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State v. Chulpayev

Supreme Court of Georgia

March 27, 2015

THE STATE
v.
CHULPAYEV; and vice versa

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[Copyrighted Material Omitted]

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Murder. Fulton Superior Court. Before Judge Schwall.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I. Krick, Joshua D. Morrison, Assistant District Attorneys, for appellant.

Tanya F. Miller, Renee R. Rockwell, for appellee.

NAHMIAS, Justice. All the Justices concur.

OPINION

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Nahmias, Justice.

On May 21, 2013, a Fulton County grand jury indicted Mani Chulpayev for the murder of Melvin Vernell III and related crimes. The indictment also charged four other men, including Decensae White and Gary Bradford, with the murder and related crimes. On October 9, 2013, Chulpayev filed a pretrial motion to suppress statements that he made during interviews with Federal Bureau of Investigation (FBI) agents and Sandy Springs Police Department (SSPD) officers on July 30, 2012, October 24, 2012, and April 12, [296 Ga. 765] 2013, raising claims under both OCGA § 24-8-824 and the Constitution. After a four-day evidentiary hearing, the trial court granted the suppression motion as to the July and October 2012 interviews, ruling that Chulpayev's statements were involuntary and thus inadmissible under OCGA § 24-8-824. But the court denied the motion as to the April 2013 interview, ruling that Chulpayev's statements after his arrest that day were not involuntary under OCGA § 24-8-824 and that any taint from his previous statements had been eradicated.

In Case No. S14A1375, the State appeals the partial grant of Chulpayev's suppression motion, and we affirm the trial court's rulings based on OCGA § 24-8-824. In Case No. S14X1376, Chulpayev cross-appeals the partial denial of the suppression motion. We conclude that the trial court erred in its taint analysis, although it ultimately reached the right result as to Chulpayev's statutory claim because statements that are inadmissible under OCGA § 24-8-824 do not taint evidence derived therefrom. The trial court did not decide whether Chulpayev's statements were obtained in violation of his constitutional rights, however, so we must vacate the court's judgment as to the April 2013 statements and remand the case for the court to rule on the constitutional claim.

1. Viewed in the light most favorable to the trial court's findings and judgment, see Brown v. State, 293 Ga. 787, 802 (750 S.E.2d 148) (2013), the evidence presented at the suppression hearing showed the following.

The Murder and Initial Investigation

On the evening of June 7, 2012, SSPD officers responding to a 911 call found Vernell, who had been shot and killed while sitting in an Audi sedan in a parking lot at Northside Hospital. The officers identified and notified the owner of the Audi, and around midnight, the owner called Chulpayev, whose car rental business had rented the car to Vernell. About 30 minutes later, Chulpayev called the SSPD, identified himself, and provided some information about the car. The next day, June 8, Chulpayev called FBI Special Agent Dante Jackson about the shooting. Chulpayev had served as a confidential informant (CI) for the FBI and other federal agencies since 1998 and had been working with Agent Jackson since November 2009. At the time of the murder, he was helping Agent Jackson investigate alleged drug-related gang activity involving White, Bradford, and Vernell's father. During

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the June 8 call, Chulpayev told the agent that he believed White and Bradford had killed Vernell for stealing their marijuana. Agent Jackson told Chulpayev not to speak to anyone at the SSPD.

[296 Ga. 766] On June 11, 2012, Agent Jackson called Detective J.T. Williams, the SSPD's lead investigator on the case, and repeated what Chulpayev had said about White and Bradford, explaining that the FBI was investigating them as part of a gang transporting drugs from the west coast to Atlanta. Agent Jackson told Detective Williams that he was very protective of his CI and wary of interference by local police. After Detective Williams agreed not to interfere with the CI and to " do nothing to put him in harm's way," Agent Jackson gave the detective Chulpayev's name, told the detective that Chulpayev had been deemed " credible and reliable" in the past, and gave the detective permission to use the information supplied by Chulpayev to get court orders for White's and Bradford's cell phone records. Agent Jackson and Detective Williams agreed that the FBI would continue to work the gang case and, if they got enough evidence to connect the murder to that case, the entire case would be indicted federally.

Chulpayev's July 2012 Statements to the FBI

During the remainder of June and into July 2012, Agent Jackson continued to work with Chulpayev to investigate White and Bradford, although the SSPD also pursued other leads in Vernell's murder.[1] Chulpayev's cell phone records show that he and Agent Jackson exchanged multiple text messages on a nearly daily basis during this period. At the suppression hearing, Chulpayev also testified that, at that time, he and Agent Jackson exchanged between 70 and 100 phone calls monthly. Agent Jackson represented himself to Chulpayev as the lead investigator on the murder case.

On July 27, Agent Jackson sent Chulpayev a text message saying, " Stay where you are until you hear from me. I'm heading to Sandy Springs PD for a meeting with the chief. To hold off on a murder warrant." According to Chulpayev, Agent Jackson told him in conversation that he needed to come to the FBI office and give a truthful statement because the SSPD was planning to take out a warrant against him for murder and Jackson could not protect him without knowing everything. Agent Jackson said that he would " keep the murder warrant off" if Chulpayev talked to them. The interview took [296 Ga. 767] place on July 30, 2012, at an FBI office in Atlanta. Chulpayev drove himself to and from the interview, which was audio recorded. Agent Jackson, another FBI agent, and an Alpharetta police officer who had been assigned to the FBI gang task force were present.

At the suppression hearing, the other FBI agent and the Alpharetta officer both testified that Chulpayev was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966), and said he understood them before the audio recording began, although he did not sign an advice of rights form. The agent also testified that Chulpayev was treated as a " source" during the interview, and the officer testified that Agent Jackson represented to Chulpayev that Chulpayev would continue to be a confidential informant on the case and his identity would be disclosed only if he had to testify as a witness. Agent Jackson invoked his Fifth Amendment right against self-incrimination and refused to testify at the suppression hearing.[2]

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During the July 30 interview, Chulpayev reiterated his earlier statements to Agent Jackson that White and Bradford had killed Vernell because they suspected Vernell of stealing their marijuana. Chulpayev also said, apparently for the first time, that two or three days before the murder, White called and asked him to locate Vernell's car using the GPS tracker that was installed on all cars Chulpayev rented out. When Chulpayev asked what White was planning to do, White said he just wanted to talk to Vernell, so Chulpayev tracked the car for White, locating it at a hotel on Peachtree Industrial Boulevard. Chulpayev denied ever tracking the car to the hospital where Vernell was killed, and Chulpayev said that he did not expect White to harm Vernell. Near the end of the interview, Chulpayev explained to Agent Jackson that he had not shared the extent of his relationship with White earlier because he was worried that it would look bad that he was making money off of White, who had brought in car-rental customers. Agent Jackson told Chulpayev that how he made his money was not important, saying, " What I think is important is two things, one, to keep you alive and keep you out of jail. Those are the only two things I care about. Those are the things and then lo[c]king them up for murder. I got three things that I have to be concerned about."

[296 Ga. 768] Chulpayev's October 2012 Statements to the SSPD

More than two months later, on October 15, 2012, Agent Jackson told Detective Williams and other SSPD detectives about the July interview with Chulpayev, including that Chulpayev had said that he tracked Vernell's car for White before the murder. When the detectives suggested that this might make Chulpayev a party to the crime, Agent Jackson responded that they could charge Chulpayev only for " the cars." Later that day, Agent Jackson called Detective Williams, " cussed [him] out," and vowed to protect Chulpayev " at all costs."

Agent Jackson agreed to let Detective Williams interview Chulpayev at the FBI office on October 24, 2012, but with the understanding that Chulpayev would be treated as a confidential informant and used as a witness only if necessary. According to Chulpayev's testimony, prior to the interview, Agent Jackson told Chulpayev that an investigator at the SSPD " had it out" for him. Agent Jackson assured Chulpayev, however, that he had nothing to worry about, saying, " I'm the lead on the case, and as much as you do for me, you know, I will make sure nothing happens to you... . I got you. Just come and do what I'm asking you to do." Chulpayev then agreed to the interview. He drove himself to the FBI office and was escorted to the interview room by Agent Jackson, who also escorted Detective Williams and his partner to the room. Agent Jackson did not stay in the room during the interview, but he remained close by and came in the room at the conclusion of the interview. He also sent Chulpayev a text message asking " are you ok" at some point during the interview.

During the interview, which was audio recorded, Detective Williams did not advise Chulpayev of his Miranda rights and did not tell him that he was suspected as a party to the murder. Instead, Detective Williams assured Chulpayev that he was " not in any trouble whatsoever," that the detective " was working with Dante [Jackson] on this," that Chulpayev was one of the " good guys," and that the detective " appreciate[d] everything that [Chulpayev had] done." Detective Williams also confirmed that the murder investigation was " a joint operation" and Agent Jackson was " kind of the lead." The detective explained that he was interviewing Chulpayev so that he would have all the information Agent Jackson had. Chulpayev repeated what he had told Agent Jackson in July, including that he gave the location of Vernell's car to White two or three days before the murder and that he " didn't think [White] was capable" of killing Vernell.

[296 Ga. 769] Chulpayev's April 2013 Statements to the SSPD

On January 25, 2013, Detective Williams and his partner had a meeting with Agent Jackson and another FBI agent and asked Agent Jackson to set up a meeting with the U.S. Attorney's Office to discuss indicting the murder case federally. ...


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