Shy v. State

• Decision Date: 02 September 1975
• Docket Number: No. 29891,29891
• Parties: Thomas H. SHY v. The STATE.
• Court: Georgia Supreme Court

Page 599

218 S.E.2d 599

234 Ga. 816

Thomas H. SHY v. The STATE.

No. 29891.

Supreme Court of Georgia.

Sept. 2, 1975.

Joe Salem, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carole E. Wall, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

Appellant Thomas A. Shy was convicted, after a jury trial in Fulton County Superior Court, of the murder of his wife, Catherine Shy, and of the aggravated assault of Anthony Coley. Appellant was sentenced to life imprisonment for the murder and also received a concurrent 10-year sentence for the aggravated assault. This appeal was filed after appellant's motion for a new trial was denied in the trial court. We find no reversible error for any reason enumerated in this appeal.

Appellant's wife and Anthony Coley were seated in the latter's automobile in a parking lot at the corner of Bankhead and Law Streets in the City of Atlanta. They had been talking for a short time when the appellant, Thomas Shy, drove up to the location. According to Coley's testimony, appellant pulled out a gun and after a short discussion fired some shots in their direction. He then reached into his wife's jacket and took her gun. He kept both guns pointed at Coley and his wife while they discussed the situation for about an hour.

A police officer drove up around 1:50 A.M. to investigate the parked cars and saw appellant kneeling or squatting beside the passenger side of the car where his wife was seated. Mrs. Shy told the officer that nothing was wrong and he left. Coley contends that he and Mrs. Shy both were frightened and that they lied to the officer.

The witness Coley further testified that approximately 45 minutes later he noticed that he had been shot from the earlier fracas and Mrs. Shy began scuffling with her husband. Appellant fired both guns into the car whereupon Coley opened the car door on his side and rolled underneath the car. Appellant then walked around to the driver's side and fired several more shots. At this same time, another officer of the Atlanta Police Department was on patrol and he noticed the cars in the parking lot. The officer heard what he thought was gunfire and he saw appellant standing beside Coley's car and saw appellant fire into the car.

The officer drove his car closer, got out of it, drew his revolver and ordered appellant to drop his gun. Appellant, after a pause, laid it down and the officer ordered him to spread-eagle himself on the ground. While on the ground the officer straddled appellant and began to frisk him but did not state that appellant was under arrest. The officer asked what was going on and appellant said, 'I caught my wife and that son of a bitch and I shot him.'

About this time, the officer noticed some movement under Coley's car and ordered whoever was under there to come out or be shot. Coley replied that he had been shot. Another officer then arrived and appellant was handcuffed and taken to the patrol car. Coley was helped from under his car and an ambulance was called. Coley refused to make any statements before consulting with his attorney. Only then did the officer go to Coley's car and discover appellant's wife, Mrs. Shy, who had been fatally wounded. After appellant had been taken to the patrol car, he was advised of his Miranda rights. Appellant's version of the incident differs from that of the witness Coley. Appellant claims that he had only one gun which he drew and fired only in self-defense after Coley fired a gun at him and appellant's wife.

During the closing argument of the defense, Mrs. Shy's sister became visibly upset. Again during the State's closing argument, the victim's mother cried out that appellant had 'killed her for what she had' and the sister fell to the floor. The defense moved for a mistrial and it was denied. The trial judge instructed the jury to disregard the outburst and to eradicate it from their minds.

During the State's closing argument the prosecutor made two additional statements which defendant contends were prejudicial to him and require a new trial. These statements are: (1) 'Now it's all right for Mr. Shy to exercise his constitutional rights to talk to an attorney but not for Mr. Coley. What about that? You heard Detective Scappaticcio testify that after Shy was taken down and booked, advised of his constitutional rights, he asked for his attorney. No we shouldn't discuss that.' (2) 'Now, if the defendant is telling the truth how is it that Coley had her pistol, because you see Shy said that as Catherine started back to the car and opened the door, Coley just started shooting. What was he doing with her pistol? You don't believe that for a minute. You are reasonable. That's an out and out lie, I submit to you from the evidence of the other witnesses.'

Appellant urges three grounds as error requiring a new trial. The first is that the trial court erred in allowing into evidence the alleged admission of appellant to the police officer because it was taken in violation of appellant's right to be advised of his right to remain silent and his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Secondly, appellant contends the trial court failed to eradicate the prejudice to appellant that arose from the outbursts of the victim's relatives and that defendant was thereby denied a fair and impartial trial by jury.

Finally, appellant contends the remarks made in closing argument by the prosecutor were prejudicial to the appellant and were in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution. We deal with each of these three contentions seriatim in this opinion.

I.

Appellant's Statement to the Police Officer.

The police officer who first came upon the scene was called to testify by the State. The trial court held a Jackson-Denno hearing (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908) to determine whether or not the statement made by the defendant was admissible under Miranda, supra.

The trial judge ruled that appellant's statement was admissible as part of the on-the-scene investigation which was reasonable in order to protect the officer. The defense takes the position that the officer had witnessed the offense of discharging a firearm occur and therefore had sufficient information to arrest the defendant at that point. For this reason, the defense contends that Miranda warnings were immediately required and that it was error not to give them.

The issue to be decided is whether or not the appellant was 'in custody or otherwise deprived of his freedom of action in any significant way' in order to trigger the requirement that Miranda warnings be given. Some restraint on individual freedom is clearly permissible without the warnings. In the context of Miranda, custody is not defined as 'any' deprivation of freedom, but rather as a 'significant' deprivation of freedom. See Smith, The Threshold Question in Applying Miranda: What Constitutes Custodial Interrogation? 25 S.C.L. Rev. 699, 706 (1974).

However, the Miranda requirement for warnings is not limited to station-house interrogation. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). The defendant in Orozco, when interrogated by the police, was not 'free to go where he pleased but was 'under arrest. " Is the test of 'custody' that triggers the Miranda admonitions simply that the defendant is not 'free to go' or is more required to make the warnings necessary?

Some courts have defined custody in terms of whether the defendant was deprived of his freedom of action. See People v. Arnold, 66 Gal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515. We think a more reasonable test recognizes this as a factor to be considered, but also recognizes the possibility of a more limited type of detention in which the defendant is not 'free to go' but the Miranda warnings are not required at the initial contact. See United States v. Coates, 161 U.S.App.D.C. 334, 495 F.2d 160 (1974).

Illustrative of this limited detention situation are the Terry-type investigative detentions, which are not equivalent to 'custody,' and also the on-the-scene investigations in which a police officer prevents anyone present from leaving before a preliminary investigation is made. Both are recognized, at least implicitly, in Miranda and, of course, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

The Supreme Court has not clearly defined the bounds of constitutionally permissible police investigative techniques. Miranda, by its own terms, does not apply to 'general on-the-scene investigation.' The police on the scene of a crime are likely to detain temporarily anyone who tries to leave before a preliminary investigation. See, Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968); see, also, Arnold v. United States, 382 F.2d 4 (9th Cir. 1967).

Because of the diversity of street encounters between police and citizens, the courts are left with a case-by-case determination of whether constitutional rights have been violated by police activity. In Terry investigative detentions, the citizen is detained, but Miranda does not always attach to these circumstances. In Terry, there is an indication that some inquiry is permissible. The Court's holding recognizes that a police officer in the course of investigating unusual behavior can make reasonable inquiries to dispel his reasonable fears for his own safety and that of others. 392 U.S. 30, 88 In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and its companion case, Peters was asked what he was doing in an apartment building. When the answer given was not satisfactory to the officer, a pat-down was begun that led to the discovery of burglary tools. As a noted writer points out, in the street encounter the suspect either gives an explanation that satisfies the officer or adds to the officer's suspicion and...