Rachell v. State, A93A1459

• Decision Date: 23 August 1993
• Docket Number: No. A93A1459,A93A1459
• Citation: 210 Ga.App. 106,435 S.E.2d 480
• Parties: RACHELL v. The STATE.
• Court: Georgia Court of Appeals

Page 480

435 S.E.2d 480

210 Ga.App. 106

RACHELL v. The STATE.

No. A93A1459.

Court of Appeals of Georgia.

Aug. 23, 1993.

John H. Tarpley, Lawrence L. Schneider, Decatur, for appellant.

J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Pursuant to a grant of partial habeas corpus relief, Alfred Rachell was granted authorization to file an out-of-time appeal of his conviction of three counts of armed robbery, two counts of rape, and one count of burglary. He enumerates three errors. This court considered the appeal of appellant's co-accomplices and affirmed their judgments of conviction. Hambrick v. State, 175 Ga.App. 207, 332 S.E.2d 907. Held:

1. Judicial notice is taken of the records in appellate cases nos. 70048 and 70123 and the transcript pertaining thereto, all of which relate to Indictment No. 83-CR-2769 and are currently on file with this court. Rogers v. State, 195 Ga.App. 446, 447(1), 394 S.E.2d 116.

2. Appellant asserts there is insufficient evidence to authorize the trial court to find the State proved by a preponderance of the evidence the voluntariness of appellant's confession and the existence of a timely Miranda rights warning and waiver.

(a) On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. In resolving appellate issues as to confession voluntariness and whether appellant was adequately advised of and waived his Miranda rights, an appellate court may consider all evidence of record, not merely that introduced at the Jackson-Denno hearing. See Robinson v. State, 194 Ga.App. 432, 433(2), 390 S.E.2d 652.

(b) Following a Jackson-Denno hearing, the trial court admitted appellant's two pretrial statements regarding the Rowe incident and the Rigdon incident, respectively. Inherent in its ruling was a finding that the statements were made freely and voluntarily. The evidence was in conflict as to whether appellant made the statements because of coercion, threats or improper inducements or promises, and whether he had freely and voluntarily waived his Miranda rights. " 'Factual and credibility determinations[, whether express or implied,] as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous.' " Mathis v. State, 192 Ga.App. 772, 773(2), 386 S.E.2d 532; see generally Peebles v. State, 260 Ga. 430, 396 S.E.2d 229. The trial court's ruling admitting the statements and finding that the threshold requirement for establishing voluntariness had been met was supported by evidence of record and was not clearly erroneous in any event. Also, "[o]nce Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights." Aldridge v. State, 258 Ga. 75, 76(3), 365 S.E.2d 111; Barrs v. State, 202 Ga.App. 520, 521, 414 S.E.2d 733.

Additionally, the record establishes that just before each of the two statements was obtained, appellant signed two separate Miranda rights waiver forms (SE Nos. 17-18). In addition to the waiver of rights provisions, each form contained a statement of Miranda rights. Appellant not only was allowed to read and sign these forms but was read each form by the investigator. We find that any statements by appellant after these waiver documents were read to and executed by him, were knowingly and voluntarily given, as were the waivers of Miranda rights which preceded such statements. Compare Reinhardt v. State, 263 Ga. 113, 115(4), 428 S.E.2d 333, citing Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222.

3. Appellant's claim of inadequacy of trial counsel is without merit.

(a) The applicable appellate standard is the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Williams v. State, 207 Ga.App. 418, 419, 427 S.E.2d 787. At the inadequacy of counsel hearing conducted approximately nine years after trial, appellant was unable to specify any particular performance of his trial counsel which fell below an objective standard of reasonableness, although he cited several general areas of perceived dissatisfaction (including the fact he was convicted and believed his counsel could have performed better).

Appellant admitted that in 1983, he does not think he would have been willing to enter into plea negotiations, as he wanted to go to trial because he was innocent.

In support...