State v. Rogers

Beasley, Chief Judge,

concurring specially.

I concur with the opinion except in two instances. With respect to the criticism of the polygraph examiner acting also as interrogator, I am not prepared to intimate or suggest that it should not be permitted.

Second, the record shows that Rogers was not in custody at the time he made the statements. Nor were any charges pending against *528him when the statements were made and reduced to writing by Rogers. Like the defendant in Smith v. State, 265 Ga. 570, 571 (2) (459 SE2d 420) (1995), Rogers had initiated the examination. There is no indication that he considered the session at an end when he was handed the results or that he wished to terminate it there. He had come to the police department to try to exonerate himself from the claims being made by the child. He was not arrested until after he wrote his statements. Because he was not in custody at any time during the session, it was not necessary to provide the Miranda warnings before asking any questions. Miranda v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694) (1966); Woods v. State, 242 Ga. 277, 279 (2) (248 SE2d 612) (1978); Brinson v. State, 191 Ga. App. 151, 152 (4) (381 SE2d 292) (1989).

Decided November 13, 1996. Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellant. Patricia A. Buttaro, for appellee.

State v. Williams, 217 Ga. App. 734 (458 SE2d 906) (1995), differs in that Williams, having already been indicted, refused to provide information but was pressured even after he asked for his attorney several times. The evidence showed that Williams’ waiver of Miranda rights was limited to polygraph questions, and only those which were counsel-approved. It further showed that the officer assured counsel “he would not go beyond the limited scope of the approved questioning and that he would not attempt to circumvent defense counsel’s directions for defendant ‘to answer the questions as briefly as possible and to volunteer no information.’ ” State v. Williams, 217 Ga. App. at 736. Thus, the questioning which exceeded these bounds entered the realm of coercion, of which there is no evidence in Rogers’ case.

Just as the results of the polygraph exam are admissible, as the trial court ruled, so are Rogers’ statements made thereafter.

Even if he was in custody, as the majority expressly assumes without so ruling, the trial court erred in excluding the statements.