shooter. Detective Geter explained that he had spoken with a couple who had stopped at the Olympic Mart at 7:10 p.m. on May 7 to buy three dollars worth of lottery tickets— the last transaction before the homicide. They described a black man in the store at this time, whom they saw standing at a video game machine, as being six feet tall and 300 pounds. They observed this "huge" man go outside and converse with another man wearing a dark baseball cap sitting in a parked Buick. Detective Lee telephoned Mr. Hester and asked for another description of the robber with the gun. Mr. Hester said he was 6' 2" and maybe more than 300 pounds. Mr. Hester then elaborated by saying, "The man was huge." Detective Lee testified that at that point, he knew that McDougal was involved in the robbery and murder. Detective Lee went into the interview room and told McDougal, McDougal was taken downstairs and booked and then brought back upstairs because he said he wanted to talk. The officers began to fill out the Miranda waiver form. Lt. Waldrop asked McDougal, "During our last conversation, you made the statement that you wanted to make a phone call and call your wife to call your attorney ... Is that still your desire, to call your wife and have an attorney present?" McDougal said, "My desire is to be with my family." He signed the waiver and continued to try to implicate Todd, telling the officers he was just sitting in the Olympic Mart when Todd came in and robbed and killed the clerk. McDougal was placed in a holding cell. Ninety minutes later, he requested to speak with the detectives again from his holding cell in the police station. The officers went to McDougal, and he admitted that he had tossed the gun into the dumpster at his workplace...
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