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Ward
Anthony BROCKMAN
BROCKMAN v. THE STATE.
S93A0609.
(263 Ga. 637)
(436 SE2d 316)
(1993)
HUNSTEIN, Justice.
Interim appellate review. Muscogee Superior Court. Before Judge
Followill.
This is an interim appellate review of a case in
which the State seeks a death penalty. Brockman and three
accomplices allegedly killed a service station attendant during an
attempted armed robbery. The State contends Brockman was the
triggerman and that this was only one of several armed robberies and
attempted armed robberies committed by Brockman in a crime spree
following Brockman's theft of a Chevrolet Camaro.
1. Brockman contends the trial court erred by
finding that his statement and confession were admissible
notwithstanding his invocation of his right to counsel. The trial
court was authorized to conclude from testimony adduced at the
hearing that Brockman and his accomplices were arrested following a
high-speed chase into Phenix City, Alabama, that ended at the
apartment of Brockman's female companion, where police used tear gas
to force Brockman out of the attic. Brockman and his accomplices
were transported to the local jail. Detective Boren of the Columbus
Police Department introduced himself to Brockman, told him he was
interviewing the other three suspects but would talk to him later,
and left. Officer White of the Muscogee County Sheriff's Department
stayed with Brockman. While White helped him clean insulation from
the attic off his face, Brockman began asking White about how the
police had known it was Brockman and his accomplices in the vehicle
and "chit chatted" about the chase. White testified that he asked
Brockman no questions and that all conversation originated from
Brockman. At some point, Brockman bragged that had he been driving
instead of an accomplice, the police would not have caught them
because he was the better driver. Brockman also stated that the
police were "lucky" because at one point he started to "stick a
shotgun out the window and take a shot at y'all."
Boren returned and advised Brockman, for the
first time since his arrest, of his Miranda rights (Miranda v.
Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)). When
Brockman stated that he "might" want to talk to an attorney, Boren
told him to make up his mind, and left the room. Shortly thereafter,
Brockman asked Officer White about a piece of paper Boren had been
carrying and White answered that he did not know. Within minutes of
White's response, Brockman requested to speak again to Boren. Upon
his return, Boren asked Brockman what he wanted. White testified
that Brockman answered, "I need to talk to you." Brockman then
proceeded to question Boren about evidence the police had against
him and told Boren the others' statements should be discounted
because they did not know what had actually transpired. Boren
testified that he did not question Brockman about the case and
instead inquired only whether Brockman would waive extradition to
Georgia. Brockman agreed and was transported to the Columbus Police
Department. At that time (approximately three hours after Boren
first spoke to Brockman), Boren re-advised Brockman of his rights
and obtained a written waiver. Brockman then gave a brief
incriminating statement, which was followed in greater detail by a
statement videotaped by the police.
Brockman testified that he told Officer White
that he wanted a lawyer, repeated his request when Boren informed
him of his Miranda rights, and asked for a lawyer when Boren
inquired about waiving extradition.
(a) As to the incriminating statements Brockman
made to Officer White, the trial court was authorized to conclude
that Brockman had not requested counsel at the time the statements
were made. Hence, the statements were not inadmissible on Brockman's
asserted basis that they were elicited after he had invoked his
right to counsel. We note that no ruling was requested from the
trial court as to whether these statements were made in response to
"interrogation" by White prior to which the warnings required by
Miranda v. Arizona, supra, should have been given. See Rhode Island
v. Innis, 446 U. S. 291 (100 SC 1682, 64 LE2d 297) (1980); Turner v.
State, 199 Ga. App. 836 (3) (406 SE2d 512)
(1991).
(b) As Brockman contends, his statement to Boren
that he "might" want to talk to an attorney was at least an
equivocal invocation of his right to counsel. Brockman contends that
when the interrogation began later, Brockman's desires about counsel
were not sufficiently clarified. See Hall v. State,
255 Ga. 267 (2) (336 SE2d 812) (1985).
But even where a suspect makes an unequivocal request for counsel --
which cuts off all police-initiated interrogation, including further
clarification, see Allen v. State, 259 Ga. 63
(377 SE2d 150) (1989) a suspect may be interrogated further
if he (a) initiates further discussions with the police and (b)
knowingly and intelligently waives his Miranda rights. Edwards v.
Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). That is
what happened here. Guimond v. State, 259 Ga.
752, 754 (2) (386 SE2d 158)
(1989); Tatum v. State, 203 Ga. App. 892 (1)
(418 SE2d 152) (1992).
(c) As to the videotaped confession, Brockman was
advised of his Miranda rights at the outset, and he waived them on
tape. A review of the tape reveals that near the end of the
interview, Brockman referred to his original intention not to talk
to police until he first consulted an attorney (explaining why he
was shouting at his accomplices at the scene of the arrest, ordering
them not to talk). Brockman's reference to his previous state of
mind was not a request for counsel, equivocal or otherwise. Hall v.
State, supra at 270.
2. The State contends the trial court erred by
granting Brockman's motion to sever Counts 3 and 4. Count 3 alleges
the commission of an armed robbery earlier the same day as the
attempted armed robbery and murder alleged in Counts 1 and 2. Count
4 alleges the theft of the motor vehicle used in the commission of
the crimes alleged in the other three counts.
The crimes alleged in Counts 3 and 4 were joined
to Counts 1 and 2 as part of a " 'series of acts connected together
or constituting parts of a single scheme or plan.' [Cit.]" Gober v.
State, 247 Ga. 652, 653 (278
SE2d 386) (1981). In such cases, the trial court may order
severance. Id. The State has not shown any prejudice, and we find no
abuse of discretion.
3. The State contends the trial court erred by
ruling that the State could not prove as a similar act the theft of
the Chevrolet Camaro. 1 The trial
court, after hearing, ruled that three extrinsic armed robberies and
attempted armed robberies committed within a two-day period in and
around the Columbus area would be admissible, but that the theft of
the Camaro four days before the murder would not be admissible,
apparently on the ground that the theft of an automobile was not
sufficiently similar to an armed robbery to warrant its admission.
While Uniform Superior Court Rule 31.3 speaks of
"similar" transactions, the issue of admissibility of extrinsic
transactions has never been one of "mere similarity." Williams v.
State, 251 Ga. 749, 784 (312
SE2d 40) (1983). It is, rather, "relevance to the issues in
the trial of the case." Id.
Depending upon the purpose for which the
extrinsic offense is offered, the state may be required to prove a
high degree of similarity between relevant characteristics of the
extrinsic offenses and the charged crimes, or it may only have the
burden of showing a logical connection between crimes which are
essentially dissimilar.
In this case, the stolen Camaro was used in three
of the four armed robberies and attempted armed robberies committed
within a short period of time, and was the car involved in the high-speed
chase from Columbus to the Phenix City apartment where Brockman and
the others were arrested. Included among the evidence recovered by
the police was an "agenda," or list of things to do; Brockman,
during the videotaped interrogation, confirmed that the "agenda"
included the theft of a motor vehicle and the commission of armed
robberies.
From this evidence it is apparent that the theft
of the automobile was part of a larger plan or scheme which included
the commission of the attempted armed robbery on trial. The trial
court erred by concluding that the theft of the Camaro was not
sufficiently similar or logically connected to the crimes on trial
to be admissible. Todd v. State, 261 Ga. 766
(7) (410 SE2d 725) (1991). We leave open the issue of the
trial court's discretion to exclude relevant evidence " 'if its
probative value is substantially outweighed by the danger of unfair
prejudice, [etc.],' " Hicks v. State, 256 Ga.
715, 720-721 (13) (352 SE2d 762)
(1987), as such was not the basis of the court's ruling.
Notes
1 The State, in seeking the
admission of this evidence, complied with Uniform Superior Court Rules
31.1 and 31.3.
Hagler & Hyles, Richard C. Hagler, M.
Stephen Hyles, for appellant.
Hagler & Hyles, Richard C. Hagler, M.
Stephen Hyles, for appellant.
DECIDED NOVEMBER 8, 1993 -- RECONSIDERATION
DENIED DECEMBER 8, 1993.