Cooper v. State

Smith, Presiding Judge,

concurring in part and dissenting in part.

Although I concur with Divisions 2 through 8,1 respectfully dissent as to Division 1 of the majority opinion because I believe the trial court erred in denying Cooper’s motion to suppress his purported statement.

Evidence presented during the Jackson-Denno hearing and at trial showed that Dunham read Miranda warnings to Cooper at the time of his arrest. Dunham testified that Cooper stated he understood his rights, and when asked if he wanted to talk to Dunham, Cooper said, “No, I don’t have anything to say.” Cooper’s vehicle was then searched, and alleged contraband was discovered. According to Dunham, Cooper was transported to the police precinct and taken into an interrogation room, and the officers “told him what charges we had on him and we asked him did he want to help hisself [sic], and he said no.” When asked to explain the meaning of the phrase, “help yourself” in the context of the interrogation room conversation, Dunham testified that individuals in street gangs “know exactly what that means. If [an] officer catches you with a lot of narcotics and they ask you if you want to help yourself, that’s common knowledge . . . they know either I can help myself if I give somebody up bigger than I am, or either I don’t say anything.” Dunham also. explained that if Cooper had said “yes” when asked if he wanted, to help himself out, Dunham would have been obligated to read Cooper “his Miranda rights again, because then, he would have been saying something incriminating, but since he didn’t, I didn’t have to read him his Miranda rights.”

Dunham testified that after Cooper stated he had nothing to say, Dunham and the other officer “were just talking to him like I’m talking to you,” and “Cooper’s main focus was contacting his girlfriend and asking whether or not we were going to keep his girlfriend’s picture.” Cooper was “pretty closed lipped” and did not want to talk about anything except his girlfriend, and Dunham testified that after Cooper stated he did not want to say anything, the officers “didn’t press the issue.” They searched Cooper and found some money and a copy of the search warrant affidavit left at his apartment on July 8. Dunham testified that after this search of Cooper’s person, the other officer continued to talk to Cooper, explained the charges against him, and asked him if he had “anything to say.” At that time, Cooper allegedly said that he had drugs in his car because he needed to make some money after the earlier raid on his apartment. Dunham understood the “raid” to mean the July 8 search and seizure of contraband at Cooper’s apartment.

Dunham testified that Cooper was not threatened or intimidated into making the statement. Dunham stated that the officers did not “really ask him any interrogating questions” but were “talking to him like I’m talking to you now. We didn’t ask him where he got the dope from, was it his dope; we didn’t ask him anything interrogating him.” Cooper testified during the Jackson-Denno hearing that he told the police he did not want to say anything, and he denied making the statement attributed to him.

In denying Cooper’s motion to suppress, the trial court emphasized the fact that Cooper denied making the statement. Indeed, the trial court may have even partially based its ruling on this denial. It also appears that the trial court may have believed that Cooper would testify at trial and deny making the statement. Of course, Cooper was under no obligation to testify at trial, and in fact he did not. The trial court also noted that “at one point, the officer said [the statement] wasn’t even in response to saying did you want to help yourself, that he was just kind of explaining what he was doing and that there wasn’t any intimidation or threat or promise or any such thing, there really wasn’t even any interrogation at all.” The court found that the statement was not inadmissible on the ground that it was coerced, that it was given in the absence of Miranda warnings, or that it was given in response to threats or promises. Cooper argues that this ruling “failed to address the fundamental error under Miranda that required that this statement be suppressed: that Appellant had twice invoked his right to remain silent and did not later re-initiate the discussion.”

In reviewing a trial court’s ruling on a motion to suppress, the appellate courts of this state construe the evidence in favor of upholding the trial court’s findings and will not disturb a trial court’s findings on conflicting evidence unless they are “completely unsupported by evidence.” Davis v. State of Ga., 256 Ga. App. 299, 301 (1) (568 SE2d 161) (2002). See also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). But even applying this highly deferential standard to the trial court’s ruling, under the facts of this case, I agree with Cooper that the trial court did not address the fact that immediately after Cooper invoked his right to remain silent, interrogation continued.

The officers’ interrogation room conduct exceeded their authority. “A person being subjected to custodial interrogation may at any time express his or her desire to remain silent and, thereby, end the interrogation. Any exercise of this right to silence must be scrupulously honored.” (Punctuation and footnote omitted.) Green v. State, 275 Ga. 569, 571-572 (570 SE2d 207) (2002).⁴⁵ And

[a]lthough the right to silence is not protected by a per se rule of permanent immunity against further police-initiated interrogation, nevertheless, a suspect’s request to cut off questioning serves as a complete bar to any questioning initiated by the police for a significant period of time after the request.

(Citations and punctuation omitted.) Hatcher v. State, 259 Ga. 274, 277 (2) (379 SE2d 775) (1989).

Here, Cooper asserted his right to remain silent. He stated to Dunham that he had nothing to say immediately after Dunham arrested him and read his Miranda rights. After that, however, Cooper was taken to an “interrogation room.” Dunham testified that the officers did not ask Cooper any “interrogating questions,” but while in the interrogation room and less than an hour after his clear invocation of his rights, Cooper was asked if he wanted to help himself. He again gave a negative response. Dunham realized the possibility that Cooper’s reply could be incriminating, as he testified that if Cooper had responded affirmatively, he would have been required to read Cooper’s Miranda rights again. Finally, within minutes, the other officer present in the room asked Cooper if he had “anything to say,” and Cooper made the statement attributed to him by Dunham. Cooper was therefore questioned at least two times after he stated that he did not want to say anything. It does appear, as found by the trial court, that Cooper’s purported statement was not directly made in response to the question of whether he wanted to “help himself out.” But the purported statement was made in direct response to the other officer’s question of whether he had anything to say.⁴⁶

I find Washington v. State, 192 Ga. App. 678 (385 SE2d 767) (1989), and Spratley v. State, 169 Ga. App. 922 (315 SE2d 474) (1984), cited by the State, to be distinguishable. In each case, after invoking his constitutional rights, the defendant later showed á clear willingness to make a statement. In contrast, the questioning by the officers here continued a short time after Cooper stated that he had nothing to say. The State correctly points out that Cooper testified during the Jackson-Denno hearing that he did not feel that he “had to make statements when [he was] taken into” the interrogation room. But at the time he was taken into that room, he had not been twice questioned following his unequivocal assertion of his rights.

It is also true that Cooper denied making the statement. This fact, however, is not controlling. In finding the statement to be voluntary, the trial court implicitly found Dunham’s testimony to be more credible than that of Cooper, and deference must be given to that credibility finding. See Tate, supra at 54 (1). But even construing Dunham’s testimony as true, i.e., that Cooper made the statement attributed to him, I cannot conclude from the police officers’ behavior that Cooper’s unequivocal invocation of his right to remain silent was “scrupulously honored.” See Green, supra; Hatcher, supra.

I am consequently constrained to conclude that the trial court clearly erred in denying Cooper’s motion to suppress. The remaining evidence against Cooper with respect to Counts 1 and 2 was not overwhelming in my opinion, and I cannot conclude that a high probability exists that the erroneously admitted statement did not contribute to the verdict.

Decided November 27, 2002 Reconsideration denied December 13, 2002 Charles H. Frier, for appellant. Paul L. Howard, Jr., District Attorney, Amira A. Arshad, Anne E. Green, Assistant District Attorneys, for appellee.

I am authorized to state that Judge Barnes joins in this opinion.

45 In Green, when told by a detective that law enforcement would not “be able to talk to you anymore,” the defendant replied, “That’s cool. ... I don’t want to talk.” Id. at 572. The Supreme Court concluded that this response was an unambiguous statement that the defendant did not wish the interrogation to continue and that the defendant’s responses to interrogation after that point were to be suppressed at trial.

46 In its appellate brief, the State asserts that Cooper’s “statement was not in response to any questions asked by the officers.” The record shows otherwise. The trial court asked Dunham if the statement was “in response to any kind of question you asked,” and Dunham answered in the negative. This exchange, however, did not address the other officer’s question to Cooper, asking him if he had anything to say.