State v. Summers

• Decision Date: 21 November 1984
• Docket Number: No. 68672,68672
• Citation: 325 S.E.2d 419,173 Ga.App. 24
• Parties: The STATE v. SUMMERS.
• Court: Georgia Court of Appeals

Page 419

325 S.E.2d 419

173 Ga.App. 24

The STATE v. SUMMERS.

No. 68672.

Court of Appeals of Georgia.

Nov. 21, 1984.

Rehearing Denied Dec. 10, 1984.

Certiorari Denied Jan. 24, 1985.

Certiorari Grnated Feb. 28, 1985.

Sam B. Sibley, Jr., Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellant.

Richard E. Allen, Augusta, for appellee.

POPE, Judge.

The State appeals from the grant of a motion to suppress certain statements made by appellee Brian Michael Summers. Summers is accused of the murder of Kelly Vandersall. On June 11, 1983 Vandersall's body was discovered buried some four feet and ten inches deep in a wooded area of Columbia County. At the time of her death, Vandersall was a fifteen-year-old high school student. An autopsy was performed and a preliminary determination of death by strangulation was made. During its initial investigation, the GBI questioned several people who might have information regarding the girl. One of these was Summers, who had been one of Vandersall's teachers at Harlem High School. During this initial interview, Summers admitted taking Vandersall home on one occasion. Discrepancies between Summers' account and the accounts of others led the GBI to question Summers at his home a second time. Summers then stated he had taken her home several times.

On June 24, 1983 the GBI requested that Summers come to its Thomson headquarters for further questioning. Summers was initially questioned by Agent Seigler. Seigler informed Summers that he was not under arrest or in any type of custody and would be free to leave anytime he wished. Seigler informed Summers of his Miranda rights and Summers agreed to be interviewed, saying he understood his rights; after Summers signed a waiver form, Seigler proceeded to question him. In the course of the interview, Summers also underwent a polygraph examination administered by Seigler. After Seigler finished, Summers agreed to talk to another GBI agent named Cadle. Cadle again informed Summers of his Miranda rights and questioned him for about half an hour. In the interviews with Seigler and Cadle, Summers denied any knowledge of or involvement with the death of Vandersall. Combined, the two interviews lasted approximately two hours.

The crux of the suppression motion, and this appeal, comes from the third interview that day. Summers agreed to talk with Agent Tarvin when Agent Cadle concluded. Agent Tarvin again reminded Summers of his Miranda rights. At this point, we quote the trial court's findings of fact "On June 24, 1983 Brian Michael Summers was present for questioning concerning the death of Kelly Vandersall at the Georgia Bureau of Investigation (GBI) office in Thomson, Georgia. After being polygraphed and questioned by GBI Agents Mike Seigler and Homer Cadle, Summers was interviewed by GBI Agent James Tarvin. Agent Tarvin informed Summers that in past cases charges had been reduced for defendants who had cooperated. Agent Tarvin, during the course of that interview, informed Summers that a murder charge could be reduced to manslaughter and that any reduction in the charge would be up to the judge. Agent Tarvin also told Summers that if he cooperated it would be brought to the attention of the District Attorney's Office and to the attention of the court. During the course of that interview Agent Tarvin told Summers that fingerprints had been found at the victim's gravesite and if Summers did not cooperate with the Agent during the questioning, and the fingerprints subsequently were found to match Summers' prints, he would be arrested and Tarvin would not discuss the case with him again. During the course of that interview Agent Tarvin left the interview room to allow Summers to telephone his wife and when Agent Tarvin returned Summers told him that his wife had said he had the right to an attorney. Agent Tarvin did not treat this statement as a request for counsel, nor did he clarify the meaning of Summers' reference to his right to counsel. Agent Tarvin then informed Summers that if he left the GBI office at that time he would not be interested in discussing the case with him again, and he would not be in a position to tell the District Attorney or the Court that Summers had cooperated. At this time Brian Summers gave a statement to Agent Tarvin concerning his involvement in the death of Kelly Vandersall which was subsequently reduced to a recording."

From these findings the trial court concluded that Agent Tarvin had violated Summers' Sixth Amendment right to counsel set out in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and that Summers' statement had also been induced contrary to OCGA § 24-3-50 which reads, "To make a confession admissible, it must have been made voluntarily without being induced by another by the slightest hope of benefit or remotest fear of injury." The trial court then concluded that Summers' statement would be inadmissible at trial.

1. We cannot agree with the trial court's conclusion that Summers' Sixth Amendment right to counsel under the federal constitution was violated. The trial court reasoned that Summers' statement to Tarvin that "my wife informed me to go get a lawyer" was an equivocal request for a lawyer and that, under Edwards v. Arizona, supra, all questioning must cease except to clarify the equivocal request for an attorney.

Our Supreme Court discussed Edwards v. Arizona, supra, in Vaughn v. State, 248 Ga. 127(1), 281 S.E.2d 594 (1981). "The question of the admissibility of the written confession is controlled by Edwards v. Arizona [supra]. There the court noted what has been characterized as a per se rule established in Miranda that the assertion of the right to counsel was a significant event and that once exercised by the accused, the interrogation must cease until an attorney is present. The court then said that it would be inconsistent with Miranda and its progeny for the authorities, at their insistence, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. Therefore, the court held that an accused who invokes his right to counsel will not be subject to further interrogation until counsel has been provided, unless the accused himself initiates further communication, exchanges, or conversations with the police." (Citations omitted.) Vaughn, supra at 130, 281 S.E.2d 594. "All of the above supposes a clear invocation of the right to counsel. The Edwards court cited, with apparent approval, a Fifth Circuit case which holds that waiver is possible if the request for counsel is equivocal. See Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc)." Id. at 131.

Summers was a college graduate. He acknowledges in his testimony that he had been informed on at least three occasions that day by three different agents of his right to have an attorney while...