United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
Makeda Atkinson (“Mr. Atkinson”) has been
indicted on six felony counts related to the sale of drugs,
including fentanyl, that allegedly resulted in the death of
an individual identified as L.M. Before the Court are nine
discovery motions by Mr. Atkinson, docs. 42, 43, 45, 46, 47,
48, 50, 51, and 52. Mr. Atkinson also filed a Motion to
Determine Voluntariness of Statements under Jackson v.
Denno, 378 U.S. 368 (1964), doc. 49, and a Motion to
Dismiss Count Three of the Indictment, doc. 44. The
Government filed a Motion for Reciprocal Discovery. Doc. 57.
Court held a motions hearing on March 5, 2019. Doc. 76.
During the hearing, the parties informed the Court that, as
of the date of the hearing, all discovery issues had been
resolved. Accordingly, the Court DENIES as
moot Mr. Atkinson's discovery motions, docs. 42,
43, 45, 46, 47, 48, 50, 51, and 52, as well as the
Government's Motion for Reciprocal Discovery, doc. 57.
For the reasons that follow, I GRANT Mr.
Atkinson's Motion to Determine Voluntariness of
Statements, doc. 49, and RECOMMEND that the
Court find that Mr. Atkinson's statements were voluntary.
Additionally, I RECOMMEND the Court
DENY Mr. Atkinson's Motion to Dismiss
Count 3 of the Indictment, doc. 44.
Motion to Determine Voluntariness of Statements (Doc.
Mr. Atkinson's Statements
grand jury indicted Mr. Atkinson for several offenses,
including alleged drugs sales occurring from September 2017
through January 2018, and one particular transaction on
December 28, 2017, that purportedly resulted in the death of
L.M. Doc. 21. Mr. Atkinson was arrested and interrogated on
September 23, 2018. Investigator Stephen Lowrey of the Glynn
County Police Department testified that Mr. Atkinson was
arrested at 8:25 p.m. and transported from the scene of the
arrest to the Glynn County Police Department headquarters at
9:45 p.m. Investigator Lowrey and Special Agent John Wood of
the Federal Bureau of Investigation interrogated Mr. Atkinson
at the Glynn County Police Department Headquarters for
approximately two-and-a-half hours, between roughly 10:00
p.m. and 1:00 a.m. The interrogation included, among other
things, questions about Mr. Atkinson's involvement in the
December 28, 2017 drug transaction. Mr. Atkinson filed a
motion in accordance with Jackson v. Denno, 378 U.S.
368 (1964), seeking a determination as to the voluntariness
of the statements he made during the September 23, 2018
Government provided video footage of the September 23, 2018
interrogation to the Court prior to the March 5, 2019 motions
hearing, and this footage was admitted into evidence during
the hearing. Doc. 76. No. party disputes the video's
accuracy or completeness. Investigator Lowrey testified
regarding the interrogation at the March 5, 2019 hearing and
stated that, although Mr. Atkinson admitted to being a drug
user, he appeared sober and coherent at the time of his
interrogation. He also stated that the interrogation began
just under two hours after Mr. Atkinson's arrest and
approximately 30 minutes after Mr. Atkinson was removed from
the scene of his arrest.
video footage provided by the Government shows the
interrogation took place in what appears to be a small room
with a table, three chairs, and no windows. The footage
begins with a time stamp of “09/23/2018
22:00:41.” At the start of the video, Mr. Atkinson is
seated alone at the table in the interrogation room. Mr.
Atkinson remains alone in the room for approximately 20
minutes, aside from a police officer entering the room once
and providing Mr. Atkinson with a beverage. At time stamp
22:22:42, Investigator Lowrey and Agent Wood entered the
room. Investigator Lowrey then read Mr. Atkinson his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),
and Mr. Atkinson executed a waiver acknowledging that he was
aware of those rights. Doc. 68 at 22:23:30. Investigator
Lowrey and Agent Wood proceeded to question Mr. Atkinson
about various topics, including his current and past
participation in drug sales and distribution, potential
evidence, the December 28, 2017 drug transaction, and L.M.
Id. Aside from a few short breaks, the questioning
continued for approximately two-and-a-half hours, until
00:54:07. Id. Throughout the interrogation,
Investigator Lowrey and Agent Wood encouraged Mr. Atkinson to
be honest but did not promise Mr. Atkinson anything in return
for his cooperation. See, e.g., id. at
22:39:30-22:40:40. Although Investigator Lowrey and Agent
Wood conducted most of the interrogation, at one point,
Sergeant Gregory of the Glynn County Police Department
entered the room and questioned Mr. Atkinson regarding drugs
found in his vehicle during his arrest. Id. at
00:26:46. Sergeant Gregory mentioned that some drugs were
found in the possession of Mr. Atkinson's girlfriend (who
was with Mr. Atkinson at the time of his arrest).
Id. at 00:27:02. Mr. Atkinson stated all narcotics
confiscated during the arrest were his. Id. at
00:27:30-00:28:30. At no point during this exchange did
Sergeant Gregory promise more lenient treatment to Mr.
Atkinson or his girlfriend in return for Mr. Atkinson's
cooperation. Near the end of the interrogation, Mr. Atkinson
was visibly tired, asked for a sheet or blanket, and briefly
laid on the floor, appearing to fall asleep. Id. at
00:54:20. No. questioning occurs after Mr. Atkinson asked for
a sheet or blanket, and the video footage concludes shortly
United States Supreme Court's holding in Jackson v.
Denno, 378 U.S. 368 (1964), governs the voluntariness of
confessions and, in pertinent part, provides:
It is now axiomatic that a defendant in a criminal case is
deprived of due process of law if his conviction is founded,
in whole or in part, upon an involuntary confession, without
regard for the truth or falsity of the confession, and even
though there is ample evidence aside from the confession to
support the conviction.
378 U.S. at 376 (internal citation omitted). A confession is
not voluntary pursuant to the Due Process Clause when law
enforcement officials have used coercive conduct.
Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Coercion can be mental or physical. Blackburn v.
Alabama, 361 U.S. 199, 206 (1960); Chambers v.
Florida, 309 U.S. 227, 237 (1940). The test for
determining if a confession is the result of coercion
requires a review of the totality of the circumstances.
Blackburn, 361 U.S. at 206 (citing Fikes v.
Alabama, 352 U.S. 191, 197 (1957)). In examining the
totality of the circumstances, it must be determined whether
“the statement is the product of the accused's free
and rational choice.” Harris v. Dugger, 874
F.2d 756, 761 (11th Cir. 1989). These potential circumstances
include not only the crucial element of police coercion, but
the length of the interrogation, its location, and its
continuity, and the defendant's maturity, education,
physical condition, and mental health. These circumstances
also include the failure of police to advise the defendant of
his rights to remain silent and to have counsel present
during custodial interrogation. Withrow v. Williams,
507 U.S. 680, 693-94 (1993) (internal citations omitted).
“Sufficiently coercive conduct normally involves
subjecting the accused to an exhaustingly long interrogation,
the application of physical force or the threat to do so, or
the making of a promise that induces a confession.”
United States v. Thompson, 422 F.3d 1285, 1295-96
(11th Cir. 2005). Government coercion is a necessary
predicate to a finding of involuntariness under the Fifth
Amendment. However, “[a]bsent police conduct causally
related to the confession, there is no basis for concluding
that any state actor has deprived a criminal defendant of due
process of law.” Id. at 1296.
Mr. Atkinson's Statements Were Voluntary
the testimony and argument presented at the March 5, 2019
hearing and the video footage of Mr. Atkinson's September
23, 2018 interrogation, I find that Mr. Atkinson's