Thompson v. State

• Decision Date: 08 November 2010
• Docket Number: Nos. S10A0737, S10X0738.,s. S10A0737, S10X0738.
• Citation: 10 FCDR 3633,288 Ga. 165,702 S.E.2d 198
• Parties: The STATE v. THOMPSON. Thompson v. The State.
• Court: Georgia Supreme Court

702 S.E.2d 198

288 Ga. 165

10 FCDR 3633

The STATE

v.THOMPSON.

Thompson

v.The State.

Nos. S10A0737, S10X0738.

Supreme Court of Georgia.

Nov. 8, 2010.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney,Thurbert E. Baker, Attorney General, for appellant.

Atkins & Attwood, William J. Atkins, Atlanta, David B. Fife, Lawrenceville, for appellee.

THOMPSON, Justice.

Torrey Thompson, a police officer, was indicted for the murder of Lorenzo Matthews. Thompson moved to suppress statements he made in the course of an internal police investigation. See generally Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (the protection against coerced confessions under the Fourteenth Amendment prohibits the use in subsequent criminal proceedings of confessions obtained from public officers under a threat of removal from office). He also sought immunity from prosecution under OCGA § 16-3-24.2. The trial court granted Thompson's motion tosuppress but denied his motion for immunity. The State appeals from the grant of Thompson's motion to suppress; Thompson cross-appeals from the denial of his motion for immunity. We find no error and affirm.

At approximately 3:15 a.m. on September 12, 2006, the DeKalb County Police Department (DKPD) received a 911 call reporting a stolen motor vehicle from an apartment complex. Officer R.L. Knock, Sergeant Berg, and Officer Torrey Thompson, among others, were called to the scene. Police interviewed the complainant, Earl McCord, who stated that his car, a Monte Carlo, had been stolen from outside his apartment. Police then interviewed Ms. Mullins, another resident of the apartment complex, who told police that the car had not been stolen, but had been involved in a hit-and-run car accident (involving the Monte Carlo and her car), and that the drivers and passengers of the Monte Carlo were friends and relatives of McCord. Ms. Mullins directed police to apartments 38 and 40, and told them Lorenzo Matthews, who was involved in the hit-and-run incident, lived there.

Officer Nunn, another policeman on the scene, recognized Matthews' name and alerted his colleagues to the fact that Matthews was wanted for questioning regarding a shooting incident in a nearby apartment complex, as well as for assaulting a police officer. Mullins added that Matthews was known to be armed.

Under the supervision of Sgt. Berg, the police decided to interview Matthews. Sgt. Berg and two other officers went to the front door of apartment 38. He ordered Thompson and Knock to cover the back of the apartment building in case Matthews attempted to escape. Berg knocked at apartment 38 but was told Matthews was not there. Thompson and Knock noticed someone looking through the blinds of a window in apartment 40. When Berg went to knock at apartment 40, the rear door of the apartment swung open, and Matthews came out onto the porch. He pointed at Thompson with an object in his hand. Witnesses claimed the object was a cell phone. To both Thompson and Knock, the object looked like a weapon. However, in spite of an extensive search, a weapon was not found at the scene.

Knock ordered Matthews to stop and drop the object. Matthews began running down the staircase and jumped toward Knock, who fired at Matthews four times. Matthews then ran toward Thompson, still holding the object in his hand. Knock shouted, "Shoot him!" and, after hesitating briefly, Thompson fired two rounds at Matthews.

Matthews then ran away from Thompson toward a wooded area adjacent to the apartment complex; Thompson pursued on foot. Recognizing that the woods would afford Matthews a tactical offensiveadvantage, Thompson intermittently fired at Matthews as he ran. Thompson testified that he was fearful both for his life and for the lives of the residents of the apartment complex. When Matthews entered the wooded area, Thompson fired once more before Matthews jumped over a fence. At that point, Thompson ceased pursuit and called for backup. Matthews' body was found later by a K9 unit on the other side of the fence. He had sustained eight gunshot wounds, two of which were found to be fatal.

After the incident, Sgt. Berg ordered Thompson and Knock to separate themselves and wait in their respective patrol cars on the scene until Internal Affairs and CIDMajor Felony unit could take their statements, pursuant to DKPD "Use of Force" policy. As he was waiting, Thompson exited his patrol car to avoid being filmed by a television news team. Another officer stopped him and informed him he was not free to leave.

Thompson gave a statement to Detective Calamease from the Major Felony unit. He also participated in two "walk-throughs" with Sgt. Love from Internal Affairs. Neither Calamease nor Love told Thompson he was required to participate in the internal investigation; but they did not tell Thompson he was free to refuse to participate, either. Thompson cooperated with each investigation but testified at the hearing on the motion to suppress that he felt compelled to do so for fear of losing his job. He also testified that he was aware of the DKPD Employee Manual which states that the failure to answer questions in an "internal department investigation" is prohibited and concludes by stating that an officer who fails to abide by department rules can be disciplined by being terminated from employment.

The Main Appeal

The trial court looked at the totality of the circumstances and found that Thompson subjectively believed he would lose his job if he did not cooperate with Calamease and Love. It also found that Thompson's subjective belief was objectively reasonable.

In State v. Aiken, 282 Ga. 132, 646 S.E.2d 222 (2007), this Court adopted the "totality of the circumstances test" for evaluating whether a public employee's statement to investigators was voluntary or coerced:

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