Peabody v. State
| Decision Date | 14 February 1989 |
| Docket Number | No. 77804,77804 |
| Parties | PEABODY v. The STATE. |
| Court | Georgia Court of Appeals |
Harlan M. Starr, Dalton, for appellant.
Jack O. Partain III, Dist. Atty., for appellee.
David "Skip" Peabody appeals from his convictions on one count of burglary and seven counts of forgery in the first degree.
1. Appellant contends the trial court erred by admitting into evidence the statements he made to the police because the State failed to prove appellant knowingly and intelligently waived his right to counsel. At the hearing conducted pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Detective Quarles of the Whitfield County Sheriff's Department testified that he interviewed appellant on July 16, 1987, on December 9, 1987, and two days thereafter at appellant's own request. Detective Quarles stated that he ascertained during the first interview that appellant was 34 years old with a two-year college degree. Quarles testified he then read appellant a form setting forth his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including, inter alia, that appellant had the right to talk to a lawyer, to have the lawyer present with him while he was being questioned, and to have one appointed to represent him before any questioning, if he wished and could not afford to hire one. Detective Quarles stated appellant signed the form under the waiver, providing "I have read the above statement of my rights and I understand each of those rights, and having these rights in mind I waive them and willingly make a statement." Detective Quarles testified that appellant was likewise advised of his Miranda rights on both of the succeeding interviews and that appellant signed a second form waiving his rights at the December 9 interview. Detective Quarles stated that at each interview appellant seemed to understand his rights as they went over them, that appellant did not appear to be under the influence of any alcohol, drugs, or other intoxicants, that no threats or hopes of benefit or reward were made to appellant, and that appellant's statements were voluntarily made.
Appellant testified that at the time of the July 16 interview, he was under the influence of pain medication prescribed for a work-related back injury which "[s]lowed [him] down" but that he "had a pretty good bit of my wits together, except for the slowness." While appellant acknowledged he was read his Miranda rights at that time, he stated he understood them to mean that he was entitled to a lawyer only before he went to court, not at the time of the questioning. At the second interview, appellant stated that because the detective did not "just come right out and say, 'You need a lawyer,' " that appellant did not understand he was supposed to have a lawyer with him before he volunteered any information. When asked whether he understood the rights read to him, appellant replied, "[n]ot deep down and heartily like I should've." On cross-examination, appellant acknowledged that he was not "a stranger to the criminal justice system," having been in court before on other charges in the past and having been read his rights before the subject incidents.
Johnson v. State, 186 Ga.App. 801, 803, 368 S.E.2d 562 (1988).
2. Appellant contends the trial court erred by denying his motion for a new trial because the evidence was insufficient to support his convictions for the burglary of Capitol Adhesives, a business engaged in the manufacture of carpet adhesives, and for seven counts of forgery involving checks stolen from another business, North Georgia Yarn Shippers. Specifically, appellant contends that the testimony of accomplices was not sufficiently corroborated.
As to the burglary count, at trial appellant's co-defendant, Keith Barclay, testified that when appellant and Randy Thomas visited him at Capitol Adhesives, where Barclay was employed, they had discussed how easy it would be to burglarize the business, that appellant at that time broke into a locked tool box to examine its contents and told Barclay not to worry about the damage since "he was gonna come back and take it," and that Barclay showed appellant how to enter the business by pulling up the corner of the roll-up dock door. Barclay testified that the business was burglarized the night of his discussion with appellant and that when Barclay asked appellant if he had done it, appellant said yes, and that Barclay should have seen Randy Thomas face when appellant wheeled over some cutting torches to cut open a vending machine on the premises.
A review of the evidence at trial reveals testimony by appellant that he and Randy Thomas talked to Barclay at Capitol Adhesives, at which time Barclay told them it would be easy to break into the business, and when appellant inquired how easily, Barclay demonstrated the vulnerability of the dock door. Appellant had stated to Detective Quarles, and testified as well at trial, that he had purchased tools from Randy Thomas around the time of the Capitol Adhesives burglary and that he suspected, but had no proof, that the tools were stolen from that business.
The State also introduced as corroborating evidence the testimony of Charles Kirby, the Capitol Adhesives employee who discovered the burglary, who stated that there was no sign of forcible entry, but that entry could be made through the dock door by squeezing through the edge of it. Kirby also stated that he discovered the vending machine had been cut open by means of a torch and crowbars and that in addition to the money in the vending machine, 290 blank Capitol Adhesives checks had been taken as well as some three to four thousand dollars worth of tools. Detective Quarles testified that when he spoke to appellant on December 9, after he told appellant that someone "had used their trump card on him" (a phrase an informant had heard appellant use), appellant immediately responded that Keith Barclay was lying, even though Detective Quarles had not mentioned Barclay's name to appellant at that point.
As to the seven counts for forgery involving...
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