Sewell v. State

Jeffery D. Sewell appeals his convictions for felony murder while in the commission of aggravated assault and possession of a firearm while in the commission of a crime in connection with the death of Anthony Edward Thomas Moore. For the reasons that follow, we affirm.1

*559Construed to support the verdicts, the evidence showed that Moore went to an area known for illegal drug sales in the evening, seeking to purchase cocaine. He approached a group of men that included Sewell and asked if they would be willing to exchange cocaine for his watch. Sewell and the others said they were not interested in his watch and told Moore to leave. Moore, who was Caucasian, directed a racial epithet toward Sewell, who is African-American. Sewell approached Moore angrily, as though to fight, and shot Moore, fatally, in the chest; one of his friends implored Sewell not to shoot Moore again, and his pistol apparently would not fire a second time.

After the shooting, Sewell went home, hid the pistol, awakened his mother, and told her that he had witnessed a shooting; Sewell was 15 years old at the time. Sewell discussed the matter with his family members the next day; it was decided that Sewell would give a statement to the police, and his mother telephoned the police and told them that she had trouble with her son. Police officers came to Sewell’s house, and he was driven to the police station in a police car; his mother, grandmother, and step-grandfather went to the police station in a different car. At the police station, Sewell admitted to a detective that he shot Moore.

1. Sewell challenges the sufficiency of the evidence as to the crime of felony murder, contending that since the jury acquitted him of malice murder, it must have necessarily concluded that he shot Moore as the result of provocation, and that he should have thus been convicted of only voluntary manslaughter, rather than of felony murder while in the commission of aggravated assault. However, “[wjhether the evidence showed only voluntary manslaughter resulting from a serious provocation was a question for the jury. [Cit.]” Jones v. State, 282 Ga. 47, 48 (1) (644 SE2d 853) (2007). The jury was properly instructed that words alone could not produce sufficient provocation to reduce the crime to voluntary manslaughter, and that it was to determine Sewell’s motive. See Todd v. State, 274 Ga. 98, 101-102 (4) (549 SE2d 116) (2001). And, the jury rejected the voluntary manslaughter option on the special verdict form, finding instead that Sewell was guilty of felony murder. Although Sewell testified that he believed Moore was reaching for a weapon, police investigators testified that Sewell had not told them that, and the jury was not required to accept as true the version of events to which Sewell testified, but could assess his credibility and weigh his testimony against other evidence. Miller v. State, 277 Ga. 707, 709 (1) (593 SE2d *560659) (2004). The evidence was sufficient to enable a rational trier of fact to find Sewell guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The State introduced testimony of the versions of events that Sewell gave to the police detective while he was at the police station. Sewell stated that: he was with several friends when Moore approached and asked to exchange his watch for cocaine; the group denied having cocaine and told Moore to leave; as Moore turned and walked away, Moore used a racial epithet; Sewell turned and began to walk away; and Sewell did not hear a gunshot. The detective asked for more information, noting that in these circumstances, Sewell should have heard a gunshot; Sewell then said that he was later told by a friend that Moore had been shot and killed. Again, the detective asked for more specific information, and Sewell said that he had seen who shot Moore, and that the shooter ran into the woods afterwards. The detective then opined that true friends would not put Sewell in a position to be a witness to murder, and that he should tell the absolute truth. At this point, Sewell stated that he had shot Moore, and that after Moore used a racial epithet, Sewell approached him, demanding that he repeat what he had said, Moore did so, and Sewell shot him; Sewell said that he had been aggravated by an incident earlier in the day involving a dice game, and had armed himself in anticipation of trouble.2

Sewell asserts that these oral statements were made without the benefit of Miranda3 warnings and that evidence about them should have been excluded from his trial. First, it must be noted that no written statement from Sewell was introduced at trial. At the Jackson v. Denno4 hearing, police officers testified that Sewell was not placed in custody, and was not given Miranda warnings, until after he admitted to the shooting and had completed a written statement. During argument at the hearing, the trial court announced that it agreed that Sewell was not in custody at the time he orally implicated himself as the shooter, and the State announced it would not introduce the written statement during its case-in-chief.5 A person is considered to be in custody and “Miranda warnings are required *561when a person ‘is (1) formally arrested or (2) restrained to the degree associated with a formal arrest.’ [Cit.] Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary. [Cit.]” Robinson v. State, 278 Ga. 299,301 (2) (602 SE2d 574) (2004). “On appeal, the issue is whether the trial court was clearly erroneous in its factual findings regarding the admissibility of the statements. [Cit.]” Jackson v. State, 272 Ga. 191, 193 (3) (528 SE2d 232) (2000).

Sewell takes issue with the trial court’s finding that he was not in custody when he told the police officer that he was the shooter, relying upon the fact that his step-grandfather told a police officer who responded to the Sewell home that Sewell had stated that he shot Moore; Sewell argues that he thus must have been considered by the police to be the perpetrator and would not have been considered free to go if he had attempted to leave the presence of police officers. However, the police officer who transported Sewell to the police station testified that Sewell was not in custody during the trip, and that had Sewell requested it, he would have allowed Sewell to leave the police car. Further, the detective who conducted Sewell’s interview at the police station testified that, as far as he knew, Sewell was there only as a witness.

Even if the declaration of Sewell’s step-grandfather that Sewell had admitted the shooting had been communicated to other officers and police attention had been focused upon Sewell, the question of whether a person is in police custody for purposes of Miranda warnings is not controlled by the fact that a police officer is told by a third party that the person has admitted a crime.

Whether a police officer focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes. [Cit.] This is so because Miranda was fashioned to redress “ ‘the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions’ ” when the questioning commenced. [Cit.] “Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.” [Cit.] Thus, the proper inquiry is whether the individual was formally arrested or restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest. [Cits.] In resolving this issue, the “relevant inquiry is how a reasonable person in [the] suspect’s position would perceive his situation.” [Cit.]

*562McAllister v. State, 270 Ga. 224, 227-228 (1) (507 SE2d 448) (1998).

Although Sewell was transported to the police station in a car which had a security screen between the front and back passenger seats, and a pat-down search for officer safety was performed before he entered the car, these actions do not mandate a finding that he was in custody. See Scott v. State, 281 Ga. 373, 375-376 (2) (637 SE2d 652) (2006). At no time was Sewell handcuffed, his mother, grandmother, and step-grandfather were present during the interview, and the door to the detectives’ work area in the police station was not locked in any way that impeded exit.6 The detective who conducted the interview had no information regarding any prior admission on Sewell’s part, and there is no evidence that Sewell was aware that his step-grandfather had informed a responding police officer that he had admitted shooting Moore. The trial court did not err in ruling that a reasonable person in Sewell’s position would not perceive himself to be in police custody when he orally confessed to shooting Moore. Although Sewell asserts in this Court, for the first time, that the trial court should have considered the factors set forth in Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976), this argument is meritless; Riley addresses a juvenile’s waiver of his Miranda rights while in police custody. Id. Accord Green v. State, 282 Ga. 672, 673-674 (2) (653 SE2d 23) (2007).

3. During the State’s closing argument, the prosecutor began to discuss the legal purpose of Miranda warnings, and Sewell objected that instructing the jury on the law and “historical meaning of Mirandawas improper argument. An unrecorded colloquy was held at the bench, after which the trial court instructed the jury that the court had ruled that Miranda was not applicable in this case, and that it presented no issue for the jury’s consideration. The State then resumed its argument. Sewell now complains that the court’s instruction after his objection was improper. However, he never objected to the court’s instruction, and thus cannot now complain about it. See Walker v. State, 282 Ga. 774, 778-779 (8) (653 SE2d 439) (2007); Moody v. State, 273 Ga. 24, 26-27 (3) (537 SE2d 666) (2000); Wilson v. State, 268 Ga. 527, 528-529 (2) (491 SE2d 47) (1997).

Judgments affirmed.