MILLER, P. J., DOYLE, P. J., and REESE, J.
Miller, Presiding Judge.
Thompson, Jr., was convicted of burglary (OCGA § 16-7-1
(a) (1980)), armed robbery (OCGA § 16-8-41 (a)), and
aggravated assault (OCGA § 16-5-21 (a) (2006)) in
connection with a home invasion he committed with three other
individuals. He appeals from the denial of his motion for new
trial, arguing that (1) his statement to police was not
voluntary because it was given in exchange for a promise of
probation; (2) the trial court plainly erred by failing to
exclude this custodial statement resulting from an illegal
detention; and (3) trial counsel was ineffective for failing
to interview a key witness or move to suppress Thompson's
custodial statement that resulted from an illegal detention.
After a thorough review of the record, we conclude that the
trial court properly found that Thompson's confession was
not made due to a promise of benefit and that trial counsel
was not ineffective for failing to call a witness to testify.
However, as to Thompson's claim that trial counsel was
ineffective for failing to move to suppress his confession on
the ground that it resulted from an illegal detention, we
conclude that the trial court's order is insufficient for
us to consider whether the motion to suppress would have been
meritorious. Accordingly, we vacate the trial court's
order on this issue and remand the case for further
the evidence in the light most favorable to the verdict,
the middle of the night of July 30, 2007, Thompson and three
others broke into the home of Larry Bailey. Bailey was asleep
at the time, but he awoke when he heard the break in. The
intruders demanded money and Thompson struck Bailey on the
head with a hammer. After Bailey's wife gave the
intruders the money, they left, and Bailey's wife called
investigating the robbery spoke with Thompson at his home
before bringing him to the police station. At the station,
two officers read Thompson his Miranda rights, which he
waived. Thompson then gave a statement denying any
involvement in the crimes. Thompson remained in custody
overnight and, when he was questioned again the following
morning, Thompson waived his Miranda rights and
admitted to the armed robbery and burglary, but denied that
he struck Bailey with a hammer.
the trial court admitted the confession at trial, it
conducted a Jackson-Denno hearing. Sergeant Taylor of
the Upson County Sheriff's Office testified that he first
interviewed Thompson at the station at 9:27 pm on August 2,
2007. He read Thompson his Miranda rights, and
Thompson gave a statement denying that he committed the
crimes. Thompson was held overnight, and the following
morning Sergeant Taylor interviewed Thompson again at 8:47
am. Thompson waived his rights a second time and then
admitted his involvement in the home invasion. Sergeant
Taylor testified that no one made a promise of a lighter
sentence or probation in exchange for Thompson's
confession. Captain Hosley, who was present during the
questioning, corroborated Sergeant Taylor's testimony.
Thompson also confirmed in writing that he was making the
statement voluntarily and without the promise of any benefit.
testified at the Jackson-Denno hearing that Captain
Hosley told him he could get 20 years of probation if he
cooperated, and he only made his confession because of this
promise. The trial court nonetheless found that
Thompson's statement was given without any hope of
benefit, specifically finding Thompson's testimony not
credible. Accordingly, the trial court admitted
his trial testimony, Sergeant Taylor read Thompson's
confession into evidence. Thompson testified at trial,
admitting entering the home, but denying that he struck
Bailey. The jury convicted Thompson on all three counts with
which he was charged.
first motion for new trial, Thompson alleged that his trial
counsel was constitutionally deficient for failing to
investigate his interrogations and call witnesses to
corroborate Thompson's claim that he was promised
probation in exchange for making a statement.
two hearings on the motion for new trial, Thompson's
cousin, Antonio McDowell, testified that he was present
during Thompson's second interrogation and he heard
Captain Hosley tell Thompson he would get probation if he
told the truth. According to McDowell, however, Captain
Hosley never mentioned a specific amount of time for
probation. Captain Hosley and Sergeant Taylor both testified
that McDowell was not present during the second
interrogation, and they reiterated that no one made any
promise of probation in exchange for Thompson's
testified that he told his attorney both that he was promised
probation, and that McDowell witnessed the interrogation.
Trial counsel, however, testified that Thompson never told
him about any promise of probation or that anyone else was
present during his interrogation. Indeed, trial counsel
testified that Thompson specifically told him that no one
else was present during the interrogation. Trial counsel
stated that the first time he learned of the claim that
McDowell was also present during the second interrogation was
during the Jackson-Denno hearing.
trial court denied the motion for new trial. Thereafter,
counsel failed to timely file a direct appeal, and the trial
court granted Thompson's motion for an out-of-time
appeal. Thompson's new appellate counsel then filed an
amended motion for new trial, adding a claim that trial
counsel was ineffective for failing to move to suppress the
confession, and that his first appellate counsel was
ineffective for failing to present evidence in support of
this ineffective assistance claim.
subsequent hearings on the amended motion for new trial,
appellate counsel argued that Thompson's confession
should have been suppressed because a confession obtained
after an illegal detention is inadmissible, and the detention
was illegal because there was no probable cause for
Thompson's arrest prior to his statement. Counsel pointed
to the booking and arrest reports showing that Thompson was
arrested for armed robbery, burglary, and aggravated assault
before his second interrogation in which he
Taylor testified again, this time explaining that Thompson
initially came to the station voluntarily and was arrested
only after police determined that he had lied when he denied
that he had asked McDowell to provide a false alibi for one
of the other intruders. According to Sergeant Taylor,
Thompson was arrested for making a false statement on this
basis, although police later decided not to pursue that
charge. Captain Hosley explained that the police could not
obtain formal charges against Thompson on the night of his
arrest for making a false statement because the magistrate
judge was not available until the morning.
trial court reinstated its initial ruling denying the motion
for new trial and found that neither trial counsel nor first
appellate counsel had provided ineffective assistance in
failing to move to suppress Thompson's confession due to
the unlawful detention. Specifically, the trial court found
that Thompson's detention was lawful and any motion to
suppress would not have been granted. Importantly, at no time
in the two hearings or in its order did the trial court
explicitly indicate the basis for its finding that the
detention was lawful or make any express credibility
determinations on the evidence. Thompson now appeals.
Thompson argues that his confession was inadmissible because
it was made only upon the promise of probation. We disagree.
Georgia law, "[t]o make a confession admissible, it must
have been made voluntarily, without being induced by another
by the slightest hope of benefit or remotest fear of
injury." OCGA § 24-3-50 (effective through Dec.
2012). The term "slightest hope of
benefit" refers to "promises related to reduced
criminal punishment-a shorter sentence, lesser charges, or no
charges at all." (Citation omitted.) State v.
Chulpayev, 296 Ga. 764, 771 (2) (770 S.E.2d 808) (2015).
This rule applies to any incriminating statements and is not
limited to "confessions." Vergara v.
State, 283 Ga. 175, 177 (1) (657 S.E.2d 863) (2008).
is the task of the trial court to determine whether a
confession was voluntary, taking into account the totality of
the circumstances. We will not disturb the trial court's
factual and credibility determinations on appeal unless they
are clearly erroneous." (Citation omitted.) Jackson
v. State, 280 Ga.App. 716, 720 (2) (634 S.E.2d 846)
Thompson was read his Miranda rights before making
his statement, he acknowledged and waived those rights, and
he confirmed that he was making a statement voluntarily and
that no one had made any promises in exchange for his
statement. Both Sergeant Taylor and Captain Hosley testified
that there was no promise of probation in exchange for
Thompson's confession. Thompson disputed this, stating
that Hosley promised that he would receive 20 years'
probation if he made a statement. The trial court explicitly
found Thompson's allegation not credible. We cannot say
that this finding was clearly erroneous, and, accordingly, we
must defer to the trial court's determination that
Thompson was not promised a lesser sentence in exchange for
testimony at the motion for new trial hearing does not
dictate a different conclusion. Although McDowell testified
that Captain Hosley promised probation, he also contradicted
Thompson's claim that the promise included a specific
term of probation. Thus, McDowell's testimony does not
call into question the trial court's credibility findings
and does not require us to conclude that Thompson's
confession was involuntary on this basis. The officers'
testimony that there was no offer of a lighter sentence,
along with Thompson's written confirmation that the
statement was made without a promise of a lighter sentence,
although contradicted by Thompson in his testimony, were
sufficient for the trial court to conclude that
Thompson's statements were not made due to a promise of
benefit. See Jenkins v. State, 251 Ga.App. 76 (553
S.E.2d 378) (2001).
Thompson next argues that the trial court committed plain
error by failing to exclude his confession because his arrest
was made without ...