State v. Lucas, No. A03A2438.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: MIKELL.
• Citation: 265 Ga. App. 242,593 S.E.2d 707
• Parties: The STATE v. LUCAS.
• Docket Number: No. A03A2438.
• Decision Date: 20 January 2004

593 S.E.2d 707
265 Ga. App. 242

The STATE
v.
LUCAS

No. A03A2438.

Court of Appeals of Georgia.

January 20, 2004.

593 S.E.2d 708

Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Gary S. Vey, Jennifer L. White, Asst. Solicitors-General, for appellant

Daniel V. Klump, Lawrenceville, for appellee.

MIKELL, Judge.

The state appeals the trial court's order granting Vernon Franklin Lucas's motion to suppress his statement, made without the benefit of Miranda warnings, concerning ownership of marijuana found during a search of his residence. The state contends that Lucas's request for a hearing was untimely and that he was not in custody for Miranda purposes when he made the statement. We disagree and affirm.

1. Uniform Superior Court Rule 31.1 provides that "[a]ll motions, demurrers, and special pleas shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial."¹ The record shows that Lucas complied with Rule 31.1 by filing his motion to suppress on July 11, 2002, 18 days prior to his July 29 arraignment. Nevertheless, the state argues that the trial court erred in holding a hearing on the admissibility of the statement pursuant to Jackson v. Denno² because Lucas did not file a request for a hearing until June 25, 2003. This contention is meritless. "Where the voluntariness of a confession is questioned on the trial of a criminal case it is necessary under [Jackson v. Denno] to have a separate hearing as to its voluntariness before it is finally presented to the jury for consideration as to its voluntariness."³ In addition, the state failed to object in the trial court to Lucas's request for a hearing. "Hence, the first enumerated error attempts to raise for the first time a question which was not raised in the trial court and therefore presents nothing for decision." ⁴[265 Ga. App. 243]

2. The state next challenges the trial court's ruling that Lucas was in custody for Miranda purposes when he stated that he owned the marijuana found in his residence. "The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous."⁵ In addition, we construe the

593 S.E.2d 709

evidence in the light most favorable to the trial court's findings and judgment and will not disturb those findings unless no evidence exists to support them.⁶

So viewed, the evidence adduced at the hearing shows that two deputy sheriffs, Olen Harris and Dominick Crea, arrived at Lucas's residence on March 7, 2002, to serve a warrant on a man named Gerald Williams. Deputy Harris knocked on the front door while Deputy Crea guarded the back door in case Williams tried to flee. Lucas invited Deputy Harris inside the living area, where he and a man named Byrd were seated. At that moment, Deputy Harris saw Byrd lean down and place something beside his leg. Deputy Harris told Byrd to put his hands in his lap.

Deputy Harris called Deputy Crea inside, and Crea obtained permission from Lucas, who rented the house, to search for Williams. Deputy Crea went upstairs and discovered marijuana and rolling papers on top of a cookie tray in the bedroom. He brought the tray downstairs and inquired as to whom it belonged. Lucas replied that it was his, and he was arrested for possession of marijuana. Deputy Crea testified that Lucas was never given Miranda warnings.

While Deputy Crea was conducting the search, Deputy Harris remained downstairs. He asked Byrd what he placed beside his leg, and Byrd said "nothing." When...