Petty v. State

• Decision Date: 10 March 2008
• Docket Number: No. S07A1438.,S07A1438.
• Citation: 658 S.E.2d 599,283 Ga. 268
• Parties: PETTY v. The STATE.
• Court: Georgia Supreme Court

658 S.E.2d 599

283 Ga. 268

PETTY v. The STATE.

No. S07A1438.

Supreme Court of Georgia.

March 10, 2008.

Michael Gregory Schiavone, Jackson & Schiavone, Steven L. Sparger, Savannah, for Appellant.

Melanie Higgins, Asst. Dist. Atty., Spencer Lawton, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Ast. Atty. Gen., for Appellee.

HUNSTEIN, Presiding Justice.

Appellant Kareem Petty was convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a felony in connection with the shooting death of Gloria Peloquin. The trial court denied Petty's motion for new trial¹ and he appeals.

1. The evidence authorized the jury to find that police responding to a report of a minor traffic accident just outside the parking lot of a shopping center discovered that the driver of one vehicle had been shot and was dead. A witness had seen a young African-American male waiting nervously outside a Save-A-Lot store in the shopping center and then walking "shoulder-to-shoulder" with the victim to her vehicle; the same person ran through the parking lot and past the witness's van after the shooting and traffic accident. Two other witnesses saw a person running from the scene after the sounds of a gunshot and a car crash. Describing a teenaged African-American male of medium height with a light complexion, these witnesses identified Petty in photo lineups and at trial.

A photo from the Save-A-Lot's surveillance video showing the victim inside the store with an unidentified person was broadcast on the news, and police received a tip identifying that person as Ervin Fox. When brought in for questioning, Fox said that the shooter was a person by the name of "Little E" or "Little Red," which police determined was Kareem Petty's nickname. Police interviewed Petty who was 16 at the time and was accompanied by his mother, on two occasions. At the first interview, Petty was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signed a written waiver of those rights; he denied knowing anything about the murder and said he heard that Fox did it. When Petty returned for additional questioning the next day at the request of police, he again was read and waived his Miranda rights. After first giving various conflicting versions of events, Petty finally admitted that he and Fox were at the Save-A-Lot; that he waited outside the store while Fox followed the victim inside; that when the victim and Fox came back out, Fox ordered him to rob the victim; that he walked with the victim to her vehicle and asked her for change; that when they reached her vehicle he pulled a gun and a struggle ensued in which the victim was accidentally shot; and that the victim tried to drive away, but hit another car.

Viewed in the light most favorable to the verdict, the evidence was sufficient for a rational trier of fact to find Petty guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Petty contends that the trial court erred by denying his motion to suppress his second statement to police.

When an appellate court reviews a trial court's grant or denial of a motion to suppress, the trial court's findings as to disputed facts will be upheld unless clearly erroneous and the trial court's application of the law to undisputed facts is subject to de novo review. [Cit.]

State v. Nash, 279 Ga. 646, 648(2), 619 S.E.2d 684 (2005).

The trial court found that Petty was not in custody at the time he made the second statement. The record reveals that Petty was allowed to leave after his first interview and that, when police contacted his mother the next day and asked to speak with him again, he returned to the police station voluntarily. While in the hallway before entering the interview room, Petty asked for an attorney, which led to a discussion regarding whether and how he could obtain court-appointed or retained counsel. Petty thereafter entered the interview room, was read and waived his Miranda rights, and submitted to questioning. He was not prevented from leaving or terminating the interview. After Petty provided incriminating information, the police placed him under arrest. In determining whether a suspect is in custody, the question is whether "a reasonable person in [his] situation would believe he was being restrained to the degree associated with a formal arrest." (Footnote omitted.) McDougal v. State, 277 Ga. 493, 497(1)(A), 591 S.E.2d 788 (2004). As a reasonable person in Petty's situation would not have felt so restrained, we agree with the trial court that Petty was not in custody when he made the second statement.

Petty maintains that any questioning by police after his request for an attorney violated his Fifth Amendment right to counsel under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, the bright-line rule of Edwards, requiring that all questioning cease after an accused has requested counsel, applies only to custodial interrogation. Id. at 485(II), 101 S.Ct. 1880 ("it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel"). To the extent that Nobles v. State, 191 Ga.App. 594(1), 382 S.E.2d 637(a) (1989) can be read to hold that Edwards also applies in a non-custodial situation, it is hereby overruled. See McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (Miranda rights cannot be invoked anticipatorily in context other than custodial interrogation). Because Petty was not in custody at the time he made the second statement, it follows that there was no Edwards violation and that the statement was properly admitted.

3. Petty argues that the trial court erred by denying his motion to require the State to give an initial closing argument. OCGA § 17-8-71 provides that "[a]fter the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury." Notwithstanding the use of the word "shall," we have long held that the trial court, in its discretion, may permit a waiver of the initial closing argument. Bradham v. State, 243 Ga. 638(2), 256 S.E.2d 331 (1979). Although OCGA § 17-8-71 was amended in 2005 prior to Petty's trial, the...