Vergara v. State

Decision Date25 February 2008
Docket NumberNo. S07A1234.,S07A1234.
Citation657 S.E.2d 863,283 Ga. 175
PartiesVERGARA v. The STATE.
CourtGeorgia Supreme Court

Leonard C. Parks, Jr., Valpey & Parks, Michael L. Weaver, Sr., Weaver & Parr, Gainesville, for Appellant.

Lee Darragh, Dist. Atty., Alison Wilson Toller, Asst. Dist. Atty., Gainesville, Susan V. Boleyn, Senior Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., Dept. of Law, Atlanta, for Appellee.

CARLEY, Justice.

Ignacio Vergara and his co-defendant, Brigido Soto, were indicted for the murders of Alejandro Santana and Francesco Saucedo and for related crimes, which occurred on March 13, 2002. The State gave notice of its intent to seek the death penalty. This Court granted interim review to determine whether the trial court erred in failing to suppress Vergara's March 28, 2002 custodial statement and all evidence obtained as a result thereof. Vergara has also addressed whether the trial court erred in failing to suppress statements he made to police on March 26, 2002 and in the early morning of the following day, and the evidence seized as a result of those statements.

In responding to a 911 call on March 13, 2002, police discovered the bodies of the two male victims, shot multiple times, in a parked vehicle on a road in Hall County. On March 26, 2002, Georgia Bureau of Investigation (GBI) Agent Blackwell and Investigators Evans and Spindola went to Vergara's residence in connection with their investigation of the victims' deaths. After Spindola told Vergara that his home telephone number had been found in the cellular telephone of one of the victims, Vergara accompanied the officers to the Law Enforcement Center (LEC), where he was interviewed after receiving in Spanish his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signing a waiver form. During the videotaped interview, in which all three officers participated with Spindola acting as translator, Vergara acknowledged being present at the murders, implicated Soto as the perpetrator, and handed the officers a notebook containing Soto's telephone number.

Following this interview, while riding with Blackwell, Spindola, and Lead Investigator Couch, Vergara retraced his and Soto's movements on the day of the murders, visited the scene where the murders occurred, and aided the officers in retrieving the cellular telephone belonging to one of the victims. After returning to the LEC, Vergara made a telephone call to Soto, which the officers audiotaped. Vergara then accompanied the officers on another ride, and, after he pointed out Soto's apartment, the police took him to a nearby church to wait in the parking lot while Couch obtained a warrant for Soto's arrest. At approximately 12:45 a.m. on March 27, after Soto's arrest and interview Vergara was again given the Miranda warnings and interviewed. During this interview, he disclosed the location of the handgun allegedly used to commit the murders, and he accompanied the officers as they retrieved it. At 1:55 a.m., after reminding Vergara of his Miranda rights, the police resumed the interview. Couch obtained a warrant for Vergara's arrest at 3:40 that morning. Vergara was re-interviewed on March 28, 2002.

The trial court determines the admissibility of a defendant's statement under the preponderance of the evidence standard considering the totality of the circumstances. Fowler v. State, 246 Ga. 256, 258(3), 271 S.E.2d 168 (1980).

The issue presents a mixed question of fact and law. [Cit.] On appeal, we accept the trial court's findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the legal principles to the facts. [Cit.]

Linares v. State, 266 Ga. 812, 813(2), 471 S.E.2d 208 (1996).

1. Vergara contends that his March 26 interview and his subsequent statements to police throughout that afternoon and evening and in the early morning of March 27 were involuntary and, therefore, inadmissible under OCGA § 24-3-50, and that the evidence discovered as a result of those statements should also be suppressed. OCGA § 24-3-50 states that, "[t]o 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."

At the outset, we reject the State's argument that OCGA § 24-3-50 does not apply to Vergara's statements to law enforcement because they constitute incriminating statements rather than a confession. See Clarke v. State, 165 Ga. 326, 331(6), 140 S.E. 889 (1927) (distinguishing between incriminating statements and confessions). It has long been the law in this State that the rule as to the admissibility of an incriminatory statement is the same as that applied to a confession. Turner v. State, 203 Ga. 770, 771(3), 48 S.E.2d 522 (1948). See also Fuller v. State, 109 Ga. 809, 811-812(1), 35 S.E. 298 (1900); Fletcher v. State, 90 Ga. 468, 469(1), 17 S.E. 100 (1892). To the extent that Carruthers v. State, 272 Ga. 306, 313(5), 528 S.E.2d 217 (2000); Hill v. State, 279 Ga.App. 402, 405(3), 631 S.E.2d 446(a), fn. 4 (279 Ga.App. 402, 631 S.E.2d 446) (2006); Pasuer v. State, 271 Ga.App. 259, 261(1), 609 S.E.2d 193 (2005); and Jewett v. State, 264 Ga.App. 571, 572(1), 591 S.E.2d 459 (2003) hold otherwise, they are overruled.

Applying the nine factors found in Reinhardt v. State, 263 Ga. 113, 115(3)(b), 428 S.E.2d 333 (1993), the State also argues that Vergara's statements were voluntary under the totality of the circumstances. We note that this Court originally adopted that nine-factor analysis from the United States Court of Appeals for the Fifth Circuit, as a method for determining the voluntariness of juvenile confessions given outside the presence of the juvenile's parents. Riley v. State, 237 Ga. 124, 128, 226 S.E.2d 922 (1976) (citing West v. United States, 399 F.2d 467, 469 (5th Cir.1968)). However, Reinhardt inexplicably applied to an adult's confession the nine Riley factors as set forth in Williams v. State, 238 Ga. 298, 302(1), 232 S.E.2d 535 (1977), a case involving a juvenile's confession. Reinhardt v. State, supra. While some of those factors are often relevant in determining whether an adult's confession is voluntary under the totality of the circumstances, we have repeatedly held that the explicit nine-factor analysis set forth in Riley, which is the same analysis found in Reinhardt, applies only to the confessions of juveniles and not to those of adults. King v. State, 273 Ga. 258, 260(3), 539 S.E.2d 783 (2000); McDade v. State, 270 Ga. 654, 656(3), 513 S.E.2d 733 (1999); Hance v. State, 245 Ga. 856, 858(2), 268 S.E.2d 339 (1980). To the extent the following cases state or imply otherwise, they are overruled: Henley v. State, 277 Ga. 818, 821(3), 596 S.E.2d 578 (2004); State v. Roberts, 273 Ga. 514, 515(2), 543 S.E.2d 725 (2001); Reinhardt v. State, 263 Ga. 113, 115(3)(b), 428 S.E.2d 333 (1993); Moyer v. State, 275 Ga.App. 366, 372-373(4), 620 S.E.2d 837 (2005); State v. Wilson, 257 Ga.App. 120, 124-125, 570 S.E.2d 409 (2002); Kunis v. State, 238 Ga.App. 323, 323(1), 518 S.E.2d 725 (1999); Mao v. State, 222 Ga.App. 482, 483, 474 S.E.2d 679 (1996).

Because Vergara was 20 years old at the time of his statements, they are admissible if, considering the totality of the circumstances, they were "made voluntarily, without being induced by hope of benefit or coerced by threats. [Cit.]" Reynolds v. State, 275 Ga. 548, 549-550(3), 569 S.E.2d 847 (2002). Vergara contends that his statements were involuntary because the police made and then shook hands on an unqualified promise to him that anything he said to them would not be made known in court, thereby vitiating his Miranda rights. See Spence v. State, 281 Ga. 697, 699-700(2), 642 S.E.2d 856 (2007).

The trial court found that Vergara's March 26 statements were voluntary because he was not in custody at the time of that interview and, therefore, Miranda was inapplicable. See Wiggins v. State, 280 Ga. 627, 629(2)(a), 632 S.E.2d 80 (2006). However, regardless of whether Vergara was in custody for Miranda purposes at the time of the interview, in order for his statements to be admissible, they must be voluntary. See Griffin v. State, 230 Ga.App. 318, 322, 496 S.E.2d 480 (1998) (stating that, by enacting OCGA § 24-3-50, "the Georgia General Assembly deemed inadmissible all involuntary confessions" (emphasis in original)).

The trial court alternatively found that Vergara voluntarily waived his Miranda rights. Such a waiver would not be voluntary if, as Vergara contends, the police made a promise to him that was inconsistent with his constitutional rights. See Foster v. State, 258 Ga. 736, 742(8)(b), 374 S.E.2d 188 (1988). However, Miranda does not apply if the evidence authorized the trial court's finding that Vergara was not in custody during the March 26 interview. Wiggins v. State, supra. The trial court made no findings regarding the scope of the promise to Vergara and the agreement upon which the officers and Vergara shook hands. No remand is necessary, however, because "[w]here controlling facts are not in dispute, . . . such as those facts discernible from a videotape, our review is de novo." Lyons v. State, 244 Ga.App. 658, 659, 535 S.E.2d 841 (2000).

The evidence presented at the hearings held pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) establishes that, until Soto's arrest and interview, the officers viewed Vergara not as a suspect but only as a possible witness. The trial court properly found that the March 26 interview was not custodial. The officers testified that Vergara voluntarily accompanied them to the LEC, that he was never handcuffed, that he called his wife several times throughout the day, that he went to the bathroom alone, and that he chose to remain at the LEC voluntarily. See Hightower v. State, 272 Ga. 42, 43(2), 526 S.E.2d 836 (2000) (no custodial situation exists where "a reasonable person in ...

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