A defendant who gave a statement while in police custody incriminating himself can move to suppress the statement. Prior to questioning a suspect who is in custody, the police must read him his rights, also called Miranda warnings. Miranda warnings only apply if a person is in custody. Heckman v. State, 276 Ga. 141 (2003). A person is considered to be in custody and Miranda warnings are required when a person is: (1) formally arrested; or (2) restrained to the degree associated with a formal arrest. Haney v. State, 365 Ga. App. 22 (2002); Troutman v. State, 300 Ga. 616 (2017).
Unless a reasonable person in the suspect's situation would perceive that he was in custody, Miranda warnings are not necessary. Ward v. State, 313 Ga. 265 (2002); Soilberry v. State, 289 Ga. 770 (2011); Thompson v. State, 313 Ga. App. 844 (2012); Hendrix v. State, 230 Ga. App. 604 (1997). The focus on the objective circumstances of the interrogation, not the subjective views of either the suspect or the officer. Sosniak v. State, 287 Ga. 279 (2010).
A spontaneous statement made by the defendant which was not solicited by the police and was not made in response to any form of interrogation is not covered by Miranda and is admissible without the warnings having been given. Maldonado v. State, 313 Ga. App. 511 (2012); Phillips v. State, 285 Ga. 213 (2009). Miranda warnings do not have to be given in situations where the police ask questions reasonably prompted by concern for public safety, such as “where is the gun.” Smith v. State, 264 Ga. 857 (1995); Bowling v. State, 289 Ga. 881 (2011). The police may make initial on the scene inquiries without Miranda warnings to discover the nature of the situation at hand as long as the questioning is not aimed at obtaining information to establish a suspect's guilt. Thompson v. State, 313 Ga. App. 844 (2012). The failure to advise a suspect of the crimes about which he is to be questioned prior to the Miranda waiver does not negate the knowing and voluntary nature of the waiver. McCree v. State, 313 Ga. App. 101 (2011). The police do not have to tell a suspect which crime he is being questioned about prior to the suspect waiving his Miranda rights. Ellis v. State, 316 Ga. App. 352 (2012); Gaines v. State, 179 Ga. App. 623 (1986). When Miranda warnings are required they must be intelligible. Clay v. State, 290 Ga. App. 822 (2012).
In order to invoke the right to counsel the suspect must clearly state his desire for an attorney. Hawkins v. State, 316 Ga. App. 415 (2012). Completing a form seeking court appointed counsel does not invoke the right to counsel. Davis v. State, 329 Ga. App. 17 (2014). Once an accused who is in custody makes a clear request for an attorney any police questioning of that individual must cease until an attorney is made available. Ensslin v. State, 308 Ga. (2020); Dunlap v. State, 291 Ga. 51 (2012). The police must honor a person's right to remain silent if the person clearly and unambiguously states he wants to end the questioning. Mack v. State 296 Ga. 239 (2014); Dubose v. State, 294 Ga. 579 (2014); Ridley v. State, 290 Ga. 798 (2012). Where a defendant's right to remain silent was not scrupulously honored, a statement by the defendant can be used only if the defendant initiates communication with the police. Mack v. State, 296 Ga. 239 (2014). The rule that all questioning cease after an accused has requested counsel applies only to custodial interrogations. Green v. State, 291 Ga. 287 (2012).
“Interrogation” means express questioning as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” State v. Brown, 287 Ga. 473 (2010) Scott v. State, S23A0861 (December 19, 2023).
The State can only use an incriminating statement when that statement was "made voluntarily, without being induced by the slightest hope of benefit or remotest fear of injury." State v. Robinson, 326 Ga. App. 63 (2014); State v. Brown, 308 Ga. App. 480 (2011); Askea v. State, 153 Ga. App. 849 (1980). The hope of benefit that will make a statement involuntary must relate to the charges facing the suspect and generally refers to the promise of a lighter sentence for confessing. Millsaps v. State, 310 Ga. App. 769 (2011); Clark v. State, 309 Ga. App. 749 (2011); White v. State, 266 Ga. 134 (1996). Asking a suspect to tell the truth is not the hope of benefit that makes a statement inadmissible. The "hope of benefit" must be induced by another. OCGA § 24-3-50; Ramos v. State, 198 Ga. App. 65 (1990). A hope that "originates in the mind of the person making the confession and which originates from seeds of his own planting will not exclude a confession." Nowell v. Satte, 312 Ga. App. 150 (2011); Dunson v. State, 309 Ga. App. 484 (2011). Hope of benefit does not include an officer's statement about how others (the prosecutor or judge) might view the defendant's cooperation and truthfulness, or lack thereof. Williams v. State, 314 Ga. App. 840 (2012); Nowell v. State, 312 Ga. App. 150 (2011). An officer does not make a hope of benefit by telling the defendant that his cooperation will be made to the prosecutor, or offering to help the defendant. Edwards v. State, 312 Ga. App. 141 (2012). A hope of benefit does not exist simply 148because the police tell a suspect that he will return home after questioning. Brown v. State, 290 Ga. 865 (2012). However, such a promise, particularly if it is broken, could be one of the totality of circumstances that renders a confession involuntary and inadmissible as a violation of constitutional due process. However, the fact that the police promise a suspect something is not enough to render a statement inadmissible. There must be a direct causal connection between the promise and the confession. The promise must lead to the confession. Pulley v. State, 291 Ga. 330 (2012).
The remotest fear of injury relates to physical or mental torture. Williams v. State, 314 Ga. App. 840 (2012). Suggesting that a suspect might be safer in custody does not make the statement inadmissible. Mangrum v. State, 285 Ga. 676 (2009). Telling the suspect that the crime is punishable by death does not make the statement inadmissible. Funes v. State, 289 Ga. 793 (2011). The fact that the police told the defendant that he would be arrested if he refused to talk to the police does not amount to coercion making his statements inadmissible. McCree v. State, 313 Ga. App. 101 (2011).
The mere showing that a defendant who has confessed to a crime may have some mental disability is an insufficient basis upon which to exclude the defendant's statement. Barrett v. State, 289 Ga. 197 (2011); Griffin v. State, 285 Ga. 827, 149828 (2009). The fact that a defendant is of below average intelligence or even has moderate mental retardation does not, in and of itself, require the exclusion of the defendant's statement; there must be additional and sufficient evidence that the defendant did not have the capacity to understand and knowingly waive his Miranda rights. Height v. State, 281 Ga. 727 (2007).
“If the evidence is sufficient to establish that the defendant's statement was the product of rational intellect and free will, it may be admitted even if the defendant was intoxicated when he made the statement. Frazier v. State, 311 Ga. App. 293 (2011); Mullis v. State, 248 Ga. 338 (1981); Walker v. State, 300 Ga. App. 16 (2009). In the context of statements made by a defendant while intoxicated or under the influence of drugs, the courts determine whether a statement is involuntary by examining the totality of the circumstances, including “lucidity, coherency, manner of speech, and awareness of circumstances.” Evans v. State, 308 Ga. 582 (2020). Thus, even if a defendant gives a statement while significantly intoxicated or influenced by drugs, the statement is not involuntary as a matter of constitutional due process absent some evidence of coercive conduct by law enforcement in eliciting the statement. Because coercive police conduct is a necessary predicate for a claim that a defendant's statement was not voluntary, the mere fact that a person is taking medication or recovering from injury is not sufficient support for a conclusion that the statement was not voluntary.
The State bears the burden of demonstrating the voluntariness of a custodial statement by a preponderance of the evidence. State v. Hinton, 309 Ga. 457 (2020); Amador v. State, 310 Ga. App. 280 (2011). The judge determines the admissibility of a defendant's statement under the preponderance of the evidence standard considering the totality of the circumstances. State v. Rumph, 307 Ga. 477 (2019); State v. Brown, 308 Ga. App. 480 (2011); Watkins v. State, 289 Ga. 539 (2011). A defendant's familiarity with the criminal justice system is a factor that can be considered in weighing the totality of the circumstances. Humphrey v. State, 287 Ga. 63 150 (2010). The lucidity of the defendant and his ability to understand may also be considered. Folsom v. State, 286 Ga. 105 (2009).
Sometimes the police 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. State v. Kendrick, 309 Ga. App. 870 (2011). In examining a "two stage" or "question first" interrogation procedure, the judge must determine "whether it would be reasonable to find that in these circumstances the warnings could function 'effectively' as Miranda requires." Missouri v. Seibert, 542 U.S. 600 (2004); State v. Pye, 282 Ga. 796 (2007). There is no obligation to re-read Miranda if there is a continuing interrogation. Williams v. State, 244 Ga. 485 (1979).
Confessions of juveniles must be examined with more care and received with greater caution than those of an adult. Boyd v. State, 315 Ga. App. 256 (2012). The State has a heavy burden of showing that a juvenile understood and waived his rights. Crawford v. State, 240 Ga. 321 (1977). A juvenile's statement is admissible if, under the totality of the circumstances, the juvenile made a knowing and voluntary waiver of their constitutional rights. Attaway v. State, 244 Ga. App. 5 (2000). The fact that a parent was not present is only one factor to 151consider. Allen v. State, 283 Ga. 304 (2008). The factors to be considered are: (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge ... and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held without communication or is allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) the methods used in the interrogation; (7) the length of the interrogation; (8) whether the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date. Taylor v. State, 315 Ga. App. 667 (2012); Riley v. State, 237 Ga. 124 (1976).
A defendant's refusal to sign the Miranda waiver form is not the equivalent of invoking the right to counsel and does not automatically render his statement involuntary and inadmissible. Rose v. State, 314 Ga. App. 79 (2012); Hill v. State, 290 Ga. 493 (2012; Humphreys v. State, 287 Ga. 63 (2010). Crawford v. State, 288 Ga. 425 (2011). Nor does the failure to initial each right waived. Herbert v. State, 288 Ga. 483 (2011).
The fact that there is no written or tape recorded waiver of Miranda rights does not render a statement 152inadmissible. Martinez v. State, 314 Ga. App. 551 (2012); State v. Hardy, 281 Ga. App. 365 (2006).
If a suspect invokes his right to counsel, the police must stop questioning the suspect. Williams v. State, 290 Ga. 418 (2012). The pretrial unequivocal statement of a defendant that he wishes to represent himself must be followed by a hearing at it which it is determined whether the defendant knowingly and intelligently waived the right to counsel. Danenberg v. State, 291 Ga. 439 (2012). However, if the suspect's statement is not an unambiguous or unequivocal (clear) request for counsel, the officers have no obligation to stop questioning him. Davis v. United States, 512 U.S. 452 (1994); Perez v. State, 283 Ga. 196 (2008). A suspect's failure to answer certain questions is not the equivalent of a request to end the interrogation. Rogers v. State, 290 Ga. 401 (2012).
The use of trickery or deceit to obtain a confession does not make the confession inadmissible as long as the means used are not designed to obtain an untrue statement. Edwards v. State, 312 Ga. App. 141 (2012).
A statement obtained in violation of Miranda may not be used in the prosecution's case-in-chief. Frazier v. State, 311 Ga. App. 293 (2011). However, it may be used to impeach the defendant's credibility if the defendant testifies as long as the judge finds 153that the statement was voluntary. Arellano-Campos v. State, 307 Ga. App. 561 (2011); Linares v. State, 266 Ga. 812 (1996). A statement that was freely and voluntarily given may still be inadmissible as the fruit of an illegal search and seizure. Williams v. State, 314 Ga. App. 840 (2012).
A defendant can also ask the judge to require that the statement be redacted (changed) to take out prejudicial material. For example, there are instances when a police interrogator's comments during an interview require redaction because they contain the officer's opinions and conclusions about the guilt of the defendant and thus would improperly influence the jury. Axelburg v. State, 294 Ga. App. 612 (2008). Compare, Roberts v. State, 313 Ga. App. 849 (2012) (comments made during interview admissible because they have probative value). The police officer's statements during an interrogation does not constitute sworn testimony. Brown v. State, 316 Ga. App. 137 (2012); Harris v. State, 278 Ga. 182 (2009). Comments made during an interrogation and designed to elicit a response from a suspect do not amount to opinion testimony, even when a recording of the comments is admitted at trial. Dubose v. State, 294 Ga. 579 (2014). However, such comments should be excluded if the probative value of the comments is outweighed by their tendency to unduly arose the jury's emotions of prejudice, hostility or sympathy. Roberts v. State, 313 Ga. App. 849 (2012); Windhom v. State, 315 Ga. App. 855 (2012).