Boyd v. State
Boyd v. State
Opinion of the Court
Darrell Emmanuel Boyd, Jr., was convicted by a jury of armed robbery, possession of a firearm during the commission of a felony and violating the Georgia Firearms and Weapons Act by possession of a sawed-off shotgun; he was sentenced to 20 years to serve 12.
1. Boyd first argues that the trial court erred by finding that he knowingly and voluntarily waived his constitutional right to self-incrimination so as to authorize the admission of his in-custody incriminating statement. We agree and reverse.
Although the State had the burden of proving the admissibility of the incriminating statement by a preponderance of the evidence,
[confessions of juveniles must be scanned with more care and received with greater caution than those of adults. Crawford v. State, 240 Ga. 321, 323 (1) (240 SE2d 824) (1977). (T)he question of a voluntary and knowing waiver*257 depends on the totality of the circumstances(,) and the (S)tate has a heavy burden in showing that the juvenile did understand and waive his rights. ... Id.
(Punctuation omitted.) Swain v. State, 285 Ga. App. 550, 551-552 (647 SE2d 88) (2007). E.g., Nelson v. State, 289 Ga. App. 326, 328 (1) (657 SE2d 263) (2008).
However, as our Supreme Court has further explained, “age alone is not determinative of whether a person can waive his rights. Instead, the question of waiver must be analyzed by a consideration of several factors.” Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976). Those factors include
(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.
Id.
On appeal, we accept the trial court’s findings on disputed facts and credibility issues unless clearly erroneous. Norris v. State, 282 Ga. 430, 431 (2) (651 SE2d 40) (2007); State v. Rodriguez, 274 Ga. 728 (559 SE2d 435) (2002). “However, (w)here controlling facts are not in dispute, . . . such as those facts discernible from a videotape, our review is de novo. (Cit.)”
Turning to the facts here, the record and transcripts show that Boyd was 15 years old and in the ninth grade at the time he was interviewed.
Osterberg began by asking Boyd general background questions, and Boyd could not tell the officer his street address or whether he lived in Norcross or Lilburn, but described generally for the officer where his home was located. He gave the officer his mother’s cell phone number, but said he did not live with his mother and that she lived in College Park. He told the officer he lived with his father, gave the officer his father’s cell phone number, and said his father “should be” home at that time.
Osterberg then told Boyd he was going to read him his Miranda rights as if Boyd was reading them to himself; in other words, Osterberg read Boyd his rights, using a form which was intended to be read by the suspect, in the first person singular, using the pronoun “I,” instead of using the pronoun “you.”
Osterberg then asked Boyd if he understood his rights, and Boyd gave a slight nod of his head; Osterberg asked Boyd if he had any questions, and Boyd indicated he did not by a slight shake of his head, again giving a slight nod of his head when Osterberg asked him if he understood his rights fully. Osterberg then asked Boyd if he was ready, “with those rights in mind, ... to go ahead and continue this interview and kind of straighten out what in the hell happened this evening.” Boyd did not respond, and Osterberg queried “Understand?” and Boyd slightly nodded his assent. Osterberg then asked Boyd again whether he wanted to go ahead and get it straightened out now, and Boyd hesitated and then responded “Yeah.”
Osterberg proceeded to question Boyd about the events of that night. While pressing Boyd about who owned the gun used during the robbery, Boyd stated he did not know but then blurted out that “he did
Placing these facts in the context of the Riley factors, we note first that Boyd was only 15 years old and in the ninth grade and, for whatever reason, could not provide the officer with certain details such as his street address. The interview did not start until almost 2:30 a.m., and Osterberg acknowledged that Boyd appeared tired but said Boyd was not so tired that he lost track of what was going on during the interview. It does not appear that Osterberg asked Boyd if he wanted anything to drink before he began the interview, and when the interview was over Boyd immediately asked for something to drink.
The recording further reveals that Boyd gave Osterberg the necessary contact information for his parents and Osterberg stated at the hearing that he thought one of the other officers may have tried to contact Boyd’s father, but Osterberg did not mention that fact to Boyd or ask him if he wanted to wait until his father had been reached before proceeding with the interview. As our Supreme Court has held, “[a] parent’s presence... is a significant factor in support of a finding of waiver,” Norris, 282 Ga. App. at 431 (2), although it is equally true that a parent’s presence is not required and that we do not have a per se rule that such statements should be excluded. Further, although Osterberg informed Boyd of his rights, including his right to have a parent or attorney present, these rights were unnecessarily read in a way that might have confused an adult, much less a 15-year-old being interviewed at 2:30 a.m.
While the above circumstances might give us cause to question whether the waiver of rights here was knowingly and intelligently made, it is the next part of the interview, coupled with these circumstances, that leads us to conclude that Boyd’s statement should not have been admitted at trial. At this juncture of the interview Boyd had been arrested but not charged, and more importantly, Osterberg had not revealed to Boyd that he might be charged with serious felony offenses, such as armed robbery and various weapons violations,
Based on the foregoing, and considering the totality of the circumstances,
A child’s age is far more than a mere chronological fact. It is a fact that generates commonsense conclusions about behavior and perception. Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.
Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children generally are less mature and responsible than adults, [cit.]; that they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them, [cit.]; that they are more vulnerable or susceptible to . . . outside pressures than adults, [cit.]; and so on. Addressing the specific context of police interrogation, we have observed that events that would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. [Cits.] ... Describing no one child in particular, these observations restate what any parent knows — indeed, what any person knows — about children generally. [Cit.]
J. D. B. v. North Carolina,_U. S._(131 SC 2394, 2403, 180 LE2d 310) (2011).
2. However, we find no error in the admission of evidence that the victim identified Boyd as the person who brandished the shotgun during a show-up identification procedure conducted shortly after the crime was committed. Although the victim was told by an officer that there were some “similarities,” the officer also testified that he told the victim that police did not know if the people they had detained were involved or “related” to the crime, and testified that he did not at any time during the show-up attempt to lead the victim toward an identification. Having considered all the circumstances surrounding the show-up procedure, we find that the trial court did not clearly err by admitting the identification evidence in this case. E.g., Billingsley v. State, 294 Ga. App. 661, 662 (1) (669 SE2d 699) (2008); Horne v. State, 260 Ga. App. 640, 643 (4) (580 SE2d 644) (2003). Moreover, the fact that the victim could not identify Boyd at trial, while certainly something for the jury to consider, did not render this evidence inadmissible particularly since the pre-trial identification was based at least in part on Boyd’s clothing and hairstyle at that time, and his facial features were at least partially concealed during the robbery. This enumeration thus affords no basis for reversal.
Judgment reversed.
The record shows that two of Boyd’s co-defendants entered guilty pleas to the lesser included offense of robbery and the other offenses were nol-prossed. The co-defendants received sentences of seven to serve three and ten to serve four respectively and were also accorded first offender treatment. Another defendant, with whom Boyd was tried, was found not guilty.
By quoting this statement, we are in no way failing to give proper deference to the trial court’s factual and credibility determinations concerning testimony presented at the motion to suppress hearing, although we do note that the trial court in this case did not make any specific factual findings in its order denying the motion to suppress. Further, in our view the “controlling facts” in this case are discerned from the recording of the interrogation.
Presumably Boyd was in the early part of his ninth grade year since the crime occurred in September.
The dissent “doubt[s] that 2:30 a.m. is an especially late hour for many teenagers.” But the videotape shows, and Osterberg admitted, that Boyd was tired.
The dissent states that the record “supports the conclusion that Boyd understood the basis of the charges against him....” But the trial court did not make any findings about what Boyd may or may not have understood concerning the charges he might be facing, and in light
Although it did not explicitly do so, the trial court implicitly rejected Boyd’s testimony, which Osterberg disputed, that the officer threatened to ‘bury him under the jail” if he did not talk to him, and we defer to that credibility determination on appeal.
Although the dissent opines that it is not our job to grade the police, it is our job to consider the method used during the interrogation when we are determining the admissibility of a juvenile’s statement. Further, we stress that it is not just the method of interrogation here, but the totality of the circumstances that has led us to conclude the statement should not have been admitted. And, in our view, it is the dissent’s piecemeal approach which misses the mark. Further, in light of the fact that the admissibility of an incriminating statement of a juvenile is analyzed differently than that of an adult, see Vergara, 283 Ga. at 177-178(1), we fail to see how it is a stretch to say that certain interrogation methods may he permissible for an adult but not for a juvenile. See J. D. B. v. North Carolina,_U. S._(131 SC 2394, 2403, 180 LE2d 310) (2011) (quoted infra).
While not specifically addressing several of the factors, we note that there is no evidence that Boyd refused to give a statement on prior occasions or repudiated the statement which is under review.
Concurring in Part
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.
(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.
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
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
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
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
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
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.
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
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