State v. Abbott

• Decision Date: 15 March 2018
• Docket Number: S17A1583
• Citation: 812 S.E.2d 225
• Parties: The STATE v. ABBOTT.
• Court: Georgia Supreme Court

303 Ga. 297

812 S.E.2d 225

The STATE

v.ABBOTT.

S17A1583

Supreme Court of Georgia.

Decided: March 15, 2018

Joshua Bradley Smith, Henry Wayne Syms, Tyler McKenzie Gray, Augusta Judicial Circuit District Attorney's Office, 735 James Brown Blvd. Suite 2400, Augusta, Georgia 30901, Christopher M. Carr, Patricia B. Attaway Burton, Paula Khristian Smith, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant.

Ricardo Bravo, Law Offices of Ricardo Bravo, LLC, 3540 Wheeler Road Suite 509, Augusta, Georgia 30909, Charles R. Sheppard, 7013 Evans Town Center Boulevard, Suite 302, Evans, Georgia 30809, for Appellee.

Hines, Chief Justice.

This is an appeal by the State from an order of the superior court suppressing video-recorded statements that defendant Dijon Cortez

Abbott gave to an investigator to be used in his prosecution for murder and other crimes. See OCGA § 5-7-1 (a) (4) ; State v. Andrade , 298 Ga. 464, 782 S.E.2d 665 (2016). For the reasons which follow, we affirm in part, vacate in part, and remand the case with direction.

On September 10, 2013, a Richmond County grand jury returned an indictment charging Abbott with murder and the related crimes of aggravated assault, possession of a firearm during the commission of a crime, unlawful gang activity, criminal damage to property in the second degree, and reckless conduct, all in connection with the fatal shooting of Marques Eubanks and the wounding of two other individuals on July 18, 2013.¹ There were two suppression hearings, at which Investigator Chris Langford and Deputy Sheriff Beverly Hoffman-Wright testified. Following the hearings, the superior court entered its order suppressing the entirety of Abbott’s video-recorded statements.

In its order, the superior court found the following, all of which is supported by the video-recorded interview or the transcripts of the suppression hearings. During a shooting between members of two rival gangs at a house party late in the evening, Abbott shot and killed one man and seriously injured another. Abbott claims that, at the same time, he was shot in the right leg and left arm, and he also was injured when fleeing across a wooden fence. He subsequently had a bandage on his left arm and clearly had a painful injury below his right knee. Based on the sheriff’s investigation, Abbott, who was a 17-year-old high school student, was identified as a suspect or person of interest. On the day after the shooting, four or five sheriff’s vehicles converged on Abbott’s mother’s house. He was not present but appeared shortly after his mother telephoned him. Abbott was placed in the back of Deputy Hoffman-Wright’s patrol car and was not handcuffed, shackled, or questioned at that time. Instead, he was transported to the criminal investigation division of the sheriff’s office and placed in an interrogation room with his left leg shackled to the floor. He was left alone in that condition for at least 32 minutes until Investigator Langford entered the room. Abbott was not told that he could leave at anytime, and he was interrogated for 53 minutes before being informed of his Miranda rights.² In the course of that pre- Miranda interrogation, Abbott admitted that he was present at the party, subsequently admitted that he possessed a pistol, and later admitted that he shot three times in the house and three times outside. Immediately after Abbott’s admission of firing inside the house, Langford gave Abbott the Miranda warnings, had him sign a waiver form, resumed the interrogation for 34 minutes, and obtained further incriminating admissions. The possibility of self-defense was discussed extensively. After the conclusion of the interrogation, Abbott remained in the interrogation room for at least 56 more minutes, during which time deputies gave him some aid for his wounds

and performed a DNA swab test. Based on its findings, the superior court concluded that Abbott was in custody no later than the time when he was placed in the interrogation room and shackled to the floor, because no reasonable person could believe that he was free to leave under Abbott’s circumstances. Considering all of the circumstances, the superior court not only excluded Abbott’s pre- Miranda statements, it also excluded all of his post- Miranda statements as having resulted from an "interrogate first, warn later" procedure that violated Missouri v. Seibert , 542 U.S. 600, 616-617, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and State v. Pye , 282 Ga. 796, 803, 653 S.E.2d 450 (2007).

1. Initially, we address the State’s contention regarding the standard of review. " ‘In reviewing a ruling on the admissibility of a defendant’s statements where the facts are disputed, we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but we independently apply the law to the facts.’ " Teasley v. State , 293 Ga. 758, 762 (3), 749 S.E.2d 710 (2013) (citation omitted). The State, however, argues that we should review the facts de novo because the interview of Abbott was video-recorded and the trial court made no findings as to witness credibility. It is true that the reviewing court may "consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility, such as facts indisputably discernible from a videotape." State v. Allen , 298 Ga. 1, 2 (1) (a), 779 S.E.2d 248 (2015) (citation and quotation marks omitted). On the other hand, to the extent that legally significant facts were proved by evidence other than the video recording, the trial court as fact-finder was entitled to determine the credibility and weight of that other evidence. See State v. Chulpayev , 296 Ga. 764, 771 (2), n. 5, 770 S.E.2d 808 (2015). Here, for example, as to the officers who testified about their interaction with Abbott, the trial court "could have assigned no weight at all" to their testimony. Hughes v. State , 296 Ga. 744, 747 (1), 770 S.E.2d 636 (2015) (emphasis in original).

"Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may

accept or reject any portion of the testimony." ... [E]specially where, as here, the trial court has made extensive findings of fact, we generally must presume that the absence of a finding of a fact that would tend to undermine the conclusion of the trial court reflects a considered choice to reject the evidence offered to prove that fact, especially where there were grounds upon which the trial court properly could have assigned no weight to such evidence.

Id. (citation and parentheses omitted; emphasis in original).

2. With these principles in mind, we turn to the State’s contention that the superior court erred in finding that the pre- Miranda phase of the interview constituted custodial interrogation.

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary. Thus, the proper inquiry is how a reasonable person in [Abbott]’s shoes would have perceived his situation.

State v. Troutman , 300 Ga. 616, 617 (1), 797 S.E.2d 72 (2017) (citations and punctuation omitted). The State argues that the superior court failed to consider that Abbott voluntarily went to the sheriff’s office to further a narrative that he was merely a gunshot victim. Most of the evidence on which the State relies is from the testimony of the officers at the suppression hearing, such as the testimony that Abbott would have been in handcuffs if he had been in custody, that he did not ask his mother to accompany him, that he was not first taken into the booking area, and that he knew his peers were at the office apparently being interviewed as witnesses. The superior court’s findings and the video recording, however, show that Abbott was never told he was free to leave, that he was kept in a closed interrogation room before and during the entire interview, see Statev. Folsom , 286 Ga. 105, 108 (1), 686 S.E.2d 239 (2009), and, most important, that he was kept shackled to the floor in that room not only for the entire interrogation, but also for something over half an hour while he was alone before the interrogation even began.

In general, "[r]esort to physical restraint is almost certain to result in a holding that an arrest had been made." 3 Wayne R. LaFave, Search and Seizure § 5.1 (a) (5th ed.). The notable exceptions to this observation involve either a second-tier, investigatory stop or a first-tier encounter when the defendant has voluntarily consented to an interview and is handcuffed during transportation in a police car as a reasonable safety measure and the handcuffs are removed before the evidence as to which the defendant seeks suppression is obtained. Wingate v. State , 296 Ga. 21, 25-26 (2) (b), 764 S.E.2d 833 (2014). Abbott was not detained pursuant to a limited investigatory stop, and he was left alone and shackled for more than half an hour, unable even to move around the closed interrogation room, much less leave the room or ask for the shackle to be removed so that he could leave. See id. at 26 (2) (b), 764 S.E.2d 833 ; State v. Nelson , 261 Ga. 246, 247 (1) (b), 404 S.E.2d 112 (1991). When an officer finally entered the room, he did not remove the shackle or ever give any indication that Abbott was free to leave or terminate the interview. See Folsom , 286 Ga. at 108 (1), 686 S.E.2d 239. Nor did the officer explain to Abbott why he was shackled. It is not significant that Langford testified the shackling was a security measure or that Abbott appeared cooperative in an attempt to further his own narrative, not...