Torres v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: September 20, 2022
S22A0659. TORRES v. THE STATE.
BETHEL, Justice.
Luis Jose Torres was found guilty of the felony murder of
Dennis Bryant and other offenses at a bench trial held before the
Appling County Superior Court. Torres appeals, arguing that the
evidence presented at trial was insufficient as a matter of Georgia
law to sustain his convictions, that the trial court erred by denying
his motion to suppress statements he made to the police, and that
double jeopardy barred his re-trial after he had previously been
acquitted by a jury of some offenses arising from the events
surrounding Bryant’s death.1 We affirm.
The crimes occurred on December 30, 2018. On March 19, 2019, an
1
Appling County grand jury indicted Torres, Gabrielle Labaco, Daisy Lott,
Rhett Wheeler, Rocky Wheeler, and Catherine Zipperer for 16 counts
stemming from the incident. Torres was charged with six counts of felony
1. (a) Viewed in the light most favorable to the verdicts, 2 the
murder (Counts 1-6), criminal attempt to commit armed robbery (Count 7),
conspiracy to commit armed robbery (Count 8), armed robbery (Count 9),
conspiracy to commit aggravated assault (Count 10), aggravated assault with
intent to rob (Count 11), aggravated assault with a deadly weapon (Count 12),
theft by taking (Count 13), and tampering with evidence (Count 14). Labaco,
Rhett, Rocky, and Zipperer were indicted jointly with Torres on Counts 1-4, 7-
10, and 13. Rhett and Rocky were jointly indicted with Torres on Counts 5, 6,
11, and 12. All six co-defendants were indicted on Count 14. Lott, Rhett, Rocky,
and Zipperer were also indicted with tampering with evidence (Count 15). Lott
was also indicted with hindering apprehension or punishment of a criminal
(Count 16).
At a jury trial held in July 2019, Torres was found guilty of Counts 4, 5,
10, 11, and 14 and found not guilty of the remaining counts against him. Torres
filed a motion for new trial in August 2019, which the trial court granted in
June 2020. Before his retrial, Rocky and Rhett entered guilty pleas. On
September 1, 2021, the State filed a motion to sever Torres’s case from those
of the remaining co-defendants, which the trial court granted that day. Torres
later requested that his second trial be a bench trial, which the court granted
on September 9, 2021. None of the other co-defendants’ cases are part of this
appeal.
Before the start of his bench trial, Torres orally raised a plea in bar based
on double jeopardy as to Counts 1-3, 6-9, 12, and 13, of which he was found not
guilty in his first trial. At Torres’s bench trial, held on September 23, 2021, the
trial court orally granted Torres’s plea in bar and later found him guilty of
Counts 4, 5, 10, 11, and 14. On October 21, 2021, the trial court entered an
order granting Torres’s plea in bar nunc pro tunc to September 23, 2021. On
December 6, 2021, the trial court sentenced Torres to life in prison on Count 4
and a concurrent sentence of ten years in prison on Count 14. The remaining
counts were vacated by operation of law or merged for sentencing. Torres did
not file a motion for new trial. He filed a notice of appeal directed to this Court
on January 3, 2022. His case was docketed to this Court’s April 2022 term and
submitted for a decision on the briefs.
2 See Jones v. State, 307 Ga. 505, 506 (1) (837 SE2d 288) (2019) (“Similar
to appeals from a jury trial resulting in a criminal conviction, on appeal from
a bench trial,” when evaluating the sufficiency of the evidence presented at
trial, “we view all evidence in the light most favorable to the trial court’s verdict
. . . . We do not re-weigh testimony, determine witness credibility, or address
assertions of conflicting evidence.” (citation and punctuation omitted)).
2
evidence presented at Torres’s bench trial showed the following. On
the evening of December 30, 2018, Torres and his girlfriend,
Gabrielle Labaco, were invited to a party by Rocky Wheeler. Torres
and Labaco agreed to go, and Rocky drove them to the party.
At the party, multiple people were playing beer pong. During
the course of the game, Rocky lost $500 to Dennis Bryant and was
angry about losing the money. Bryant later left the party.
Shortly after, Torres asked Rocky to drive him and Labaco
home because Torres did not have his own vehicle. With Rocky
driving, Torres, Labaco, Rocky, Rhett Wheeler, Catherine Zipperer,
and Daisy Lott all left the party together. As they were driving, they
passed a Huddle House and saw Bryant inside.
They then agreed that they would follow Bryant and that
Rocky and Rhett would take his money and beat him up. As part of
that plan, Torres agreed to be a lookout.
A few minutes later, Bryant left Huddle House and went to the
Key West Inn in Appling County. Zipperer drove Rocky’s car, and
the group followed Bryant to the Key West Inn. Video recordings
3
taken from nearby surveillance cameras show that Zipperer pulled
into the parking lot with the headlights off and parked in the middle
of the parking lot. Over roughly the next ten minutes, while Bryant
was in the lobby of the hotel, Torres, Rocky, and Rhett moved around
the parking lot, and Zipperer pulled the car to the end of the parking
lot. During that time, Torres covered his face by wrapping a piece of
clothing around his head.
After checking in and walking back to his car, Bryant brought
his car to the back of the hotel, got out of the car, and got an item
from the trunk. Torres and the others followed Bryant in Rocky’s car
to the back of the hotel. Torres, Rocky, and Rhett got out of the car
and followed Bryant on foot. Labaco then got out of the car with her
face covered, and Zipperer moved the car closer to where Bryant was
standing beside his car.
Rocky and Rhett attacked Bryant and began hitting and
kicking him. During the attack, Torres saw Bryant reach for a rifle
from the trunk of his car. Torres then approached the fight and tried
to grab the rifle out of Bryant’s hands. During the struggle, the gun
4
fired multiple times, and three bullets hit Torres. Rocky then
stabbed Bryant in the neck three times.
Torres and the others ran back to Rocky’s vehicle, got in, and
drove away from the Key West Inn. One of the Wheeler brothers
brought Bryant’s rifle to Rocky’s car and later disposed of it.
After Torres and the others left, the police were called to the
scene. By the time the officers arrived, Bryant was dead. Although
it initially appeared to some of the officers that Bryant had been
shot, the medical examiner later determined that Bryant died of
multiple stab wounds.
Torres asked the Wheelers to drop him off at a hospital, and
they refused. The Wheelers later made Torres and Labaco get out of
the car, and the Wheelers and the rest of the group drove away.
Torres and Labaco were later seen on the side of the road by
Appling County Sheriff Mark Melton and two deputies. An
ambulance arrived on the scene about five minutes after Sheriff
Melton and his deputies arrived, and Torres was transported to the
hospital. Before Torres was taken to the hospital, Sheriff Melton
5
spoke to both Torres and Labaco and asked Torres, “Do you know
what happened, buddy?” Torres told Sheriff Melton that he had been
shot while walking by the Key West Inn. 3
Later that night, Torres was interviewed by GBI Special Agent
Kendra Fitzgerald at the hospital. She gave Torres Miranda
warnings. 4 Torres orally acknowledged the warnings and agreed to
speak with her. In the interview, Torres told Special Agent
Fitzgerald that Rocky had lost $500 in a game of beer pong. He said
that Rocky and Rhett “wanted to get” Bryant and were going to “beat
[Bryant] up” and get Rocky’s money back and that he had been
asked to be a lookout. Torres also said that he tried to take a rifle
from Bryant’s hands. 5
The next day, Torres was again interviewed by Special Agent
Fitzgerald and GBI Special Agent Seth Hullander at the sheriff’s
3 Audio and video of this exchange were recorded by body cameras being
worn by the deputies. At trial, Sheriff Melton testified that Torres’s statement
“didn’t seem plausible” and that he thought Torres “was being deceitful.”
4 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
5 In addition to Special Agent Fitzgerald’s testimony, an audio recording
of this interview was admitted at trial.
6
office. Torres was again given Miranda warnings, and he signed a
form indicating that he had been informed of his rights and that he
waived them before speaking with the agents. In that interview,
Torres said that Rocky had lost $500 in a beer pong game and was
“pissed.” Torres said that they later saw Bryant at the Huddle House
and that Rocky said that Bryant “[had] his money” and that he
“wanted it back.” Torres said that he and the others followed Bryant
to the Key West Inn. Torres also stated that he had been behind the
Key West Inn and later on the side of the road. Torres explained that
he told Rocky that he was not going to “touch or hurt” Bryant, but
that Rocky told him that Torres was “supposed to be [his] friend so
at least be some kind of lookout.” Torres told Rocky, “fine.” Torres
explained that Rocky told him to put on a mask “because . . . there
were cameras,” which he agreed to do because he was scared.
Torres further explained that, during the altercation with
Bryant, he saw that a rifle was pointed at the car where Labaco was
waiting and that he went to Bryant and tried to pull the rifle from
his hands “so nobody got shot.” Torres said that Rocky and Rhett
7
were “whipping [Bryant’s] ass,” and after the altercation, Rocky got
back in the car and told Torres, “I think I killed him.” Torres told
the police that he knew Rocky had a knife with him, based on a
conversation with him earlier that evening before the party.
At trial, Torres testified that he reluctantly agreed to be a
lookout when the Wheelers confronted Bryant. He further testified
that he tried to stop the confrontation when he saw a gun pointed
back toward the car where Labaco was waiting and that he tried to
get between Bryant and the Wheelers, push the Wheelers away from
Bryant, and grab the gun from Bryant. He testified that when he
spoke with the sheriff and was questioned by the GBI agents, he
tried to explain that he had stopped the fight but that it was hard to
get his “mind right” because he was “still in shock” and had taken
pain medication, including morphine and Percocet.
(b) Torres argues that the evidence presented at trial was
insufficient under OCGA § 24-14-6, which provides that “[t]o
warrant a conviction on circumstantial evidence, the proved facts
shall not only be consistent with the hypothesis of guilt, but shall
8
exclude every other reasonable hypothesis save that of the guilt of
the accused.” “However, this doctrine only applies when the State’s
case against the defendant was wholly circumstantial, and in this
case, the State did not rely solely on circumstantial evidence.”
(Citation and punctuation omitted.) Hill v. State, 297 Ga. 675, 678
(2) (b) (777 SE2d 460) (2015).
Here, Torres’s statements to law enforcement about his
involvement in planning the crimes and how he served as a lookout
provided direct evidence that he helped plan and commit the crimes.
See Eggleston v. State, 309 Ga. 888, 891 (848 SE2d 853) (2020); Hill,
297 Ga. at 678 (2) (b). Moreover, the trial court, as the trier of fact,
was authorized to reject Torres’s self-serving assertion in his trial
testimony that, after the attack on Bryant began, he abandoned his
role in the robbery and attempted to wrestle a gun away from Bryant
in order to protect everyone involved. See Fitts v. State, 312 Ga. 134,
143 (3) n.9 (859 SE2d 79) (2021) (noting that, if disbelieved by the
trier of fact, the defendant’s testimony denying involvement in the
crimes could have served as direct evidence of defendant’s guilt as a
9
party to the crimes); Outler v. State, 305 Ga. 701, 703-704 (1) (a) (827
SE2d 659) (2019) (holding, under OCGA § 24-14-6, that “[t]he [trier
of fact] was authorized to reject [the appellant’s] hypothesis”). Thus,
Torres’s claim that the evidence was insufficient under OCGA § 24-
14-6 fails.
2. Torres next argues that the trial court erred by admitting
into evidence the three statements he made to Sheriff Melton and
Special Agents Fitzgerald and Hullander. We disagree.
As noted above, Torres gave three statements to the police: one
on the roadside after the incident at the Key West Inn, one the same
night at the hospital, and one the following day at the sheriff’s office.
Torres filed a motion in limine to suppress each of these statements,
arguing that each statement was custodial and not given
voluntarily. Torres also argued that the second and third statements
he gave were induced by a hope of benefit. Following a Jackson-
Denno hearing, 6 the trial court denied the motion to suppress as to
each of Torres’s statements.
6 See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
10
(a) First Interview
Sheriff Melton testified at the hearing that, the night Bryant
was killed, he and his deputies were called to the Key West Inn after
gun shots were reported. At the time there were no suspects for the
crimes, and it appeared to Sheriff Melton that a shooting had taken
place in the parking lot because there were bullet casings scattered
around the area where Bryant was lying on the ground and
“bleeding profusely.” While at the scene, Sheriff Melton received a
call that a male and female, later identified as Torres and Labaco,
were sitting on the side of the road a short distance from the Key
West Inn and that the male had been shot. At that point, Torres and
Labaco were not suspects in the shooting at the Key West Inn.
When Sheriff Melton and his deputy made it to Torres and
Labaco, the deputy immediately informed them that an ambulance
was on the way. Sheriff Melton then asked Torres and Labaco what
happened to them. According to Sheriff Melton, he did not give
Miranda warnings before speaking with them because he
considered them potential victims, had no reason to arrest them, and
11
did not “even know if they were connected to the Key West shooting.”
Sheriff Melton testified that, based upon his experience with
interviewing people, he determined that Torres was “cognizant”
enough to be interviewed even though it was clear Torres was in
pain. Sheriff Melton testified that Torres was able to sit up and
answer questions and offered information that was not even asked
of him. Sheriff Melton described Torres as being “very vocal” when
they spoke and that he did not have to “drag anything” out of Torres.
Two video recordings of the encounter taken from the deputies’
body cameras show that an ambulance arrived within five minutes
of the sheriff’s arrival on the scene where Torres and Labaco were
found. 7 Sheriff Melton testified that, at the time the ambulance
arrived, he had not yet developed probable cause to arrest Torres,
that Torres had never been handcuffed, and that Torres had not
been administered any pain medication. Sheriff Melton testified
that he never made threats or promises or discussed charges or
7 The recordings show that Sheriff Melton and his deputies repeatedly
assured Torres that an ambulance had been called and was on the way.
12
sentencing with Torres. He reiterated that he did not provide
Miranda warnings because Torres was “not under arrest.”
During cross-examination at the hearing, Sheriff Melton
testified that, at the beginning of the interview, he had no reason to
suspect Torres was involved in the Key West Inn shooting even
though “it was a . . . coincidence that we got two shootings almost
simultaneously.” The questioning continued as follows:
DEFENSE COUNSEL: So you had some sort of suspicion?
MELTON: Well, I had two shootings and, you know, I
think it’s incumbent on me to try to figure out what’s what
and who, but I don’t know — I think you heard in the
video that I asked how did they get shot right here. I
assumed they got shot right there. I didn’t get the
information that they had been . . . at the motel until
sometime in their conversation.
DEFENSE COUNSEL: At this point, if either individual
had wanted to get up and walk away, would they have
been allowed to?
MELTON: Probably not . . . because we didn’t know what
we had. . . .
DEFENSE COUNSEL: But it was not custodial?
MELTON: That’s correct.
DEFENSE COUNSEL: But they couldn’t leave?
MELTON: I didn’t say they couldn’t, I said probably not.
I don’t know. They didn’t make an effort to do that.
Torres also testified at the hearing. He said that he did not
13
remember speaking with the sheriff, even after seeing a video of
their conversation.
(b) Second Interview
Shortly after Torres arrived at the hospital, he was interviewed
by Special Agent Fitzgerald, who read Miranda warnings to him.
Because Torres had been shot in the shoulder, Special Agent
Fitzgerald determined it was better to have Torres orally
acknowledge and waive his rights rather than sign a form. Torres
orally informed Special Agent Fitzgerald that he understood each of
his rights and agreed to waive them and speak with her. Special
Agent Fitzgerald testified that she determined that, despite his
injuries and the pain medication he had been administered, 8 Torres
was able to communicate with her. Special Agent Fitzgerald
testified that she never threatened Torres, never became violent
8 Special Agent Fitzgerald testified that she was informed by a nurse
“roughly in the middle of [the] interview” that Torres had been given pain
medication, including morphine. She testified that information regarding his
medication did not change her opinion as to whether Torres could hear and
understand her questions and reply appropriately and that Torres never
seemed “out of touch with reality.”
14
with him, and never made any promises to him, including in regard
to sentencing. 9 Torres was not handcuffed to the bed during the
interview. The interview lasted approximately 15 minutes.
Special Agent Fitzgerald also testified that, during the
interview, Torres never slurred his words, faded, lost consciousness,
or appeared to not understand what was happening. Torres provided
answers that Special Agent Fitzgerald later verified to be correct.
Torres was also able to provide “long narrative” answers without any
prompting and corrected Special Agent Fitzgerald when she needed
help understanding his statements.
Near the beginning of the interview, Torres asked Special
Agent Fitzgerald whether it would “help [his] case” if he talked to
her. Special Agent Fitzgerald responded that she was not an
attorney and could not provide legal advice. Near the end of the
interview, Torres asked about sentencing:
TORRES: Am I going to go to jail for life?
FITZGERALD: Right now, the main thing is to make sure
9 In the audio recording of the interview, Special Agent Fitzgerald can
also be heard asking a nurse if Torres could have water.
15
that you’re okay. You’re going to go to the hospital.[10]
TORRES: Because I wasn’t trying to kill nobody.
FITZGERALD: No, I understand. I understand. The first
thing is to get you to the hospital and make sure that all
this stuff is okay. . . . That stuff will come later. We’ll get
it all straightened out.
At the hearing, Special Agent Fitzgerald testified about when
Torres mentioned sentencing near the end of the interview:
PROSECUTOR: [I]s he inquiring as far as what his
sentencing might be, what his charges might be, that sort
of thing?
FITZGERALD: That’s what I understood him to say, yes,
sir.
PROSECUTOR: He actually said, “Am I looking at going
to jail for life, or I’m not going to jail for life or something?”
Is that right?
FITZGERALD: Yes, sir.
PROSECUTOR: And you did not answer, did not make
any promises, told him, “Right now we’re just looking at
something else.” Is that right?
FITZGERALD: Yes, sir.
Torres testified that he had no recollection of giving the
interview in the hospital. He testified that he had been in the
10 After his roadside conversation with Sheriff Melton, Torres was
brought to a local hospital for treatment of his gunshot wounds. In the
recording of the interview with Special Agent Fitzgerald, a nurse can be heard
telling Special Agent Fitzgerald and Torres that Torres was “fine” and “stable”
and that he was probably going to be transferred to a hospital in Savannah for
surgery.
16
hospital because he had been shot and that he could not remember
whether he had been told that he received pain medication.
(c) Third Interview
The next day, Torres was interviewed a third time at the
Appling County Sheriff’s Office by GBI Special Agents Hullander
and Fitzgerald. The interview, which was recorded, lasted
approximately 20 minutes. Torres was again given Miranda
warnings, and he signed a Miranda waiver form. Special Agent
Hullander testified at the Jackson-Denno hearing that, during the
interview, the agents never threatened Torres, physically forced him
to talk to them, or made any promises to him. While Torres appeared
to have some “discomfort,” he did not appear to be in such physical
pain that he was unable to understand questions or answer them.
Almost immediately after he signed the waiver-of-rights form,
Torres told Special Agent Hullander, “Whatever’s going to help me
out, I’ll let y’all know whatever details y’all want.” Special Agent
Hullander replied, “I’m glad to hear that. That tells me a lot about
the kind of person that you are.”
17
Special Agent Hullander testified as follows in regard to
questions Torres asked him:
PROSECUTOR: And did you make a promise responding
to that?
HULLANDER: No, sir.
PROSECUTOR: What did you tell him?
HULLANDER: I told him I appreciated that and that tells
me a lot about the kind of person he is.
PROSECUTOR: But not like, oh good, that’ll shave time
off?
HULLANDER: No, sir.
PROSECUTOR: I won’t arrest you?
HULLANDER: No, sir.
PROSECUTOR: Charge with — discharge you
voluntarily?
HULLANDER: No, sir.
In the interview, Torres volunteered to Special Agent
Hullander that Rocky stabbed Bryant. Torres then told Special
Agent Hullander that he did not want to answer questions but
preferred to “lay the whole thing out” for him. Torres then proceeded
to detail the events of the evening “quickly, clearly, and concisely,”
according to Special Agent Hullander. Without being asked, Torres
volunteered that he was the lookout for the robbery. He also
correctly identified Bryant’s rifle as an AR-15 without being
18
provided any information about the type of gun involved in the
shooting. Special Agent Hullander testified that, throughout this
narrative, Torres never sounded like someone who was having
trouble recalling information or communicating.
(d) The Trial Court’s Rulings
The trial court orally ruled that evidence of Torres’s statements
from the interview with Sheriff Melton were admissible.
Specifically, the court determined that Torres was not in custody
when he spoke with Sheriff Melton; that, despite having been shot,
Torres was coherent and able to answer questions at the time; and
that the pain from the gunshots did not prevent Torres from making
his statements to the sheriff freely and voluntarily.
As to the second and third interviews, the trial court
determined that Torres had been given Miranda warnings before
both interviews and that he subsequently acknowledged and waived
his rights and proceeded to speak with the agents. Although Torres
was in pain and taking medication, the trial court ruled that his
19
statements to the GBI agents were made freely and voluntarily. 11
(e) Analysis
(i) Torres first argues that the trial court erred in its
determination that he was not in police custody when he spoke with
Sheriff Melton while on the side of the road and that the failure to
provide him with Miranda warnings renders his statements there
inadmissible. We disagree.12
“Miranda warnings are required when a person is (1) formally
arrested or (2) restrained to the degree associated with a formal
arrest.” (Citation and punctuation omitted.) DeVaughn v. State, 296
Ga. 475, 479 (769 SE2d 70) (2015). “Unless a reasonable person in
the suspect’s situation would perceive that he was in custody,
Miranda warnings are not necessary.” Id.Here, the trial court did not err when it determined that Torres
11 The trial court later entered an order denying the motion to suppress.
12 As to the second and third interviews, Torres was read Miranda
warnings before each interview, and both times he acknowledged his rights
and agreed to waive them. Torres makes no claim in this appeal that he was
not provided Miranda warnings before those interviews or that they were
insufficient.
20
was not in custody when he was interviewed by Sheriff Melton. The
interview occurred on the side of the road, and Torres was never
restrained, arrested, or placed into a patrol car. See Acosta v. State,
311 Ga. 320, 325 (1) (a) (857 SE2d 701) (2021) (“[Appellant] was not
under formal arrest, and, accepting the trial court’s factual findings
and credibility determinations, we conclude that a reasonable
person in [appellant’s] position would not perceive that he was in
custody at the time of the first interview.”). Although Sheriff Melton
had some doubts as to the veracity of Torres’s story about how he
was shot, he never communicated those doubts to Torres or implied
to Torres that he was suspected of committing a crime. See Schutt
v. State, 292 Ga. 625, 629-630 (4) (740 SE2d 163) (2013) (holding
that appellant’s contention that her statement was inadmissible
because she was not advised of her Miranda rights was meritless in
part because, while an officer found the “[a]ppellant’s story
suspicious, he did not communicate his suspicions to her and at no
time implied that she was under arrest”).
At the Jackson-Denno hearing, Sheriff Melton testified that in
21
the beginning of the interview, the interview was not custodial in
nature and that Torres never tried to leave. Sheriff Melton also
testified that he was uncertain whether Torres would have been free
to leave.13 However, whatever beliefs Sheriff Melton or Torres may
have had about the custodial nature of the interview, the relevant
test here is an objective one. See State v. Walden, 311 Ga. 389 (858
SE2d 42) (2021) (“In determining whether a suspect is in custody,
we must consider the totality of the circumstances without regard
for the subjective views of the suspect or the interrogating officer.”
(citation omitted)). See also United States v. Moya, 74 F3d 1117,
1119 (II) (11th Cir. 1996) (“[T]he actual, subjective beliefs of the
defendant and the interviewing officer on whether the defendant
was free to leave are irrelevant.”). Here, Torres had been shot and
was awaiting an ambulance when Sheriff Melton asked him, “Do you
13 Torres notes that Sheriff Melton later testified at the hearing that,
when he was speaking with Labaco after Torres had been transported to the
hospital, Labaco was “not free to go at that point.” Sheriff Melton also testified
that his discussion with Labaco “was custodial in nature.” The record is clear,
however, that Torres was not present by that point in time. Thus, even if
Sheriff Melton’s interview with Labaco became custodial after Torres was
transported to the hospital, that fact has no bearing on whether Sheriff
Melton’s earlier discussion with Torres was custodial.
22
know what happened, buddy?” Moreover, the recordings of the
interview show that Torres never asked to leave. See Teasley v.
State, 293 Ga. 758, 762-763 (3) (a) (749 SE2d 710) (2013) (noting,
among other factors, that the interviewing officer testified that the
suspect was not in custody and never asked to leave while being
questioned). Thus, there has been no showing that a reasonable
person in Torres’s situation would perceive that he was in custody.
See DeVaughn, 296 Ga. at 479. Therefore, the trial court did not err
in determining that, under these circumstances, Miranda warnings
were not required.
(ii) Torres next argues that the trial court erred by denying his
motion to suppress because none of his statements were made
voluntarily. We disagree.
In determining whether a defendant’s statement was
voluntary as a matter of constitutional due process,
a trial court must consider the totality of the
circumstances. The State bears the burden of
demonstrating the voluntariness of a defendant’s
statement by a preponderance of the evidence. In
reviewing such a mixed question of fact and law, we
23
accept the trial court’s finding on disputed facts and
credibility of witnesses unless clearly erroneous but
independently apply the law to the facts.
(Citation omitted.) Matthews v. State, 311 Ga. 531, 540 (3) (a) (858
SE2d 718) (2021). “[W]here controlling facts are not in dispute, such
as those facts discernible from a videotape, our review is de novo.”
(Citation and punctuation omitted.) Perez v. State, 309 Ga. 687, 692
(2) (848 SE2d 395) (2020).
As to his first statement to Sheriff Melton on the side of the
road, the trial court determined that the statement was made freely
and voluntarily. We agree.
Torres specifically claims that his statement from the first
interview was involuntary due to being in pain and shock from the
shooting during the interview. However, the trial court did not err
in its determination that the statement was voluntary under the
totality of the circumstances.
“The fact that a defendant is in pain . . . does not, in and of
itself, render any statement made involuntary. (Citation omitted.)
Sanders v. State, 281 Ga. 36, 38 (2) (635 SE2d 772) (2006). Moreover,
24
there is no evidence that Sheriff Melton or the deputies threatened
Torres or conditioned his receipt of medical care on any statements
he provided to them. The trial court made its determination based
on Sheriff Melton’s testimony and from reviewing the video
recordings taken by body cameras worn by the deputies who
accompanied Sheriff Melton. See Myers v. State, 275 Ga. 709, 713 (3)
(572 SE2d 606) (2002) (holding that a statement to the police was
voluntary even though the appellant was in pain where the record
showed he was responsive and answered coherently and logically).
Even though Torres later asserted that he could not remember
speaking with Sheriff Melton, the trial court was not required to
credit Torres’s testimony, especially in light of recordings and
testimony from Sheriff Melton showing that Torres gave coherent
and logical answers to the questions he was asked. See Grier v.
State, 273 Ga. 363, 365 (2) (541 SE2d 369) (2001) (noting that the
trial court could accept a police officer’s testimony and reject the
suspect’s self-serving explanation when determining whether a
statement was voluntary).
25
As to the second and third interviews, Torres argues that the
combination of pain from his injuries and the effects of medication
to treat that pain prevented him from making statements to the
police freely and voluntarily. But the record, particularly the
recording of the hospital interview and Special Agent Fitzgerald’s
testimony about it, supports the trial court’s conclusion that Torres
was lucid, was able to acknowledge and waive his rights after they
were read to him, and was able to understand and respond at length
to questions about the incident at the Key West Inn. See Sanders,
281 Ga. at 38 (2) (concluding that the statement at issue was
voluntary and noting that, although suspect was hospitalized, his
pain was under control, he was not groggy, he could engage in
meaningful conversation, and he acknowledged and waived his
rights after being given Miranda warnings). Although Torres had
received pain medication, he did not appear to be under the
influence of the medication or impaired when he was speaking with
Special Agent Fitzgerald. See Starling v. State, 299 Ga. 263, 266 (3)
(787 SE2d 705) (2016) (determining that a statement was given
26
voluntarily where the suspect, who was hospitalized, had been given
a sedative but appeared “rational and coherent” and indicated
willingness to speak to police); Sanders, 281 Ga. at 38 (2) (holding
that even though the defendant made a statement while in the
hospital and on pain medication, his statement was voluntary where
the record showed that he was not groggy and could engage in
meaningful conversation); Myers, 275 Ga. at 713 (determining that
defendant’s statement to the police was voluntary even when the
defendant was in the hospital and on pain medication when the
video showed that the defendant was alert, responsive, and aware of
the identity of the officers).
The record also shows that, without prompting, Torres
provided long, narrative answers to Special Agent Fitzgerald that
were later verified as correct. See Starling, 299 Ga. at 266 (3)
(holding that the defendant’s statement was voluntary when his
answers were rational and coherent and the defendant expressed
willingness to talk); Myers, 275 Ga. at 713 (3) (same). Torres also
never indicated at the time that he was not in a condition to be
27
interviewed.
The trial court also determined that Torres provided a
voluntary statement to the agents in the third interview. The court
determined that Torres did not appear to be under the influence of
medication or impaired when he was speaking with Special Agents
Hullander and Fitzgerald at the sheriff’s office. See Starling, 299
Ga. at 266 (3); Sanders, 281 Ga. at 38 (2); Myers, 275 Ga. at 713 (3).
The record supports these findings. As the trial court also noted,
Torres was informed of his rights, and he signed a form
acknowledging and waiving them. See Starling, 299 Ga. at 266 (3)
(concluding that the defendant gave a voluntary statement and
noting, as part of that analysis, that the defendant received Miranda
warnings and signed a waiver form); Sanders, 281 Ga. at 38 (2)
(same); Myers, 275 Ga. at 713 (3) (same).
In light of the foregoing, we see no error in the trial court’s
determination that Torres’s statements to the police were voluntary.
His claim of error on that basis therefore fails.
(iii) Torres also claims that his statements to Special Agents
28
Fitzgerald and Hullander were induced by a hope of benefit, namely
a shorter sentence, in violation of OCGA § 24-8-824, which provides
that “[t]o make a confession admissible, it shall have been made
voluntarily, without being induced by another by the slightest hope
of benefit or remotest fear of injury.” The trial court ruled that
neither agent offered a hope of benefit, and we agree.
In contrast to Torres’s constitutional argument, which presents
the broader question of whether his confession was inadmissible on
the basis that it was not voluntary under the totality of the
circumstances, his statutory argument involves an evaluation of
whether a defendant has been made
promises related to reduced criminal punishment — a
shorter sentence, lesser charges, or no charges at all. . . .
Under the standard of review applicable to a trial court’s
decision regarding admissibility under the statutory
standard, the reviewing court accepts the trial court’s
determinations as to the credibility and weight of
conflicting evidence unless they are clearly erroneous and
independently reviews the trial court’s application of the
law to the facts. De novo review is appropriate, however,
if the controlling facts can be definitively ascertained,
exclusively by reference to evidence, such as a recording
of a police interview, that is uncontradicted and presents
no questions of credibility.
29
(Citations and punctuation omitted.) Matthews, 311 Ga. at 542 (3)
(b).
Torres first claims that Special Agent Fitzgerald provided a
hope of benefit when she responded to a question from Torres as to
whether he was going to jail for life. However, it is undisputed that
the recording of the interview shows that Special Agent Fitzgerald’s
response to that question was that she was focused on letting him
receive medical treatment and that issues regarding charges and
sentencing would be handled later: “No, I understand. I understand.
The first thing is to get you to the hospital and make sure that all
this stuff is okay. That stuff will come later. We’ll get it all
straightened out.”
The trial court determined that this statement did not
constitute a hope of benefit, and we agree. Although Special Agent
Fitzgerald’s statement about getting “[t]hat stuff . . . straightened
out” might be understood, at a high level of abstraction, to refer to
charges and sentencing, her response, when viewed in context, did
30
not pertain to charges or sentencing. See Dawson v. State, 308 Ga.
613, 621 (3) (842 SE2d 875) (2020) (determining that the
interviewing officer did not provide a hope of benefit where the
officer never “promised” the appellant “that he would not be charged
with a crime or that he would receive reduced charges, sentencing
or punishment if he made incriminating statements” (citation
omitted)).
Torres similarly claims that Special Agent Hullander provided
a hope of benefit when, after Torres said to him, “Whatever’s going
to help me out, I’ll let y’all know whatever details y’all want,” Special
Agent Hullander said, “I appreciate that and that tells me a lot
about the kind of person that you are.” The trial court ruled that
Special Agent Hullander never provided a hope of benefit to Torres,
and we agree. Special Agent Hullander made no promises to Torres
and never mentioned anything about sentencing or charges during
the interview. See id. At most, Special Agent Hullander’s response
to Torres could be understood to be an expression of thanks to Torres
for his willingness to tell the truth or an encouragement to him to
31
do so. As we have discussed, exhorting a suspect to tell the truth
does not constitute a hope of benefit within the meaning of the
statute. See Price v. State, 305 Ga. 608, 611 (825 SE2d 178) (2019).
We thus determine that Torres’s statements at the hospital
and the sheriff’s office were not induced by a “hope of benefit” within
the meaning of OCGA § 24-8-824. Accordingly, Torres’s claims of
error regarding the admission of these statements also fails on that
basis.
3. Finally, Torres argues that his retrial on Counts 4, 5, 10, 11,
and 14 violated the constitutional prohibition on double jeopardy.
We agree with the State, however, that this claim was not preserved
for appellate review.
The Fifth Amendment to the United States Constitution
guarantees criminal defendants protection against double jeopardy.
U. S. Const. Amend. V. The Fifth Amendment’s bar against double
jeopardy encompasses the doctrine of collateral estoppel, which
precludes the re-litigation of an ultimate fact issue that was
determined by a valid and final judgment. See Giddens v. State, 299
32
Ga. 109, 112-113 (2) (a) (786 SE2d 659) (2016). 14 Likewise, the
Georgia Constitution provides that “[n]o person shall be put in
jeopardy of life or liberty more than once for the same offense except
when a new trial has been granted after conviction or in case of
mistrial.” Ga. Const., Art. I, Sec. I, Par. XVIII. Georgia statutory law
also provides additional protections against multiple prosecutions.
See OCGA § 16-1-7 (prohibiting multiple prosecutions for the same
conduct); OCGA § 16-1-8 (providing for circumstances in which
successive prosecutions are barred). The doctrine of double jeopardy,
as outlined in these authorities, thus has two components: the
“procedural” bar on double jeopardy, which limits “multiple
14 “Under this doctrine, when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit.” (Citation and punctuation
omitted.) Giddens, 299 Ga. at 112-113 (2) (a). Collateral estoppel therefore
precludes “retrial of the factual decisions that necessarily underlie the legal
determination of acquittal.” (Citation omitted.) Id. at 113 (2) (a). “When there
is a critical issue of ultimate fact in all of the charges against the defendant, a
jury verdict that necessarily decided that issue in his favor protects him from
prosecution for any charge for which that is an essential element.” (Citation
and punctuation omitted.) Roesser v. State, 294 Ga. 295, 296 (751 SE2d 297)
(2013). To assert this protection in a subsequent trial, the defendant bears the
burden of proving from the record what facts were actually and necessarily
decided in his favor in an earlier trial. See Giddens, 299 Ga. at 113 (2) (a).
33
prosecutions for crimes arising from the same conduct,” and the
“substantive” bar, which protects against “multiple convictions or
punishments” for such crimes. (Citations omitted.) Neuman v. State,
311 Ga. 83, 86-87 (2) (856 SE2d 289, 294 (2)) (2021).
Here, Torres was charged with six counts of felony murder
(Counts 1-6), criminal attempt to commit armed robbery (Count 7),
conspiracy to commit armed robbery (Count 8), armed robbery
(Count 9), conspiracy to commit aggravated assault (Count 10),
aggravated assault with intent to rob (Count 11), aggravated assault
with a deadly weapon (Count 12), theft by taking (Count 13), and
tampering with evidence (Count 14). See footnote 1. A jury found
him guilty of Counts 4, 5, 10, 11, and 14 and not guilty on the
remaining counts against him. See id.Torres filed a motion for new trial, which the trial court
granted based on ineffective assistance of counsel. Before his retrial,
Torres orally raised a plea in bar based on double jeopardy to bar
retrial on Counts 1-3, 6-9, 12, and 13, the counts of which he was
found not guilty in his first trial. The trial court deferred ruling on
34
the plea in bar but orally granted it after the close of the State’s
evidence in the bench trial. The trial court later found Torres guilty
of Counts 4, 5, 10, 11, and 14 and entered an order granting the plea
in bar nunc pro tunc as to Counts 1 through 3, 6 through 9, 12, and
13. Torres never filed a plea in bar in regard to Counts 4, 5, 10, 11,
or 14, nor did he raise a collateral estoppel claim at any time leading
up to or during the bench trial on those counts.15
On appeal, Torres argues that, even though his plea in bar as
to these counts was granted by the trial court, he was retried on
essentially the same offenses of which he had been acquitted by a
jury in his first trial because Counts 4, 5, 10, 11, and 14 “have the
same elements and therefore constitute the same offense” as the
crimes of which he was found not guilty by the jury. Specifically,
Torres argues that because the armed robbery charges (of which he
was acquitted) and the aggravated assault charges (of which he was
15To the contrary, when Torres raised his plea in bar as to the counts for
which he had been found not guilty, Torres’s counsel told the trial court,
“[Torres] can be certainly retried on [Count 4, Count 5, Count 10, Count 11,
and Count 14].”
35
found guilty) were all premised on the same incident, by virtue of
the jury’s acquittal of Torres on the armed robbery charges and the
corresponding felony murders, the jury also necessarily found, as a
matter of fact, that Torres did not commit the charged aggravated
assaults and the felony murders that correspond to them.
It is clear that Torres is claiming that he was subjected to a
successive prosecution as to Counts 4, 5, 10, 11, and 14.
“Accordingly, any resulting double jeopardy claim was procedural in
nature.” Neuman, 311 Ga. at 87 (2). However, by failing to file a plea
in bar as to those counts or otherwise contest the initiation of the
second trial as to those counts on the basis of former jeopardy, Torres
failed to preserve this question for our review. See id. We thus reject
this enumeration of error without addressing the merits of Torres’s
contention. 16
16In a reply brief, Torres asserted for the first time that if his double
jeopardy claims regarding Counts 4, 5, 10, 11, and 14 were not preserved for
review that such inaction amounted to constitutionally ineffective assistance
on the part of his trial counsel. However, “an appellant who raises an argument
for the first time in a reply brief is not entitled to have that argument
considered.” (Citation and punctuation omitted.) Williams v. State, 307 Ga.
689, 689 n.2 (838 SE2d 314) (2020). Accordingly, we do not consider Torres’s
assertion that he received ineffective assistance of counsel.
36
Judgment affirmed. All the Justices concur.
37