Munsford v. State

• Decision Date: 11 September 1975
• Docket Number: No. 30033,30033
• Parties: George MUNSFORD et al. v. The STATE.
• Court: Georgia Supreme Court

Page 792

218 S.E.2d 792

235 Ga. 38

George MUNSFORD et al. v. The STATE.

No. 30033.

Supreme Court of Georgia.

Sept. 11, 1975.

E. Kontz Bennett, Jr., Dennis J. Strickland, Sr., Waycross, for appellants.

Dewey Hayes, Dist. Atty., Douglas, Arthur K. Bolton, Atty. Gen., F. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

Appellants, George Munsford, Riley Jerome Williams and Emmett Daniels, were jointly indicted and subsequently tried together before a jury in the Superior Court of Ware County for the offense of armed robbery. All three were found guilty by the jury. A pre-sentence hearing was then conducted before the court without the intervention of the jury and the following sentences were imposed by the trial judge: Munsford received a prison term of 14 years; Williams received a prison term of 12 years; and Daniels received a prison term of 10 years. Appellants have filed a joint appeal to this court.

The evidence at trial disclosed the following events: On November 30, 1974, around 3:30 P.M., appellant Munsford, a young black male, entered the grocery store operated by Mr. and Mrs. D. C. McDuffie in Waycross, Georgia, bought some matches and left the store. Mrs. McDuffie noticed two other black men with him outside in a white-looking car parked in the driveway, but could not identify Williams and Daniels as these two men. She and her mother were in the store when about an hour later Williams and Daniels, two young black men, entered the store. Daniels pointed a pistol at Mrs. McDuffie. After taking Mrs. McDuffie's billfold and also taking money from the cash register, Williams and Daniels left the store and warned the women not to follow them. Mrs. McDuffie called the sheriff's office and received prompt response to her call about the robbery. She gave the officers a description of all three men she had seen earlier and of the whitelooking car she saw outside when Munsford came in the grocery store to purchase matches. An officer who received a radio report about the robbery began driving toward the store. He noticed a white car occupied by one young black man parked behind a church, known by the officer to have a white congregation. The church was a few hundred yards from the store. As the officer drove up to the car, the occupant, appellant Munsford, got out and raised the hood. The officer asked Munsford for some identification and why he was parked behind the church. Munsford replied he had no identification and also told the officer he was working on the car for the owner. He stated the car got overheated so he stopped to get water for it. The officer checked the car, found it was not hot and then arrested Munsford and placed him in the police vehicle. At that time, the officer advised Munsford of his rights under Miranda v. Arizona, 384 U.S. 456, 86 S.Ct. 1602, 16 L.Ed.2d 694. Munsford was then taken to the grocery store where Mrs. McDuffie identified him as the man who came into the grocery store to buy matches that afternoon before the robbery.

Meanwhile, a search was on for the two men who actually carried out the robbery. The officer who apprehended Munsford returned to the churchyard where he had found Munsford and noticed some tennis shoe tracks. The officers had received a report that two men had been seen crossing some private property fairly nearby and their search centered in the vicinity of a cemetery. Bloodhounds were brought in to follow the footprints and to assist in the detection. The dogs led the search into a lot near the cemetery where appellant Daniels was found hiding among tall reeds. Appellant Williams was then discovered squatting nearby amidst other reeds and both men were placed under arrest. The officer found a loaded pistol on the ground near Williams and a paper bag containing money.

All three men were taken to the sheriff's office and around 5:30 P.M. that same day Mrs. McDuffie went there and identified the appellants. She picked Williams and Munsford out of a group linequp but identified Daniels in a room by himself. Her in-custody identification of Daniels was excluded from evidence by the trial judge. After appellant Williams was arrested, he was given Miranda warnings but he told the officers 'that he, along with Emmett Daniels, had been taken to the . . . grocery in a white car driven by George Munsford.' Later that evening, an officer of the Waycross Police Department learned that appellant Daniels wanted to talk to him. Daniels was advised of his Miranda rights but nevertheless he told the officer that he and appellant Munsford had planned the robbery of the grocery store and that Munsford drove them to the store where he and Williams went in and carried out the robbery. He further told the officer that he and Williams were supposed to go back to the car Munsford was driving and that it was to be at the church but that 'things got confused and they didn't make it.' They ran from there to the cemetery.

Appellant Daniels made a statement to another officer on the following day in which he repeated essentially the same story he had given earlier. He was not warned again of his Miranda rights before making this statement. On December 1, 1974, appellant Williams made another statement to the police after he was given Miranda warnings. In his statement Williams said that on the day of the robbery he was picked up by Daniels and a man known to him only as George and that the three of them went to the grocery store. He further stated that he and Daniels went in the store but that it was Daniels who pulled out a pistol, announced a holdup and took money and a billfold. Williams also stated that after leaving the grocery store he and Daniels went to the cemetery and then into the reeds of the nearby lot where they stayed until the officers found them.

There was also testimony at the trial by two officers about the tennis shoe tracks that were seen near the car in which appellant Munsford was found and near the area where the other two appellants were apprehended. A photograph of the tracks near the car was admitted into evidence over objection and there was testimony that the photograph was an accurate representation of the tracks seen close to the car where appellant Munsford was arrested. One officer also testified that the tracks shown in the photograph matched the tennis shoes worn by appellant Williams at the time of his arrest. These shoes were obtained from Williams with his consent after his arrest but were subsequently returned to Williams and he wore them to the trial.

Only appellant Williams testified at the jury trial. He told the jury he went in the grocery store with Daniels but did not know that Daniels was going to rob the store. He testified that he tried to stop the robbery by telling Daniels to put the gun down. Williams denied that he participated in the planning or execution of the robbery.

The first issue to be decided is whether the trial court erred in admitting the responses of appellant Munsford to the officer when he was first discovered parked behind the church. It is argued in support of this contention that since these statements were made prior to Munsford's receiving any Miranda warnings they were inadmissible. As we read the transcript, Munsford had not been taken into custody or otherwise deprived of his freedom of action in any significant way at the time these answers were given by him to the officer's initial inquiry. For this reason, the custodial interrogation condemned by Miranda was not present. The inquiry made by the officer upon first seeing Munsford was a permissible threshold inquiry rather than a custodial inquiry for the purpose of gathering evidence of guilt. Miranda is not applicable in these circumstances. See Shy v. State, 234 Ga. 816, 218 S.E.2d 599. A similar enumeration of error urges the trial judge erred by admitting into evidence the testimony of an officer relating the incriminating statement made to him by appellant Daniels on the day following his arrest. The argument presented on this issue is that this statement should have been excluded because of the failure of the officer to renew the Miranda warnings given to this appellant they day before when he made an earlier statement to a different officer. We note the transcript shows that on the later occasion the officer did first ask appellant Daniels if he still understood his 'legal constitutional rights' and appellant indicated that he understood them. This issue was decided adversely to appellants in Moten v. State, 231 Ga. 642, 203 S.E.2d 527, and that case in controlling here. We find no merit in this enumeration of error.

Three enumerations of error relate to testimony concerning the tennis shoe tracks observed by the officers and the photograph of the shoe tracks found by the car in the churchyard. Appellants argue the photograph was not relevant and should have been excluded from evidence on this ground. We cannot agree with this...