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Docket Number

A98A1743.

Attorney(S)

Joyce M. Griggs, for appellant. Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judges

BLACKBURN, Judge.

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Case Summary: Thompson v. The State, A98A1743 (Court of Appeals of Georgia, Aug. 20, 1998)

Citation data from opinion: Docket A98A1743. Court of Appeals of Georgia. Decided August 20, 1998. Appeal from Chatham Superior Court (Judge Freesemann). Counsel of record: Joyce M. Griggs for appellant; Spencer Lawton, Jr., District Attorney, and Ronald M. Adams, Assistant District Attorney, for appellee.

Factual and Procedural Background

Earl Fenton Thompson was convicted by a jury of carrying a concealed weapon, carrying a pistol without a license, and possession of a firearm by a convicted felon. The convictions arose from an incident in which Andrea Beasley drove into a police precinct yard during a shift change and told officers that her boyfriend had beaten her, threatened her, and had a gun. Officer Mike Embry confronted Thompson, who was in the front passenger seat of the vehicle. An officer located a gun under the front passenger seat. Thompson made several statements at the scene and later while placed in a police cruiser, including initially denying ownership of the gun and later admitting ownership while asserting police could not prove it.

Thompson appealed, asserting trial-court error in three respects: (1) denial of his motion in limine (to exclude his statements made at arrest), (2) denial of his motion to dismiss the indictment (premised on an unsigned warrant), and (3) refusal to give requested jury charges relating to the presumption that a driver possesses items in the car and an instruction on "equal access." The Court of Appeals affirmed the convictions.

Legal Issues Presented

Whether the trial court erred in denying Thompson's motion in limine to exclude statements he made at the time of his arrest (i.e., whether those statements were admissible in light of Miranda and related custody/interrogation principles).
Whether the trial court erred in denying Thompson's motion to dismiss the indictment on the ground that the warrant was not signed by a judicial officer and whether that challenge was timely.
Whether the trial court erred in refusing to give Thompson's requested jury charges regarding (a) the presumption that a driver is in possession, custody, or control of things in the vehicle, and (b) the "equal access" instruction.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mao v. State, 222 Ga. App. 482, 483 (474 S.E.2d 679) (1996)	When reviewing a suppression ruling, evidence is construed most favorably to uphold the trial court; trial court resolves conflicts in the evidence and findings of credibility/fact will not be disturbed unless clearly erroneous.	Cited as the standard of review for denial of Thompson's motion to suppress; supported affirmance of trial court's factual findings regarding voluntariness and custody.
Williamson v. State, 171 Ga. App. 904, 905 (321 S.E.2d 762) (1984)	Miranda warnings are not required when a person responds to an officer's initial inquiry at an on-the-scene investigation that has not become accusatory.	Used to support admission of Thompson's initial statements made in the car in response to police inquiry as noncustodial and not requiring Miranda warnings.
Whatley v. State, 196 Ga. App. 73, 78 (395 S.E.2d 582) (1990)	Fact findings underpinning a legal conclusion at a suppression hearing will not be reversed unless clearly erroneous.	Reiterated the standard of review for custody and suppression determinations.
Vaughn v. State, 261 Ga. 686, 687 (410 S.E.2d 108) (1991)	A person is not in custody for Miranda purposes merely because he is a prime suspect at the time of interrogation.	Supported the conclusion that Thompson's status as a suspect did not automatically require Miranda warnings.
State v. Brannan, 222 Ga. App. 372, 376 (474 S.E.2d 267) (1996)	Probable cause and a secret intent to arrest later are immaterial to custody determination unless police communicate their future intent to arrest during the interview.	Applied to show that likelihood of arrest alone did not render Thompson in custody for Miranda purposes.
Hardeman v. State, 252 Ga. 286, 288 (313 S.E.2d 95) (1984); Carroll v. State, 208 Ga. App. 316, 317 (430 S.E.2d 649) (1993)	Suspect is not entitled to Miranda warnings as a matter of right unless taken into custody or deprived of freedom of action in another significant way.	Supported the court's custodial analysis that Thompson was not automatically entitled to Miranda warnings absent restraint akin to formal arrest.
Hodges v. State, 265 Ga. 870, 872 (463 S.E.2d 16) (1995); Berkemer v. McCarty, 468 U.S. 420, 442	Custodial inquiry centers on whether individual was formally arrested or restrained to degree associated with formal arrest; use of reasonable-person test to determine perception of restraint.	Applied to assess whether a reasonable person in Thompson's position would have perceived restraint equivalent to formal arrest; court found trial court's custody finding not clearly erroneous.
Manchester v. State, 226 Ga. App. 653, 655 (487 S.E.2d 449) (1997); Hendrix v. State, 230 Ga. App. 604, 605-606 (497 S.E.2d 236) (1998)	Illustrations of custody analysis using the reasonable-person test and mixed questions of law and fact.	Cited in support of the court's application of custody standards to the facts here.
Rhode Island v. Innis, 446 U.S. 291 (100 S. Ct. 1682) (1980)	Volunteered statements not the product of interrogation are not suppressible under Miranda; interrogation defined by words/actions officers should have known were reasonably likely to elicit incriminating response.	Used to support the trial court's finding that Thompson's post-arrest statements were volunteered and not the product of custodial interrogation.
Zubiadul v. State, 193 Ga. App. 235, 237 (387 S.E.2d 431) (1989); Johnson v. State, 224 Ga. App. 568, 569 (481 S.E.2d 268) (1997)	Further explanation of the scope of "interrogation" under Innis.	Reinforced the conclusion that Thompson's later statements were not elicited by interrogation and were admissible.
Bennett v. State, 216 Ga. App. 365, 366 (454 S.E.2d 562) (1995)	OCGA § 17-7-111 and Uniform Superior Court Rule 31.1 require any demur to the indictment be made in writing at or before arraignment unless extended in writing by the judge prior to trial.	Applied to hold Thompson's motion to dismiss, filed on the morning of jury selection without an extension, was untimely and properly denied.
Lombardo v. State, 187 Ga. App. 440 (370 S.E.2d 503); Mendez v. State, 185 Ga. App. 1 (363 S.E.2d 262); Castillo v. State, 166 Ga. App. 817 (305 S.E.2d 629)	Described the "equal access" rule: evidence that others had equal access to contraband may overcome presumption that contraband was in exclusive possession of owner/driver; if multiple persons share actual or constructive possession, possession is joint.	Used to define the contours of equal access and joint possession in assessing whether Thompson's requested charge was warranted.
Britt v. State, 184 Ga. App. 445 (361 S.E.2d 710); Pittman v. State, 175 Ga. App. 50 (332 S.E.2d 356)	It is not error to decline to instruct the jury on an issue not reasonably raised by the evidence.	Supported the court's refusal to require an equal access instruction where the evidence did not reasonably raise that issue.
Akins v. State, 184 Ga. App. 441 (361 S.E.2d 707)	Equal access defense is triggered only where a presumption of possession arises (i.e., where State shows indicia giving rise to the presumption such as ownership or exclusive control); if trial judge declines to instruct on the presumption, equal access instruction is not required.	Applied to conclude no presumption arose here (because State did not show indicia), so Thompson was not entitled to an equal access charge and could not use the presumption as a defense.
Lance v. State, 191 Ga. App. 701, 703 (382 S.E.2d 726) (1989)	Statement concerning equal access and the relationship to presumption-of-possession charges and instruction requirements.	Cited to support the proposition that equal access instruction is not required when presumption-of-possession instruction is not given or not triggered.

Court's Reasoning and Analysis

The court analyzed each enumeration of error under the applicable standards and the evidence as presented at the suppression hearing and at trial. The decision reflects the following step-by-step reasoning:

Standard of review for suppression and custody findings

The Court construed the suppression-hearing evidence most favorably to uphold the trial court and noted that the trial court resolves conflicts in evidence and credibility. Findings of fact made by the trial court will not be disturbed on appeal unless clearly erroneous (citing Mao and related authorities).
Whether a person was in "custody" for Miranda purposes is a mixed question of law and fact; the appellate court will not reverse underlying factual findings unless clearly erroneous (citing Whatley and others).

1. Motion in limine / admissibility of statements

The court divided Thompson's statements into two groups: (a) statements made in Beasley's car in response to the officer's initial inquiry; and (b) statements made after Thompson was placed in a police cruiser.
For group (a), the trial judge found and the appellate court agreed that these statements were made in response to an on-the-scene initial inquiry that had not become accusatory, and thus Miranda warnings were not required (citing Williamson).
For custody analysis, the court applied controlling principles: being a suspect or the police having probable cause does not automatically create custodial status; the relevant question is whether a reasonable person in the suspect's position would have perceived a restraint on freedom of movement to the degree associated with a formal arrest (citing Vaughn, Brannan, Hodges, Berkemer, Manchester, Hendrix, and others).
Applying those standards to the evidence, the appellate court concluded that the trial court's finding that the initial statements were voluntarily made under noncustodial circumstances was not clearly erroneous.
For group (b), the court agreed with the trial judge that the remaining statements were volunteered and not the product of custodial interrogation. The court relied on the Innis principle that volunteered statements not elicited by interrogation are not subject to Miranda suppression; interrogation denotes words/actions officers should have known were reasonably likely to elicit an incriminating response (citing Innis, Zubiadul, Johnson).
The appellate court concluded the trial court's determination that those statements were not made as a result of custodial interrogation was not clearly erroneous, and therefore admission of the statements was proper.

2. Motion to dismiss the indictment (timeliness)

Thompson's motion to dismiss the indictment was premised on the warrant not being signed by a judicial officer, but it was filed on the morning of jury selection.
The court applied OCGA § 17-7-111 and Uniform Superior Court Rule 31.1, as explained in Bennett v. State, which require any demur to the indictment to be made in writing at or before arraignment unless the judge, in writing, extends the deadline prior to trial.
Because Thompson did not obtain a written extension, the court held his motion was untimely and was properly denied.

3. Requested jury charges (presumption of possession and equal access)

The court explained the "equal access" rule: when evidence shows persons other than the owner/driver had equal access to contraband, that evidence may overcome a presumption that contraband was in the exclusive possession of the owner/driver. If two or more persons shared actual or constructive possession, possession is joint (citing Lombardo, Mendez, Castillo).
The court found that, viewing the evidence most favorably to the verdict, the record did not reasonably raise the issue of equal access; it raised only the issue of joint possession. An instruction need not be given on an issue not reasonably raised by the evidence (citing Britt, Pittman).
The court noted equal access is a defense available only to an accused in whom the presumption of possession has arisen; where the State does not show indicia giving rise to that presumption (e.g., ownership or exclusive control of the vehicle), no presumption arises and therefore equal access is not triggered (citing Akins).
Additionally, when the trial judge elects not to charge the jury on the presumption of possession, an equal access instruction is not required (citing Akins and Lance).
On those bases the court held Thompson was not entitled to the requested equal access or presumption-of-possession charges, and the trial court did not err in refusing them.

Holding and Implications

Judgment affirmed.

Holding (core ruling): The Court of Appeals affirmed Thompson's convictions, concluding that (1) the trial court properly admitted Thompson's statements because the initial statements were noncustodial and the subsequent statements were volunteered and not the product of custodial interrogation; (2) Thompson's motion to dismiss the indictment was untimely under applicable procedural rules and was properly denied; and (3) the trial court did not err in refusing Thompson's requested jury charges because the evidence did not reasonably raise the equal access issue nor did the presumption of possession arise.

Implications: The direct effect is that Thompson's convictions stand and the trial-court rulings on suppression, timeliness of the demurrer, and jury instructions were upheld. The opinion applies existing Georgia and federal precedent to the facts of this case; it does not announce any novel legal rule or broader change in law beyond applying settled standards for Miranda/custody, procedural timing for demurs, and the scope of equal access/presumption instructions. The judgment was affirmed, with McMurray, P.J., and Eldridge, J., concurring.

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THOMPSON v. THE STATE

BLACKBURN, Judge.

Earl Fenton Thompson appeals his convictions by a jury of carrying a concealed weapon, carrying a pistol without a license, and possession of a firearm by a convicted felon. Thompson contends that the trial court erred by: (1) denying his motion in limine; (2) denying his motion to dismiss the indictment; and (3) refusing to give a requested jury charge. For the reasons discussed below, we affirm Thompson's convictions.

1. In his first enumeration of error, Thompson asserts that the trial court erred in denying his motion in limine in which he sought to exclude the introduction of statements he made at the time of his arrest. In our review of the trial court's order denying Thompson's motion to suppress, we construe the evidence most favorably to uphold the trial court's ruling. Mao v. State, 222 Ga. App. 482, 483 ( 474 S.E.2d 679) (1996). It is the trial court's duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous. Id.

During the hearing on Thompson's motion in limine, Officer Mike Embry with the Savannah Police Department testified that Andrea Beasley drove her car into the police precinct yard while several officers were present during a shift change. Beasley exited the car, identified herself to Officer Embry, and told him that her boyfriend beat her up, threatened her, and had a gun. Officer Embry went to the vehicle and confronted Thompson who was sitting in the passenger seat. Officer Embry testified that Thompson was loud, belligerent, and vulgar, and that he denied that there was a gun in the car. However, another officer found a gun under the front passenger seat. At that point, Thompson started talking in a rambling manner — first denying the gun was his, then admitting it was his, but saying that the police could not prove it. Thompson was put in a police cruiser where he continued to talk, saying to Beasley; "I can't believe you told them about — that I had the gun, had the gun on me."

Based on this testimony, Thompson's statements can be put in two groups: (a) those statements made in Beasley's car in response to the officer's initial inquiry, and (b) those statements made once he was put into the police cruiser. Thompson contends that none of his statements should have been admitted at trial because he had not been given his Miranda warnings.

(a) The trial judge determined that the first statements made by Thompson were either made in response to the officer's initial inquiry while investigating the situation or were made prior to Thompson being placed in custody.

We have specifically held that "Miranda warnings are not required when a person responds to an officer's initial inquiry at an on-the-scene investigation which has not become accusatory." Williamson v. State, 171 Ga. App. 904, 905 ( 321 S.E.2d 762) (1984). We agree with the trial court that the first of Thompson's statements were made in response to the officer's initial inquiry and were admissible.

"The issue presented, as to whether [Thompson] was in custody for Miranda purposes, is a mixed question of law and fact. We will not reverse the trial court's fact findings which underpin its legal conclusion made at a suppression hearing, unless they are clearly erroneous. Whatley v. State, 196 Ga. App. 73, 78 (5) ( 395 S.E.2d 582) [(1990)]. A person is not in a state of custody merely because he is a prime suspect at the time he is interrogated by the police or their agent. See Vaughn v. State, 261 Ga. 686, 687 (2) ( 410 S.E.2d 108) [(1991)]. Even if the police have probable cause to arrest at the time of the interview and secretly intend to charge the suspect at some future time, such facts are immaterial to a determination of whether the suspect was in custody at the time of the interview, except when and to what extent the police communicate their future intent to arrest during the course of the interview. State v. Brannan, 222 Ga. App. 372, 376 (2) (c) ( 474 S.E.2d 267) [(1996)]. . . . A suspect must be in a custodial situation for Miranda to apply; a suspect is not entitled to Miranda warnings, as a matter of right, unless he has been taken into custody or has been deprived of freedom of action in another significant way. Hardeman v. State, 252 Ga. 286, 288 (1) ( 313 S.E.2d 95) [(1984)]; Carroll v. State, 208 Ga. App. 316, 317 (2) ( 430 S.E.2d 649) [(1993)]. . . . The real issue for adjudication is whether the individual was formally arrested or restrained to the degree associated with a formal arrest. Hodges v. State, 265 Ga. 870, 872 (2) ( 463 S.E.2d 16) [(1995)]. In resolving this issue, the relevant inquiry is how a reasonable person in suspect's position would perceive his situation ( Hodges, supra, citing Berkemer v. McCarty, 468 U.S. 420, 442 (104 SC 3138, 3151, 82 LE2d 317)); that is, whether a reasonable person in [Thompson's] position would have understood the situation to constitute restraint on freedom of movement of the degree which the law associates with formal arrest. Manchester v. State, 226 Ga. App. 653, 655 (1) ( 487 S.E.2d 449) [(1997)]." Hendrix v. State, 230 Ga. App. 604, 605-606 ( 497 S.E.2d 236) (1998).

Applying these standards to the evidence before us, we conclude the trial court's finding that Thompson's initial statements were voluntarily made under noncustodial circumstances was not clearly erroneous. Compare Hodges, supra; Vaughn, supra; Manchester, supra.

(b) The trial court determined that the remainder of Thompson's statements were voluntary and not the result of police interrogation.

"Not all in-custody statements are subject to Miranda. A volunteered statement, which is not the product of interrogation or its functional equivalent, would not be suppressible on this ground. Rhode Island v. Innis, 446 U.S. 291 ( 100 SC 1682, 64 LEd 2d 297) (1980). . . . The definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. . . . Zubiadul v. State, 193 Ga. App. 235, 237 ( 387 S.E.2d 431) (1989)." (Punctuation omitted.) Johnson v. State, 224 Ga. App. 568, 569 ( 481 S.E.2d 268) (1997). In the present case, the trial court's finding that Thompson's statements were not made as a result of custodial interrogation is not clearly erroneous.

2. In Thompson's second enumeration of error, he contends that the trial court erred in denying his motion to dismiss the indictment which was premised on the fact that the warrant was not signed by a judicial officer. Thompson's motion to dismiss was untimely. It was filed on the morning of jury selection for his trial. We have previously determined that OCGA § 17-7-111 and Uniform Superior Court Rule 31.1 require that any demur to the indictment be made in writing at or before arraignment unless extended by the judge in writing prior to trial. See Bennett v. State, 216 Ga. App. 365, 366 ( 454 S.E.2d 562) (1995). As Thompson did not obtain an extension, his motion was untimely and, therefore, properly denied.

3. In his final enumeration of error, Thompson contends that the trial court erred in failing to give his requested jury charge regarding the presumption that the driver of a car is assumed to be in possession, custody, or control of all things in it and his requested charge regarding equal access.

"The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. Lombardo v. State, 187 Ga. App. 440 (5) ( 370 S.E.2d 503); Mendez v. State, 185 Ga. App. 1 (1) ( 363 S.E.2d 262); Castillo v. State, 166 Ga. App. 817 (2) ( 305 S.E.2d 629). However, if two or more persons shared actual or constructive possession of a thing, possession is joint. Mendez, supra at 1-2.

"We are satisfied that the evidence of record, when viewed in a light most favorable to the verdict, does not reasonably raise the issue of equal access, but only the issue of joint possession. It is not error to decline to instruct on an issue not reasonably raised by the evidence. See Britt v. State, 184 Ga. App. 445 (1) ( 361 S.E.2d 710); Pittman v. State, 175 Ga. App. 50 (1) ( 332 S.E.2d 356). Equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense. Akins v. State, 184 Ga. App. 441 (1) ( 361 S.E.2d 707). Likewise, when the trial judge elects not to charge the [jury] on the presumption of possession, an equal access instruction is not required. See Akins, supra." (Punctuation omitted.) Lance v. State, 191 Ga. App. 701, 703 (2) ( 382 S.E.2d 726) (1989).

Thompson was not entitled to an equal access charge because such charge applies only in cases were the presumption of possession is in the accused. Thompson attempted to use the presumption of possession as a defense, which it is not. See id. The trial court did not err in refusing to give Thompson's requested charges.

Judgment affirmed. McMurray, P.J., and Eldridge, J., concur.