☢ test - Í
reminded Mulvaney on several occasions that Mulvaney had asked for an attorney, but Mulvaney continued to talk. Under these circumstances, the officer was not interrogating Mulvaney by choosing to listen. ‘Only words or actions that the police should have known were likely to elicit an incriminating response constitute interrogation.’ Caldwell v. State, 249 Ga.App. 885, 887-888(2) (549 S.E.2d 449) (2001). See Oliver v. State, 276 Ga. 665, 667(2) (581 S.E.2d 538) (2003) (‘[s]tatements volunteered by [defendant] and not in response to questioning seeking to elicit incriminating responses are not inadmissible’). The trial court’s determination that Mulvaney’s statement was not made in response to interrogation is not clearly erroneous. Accordingly, we conclude that the trial court did not err in admitting the statement into evidence.” State v. Woods, 280 Ga. 758, 632 S.E.2d 654 (July 13, 2006). In murder prosecution, trial court erred by suppressing fruits of defendant’s custodial statement. Violation of defendant’s Sixth Amendment right to counsel in obtaining statement makes statement inadmissible, but does not exclude fruits of the statement if otherwise voluntary. Trial court thus erred in suppressing fruit of defendant’s voluntary statement, produced as a result of officer’s psychological ploy, although statement itself was inadmissible because defendant had invoked his right to counsel. “The State correctly conceded the inadmissibility of the statements themselves, because of Woods’ prior unambiguous request for an attorney. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Taylor v. State, 274 Ga. 269, 271(1), 553 S.E.2d 598 (2001). As the trial court recognized, however, ‘ the “fruit” of a voluntary statement obtained in violation of Edwards v. Arizona is not subject to the exclusionary rule. [Cits.]’ Taylor v. State, supra at 276(4), 553 S.E.2d 598.” As to voluntariness: “‘Police appeals to the defendant’s sympathies, such as by the now-famous “Christian burial speech” ploy [employed here], “do not automatically render a confession involuntary[.]” [Cits.]’ 2 LaFave, Israel, and King, Criminal Procedure § 6.2(c), p. 459 (2nd ed.1999). Such an emotional appeal, like the use of trickery or a psychological ploy, does not make a confession involuntary if, as the trial court found here, the means employed are not calculated to procure an untrue statement. Brown v. State, 278 Ga. 724, 728(3), 609 S.E.2d 312 (2004); DeYoung v. State, 268 Ga. 780, 789(8), 493 S.E.2d 157 (1997). ‘And absent any evidence that the police investigative techniques were designed to induce the “slightest hope of benefit or ... fear of injury,” the resulting statements are not rendered involuntary ... under OCGA § 24-3-50. [Cits.]” DeYoung v. State, supra. The State presented unrefuted evidence that Woods was neither threatened with the remotest fear of injury nor promised any hope of benefit.” Accord, Brown v. State , 292 Ga.App. 269, 663 S.E.2d 749 (June 5, 2008) (fruits of search warrant not suppressed when based on custodial statement which violated Miranda but was otherwise voluntary, citing Woods and United States v. Patane , 542 U.S. 630, 641-642(III), 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (the exclusion from trial of a voluntary statement taken in violation of these Fifth Amendment prophylactic rules “is a complete and sufficient remedy.”)). Simon v. State, 279 Ga.App. 844, 632 S.E.2d 723 (June 16, 2006). No unequivocal request for counsel, so statement not suppressed: “When Detective Yi informed Simon of his right to an attorney, Simon asked if there was an attorney present. Detective Yi responded, ‘no, there isn’t one present ... at this moment,’ but advised Simon that if he needed an attorney, one could be summoned. Simon replied, ‘that’s funny’ and paused, but signed the waiver and then gave a statement.” Citing with approval Braham (March 10, 2003), below. Wright v. State, 279 Ga.App. 155, 630 S.E.2d 656 (May 2, 2006). Defendant’s “admittedly equivocal” request for counsel – “If I ask for an attorney will I be arrested?” – did not require officer to stop interrogation. “A suspect must articulate his desire to have counsel present with sufficient clarity such that a reasonable police officer in the same or similar circumstances would understand the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 459 (114 S.Ct. 2350, 129 L.Ed.2d 362) (1994); Braham v. State, 260 Ga.App. 533, 534 (580 S.E.2d 256) (2003).” Accord, Stanley v. State , 283 Ga. 36, 656 S.E.2d 806 (January 28, 2008) (Defendant made no unequivocal request for counsel prior to giving statement: “In the context of the exchange with the detective during the reading of the Miranda rights, Stanley’s statement, ‘Number Five. That I request an attorney’ is as credibly interpreted as a waiver of the right to counsel as it is deemed to be a request for counsel.”). Glidewell v. State, 279 Ga.App. 114, 630 S.E.2d 621 (April 27, 2006). Full court opinion. Overruled on other grounds, Reynolds v. State , 285 Ga. 70, 673 S.E.2d 854 (February 23, 2009). Officers questioned defendant upon victim’s disappearance, at which time defendant hired counsel. Eight years later, victim’s body was found, and officers again sought to question defendant. This time, he spoke to officers without counsel. Defendant contends that, having previously invoked the right to counsel, officers should not have attempted to interrogate him without counsel present. Held, trial counsel were not ineffective for seeking to exclude the later statement on this ground. “The record shows that Glidewell’s statements to the sheriff were voluntary. Glidewell was not in custody when he talked to the sheriff, he had not been questioned by law enforcement for several years, and he did not then assert a right to counsel. See, e. g., Wilson v. State, 264 Ga. 287, 290(2) (444 S.E.2d 306) (1994), overruled in part on other grounds, Washington v. State, 276 Ga.
Made with FlippingBook Ebook Creator