The State v. Kendrick.

• Decision Date: 13 June 2011
• Docket Number: No. A11A0661.,A11A0661.
• Citation: 309 Ga.App. 870,711 S.E.2d 420
• Parties: The STATEv.KENDRICK.
• Court: Georgia Court of Appeals

309 Ga.App. 870

711 S.E.2d 420

11 FCDR 1902

The STATE

v.KENDRICK.

No. A11A0661.

Court of Appeals of Georgia.

June 13, 2011.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Christopher Michael Quinn, Assistant District Attorneys, for appellant.Lauren Beth Shubow, for appellee.PHIPPS, Presiding Judge.

Charged with the burglary of a dwelling house of another with the intent to commit a theft therein, Michael Kendrick moved to exclude statements he made to a police patrol officer and to a police investigator. The trial court conducted a hearing, after which it granted Kendrick's motion. In this appeal, the state contests the exclusion of the statement to the police investigator, but has demonstrated no reversible error. We affirm.

The evidence, which was presented at the hearing through the testimony of the patrol officer and the investigator, showed the following. On June 11, 2010, the patrol officer's suspicion was aroused when he observed a man, holding a ceiling fan, approach and say something to one, and then another, individual in a parking lot. The officer drove his unmarked patrol car into the parking lot to determine what the man was doing with the fan. As the officer drove close to him, the man flagged down the officer and volunteered that he had not stolen the fan, that he had gotten it from his house, and that he merely was trying to sell it. The officer, who was wearing a black police raid vest that displayed both a city police patch and the word “POLICE” in yellow letters, got out of his car, stood within an arm's length of the man, and asked him to explain again why he had the fan. The man answered that he was simply trying to make some money. The officer told the man that he did not believe his claim that he had gotten the fan from his house and then asked the man for identification. The man told the officer his name. The officer recounted that the man stated that he had no identifying documentation with him, “So I detained him.” And the officer so informed the man that he was going to detain him for further investigation. At the hearing, the officer identified the man as Kendrick, testifying further that, at that point in their encounter, “[Kendrick] was not free to leave” because he still had not determined where Kendrick had gotten the fan.

Therefore, the officer continued his investigation, telling Kendrick several times that he needed to be honest and show him exactly where he had gotten the fan. Kendrick eventually said that he would, and the officer handcuffed him and put him in the back seat of his patrol car. Kendrick directed the officer to a pile of trash located a short distance down the street. Once there, the officer testified, Kendrick repeatedly told the officer that he had taken the fan from the pile of trash; each time, the officer told Kendrick that he did not believe him and told him to be honest with him. Kendrick eventually told the officer that he had taken the fan out of the abandoned house that was near the pile of trash, adding that a door to the house was already open.

The patrol officer called for a backup officer. When the backup officer arrived, he monitored Kendrick, while the patrol officer got out of his vehicle and peered into the house. He saw in one of the rooms wires hanging from the ceiling that indicated to him that a ceiling fan had been removed. The patrol officer conceded at the hearing that he never read Kendrick the Miranda rights. The patrol officer was thus asked, “Why not?” He answered, “I was going to take him to the precinct and let the investigator do his thing.”

Kendrick was transported by the backup officer in his marked police vehicle to the precinct. Still in handcuffs when he arrived there, Kendrick was taken to a room where he was joined by the patrol officer. The patrol officer summoned the investigator, who was already at the precinct. The investigator testified that, when he walked into the room, “[the patrol officer] briefed me of why he stopped Mr. Kendrick. And then I read Mr. Kendrick the Miranda warnings prior to even talking to him.” Kendrick stated that he would talk to the investigator without an attorney. The investigator asked Kendrick why he had been arrested, and Kendrick answered to the investigator that he had entered a house and taken a ceiling fan, adding that a door to the house was already open.¹ Upon the investigator's further questioning, Kendrick responded that he did not know of any other crimes and had not been involved in any other crimes, and the investigator ended the interview. The handcuffs had remained on Kendrick throughout the interview.

At the hearing on the motion to suppress, Kendrick's lawyer argued that the statements made to the patrol officer after Kendrick was handcuffed were inadmissible under Miranda v. Arizona. ² His lawyer also argued that the statements he made to the investigator, albeit after the reading of the Miranda rights, were inadmissible under Missouri v. Seibert ³ and State v. Pye.⁴

1. As an initial matter, we note that the state made no argument to the trial court that Kendrick's statements to the patrol officer

after Kendrick was handcuffed are admissible. The trial court excluded Kendrick's statements to the patrol officer after he was handcuffed, expressly finding that by that point, he was in custody and had not been read the Miranda rights. The state does not contest on appeal any aspect of the trial court's ruling in that regard. Nevertheless, we conclude that the record supports the trial court's ruling that the statements are inadmissible,⁵ based on its finding that Kendrick made them in response to a custodial interrogation and without the benefit of the Miranda warnings,⁶ as this conclusion is pertinent to the resolution of the state's sole contention that the exclusion of Kendrick's later statements to the investigator was reversible error.⁷

2. The state maintains that Kendrick's confession made to the investigator after the reading of the Miranda rights is admissible.

As Kendrick's lawyer argued to the trial court, this case presents the type of situation that caused the United States Supreme Court concern in Seibert, and later, caused the Supreme Court of Georgia concern in Pye. In Seibert, the officers arrested the suspect, subjected her to custodial questioning without Miranda warnings, and obtained a confession.⁸ Then, after giving the arrestee a 20–minute coffee and cigarette break, police obtained from her a signed waiver of Miranda rights, and she gave a second confession.⁹ That second confession was inadmissible, Seibert held, because the “midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement.” ¹⁰ Incriminating statements made under similar circumstances by co-defendants in Pye were also ruled inadmissible.¹¹

As the Supreme Court of Georgia explained in Pye,

[t]he [United States] Supreme Court's decision in Seibert deals with what the Court referred to as a “two stage” or “question first” interrogation procedure, in which police first question a suspect without administering Miranda warnings, gain a statement from the suspect, then administer Miranda warnings, and have the suspect repeat that which the suspect has already related, often with little interruption in time. The Court noted that in such circumstances, it is unlikely that the Miranda warnings will effectively advise a suspect of his rights.¹²

This is because, as Seibert explained,

[u]pon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect's part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail.¹³

Thus, Seibert established an “effective warning” test.¹⁴ THAT IS, WHEN INTERrogators question first and warn later, the threshold issue is “whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” ¹⁵ In reviewing a trial court's analysis thereof, we uphold factual findings unless they are clearly erroneous and review the legal conclusions de novo.¹⁶

The record in this case shows that the patrol officer detained Kendrick after being told that he had no identification documents and thus informed Kendrick of his detention for further investigation; soon, the officer handcuffed Kendrick and put him in the back seat of his patrol car; in response to custodial interrogation, and without the benefits of Miranda warnings, ¹⁷ Kendrick gave a statement implicating himself in the crime of burglary; the patrol officer had withheld the Miranda warnings because he was “going to take [Kendrick] to the precinct and let the investigator do his thing”; after Kendrick was transported to the police precinct and the investigator read him the Miranda warnings, then asked him why he had been arrested, Kendrick gave a statement to the investigator that was essentially identical to what he had already said to the patrol officer. This “two stage” interrogation technique employed upon Kendrick is not materially distinguishable from those employed in Seibert and Pye.¹⁸ Both those cases noted that where

Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the...