Wilson v. Zant

• Decision Date: 21 April 1982
• Docket Number: No. 38278,38278
• Parties: Joseph WILSON, Jr. v. Walter D. ZANT, Supt.
• Court: Georgia Supreme Court

Page 442

290 S.E.2d 442

249 Ga. 373

Joseph WILSON, Jr. v. Walter D. ZANT, Supt.

No. 38278.

Supreme Court of Georgia.

April 21, 1982.

Bruce S. Harvey, Clayton, for Joseph Wilson, Jr.

Michael J. Bowers, Atty. Gen., William B. Hill, Jr., Asst. Atty. Gen., for Walter D. Zant, Supt.

HILL, Presiding Justice.

The defendant, Joseph Wilson, Jr., was convicted of murder, kidnapping with bodily injury and possession of a firearm during the commission of a felony. His convictions and death sentence for murder, life sentence for kidnapping with bodily injury and five year sentence for possession of a firearm were affirmed on direct appeal by this court in Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830. The defendant then filed a petition for a writ of habeas corpus, alleging various violations of his constitutional rights. After a hearing, the habeas court set aside the possession of a firearm conviction but denied further relief. We granted the defendant's application for certificate of probable cause to appeal and defendant enumerates six errors. ¹

We quote the facts from our earlier decision in this case (246 Ga. 62-63, 268 S.E.2d 895): "From the presentation of the evidence the jury was authorized to find the following: The defendant, Joseph Wilson, Jr., and the victim George A. Knox, and the victim's girl friend, Patty Johnson, were involved one to another or all together in some sort of drug deal.

"On the evening of February 23, 1979, the defendant told two witnesses that he was going to blow the victim away. At about 9:45 p. m. that night the defendant abducted the victim at gunpoint from Patty Johnson's house in Cobb County. The victim was in the house with Ms. Johnson and two of his friends when the defendant entered the house carrying a 12-gauge, sawed-off shotgun. He pointed the gun at the victim and said something to the effect that 'You set me up' or 'You put the heat on me.' The victim denied the allegation. The two friends, David and Kenneth Burns, attempted to leave but the defendant pointed the shotgun at them. After being assured that these two knew nothing, the defendant permitted them to go. The defendant again pointed the shotgun at the victim and said, 'Let's go.' The victim attempted to take his jacket and a chain that he carried, allegedly for protection, but was told he wouldn't need them. The defendant and the victim left the house in the defendant's truck. The Burns brothers saw them come out of the house. Later that night the defendant talked with Ms. Johnson over the telephone and told her that the victim had been 'taken care of.' The defendant told her to get rid of the victim's jacket.

"The victim's body was found the next morning in a field in Forsyth County. He had been shot by a 12-gauge shotgun blast between the eyes at close range. The evidence at the scene indicated that the body was found where the shooting occurred. A neighbor testified that she heard a shot at about 1 a. m. There were no other wounds on the body. The defendant was subsequently arrested, indicted, tried, and based primarily upon the testimony of Patty Johnson, David and Kenneth Burns and the investigating officers, was convicted of the murder of George A. Knox, the kidnapping with bodily injury of George A. Knox, and possession of a firearm during the commission of a crime. ... The evidence was sufficient to convince a rational trier of fact of defendant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)."

The following additional facts are pertinent to our consideration of this appeal. Patty Johnson was acquainted with and identified the defendant; although unable to positively identify the defendant, the Burns brothers corroborated her testimony. All three of these witnesses stated that the victim's abductor was driving a pickup truck with a peculiar ladder arrangement attached to the rear. After interviewing witnesses at a party who said that the defendant was looking for and threatening to shoot the victim on the evening in question and after interviewing Patty Johnson and the Burns brothers, the police obtained a warrant for the defendant's arrest.

The defendant was arrested at his home at approximately 6:30 a. m. on February 27, 1979, read his Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] rights and transported to the Forsyth County Sheriff's Department where he was held until approximately 8:00 a. m. The defendant was then questioned by Sergeant J. C. Adams. At trial, Sergeant Adams testified that sometime between his arrest and the interrogation the defendant stated that he "would like to have an attorney." However, an attorney was not provided and after again being advised of his Miranda rights and signing a written Miranda acknowledgment and waiver form, the defendant gave a statement to police.

In his statement to police, the defendant denied committing the crimes and claimed alibi. He admitted looking for the victim at the party on February 23, allegedly because the victim owed him money and was supposed to meet him there to repay it, and admitted threatening at that time to "kick [the victim's] ass" for failing to be at the party to repay the loan. However, he denied threatening to blow the victim away. He stated that he had been at home with his family at the time the victim was killed.

Under further questioning, the defendant denied owning a shotgun and said that the only gun he owned was a toy "tin-can alley" gun which he had given to his children. He admitted that he drove a truck similar to the one described by Patty Johnson and David and Kenneth Burns as driven by the man who entered the Johnson residence with a shotgun and informed police that the truck belonged to his business partner, David Shaffer. Subsequently, the police interviewed David Shaffer in connection with the truck and learned from him that the defendant had recently purchased a shotgun from Joseph Evankovech.

At trial, witnesses for the state related to the jury most of the defendant's statement to police. ² The state also introduced the toy gun to show that it could not have been the gun the defendant had been seen with on prior occasions or the gun which was used to abduct the victim. Further, the state elicited testimony from Shaffer and Evankovech that the defendant did in fact own a shotgun and introduced photographs of the truck driven by the defendant.

After the state presented its case, the defendant took the stand and testified to essentially the same facts contained in his statement to police except that he admitted purchasing a shotgun from Evankovech. ³ At the sentencing phase of the trial, the defendant again took the stand and at this point admitted that on the evening of February 23, he went to the Johnson home and pointed a shotgun at the victim. He admitted that the victim accompanied him out of the house but testified that once outside, a truck drove up and two men forced the victim inside the truck at gunpoint. These men, he speculated, must have been the ones who murdered the victim.

1. The defendant first contends that the introduction at trial of the statement he gave to police during custodial interrogation after he had requested an attorney but before one was provided (and the introduction of the "fruits" derived by police from his statement, namely the toy gun and the testimony of Shaffer and Evankovech) violated his fifth, sixth and fourteenth amendment right to counsel as defined in the recent United States Supreme Court case of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

The habeas court found that the defendant had properly invoked his right to counsel, that the police had subsequently initiated custodial interrogation before counsel was present and, therefore, concluded that the defendant's resulting statement should not have been admitted at trial, relying on Edwards v. Arizona, supra, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, decided after defendant's trial. However, the habeas court also found that the statement was not a confession, that it had been used for impeachment purposes only, and that its erroneous admission was harmless beyond a reasonable doubt. In response to the defendant's argument that the toy gun and the testimony concerning his ownership of a shotgun should have been excluded as "fruit of the poisonous tree," the habeas court found that the toy gun had been used only for impeachment purposes and that the testimony about the shotgun was not obtained as the result of the defendant's statement. Thus, the habeas court declined to grant relief on this issue.

Accepting that Edwards v. Arizona, supra, established a per se exclusionary rule (but see the concurring opinion of Powell, J., 101 S.Ct. at 1887-1889), we therefore find that the defendant's statement, given pursuant to police initiated custodial interrogation after the defendant had invoked his right to counsel, was inadmissible at trial during the state's case in chief.

This conclusion, however, does not end our inquiry, and we now address the final question in habeas corpus: whether the error was harmful. See McDuffie v. Jones, 248 Ga. 544, 545-46, 283 S.E.2d 601 (1981). We recognize that it is error to admit statements obtained in violation of Miranda v. Arizona, supra, whether such statements constitute confessions, incriminating admissions or exculpatory statements (384 U.S. at 476-477, 86 S.Ct. at 1628-1629). However, for purpose of determining the harmful or harmless nature of the error, whether a defendant's statement is exculpatory or incriminating is material. Here we deal with exculpatory statements to police admitted into evidence.

The evidence for the state showed that the defendant was looking for and threatening to kill the victim, that he found the victim and abducted him at the point of a shotgun, that...