Stapleton v. State

• Citation: 220 S.E.2d 269,235 Ga. 513
• Decision Date: 29 October 1975
• Docket Number: No. 30242,30242
• Parties: Early L. STAPLETON v. The STATE.
• Court: Georgia Supreme Court

Page 269

220 S.E.2d 269

235 Ga. 513

Early L. STAPLETON v. The STATE.

No. 30242.

Supreme Court of Georgia.

Oct. 29, 1975.

Paul J. Jones, Jr., Dublin, for appellant.

Beverly B. Hayes, Dist. Atty., Dublin, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Atlanta, for appellee.

HALL, Justice.

Defendant Early L. Stapleton appeals from conviction on two counts of murder and one count of aggravated assault and raises among others, two claims under the Fifth Amendment to the United States Constitution. One enumeration, that the charge to the jury that no inference may be drawn from defendant's failure to testify constituted a comment by the judge on the defendant's silence, we find does not rise to constitutional error; the other, that the playing of a taped confession taken during a custodial interrogation without the benefit of the full Miranda warnings is reversible constitutional error, also has no merit. We therefore affirm his conviction.

Defendant and four others, Larry and Sally NeSmith, Hervert Hall and Donald Neumans, met outside a bar at closing time and decided to go in defendant's station wagon to a nearby town for a late night supper. They first stopped at defendant's home where he picked up his pistol, then continued toward their destination by way of a back road. Sally NeSmith was driving, her husband was sitting next to her in the front seat, and Neumans was riding in the passenger seat. Defendant was seated directly behind Sally NeSmith and Herbert Hall fell asleep on the right side of the rear seat.

Hall testified that he was suddenly awakened by the sound of three gunshots and that he took a gun from the hand of the defendant, Early L. Stapleton. Sally NeSmith and Neumans died almost instantly from shots fired through their heads. Larry NeSmith, who was wounded in the hand, jumped out of the car and ran down the road to a house to call the sheriff. Hall followed, still holding the gun, while the defendant urged Hall to shoot NeSmith. The defendant then disappeared, allegedly also to call the sheriff.

When the sheriff and two deputies arrived, the sheriff went off to search for the defendant and the deputies remained to help load the bodies into an ambulance. As they were doing so, the defendant reappeared and stated to them, 'I am the man you are looking for. I shot these people. But I'm sorry.' The deputies immediately took him into custody.

1. The defendant's first enumeration of error relates to the playing of a taped confession over defendant's objection that the tape was made in violation of his Fifth Amendment rights and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965). He makes three claims in this regard: that the full Miranda warnings were not given in that the defendant was never informed of his right to appointed counsel, that he was intoxicated when the warnings given were recited to him, and that they were not repeated and were therefore stale when the taped interrogation was made some thirty hours after his arrest.

At trial when the state was about to introduce the taped confession during the questioning of the sheriff, the defense objected and the jury was excused pending a Jackson v. Denno hearing on the tape's admissibility. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963). At such a hearing, the state must prove by a preponderance of the evidence that the confession was made voluntarily. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1971). A prerequisite to the voluntariness issue and to allowing use of the confession at trial is that the Miranda warnings must have been given. Miranda v. Arizona, supra.

In Miranda, the United States Supreme Court said, '. . . the following measures are required. (The defendant) must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' Miranda, p. 479, 86 S.Ct. p. 1630. (Emphasis supplied). In elaborating on the full extent of the defendant's rights, the Court also stated, '. . . it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.' Id., p. 473, 86 S.Ct. p. 1627. See Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). See also, Dempsey v. State, 225 Ga. 208, 166 S.E.2d 884 (1969). It is thus clear from the decisions of the Supreme Court that the defendant must be advised that he has the right to appointed counsel, and if he is not so warned, his statements may not be used by the state in their case in chief against the defendant.

From the evidence elicited during the Jackson v. Denno hearing in the case at bar, it appears from the sheriff's testimony on both direct and cross-examination that he did not advise the defendant of his right to appointed counsel. He was asked to repeat the substance of his warnings five times, and admitted on cross-examination that was all he told the defendant 'to the best of my recollection.'

However, an appellate court is not bound merely by the evidence adduced during the Jackson v. Denno hearing in determining the voluntariness of the confession, but must look to all the evidence contained in the record. ¹ The Supreme Court said in Blackburn v. Alabama, 361 U.S. 199, 210, 80 S.Ct. 274, 282, 4 L.Ed.2d 242 (1959), '. . . we reject the notion that the scope of our review can be thus restricted. Where the involuntariness of a confession is conclusively demonstrated at any stage of a trial, the defendant is deprived of due process . . .' We hold that the reverse is also true; where the voluntariness is shown outside the Jackson v. Denno hearing we will support the rulling of the trial judge admitting it. There is nothing to be gained by requiring a second trial where there is ample evidence brought out in the first trial to support the admission of the confession. See, Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975). See also Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969).

When the jury returned to the courtroom after the trial court had overruled the defendant's motion, the sheriff unequivocally stated he had told Stapleton that, 'if he did not have the funds that the court would appoint him a lawyer.' We therefore hold that the court did not err in ruling that the Miranda warnings were given to the defendant as required by law.

Defendant further contends, however, that the Miranda warnings were ineffective because he was intoxicated and could not have understood, and voluntarily and knowingly waived, his constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). However, this contention is without merit. The preponderance of the evidence at the Jackson v. Denno hearing was that, although he appeared to be under the influence of alcohol, he was clearly not 'drunk', and was capable of understanding what was said to him. Welch v. State, 235 Ga. 243, 219 S.E.2d 151 (1975); Hayes v. State, 235 Ga. 46, 218 S.E.2d 798 (1975).

Defendant's third contention regarding the admissibility of the taped confession involves the thirty hour time lapse between the warnings given to the defendant and the actual taping of the confession. In Moten v. State, 231 Ga. 642, 203 S.E.2d 527 (1974), we held tht a two-day period between fully advising the defendant of his rights and the actual confession, at which time he was merely reminded of the previous warnings, did not render the confession inadmissible. See also, Bonds v. State, 232 Ga. 694, 208 S.E.2d 561 (1974); United States v. Daulton, 488 F.2d 524 (5th Cir. 1973). Here, then, thirty hours between warning the defendant and taping the confession would not in itself render the tape inadmissible. The tape itself shows that the sheriff carefully reminded the defendant of his rights to remain silent and to have an attorney present. It is also clear from the tape that the defendant's confession was entirely voluntary. Herrmann v. State, 235 Ga. 400, 220 S.E.2d 2 (1975).

We therefore hold that the trial court did not err in admitting the tapped confession and allowing it to be played to the jury.

2. Defendant Stapleton contends in his second enumeration of error that the charge given by the court on the failure of the defendant to testify constituted a comment in violation of his statutory, Code Ann. § 38-415, and constitutional rights, United States Constitution, Amendment 5.

The charge as given was 'And now I charge you ladies and gentlemen of the jury, that the defendant in this case is not obligated under the law to make any statement in his own defense. The law provides that he may or may not make any statement in his own behalf, as he sees fit. The burden of proof being always upon the State to establish the fact of the guilt or innocence. There is no presumption against the defendant by reason of his silence. The burden is upon the State to establish his guilt beyond a reasonable doubt.' The defendant did not request this charge, nor did he object to it at trial.

Defendant's contention that the charge violates his statutory rights under Code Ann. § 38-415 has been decided adversely to him in our recent decision of Woodard v. State, 234 Ga. 901, 218 S.E.2d 629 (1975), where we held that it is proper for the court to give a charge on the defendant's failure to testify without a request and that it is not reversible...