State v. Hendrix, A96A0290

• Decision Date: 08 May 1996
• Docket Number: No. A96A0290,A96A0290
• Citation: 471 S.E.2d 277,221 Ga.App. 331
• Parties: THE STATE v. HENDRIX.
• Court: Georgia Court of Appeals

Page 277

471 S.E.2d 277

221 Ga.App. 331

THE STATE v. HENDRIX.

No. A96A0290.

Court of Appeals of Georgia.

May 8, 1996.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellant.

Lloyd C. Burton, Rome, for appellee.

McMURRAY, Presiding Judge.

Defendant was charged in an accusation with two counts of violating the Georgia Controlled Substances Act, and also with recidivism under OCGA § 17-10-7. He filed a motion in limine and motion to suppress "certain statements [he made] and ... evidence [he provided] as a result of ... interrogation ... [conducted, although the] police did not obtain a qualified interpreter of the deaf as required by [OCGA § ] 24-9-103." At the hearing on this motion, Sergeant Stanley Sutton of the Rome/Floyd Metro Task Force Drug Unit testified that he went to defendant's place of employment to interview defendant about some marijuana defendant's son had at school and which the son allegedly told school officials "came from his father and his father's home." Sergeant Sutton explained to defendant's supervisor that he "needed to talk to [defendant] concerning about marijuana that was in his home and that we wanted to retrieve that marijuana." "[T]hey informed [Sergeant Sutton] that [defendant's] hearing was impaired, meaning that he was deaf." Sergeant Sutton had taken "three months of the sign language at Floyd College many years ago and ... can do a little bit of signing, but ... not as sharp or [expert] as [defendant] or other people that have a hearing ... (impairment)." Sergeant Sutton signed to defendant "that [he] was a policeman." Sergeant Sutton further signed to defendant: "That his b-o-y (Sergeant Sutton indicate[d] with hands) boy was arrested in school for pot (Sergeant Sutton indicate[d] with his hands). And the b-o-y, boy, said pot was daddy's--his (Sergeant Sutton indicate[d] with his hands)." When defendant indicated to Sergeant Sutton that "he wanted to see the pot, ... I asked him to come down to the police station----... s-t-a-t-i-o-n----station to see pot that----you know, dad or him----not arrest. He understood."

"Once at the police station, [they] signed notes.... [Defendant] would write down notes on a piece of paper." At the task force office, defendant "[c]ame in and he looked at the pot and he just made that sound, yeah, my pot----my pot. But he talked about a container that the pot was in; that that was not his container; that the pot was his." Sergeant Sutton "got a consent form, basically talked to him----to read his consent form, if he would give us permission to go to his home to get the pot." Defendant signed this form after Sergeant Sutton explained "if he didn't give us permission or if he didn't sign this that we would have to talk to a judge and try to obtain a search warrant; there were two ways that we could go about, you know----." Thereafter, Sergeant Sutton, "along with [defendant] and Investigator Barry McElroy rode down to [defendant's] residence in Cave Spring." Although defendant was not under formal arrest at that time, Sergeant Sutton "explained to him why [sic] we were en route there in leaving the office that if----talking about the police officer got the pot that he would be under arrest," that is, contingent upon finding marijuana in defendant's home. Defendant "showed [Sergeant Sutton] the pot on the dresser in the master bedroom." The police also "got others that were growing in the bathroom in little trays...." Sergeant Sutton took defendant out of the home and "back to the [unmarked police] car because [defendant's] wife was really upset and so once [Sergeant Sutton] got to the car, [he] told [defendant] he was under arrest for the pot and he understood."

Sergeant Sutton affirmed that he is "not certified as a sign language interpreter[; ... that he has not] kept up with the development of sign language and the changes in signs ... [; and that he has not] had any other courses in it [since 1972 or 1973]." Sergeant Sutton also confirmed that he made no attempt to call or locate a certified interpreter for the deaf at any time.

The trial court denied defendant's motion to suppress in part but concluded that, once defendant made an incriminating statement at the police station, admitting to the possession of less than one ounce of marijuana, "he was in custody ... and Defendant could not have believed he was free to leave.... Custody having been established, Defendant, a hearing impaired person as contemplated and defined by [OCGA § ] 24-9-101(2), [should have been] afforded the procedural protections of [OCGA § ] 24-9-103." Since the "arresting law enforcement agency did not immediately request a qualified interpreter for the hearing impaired ... before undertaking ..." its investigation, the trial court suppressed any evidence obtained after defendant's initial incriminating statement. The State brings this direct appeal from that order, pursuant to OCGA § 5-7-1(a)(4). Held:

1. The State first contends the trial court erred in its construction of the statutory language "taken into custody," as employed at OCGA § 24-9-103(a), for purposes of determining when the arresting law enforcement agency must provide a qualified interpreter for a deaf suspect. The State argues that the trial court failed to follow applicable case law. Specifically, the State objects to a purported conclusion that, as a matter of law, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 "and its progeny are not relevant to the facts before [the trial court] in the interpretation and application of O.C.G.A. § 24-9-103[.]" The record does not support this contention.

OCGA § 24-9-103(a) provides: "The arresting law enforcement agency shall provide a qualified interpreter to any hearing impaired person whenever the hearing impaired person is taken into custody for allegedly violating any criminal law...." That Code section further directs that the law enforcement agency shall immediately request a qualified interpreter and provides: "No interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided; and no answer, statement, admission, or other evidence acquired from the hearing impaired person shall be admissible ... unless such was knowingly and voluntarily given through and in the presence of a qualified interpreter." OCGA § 24-9-103(b)(1).

"Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), persons must be advised of their rights with respect to interrogation after being taken into custody or otherwise deprived of their freedom of action in any significant way. [Cit.]" Reinhardt v. State, 263 Ga. 113, 114(3)(a), 428 S.E.2d 333. A reasonable test of whether a person has been "taken into custody" for purposes of invoking the privilege against self-incrimination under the Fifth Amendment and Art. I, Sec. I, Par. XVI of the 1983 Georgia Constitution "recognizes the possibility of a more limited type of detention in which the defendant is not 'free to go' but [where] the Miranda warnings are not required at the initial contact." (Emphasis supplied.) Shy v. State, 234 Ga. 816, 818(I), 819, 218 S.E.2d 599. "In making the distinction between custodial and noncustodial interrogation[, Georgia law] has outlined several criteria: 'these include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation.' [Cit.] These all point to attempts by the police to gather incriminating information. [Cit.] All of these factors are significant elements to be weighed in determining the 'custody' issue. Of course, the police may not delay the [formal] arrest of a suspect or use a Terry rationale [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 ] as a subterfuge to coerce the suspect into incriminating himself without the benefit of Miranda warnings. [Cit.]" Shy v....