BLACKBURN, Chief Judge.
The State appeals the trial court's grant of defendant Kit Wilson's motion to suppress his statements in his criminal prosecution on felony charges of aggravated child molestation, child molestation, and cruelty to children—first degree, and on a misdemeanor charge of sexual battery. The State contends that the trial court erred in (1) concluding that because Wilson was in custody at the time of his interrogation, he should have been advised of his Miranda rights and (2) finding that Wilson's statement was not voluntary because he was interrogated for approximately three hours after twice inquiring about the necessity of counsel, and being advised by the police that he did not need counsel. We affirm.
An appellate court reviewing a trial court's order on a motion to suppress evidence must accept the trial court's decisions with regard to questions of fact and credibility unless they are clearly erroneous. The reviewing court must also construe the evidence most favorable to the upholding of the trial court's findings and judgment and must not disturb the findings of the trial judge unless no evidence exists to support them.
Barraco v. State.1
In its excellent order granting Wilson's motion to suppress on November 9, 2001, the trial court held inter alia:
On November 8, 2001, this Court held a Jackson-Denno hearing on the Defendant's Motion for Exclusion of Involuntary Admissions and Confessions. In his Motion, the Defendant sought to suppress and exclude from evidence any comments or purported confessions that ... he made at the time of his arrest for child molestation. During this hearing, the Court listened to several witnesses and received various other items of evidence, including the tapes and transcript from the Defendant's meeting with police. After giving due consideration to the evidence submitted by both parties, and after considering the relevant case law, this Court hereby grants Defendant's Motion. In so doing, the Court finds as follows:
The testimony presented to this Court revealed the following. On June 1, 2001, police officers from the City of Monroe phoned the Defendant at home, and requested a meeting with him. They told him that they would be sending an officer to his house to pick him up and bring him to the police station. Defendant waited for the police, but no one came to his house. He then decided to travel to the police station on his own. Daniel Moon, his half-brother, and another man drove him to the police station.
At the station, the Defendant was met by Officers Jack Vickery and Tony Lafreniere. When questioned by the Court, Vickery admitted that the Defendant was in fact their prime suspect at that time. According to the testimony of Moon, the Defendant, upon arrival, asked whether he was in any trouble, and whether he needed to get an attorney. Moon stated that the Defendant was told by the police that they merely had some routine questions, and that he did not need an attorney. Officer Vickery testified on direct examination that the Defendant never inquired as to whether he needed an attorney. However, when called on by the prosecution to rebut the testimony of Moon, Officer Vickery acknowledged the possibility that the Defendant might have asked him whether he needed counsel.
From the police station, the Defendant and the two officers proceeded to the Department of Family and Children Services ("DFACS"), where they met with DFACS employee Penny Shirley. Again, the Defendant was driven by his half-brother and another man. Moon testified that he and the other man were told by the officers that they could not enter the building.
With Shirley present, the police began speaking with the Defendant around 7:30 p.m. The conversation was tape recorded. The Defendant, whose employment requires him to work the "late" shift, informed the officers that he had been up since 3:00 a.m., that he had just been released from the hospital a few days earlier after a bout of pneumonia, and that he had not eaten anything the entire day. The officers and Shirley proceeded to question him for nearly three hours. At some point after two hours of questioning, the tape recording ended. According to Officer Vickery, a span of approximately 10 to 15 minutes elapsed between the time that the tape ended and the time that a new tape began. The last tape was the third tape used by the police during their meeting. Although the officers allowed the second tape to just run out, the transcript showed that, between the first and second tape, the officers were cognizant of when the tape would end and stopped the interview to change the tape. Almost immediately after the third tape recording began, the Defendant made various statements that the prosecution contends are confessions and/or admissions. At that point, the Defendant had been awake for over 18 hours. Questions continued for several more minutes after this point. The police admitted that at no point prior to or during this meeting did they advise the Defendant of his Miranda rights.
The transcript from that meeting was offered into evidence by the State. This transcript reveals that the Defendant was aware that the reason the police wanted to talk with him was because of bruises he had left on the buttox [sic] of the alleged victim. See Transcript from Meeting with Kip Wilson on June 1, 2001, (hereinafter "Meeting") at p. 4-5, 21. The Defendant was aware that the victim's physician had told the victim's mother that he had called DFACS because of those bruises, and advised her to fill out a police report. See Id. at p. 5. The police informed him that there was "a problem" when there was "substantial bruising like she had." Id. at p. 6. The Defendant stated that the child's mother was "highly upset" with him and questioned him about whether he had spanked her. Id. at p. 5-8. Early in the interview, Officer Vickery directly questioned him about whether he was responsible for the injuries to the child. See Id. at p. 12.
Later in the interview, Officer Lafreniere informed the Defendant that he was "not gonna sugarcoat this anymore.... I'm not gonna make this sound like it's ... we know (inaudible). We know the reason why we are here is pretty serious." Id. at p. 20. He proceeded on to say that "I will say that the bruises are substantial on ... on that young girl. Okay and criminal charges can be filed on you. Okay for child abuse. It's a felony in the State of Georgia. Okay. Have you ever been in trouble with the law before?" Id. The Defendant told the officers that he was pretty upset when he told his friends about why they needed to give him a ride to the police station. See Id. at p. 21. When asked by the officers whether they knew why he was there, the Defendant stated that he told his friends "the part about the bruises and where they were." Officer Lafreniere then asked, "did you tell him about the part about the penetration of the anus?" Id. at p. 21.
Officer Vickery went on to tell the Defendant that he was: "trying to get to the truth. But we [are] also trying to get the person that did this the opportunity to help them lose some of that weight. Take off some of that pressure.... Yeah this person admits that he's wrong. Yeah, this person's responsible enough to come forward and take responsibility for it and wants to come forward and take responsibility for it and wants to come forward and get what help he can in order to help him get back on the right track." Id. at p. 31.
Near the end of this three hours interview, the police informed the Defendant that he was going to be charged with this crime. See Id. at p. 41. Although the police spoke at length with the Defendant after this point, they still did not inform him of his Miranda rights. The following exchange with the Defendant, which occurred after they had informed him he would be charged with a crime, was perhaps as close as they came to doing so:
Wilson: How long do you think it will take?
Lafreniere: What?
Wilson: Just to go to court.
Lafreniere: I would say a couple of months.
Vickery: Before it goes to court.
Lafreniere: You'll get a letter in the mail.
Wilson: Mm-hmm.
Lafreniere: Okay. That's a couple of weeks. We're pretty good about that. Uh... your letter will state something to effect if you want an um ... attorney, this that and the other thing, then people have their rights. You have the right to an attorney. If you can't afford an attorney, one will be appointed for you free of charge. It's true. But not everybody ... qual ... (clears throat) for an attorney.
Vickery: You have to....
Lafreniere: Depending on how much income. (Inaudible.) You don't qualify for an attorney, if you want one. (Inaudible.)
Vickery: We don't know your financial situation. We are not the ones who are here to determine if you can afford an attorney. Id. at p 45.
The prosecution contends that the Defendant was not in a custodial setting when he spoke with the police, and that the Defendant's statements were entirely voluntary. This Court, quite simply, cannot agree. Regarding custodial interrogations, the Georgia Court of Appeals has stated: Under Miranda, persons must be advised of their rights against self-incrimination after being taken into custody or otherwise deprived of their freedom of action in any significant way. Reinhardt v. State.2 In distinguishing between custodial and non-custodial interrogation, several factors may be utilized. State v. Hendrix.3 These include: probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and the focus of the investigation. Id. Hadley v. State.4
"All of these factors are significant elements to be weighed in
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