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Thompson v. State

Court of Appeals of Georgia, Second Division

March 7, 2018

THOMPSON
v.
THE STATE.

          MILLER, P. J., DOYLE, P. J., and REESE, J.

          Miller, Presiding Judge.

         Lonnie 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 proceedings.

         Viewing the evidence in the light most favorable to the verdict, [1] in the middle of the night of July 30, 2007, Thompson and three others broke into the home of Larry Bailey.[2] 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 police.

         Police 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[3] 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.

         Before the trial court admitted the confession at trial, it conducted a Jackson-Denno[4] 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.

         Thompson 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 Thompson's confession.

         During 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.

         In his 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.

         During 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 confession.

         Thompson 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.

         The 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.[5]

         At two subsequent hearings on the amended motion for new trial, [6] new 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 confessed.

         Sergeant 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.

         The 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.

         1. Thompson argues that his confession was inadmissible because it was made only upon the promise of probation. We disagree.

         Under 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).[7] 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).

         "It 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) (2006).

         Here, 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 his confession.

         McDowell's 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).

         2. Thompson next argues that the trial court committed plain error by failing to exclude his confession because his arrest was made without ...


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