White v. State , 168 Ga. App. 794 ( 1983 )

Banke, Judge.

The defendant was indicted for armed robbery and found guilty of robbery by intimidation. On appeal, he contends that the trial court erred in allowing evidence of a confession allegedly elicited from him in violation of his right to counsel.

After taking the defendant into custody, the arresting officer asked him his name and date of birth. The defendant complied with the request for his name but stated he “wasn’t saying anymore” until he spoke to an attorney. The next day, he was taken before a recorder’s court judge for what was described as an arraignment hearing and was asked whether he could afford an attorney. He replied that he could not, and the judge stated that one would be appointed for him. Two detectives then accompanied him back to the jail, which was located on another floor in the same building. These detectives were unaware of the defendant’s exchange with the arresting officer the day before, and while on the elevator they asked him if he wanted to make a statement. The defendant replied that he did and, after being informed of his Miranda rights, confessed to committing the robbery. Asked during the Jackson v. Denno hearing what had prompted him to cooperate with the officers, the defendant replied, “Because Detective Lester told me that it will go easier on you if you go ahead and give us a statement.” Both detectives denied that any such representation was made.

The defendant testified that he knew he had a right to an attorney at the time he made the confession and that he was aware he was giving up that right. He admitted that his confession was truthful and stated that it was not induced by any threats on the part of the detectives. Hold?

In Edwards v. Arizona, 451 U. S. 477, 482 (101 SC 1880, 68 LE2d 378) (1981), the United States Supreme Court reaffirmed its prior holdings that “waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, 304 U. S. 458, 464 (1938).” However, the Court went on to hold that once “an accused [has] expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police . . . [I]t is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” Id. at 484-485. (Emphasis supplied.)

The defendant contends that the conduct of the detectives in this case constituted a clear violation of the Edwards holding. We do not agree. The defendant in Edwards had expressed a clear desire to talk to an attorney during the course of a custodial interrogation session. Although the interrogation was discontinued at that time, the following morning two detectives, who were colleagues of the officer who had conducted the initial questioning, had the defendant removed from his cell over his protests that he did not want to talk to anyone and proceeded to obtain a waiver of counsel from him. The court ruled that this waiver could not be accepted as voluntary, knowing, and intelligent because of the officers’ improper conduct in continuing to interrogate him after he had requested an attorney. The case presently before this court is distinguished from Edwards by the fact that there had been no prior interrogation at the time the waiver was obtained, and thus the defendant was not subjected to “further interrogation” or “reinterrogation” within the meaning of Edwards.

“[T]he term ‘interrogation’ under Miranda refers ... to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U. S. 291, 301 (100 SC 1682, 64 LE2d 297) (1980). (Emphasis supplied.) The routine request by the arresting officer in this case for the defendant’s name and date of birth were of the type normally attendant to arrest and custody and were not reasonably likely to elicit an incriminating response. Thus, they did not constitute an interrogation, and the subsequent questioning by the detective cannot be deemed a “further interrogation” within the meaning of Edwards, supra at 485. Accord, Shy v. State, 234 Ga. 816, 822 (218 SE2d 599) (1975), citing Jenkins v. State, 123 Ga. App. 822 (182 SE2d 542) (1971). Compare Morris v. State, 161 Ga. App. 141 (2) (288 SE2d 102) (1982); Price v. State, 160 Ga. App. 245, 248 (5) (286 SE2d 744) (1981).

There is no indication in this case that any subterfuge or psychological pressure was employed to obtain either the waiver of counsel or the confession, nor are we otherwise dealing with a type of police conduct with the potential for infringing upon the free exercise of constitutional rights. Compare Brewer v. Williams, 430 U. S. 387 (97 SC 1232, 51 LE2d 424) (1977); United States v. Henry, 447 U. S. 264 (100 SC 2183, 65 LE2d 115) (1980). The detectives who questioned the defendant had no basis for assuming that he did not wish to speak with them without the assistance of an attorney. He had never requested counsel while in jail, and although he responded affirmatively to the inquiry by the recorder’s court judge as to whether he wanted an attorney appointed to represent him, this was not equivalent to a request to be allowed to consult with an attorney prior to or during questioning by police, but was merely a manifestation of a desire for representation during subsequent legal proceedings. See Jordan v. Watkins, 681 F2d 1067, 1073-1074 (5th Cir., 1982). Compare Vaughn v. State, 248 Ga. 127 (281 SE2d 594) (1981). Under the circumstances of this case, it would be totally incongruous to hold that the detectives violated the defendant’s right to counsel by asking him in the elevator if he wanted to make a statement. Accord Cervi v. State, 248 Ga. 325 (2) (282 SE2d 629) (1981); Krier v. State, 249 Ga. 80 (1) (a) (287 SE2d 531) (1982).

Decided October 17, 1983 Rehearing denied November 9, 1983 Stanley H. Friedman, for appellant. Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

With regard to the detectives’ alleged representation to the defendant that it would be easier or better on him if he talked, there is no indication in the record that the defendant himself interpreted this as an offer of lighter punishment. Rather, the statement, if made, would appear to have been understood as simply a suggestion that it would be easier or better on him if he told the truth. Such an interrogation technique does not constitute an improper offer of a benefit so as to render a subsequent confession involuntary. See Caffo v. State, 247 Ga. 751, 757 (279 SE2d 678) (1981); Fowler v. State, 246 Ga. 256 (4) (271 SE2d 168) (1980). In any event, the trial court was entitled to accept the officer’s testimony that they made no such statement to the defendant. Accord Frazier v. State, 146 Ga. App. 229 (2) (246 SE2d 136) (1978); Jones v. State, 146 Ga. App. 88 (3) (245 SE2d 449) (1978). See generally Brooks v. State, 244 Ga. 574, 581 (2) (261 SE2d 379) (1979); Gates v. State, 244 Ga. 587 (1), 590-591 (261 SE2d 349) (1979); Cunningham v. State, 248 Ga. 835 (1), 836 (286 SE2d 427) (1982).

Considering all the facts and circumstances surrounding the defendant’s confession, including his own admission during the Jackson v. Denno hearing that it was made freely and in knowing and voluntary disregard of his right to counsel, we conclude that the trial court did not abuse its discretion in admitting the confession into evidence.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Birdsong, Pope and Sognier, JJ., concur. Shulman, C. J., Quillian, P. J., and Car ley, J, dissent.