Boyd v. State

BLACKWELL, Judge,

concurring in part and dissenting in part.

When Darrell Emmanuel Boyd, Jr., agreed to give a statement to an investigator, he did not, the majority concludes, knowingly and voluntarily waive his constitutional privilege against self-incrimination. Along the way to this conclusion, the majority, I think, gives too little deference to the considered judgment of the court below, pays too little attention to important evidence that the waiver was knowing and voluntary, and in the end, misapplies the relevant legal standard to the facts that appear from the record. Based on my review of the precedents and the evidence in this case, I conclude that Boyd did knowingly and voluntarily waive his privilege, and for that reason, I respectfully dissent with respect to Division 1 of the majority opinion.9

*263When the State offers evidence in its case-in-chief that the accused made an incriminating statement in the course of a custodial interview, it must prove that the accused knowingly and voluntarily waived his constitutional rights that pertain to such an interview, including his privilege against self-incrimination. J. D. B. v. North Carolina,_U. S._(II) (A) (131 SC 2394, 180 LE2d 310) (2011). To determine whether a waiver was knowing and voluntary, the courts look to the totality of the circumstances. Reed v. State, 285 Ga. 64, 64-65 (3) (673 SE2d 246) (2009). In the case of a waiver by a minor child, such as Boyd, the courts still look to the totality of the circumstances, but they must give special attention to nine particular circumstances, namely:

(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 incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8) whether vel non 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.

Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976) (citation and punctuation omitted). See also Green v. State, 282 Ga. 672, 673-674 (2) (653 SE2d 23) (2007); In the Interest of C. H., 306 Ga. App. 834, 835-836 (2) (703 SE2d 407) (2010). But even in the case of a minor, the State is only required to prove a knowing and voluntary waiver by a preponderance of the evidence.10 See Swain v. State, 285 Ga. App. 550, 552 (647 SE2d 88) (2007); In the Interest of R. J. C., 210 Ga. App. 286, 289 (435 SE2d 759) (1993).

When we review the denial of a motion to suppress a statement given in a custodial interview, we owe no deference to the way in which the court below resolved questions of law, but we owe substantial deference to the way in which it resolved disputed questions of *264fact and assessed the credibility of witnesses, yielding to its findings about such things unless the findings are clearly erroneous. See Watkins v. State, 289 Ga. 359, 363 (4) (711 SE2d 655) (2011). And on appeal, we must view the evidence in the light most favorable to the decision below. See Wilson v. State, 211 Ga. App. 457, 458 (1) (439 SE2d 685) (1993). The majority acknowledges the standard of review, but it goes on to say that, when the facts are “discernible from a videotape,” we can discern the facts ourselves and owe no deference to the findings of the court below. That is true enough, but in this case, not all of the material facts are discernible from the video recording of the custodial interview. In addition to the recording, the court below also heard and considered the testimony of the interviewing investigator and Boyd himself. As this Court previously has acknowledged, when facts are found on a motion to suppress from evidence that includes both a recording of a custodial interview and courtroom testimony, we defer to the findings of the trial court about such facts unless clearly erroneous. State v. Floyd, 306 Ga. App. 402, 402, n.1 (702 SE2d 467) (2010). See also State v. Folsom, 286 Ga. 105, 111 (4) (686 SE2d 239) (2009) (applying clearly erroneous standard where evidence included, but was not necessarily limited to, video recording of interrogation); Wright v. State, 285 Ga. 428, 431-432 (2) (677 SE2d 82) (2009) (same); Reed, 285 Ga. at 65 (3) (same). The only findings as to which we owe no deference to the trial court are those findings that pertain to facts on which the recording alone, and no other evidence, sheds light. When a trial judge had the opportunity to see and hear the testimony of those involved in a custodial interview — an opportunity that we, as appellate judges, do not have — we owe some deference to his assessment of whether the accused knowingly and voluntarily waived his rights. And especially when the accused himself testifies, the trial judge is in a unique position to assess the intelligence and maturity of the accused, as well as his understanding of legal principles and proceedings, all of which is relevant, of course, to the question of a knowing and voluntary waiver.11 See Murray v. State, 276 Ga. 396, 397 (2) (578 SE2d 853) (2003) (noting that defendant, who was in the ninth grade, had no difficulty in understanding the proceedings at the motion to suppress hearing).

In this case, the courtroom testimony suggests important facts that cannot be discerned from the recording of the custodial interview. Boyd testified at the hearing on his motion to suppress that he *265agreed to an interview with the investigator only because the investigator, Boyd said, had threatened to “bury [him] under the jail” if he did not. The investigator denied that he made such a threat, and the court below was permitted, as it did, to assess the credibility of these witnesses and determine that Boyd had not testified truthfully. The majority appears to defer to this credibility determination and accept that no threat was made, but it does not follow through, as it must, and also defer to the inferences that a reasonable finder of fact might have drawn from the testimony that Boyd gave. Having concluded that Boyd was untruthful about the threat, the court below might properly have inferred from his testimony — in which Boyd said nothing about having misunderstood his rights, about having been too tired to think much about them, about having had no contact with his parents or a lawyer, or about having been deceived by encouragements to “straighten out what in the hell happened this evening” — that Boyd understood his rights well enough and knowingly and then voluntarily waived them. After all, if Boyd had been confused, or if his will had been overborne by the circumstances of the interview or the deceit of the investigator, surely he would have said so. Moreover, even without regard to the absence of testimony about these things, the court below might properly have inferred from the mere fact that Boyd was untruthful about a threat that he had no good grounds upon which to move to suppress his statement. See Ferguson v. State, 307 Ga. App. 232, 236 (1) (704 SE2d470) (2010) (“So, if you can show that a plaintiff has been suborning false testimony, and has endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one.”) (citation and punctuation omitted).

The testimony of the investigator who interviewed Boyd also is important. This investigator testified that Boyd showed no signs of disorientation or distress during the interview, and although Boyd seemed tired, he never “lost track of what was going on.” It is well and good to consider what is depicted by a video recording of an interview, but the observations of a credible witness, who was seated across a table from the accused at a distance of only a couple of feet during the interview, also are entitled to some consideration. And the majority appears to give no deference to the facts that the court below might have found by viewing the recording in light of what the investigator said at the hearing. The majority, I think, gives too little deference to the considered judgment of the trial judge.

With the evidence presented at the hearing below, the burden of proof, and the deference appropriately owed to the court below in mind, I turn now to consider the totality of the circumstances of the interview, including the circumstances to which special attention *266must be paid in the case of a minor and upon which the majority concludes that Boyd did not knowingly and voluntarily waive his rights.12 With respect to the age of the accused, both this Court and our Supreme Court have said that minors fifteen years of age, and some even younger, are capable of making an informed decision to waive their constitutional rights and speak with police. See Murray, 276 Ga. at 397-398 (2) (upholding custodial statement of 15-year-old); State v. McBride, 261 Ga. 60, 63 (2) (b) (1) (401 SE2d 484) (1991) (15-year-old defendant); Marshall v. State, 248 Ga. 227, 229 (3) (1) (282 SE2d 301) (1981) (14-year-old defendant); Williams v. State, 238 Ga. 298, 302 (1) (232 SE2d 535) (1977) (14-year-old defendant); In the Interest of C. H., 306 Ga. App. at 836 (2) (14-year-old defendant); Swain, 285 Ga. App. at 552 (15-year-old defendant); Stone v. State, 271 Ga. App. 748, 750 (1) (610 SE2d 684) (2005) (15-year-old defendant); Martin v. State, 256 Ga. App. 527, 529 (2) (a) (568 SE2d 754) (2002) (13-year-old defendant); C. R. T. v. State, 148 Ga. App. 628, 629 (252 SE2d 58) (1979) (11-year-old defendant). Similarly, Georgia courts have held on numerous occasions that an eighth-grade education is sufficient to allow an adolescent to understand and waive his Miranda rights.13 Murray, 276 Ga. at 397 (2) (at the time of his custodial statement, defendant “was enrolled in the ninth grade in school”); Marshall, 248 Ga. at 229 (3) (2) (defendant was in the eighth grade of a school for emotionally disturbed children); In the Interest of C. H., 306 Ga. App. at 836 (2) (defendant “had an eighth grade education and could read and write”); Stone, 271 Ga. App. at 750 (2) (defendant “had completed the eighth grade”). The majority, however, implies that despite his age and education, Boyd should be treated in *267a different way than other 15-year-old, high-school freshman because he “could not tell the officer his street address or whether he lived in Norcross or Lilburn.” Although Boyd could not give his precise address during the interview, he was able to identify the name of the apartment complex in which he lived and describe in some detail where that complex was located, indicating that Boyd, in fact, knew exactly where he lived and how to get there, even if he did not know the mailing address associated with that location. See Stone, 271 Ga. App. at 750 (2) (addressing the juvenile’s eighth-grade education and noting that he “gave detailed narrative responses to the [interview] questions, not simple monosyllabic answers”). Moreover, Boyd was able to recite the telephone numbers for his parents and his social security number, which he had the presence of mind to volunteer to the investigator near the end of the interview.

But in any event, the question is not whether Boyd is as smart as most 15-year-olds. The question instead is whether, given the totality of the circumstances, the evidence supports the conclusion of the court below that Boyd was intelligent enough to understand the things about which he was being interviewed and his constitutional rights and to make an informed decision to waive those rights. See Stone, 271 Ga. App. at 750-751 (2) (upholding trial court’s finding that 15-year-old defendant made a knowing and intelligent waiver of his rights despite expert testimony that he had an IQ of 89, “the mental age of a twelve-year-old, a fourth-grade reading comprehension level, and a verbal comprehension level of a nine-year-old”). I see nothing in the record to indicate that Boyd was not capable of understanding these things, and I do not have the opportunity, as did the court below, to observe Boyd in person. I do not think we can find that the trial court clearly erred when it found that Boyd made a knowing and voluntary waiver of his rights.

The record also supports the conclusion that Boyd understood the basis of the charges against him as well as his right to consult an attorney and his right to remain silent. The robbery occurred only a few hours before Boyd was interviewed, and no one disputes that Boyd understood that the investigator wanted to discuss the robbery. Boyd never claimed at the hearing that he did not understand why the police were questioning him or that he believed the police had an interest in anything other than the robbery. Thus, although there was no testimony that Boyd was told specifically he was facing charges of armed robbery, and although he may not have understood the precise legal implications of his conduct, the evidence was sufficient to support the conclusion that Boyd understood at least the general nature of the charges he might face. The majority points to Boyd’s belief that the gun was unloaded and infers that he might have *268believed this circumstance would mitigate his crime, but even if he did, every teenager reasonably ought to understand, I think, that any crime involving a firearm is, relatively speaking, a serious matter.

Moreover, the recording of the interview shows that Boyd was informed of his rights to remain silent and consult with a lawyer, he acknowledged he understood those rights, and he agreed to waive them. This evidence supports the trial court’s finding that Boyd’s waiver was knowing and intelligent. See Murray, 276 Ga. at 397 (2) (affirming denial of motion to suppress where it was established at the motion to suppress hearing that the juvenile suspect was informed of his rights and acknowledged that he understood them); Stone, 271 Ga. App. at 751 (3) (police informed juvenile suspect of his Miranda rights, including the right to remain silent and to consult with an attorney, and juvenile subsequently executed a written waiver of those rights). The majority implies that Boyd might not have understood his rights because they “were unnecessarily read [to him] in a way that might have confused an adult, much less a 15-year-old being interviewed at 2:30 a.m.” I disagree. As the taped interview shows, the investigator told Boyd, “I am going to read you your rights” and the investigator then explained that he would be reading those rights to Boyd as if Boyd was reading those rights to himself. I fail to see how Boyd could reasonably believe, particularly in light of the officer’s explanation to him, that the investigator was saying that the investigator, rather than Boyd, had a right to remain silent and to consult a lawyer.

Furthermore, the majority’s analysis of this issue is seriously undercut by the evidence presented at the motion to suppress hearing. The recording of the interview reveals that, at no time during or after the reading of rights to Boyd, did he express any confusion or ask any questions about those rights. Indeed, when asked if he understood his rights, Boyd nodded his head in the affirmative. Additionally, as noted earlier, the investigator testified that Boyd appeared to understand everything he was being told during the interview, and Boyd himself testified that he did not invoke his right to remain silent only because of the threat that the investigator allegedly made, a threat that, the court below properly found, never was made in fact. That testimony, standing alone, indicates that Boyd understood that he had the right to remain silent, but chose not to invoke that right.

It is also clear from the record that Boyd was not held incommunicado and denied access to his parents or to a lawyer. Rather, the record shows that Boyd never asked to speak with an attorney, with either of his parents, or with any other trusted adult. And, as the majority acknowledges, our Supreme Court has declined to adopt a per se rule either that a parent must be present or that a juvenile *269must be asked specifically if he wishes to talk with a parent, before being interviewed by police officers. See Murray, 276 Ga. at 398 (3) (“we have consistently held that the custodial statement of a juvenile is not rendered inadmissible merely because it was made in the absence of a parent”); Killings v. State, 296 Ga. App. 869, 872 (2) (676 SE2d 31) (2009) (even though juvenile had given police contact information for his mother, the fact that he “was interviewed outside the presence of his mother, although a factor to be considered by the trial court, did not preclude the admission of his statement”); Dickerson v. State, 292 Ga. App. 775, 776 (1) (666 SE2d43) (2008) (physical precedent only) (noting that the juvenile code does not require “a parent to be present during questioning” of a minor arrested for or suspected of a crime). Given that Boyd never asked to speak with a parent or anyone else, I believe it is patently unreasonable to suggest either that Boyd was held incommunicado or that the police otherwise acted inappropriately. Murray, 276 Ga. at 397 (2) (juvenile not held incommunicado where he “did not ask to speak with his parents nor was he denied access to a telephone or prevented in any way from contacting family members”); Stone, 271 Ga. App. at 751 (4) (juvenile not held incommunicado where “[djuring the interview, [he] made no request to see or speak with any relatives, friends, or an attorney”).

The majority also finds that the methods used in the interview are problematic, mostly because the investigator first encouraged Boyd to “straighten out what in the hell happened this evening” and then asked Boyd if he “wanted to get it straightened out now,” all without having informed Boyd of the precise charges he faced. The officer’s use of the term “straightened out,” the majority reasons, could have caused a juvenile, unaware of the serious nature of the charges he was facing, to believe that there would be no repercussions if he simply explained to the police what had happened.14 Again, I disagree with this analysis.

*270Our cases make clear that police officers encouraging a suspect to talk, urging them to tell the truth, and informing them that not talking or lying will only make things worse, without more, “does not constitute hope of benefit so as to render involuntary any statement made thereafter.” In Interest of J. L., 229 Ga. App. 447, 450 (2) (494 SE2d 274) (1997), citing Henry v. State, 265 Ga. 732, 736 (4) (c) (462 SE2d 737) (1995) (punctuation omitted). See also Stone, 271 Ga. App. at 752 (6) (“[t]he police’s insistence that [a juvenile suspect] tell the truth was appropriate” method of interrogation); Owens v. State, 209 Ga. App. 272, 273 (433 SE2d 382) (1993) (the hope of a benefit “which originates in the mind of the person making the confession and which originates from seeds of his own planting,” rather than from the words of the police, does not render a confession involuntary) (citation and punctuation omitted). And as I mentioned earlier, even though the officer did not inform Boyd explicitly that he was facing charges of armed robbery, Boyd clearly was aware of the incident that precipitated the interview. Notably, the majority acknowledges that the interrogation methods used here are permissible, at least for adults. It then concludes, however, that these methods are “ill-advised when interviewing a juvenile.” Whether certain police interrogation tactics are ill-advised, however, is not the question with which we are presented. Our job is not to grade the police. The only question with which we are presented is whether such tactics render involuntary an otherwise voluntary and knowing waiver of constitutional rights. And although the majority finds that the tactics used here suggest that Boyd’s waiver was not knowing and voluntary, it cites no legal authority to support this conclusion. In light of the legal authority that does exist, however, I cannot agree with the majority’s conclusion that the interview tactics were so unreasonable that they rendered Boyd’s waiver of his rights invalid. See, e.g., Swain, 285 Ga. App. at 552-553 (affirming denial of motion to suppress juvenile’s confession even though the interviewing detective “used some profanities during the interview, called [defendant] a liar and a coward, and told [defendant] some lies regarding other evidence that they had against him,” where the detective did not threaten the defendant or promise him a benefit, and the defendant “failed to cite to any authority to support his argument that the methods the detective used were improper or otherwise required the exclusion of” his confession).

*271Decided March 28, 2012. G. Richard Stepp, for appellant. Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

For all these reasons, and based upon a consideration of the totality of the circumstances, including the nine Riley factors, under a proper standard of appellate review, we ought to affirm the denial of the motion to suppress. Because the majority does not, I respectfully dissent.

I concur fully in Division 2 of the majority opinion.

The majority relies on the references in Riley and other cases to the “heavy burden” of the State. See Riley, 237 Ga. at 128. To he sure, the burden is somewhat heavier in cases involving children because of the special attention given to the nine Riley factors and the common-sense notion that, generally speaking, it is more difficult to show a knowing and voluntary waiver by a child than by an adult. But it is still a burden that can be carried by a preponderance of evidence.

Less deference might be owed when the trial court observes the accused at a point distant in time from his interview. But in this case, Boyd was interviewed in September 2007, and he testified on the motion to suppress his statement only about a year later, in October 2008.

As the majority acknowledges, it does not address several of the nine factors identified by the Supreme Court in Riley, 237 Ga. at 128, because it does not think every factor is critical to its finding that Boyd’s waiver of his rights was not voluntary and knowing. The factors not directly addressed by the majority include the length of the interview, the fact that Boyd was interviewed before charges were filed, the fact that Boyd had never refused previously to give a statement to the police about this incident, and the fact that Boyd has never repudiated his confession. Under our case law, however, the length of the interview in this case (25-30 minutes) supports the finding that Boyd’s waiver was voluntary. See Murray, 276 Ga. at 397 (2) (interview of juvenile lasted only 36 minutes); In the Interest of C. H., 306 Ga. App. at 835-836 (2) (affirming denial of motion to suppress confession of juvenile, noting that “questioning lasted less than one hour”); Swain, 285 Ga. App. at 552 (fact that juvenile was questioned for approximately two hours did not impact voluntary nature of statement to police); Stone v. State, 271 Ga. App. 748, 752 (7) (610 SE2d 684) (2005) (interview of juvenile lasting 27 minutes “is not coercive”). And the majority appears to concede that both the fact that Boyd never had previously refused to give a statement to the police and the fact that he never repudiated his confession support the denial of the motion to suppress.

Although Boyd was in the ninth grade at the time of his arrest, that arrest occurred in September of his ninth-grade year. I therefore assume that Boyd had at least the equivalent of an eighth-grade education.

Although not addressed directly in its legal analysis, the majority also appears to be bothered by the fact that Boyd was handcuffed and placed in the interview room by himself, the interview occurred at approximately 2:30 a.m., and that Boyd was not offered anything to drink either before or during the interview. The tape of the interview does show that Boyd was initially placed in the interview room in handcuffs, and he was left there by himself for approximately 12 minutes. When the investigator entered the room to interview Boyd, however, he immediately removed his handcuffs, a fact that the majority fails to acknowledge. And although the interview did occur during what many of us would consider the middle of the night, I doubt that 2:30 a.m. is an especially late hour for many teenagers. In any event, Boyd was not roused from his bed to be interviewed. More importantly, although no one disputes that Boyd was a little tired, he appears to be alert and responsive during the interview. Finally, while Boyd was not offered anything to drink prior to or during the 24-minute interview, there is no evidence that he asked for anything to drink — or anything else — during that time. Given these facts, I do not think that any of these circumstances support the conclusion of the majority that *270Boyd’s waiver of his rights was neither knowing nor voluntary. See Swain, 285 Ga. App. at 552 (noting that juvenile defendant “did not ask for food, water, or a break during the interview, which lasted approximately two hours”).