State v. Collins ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Randy Collins, Appellant.
Appellate Case No. 2018-002056
Appeal From Georgetown County
Larry B. Hyman, Jr., Circuit Court Judge
Opinion No. 5861
Heard May 4, 2021 – Filed September 8, 2021
REVERSED AND REMANDED
E. Brandon Gaskins, of Moore & Van Allen, PLLC, of
Charleston, and Chief Appellate Defender Robert
Michael Dudek, of Columbia, both for Appellant.
Attorney General Alan McCrory Wilson, and Assistant
Attorney General Jonathan Scott Matthews, both of
Columbia; and Solicitor Jimmy A. Richardson, II, of
Conway, all for Respondent.
HUFF, J.: Appellant, Randy Collins, appeals from his first-degree arson and
conspiracy convictions, asserting the trial court erred in (1) ruling his confession
was voluntarily given and (2) refusing to require further evaluation of him for
competency to stand trial. Because we find the trial court erred in finding his
confession was voluntarily given, we reverse and remand for a new trial.
FACTUAL/PROCEDURAL HISTORY
This case involves the tragic death of a twelve-year-old boy (Child) as a result of
an intentionally set fire. The State's theory of the case was that Child's mother,
Marissa Cohen, obtained an insurance policy on the contents of a rented mobile
home, she offered Appellant $5,000 to burn the mobile home, and Appellant
enlisted the help of his nephew, James Miller (Miller), to carry out the plan. The
vast majority of the crucial evidence admitted against Appellant was the
challenged recorded statement he gave to law enforcement.
In the early morning hours of March 29, 2014, Andrews Fire Department and
Georgetown County Fire EMS personnel responded to a mobile home fire in
Andrews, South Carolina, after receiving a call around 1:15 a.m. Although they
received information the home was vacant, once the fire was extinguished and the
firefighters forced entry into the locked home, they discovered Child was dead
inside the structure. The State produced evidence that Cohen obtained a $25,000
property insurance policy on the contents of the mobile home on February 20,
2014. On March 24, 2014, Cohen rented a storage unit and, shortly before the fire
at the mobile home, she moved furniture and household appliances from the
mobile home to the storage unit. One of the men who had earlier helped Cohen
move her household items, Benjamin "Mano" Brown (Mano), testified that after he
helped her move, Cohen told him she intended to burn the home. A couple of days
before the fire Cohen moved with her children into the home of Frank Washington
at Arbor Place Apartments. On the day of the fire, Cohen purchased $20 worth of
kerosene from a convenience store in Andrews. On the night of the fire, Cohen's
older son, Devon, and her younger child were at the Arbor Place apartment with
Cohen but Child was not there, having gone to a birthday party at a recreation
center around 8:30 p.m. on March 28, 2014. When Child and his friend left the
party around 12:00 or 12:30 a.m., Child asked his friend if he could spend the night
with him. Child said he was going to check on his mother and retrieve some
clothes. The friend understood Child was going to the mobile home that they had
moved out of earlier in the week. Child never returned.
Investigators quickly determined the fire had been intentionally set with the use of
an accelerant poured on the floor of the home. Testing subsequently revealed the
presence of heavy petroleum distillate—common in kerosene—in the home.
SLED Agent Scott Hardee, an arson investigator, assisted Georgetown County
Investigator Melvyn Garrett in the investigation of this case. Based on an
anonymous tip, Agent Hardee discovered the insurance policy that had been taken
out by Cohen, and Investigator Garrett discovered Cohen purchased kerosene the
day before the fire. This tip also indicated Appellant and Mano were involved.
Investigator Garrett testified he spoke with Mano, who stated he was not there and
did not know anything about the incident, which the investigator stated he was able
to confirm. Investigator Garrett then spoke with Appellant on April 9, at which
time Appellant told him he did not have anything to do with the fire and that he
was at a club with his nephew, Miller, from 9:00 p.m. until 3:00 a.m. that night.
The investigator also talked to Miller, who gave a statement likewise claiming he
was with Appellant at a club from 9:00 p.m. until 3:00 a.m. on the night of the fire.
Thereafter, Andrews Police Officer Oliver Nesmith served warrants on Appellant,
obtaining his two cell phones. Agent Hardee noted phone records showed Cohen's
and Appellant's phones had made contact with each other three times on March
28th, 2014—at 12:11 p.m., 3:27 p.m., and 9:07 p.m.—and three more times on
March 29, 2014—at 2:50 a.m., 3:01 a.m., and 3:24 a.m.
On June 4, 2014, when Appellant arrived at Town Hall to retrieve his phones from
Officer Nesmith,1 Agent Hardee and Investigator Garrett used the opportunity to
obtain an interview from Appellant. The officers read Appellant his rights and
obtained a signed waiver of rights form from him at 10:20 a.m.2 Agent Hardee
then set up his personal camcorder to record the interview. Agent Hardee testified
Appellant initially denied any involvement in the fire and denied he had any
contact with Cohen, but when confronted, he changed his story and admitted
contact with her. Agent Hardee testified Appellant ultimately told them that Cohen
asked him to burn down her trailer and she would pay him $5,000; he went with
Miller to the location; and he put all the blame on Miller as far as starting the fire
but admitted he was there. The officers thereafter obtained arrest warrants for
Appellant,3 Cohen, and Miller.4
1
Agent Hardee acknowledged they used Officer Nesmith, who Appellant had
known for a long time, to get Appellant to come retrieve his phones with Agent
Hardee and Investigator Garrett present. He agreed that, in essence, they tricked
Appellant to get him to Town Hall.
2
The officers proceeded to question Appellant until 1:51 p.m. Roughly an hour
and a half into the interview, the battery died on the camcorder and, because the
officers did not realize this, some of the interview was not recorded.
3
Appellant's warrants were filed the next day, June 5, 2014.
4
The record reveals, although Miller was arrested in this matter, he died on April
26, 2015—before Appellant's trial—apparently at the hands of Child's brother,
Devon.
Like Agent Hardee, Investigator Garrett testified Appellant initially maintained
that he was not involved with the fire but, as they confronted him with
inconsistencies, he changed his story. According to Investigator Garrett, Appellant
stated that Cohen offered him $5,000 to burn down the trailer, he told Miller about
the offer, and he put himself at the crime scene when the fire started. Subject to
Appellant's Jackson v. Denno5 objection, the solicitor played Appellant's redacted
interview for the jury.
Numerous individuals testified concerning Cohen's strange behavior and lack of
concern regarding Child's death. Additionally, the State presented evidence
concerning Cohen's nefarious intentions regarding Appellant and Mano after the
fire. In particular, one of Cohen's cousin's testified Cohen told her she needed her
to "help [her] get rid of Mano because [he was] the only one [who could] get [her]
locked up." The State also presented evidence of a letter Cohen sent to her son,
Devon, dated November 11, 2014. In the letter, Cohen wrote, "I heard [Appellant]
has a bond. I wish that I had some backup and [Appellant] did have a bond just to
deal with him. . . . I need a gun and meet up with [Appellant] and Mano."
The jury found Appellant guilty of arson in the first degree and criminal
conspiracy. The trial court sentenced Appellant to thirty years' imprisonment on
the arson charge and gave him a concurrent five-year sentence on the conspiracy
charge.
ISSUES
1. Did the trial court err in ruling Appellant's confession was voluntarily given?
2. Did the trial court err in refusing to require further evaluation of Appellant for
his competency to stand trial based on indications that he suffered from intellectual
disabilities?
LAW/ANALYSIS
I. Voluntariness of Statement
A. Jackson v. Denno Hearing and the Recorded Statement
5
378 U.S. 368 (1964).
Prior to the trial, the court conducted a hearing on the voluntariness of Appellant's
statements to law enforcement. Investigator Garrett, Agent Hardee, and Appellant
testified during this hearing, and the recording of the Appellant's interview was
played at this time.
In regard to Appellant's recorded statement, Investigator Garrett testified that after
the officers executed a search warrant on Appellant's phones, they utilized
Andrews Police Officer Nesmith—who Appellant was familiar with and possibly
related to—to facilitate this matter by having Officer Nesmith return Appellant's
phones in his and Agent Hardee's presence at Town Hall. When Appellant arrived,
Investigator Garrett and Agent Hardee asked him to speak with them about the
incident. Appellant agreed and they went into a conference room at Town Hall.
Agent Hardee went over Appellant's Miranda6 rights, having Appellant initial
beside each right, and Appellant signed the waiver of rights form at 10:20 a.m. on
June 4, 2014. The conference room was not set up for recording purposes, but
Agent Hardee had a video camera he was able to set up in the room. Investigator
Garrett testified they were there approximately three hours, and during that time
Appellant had a soda with him and was allowed to use the bathroom and smoke
cigarettes a few times. He stated that at no time did they put any handcuffs or
restraints on Appellant, at no time was he told he could not leave, they did not
make any threats to get Appellant to talk, they took adequate breaks when
Appellant requested them, and he had a phone with him that he could use if he
desired. When asked if there were any promises made to Appellant to get him to
talk, Investigator Garrett acknowledged that he told Appellant "that no matter what
he told [him] . . . he was going to go home that particular day." Asked if they gave
any hopes of assistance in the prosecution of the case, the officer replied, "Well,
certainly, if he gave any information that led to the case being solved, then we
would certainly ask for leniency of any type if we could," but there were no
promises of leniency made. The State thereafter played the recorded interview.
Concerning the part of the interview that was not recorded, Investigator Garrett
stated that was not done with any purposeful intent, and no threats, coercions or
promises were made during that time. He also stated he "kept [his] end of [the]
bargain" concerning his discussion in the interview about talking with the solicitor.
At the end of the interview, Investigator Garrett wrote a statement for Appellant,
which Appellant signed.
Agent Hardee testified Appellant appeared to understand his rights and he was not
handcuffed and was free to leave. He used his personal battery-powered camera to
6
Miranda v. Arizona, 384 U.S. 436 (1966).
record the interview, which was visible, on the table, to Appellant. Appellant
never asked to stop the interview, he never asked to leave, he never asked for food,
and he was provided with a soft drink as well as cigarette and bathroom breaks.
The agent denied threatening or coercing Appellant into giving his statement. On
cross-examination, Agent Hardee estimated the tape recording was turned off for
10-15 minutes during the interview. He agreed there was a time that Appellant
asked to smoke a cigarette and he was told no, explaining it was at a very
important part of the interview when Appellant was about to make an admission.
Agent Hardee also acknowledged he told Appellant at some point that the tape
recording of his interview "wasn't going any further" than that room, but the agent
knew that was not true.
Appellant testified he did not know or understand about Miranda rights and he did
not recall the officers reading him his rights. He stated his reading ability was "not
too good," he only completed seventh or eighth grade, he never obtained a GED,
and he was in special education classes. Appellant claimed he did not remember
signing the Miranda waiver, explaining that he had difficulty remembering things
since he suffered a stroke. He did not understand at the time he was with the
officers that he had a right to a lawyer, that he did not have to talk to them, or that
what he was saying could be used against him in a trial. Appellant testified he felt
that he had to stay there and did not feel that he had the freedom to leave. He
stated he thought he was just going to pick up his phone and did not think about
giving an interview. Upon questioning by the trial court, Appellant stated the
officers did not really threaten him, but they did promise they would talk to the
solicitor if he was forthcoming.
A review of the recorded statement reveals Appellant initially denied having any
knowledge in the matter. However, Appellant eventually told the officers that
Cohen asked him to burn down the mobile home in exchange for $5,000 but he
told her no; he told Miller what Cohen had said, and Miller indicated he would do
it for $1,500; he and Miller went to the club the night of the fire; when they left,
Appellant told Miller to take him home but Miller drove to a backroad behind the
mobile home; Miller checked the doors to the home, but they were locked;
Appellant told Miller not to do it; Miller threw a lit piece of paper or a match
through a window of the home; and when they left, Miller circled around the area,
but they did not see anything lit or any smoke, so Appellant did not believe Miller
had successfully started a fire. Appellant gave inconsistent statements regarding
what Miller used to light the fire and whether Appellant actually observed him
throw a lit item into a window or whether Appellant was back at the car at that
time so he could not actually see what Miller did.
We observe from the recording that Appellant informed the officers he suffered a
stroke in the previous year, he did not feel well that morning, and he repeatedly
indicated he had trouble with his memory. Of particular note, however, is an
assurance made by Agent Hardee approximately twenty-one minutes into the
interview, after Appellant was asked whether he thought the fire was intentionally
started, and Appellant responded he did not want to "say the wrong thing." Agent
Hardee responded, "Well, you're not going to say the wrong thing. Whatever you
tell me, it ain't gonna leave this room. This, um, tape is going into my file. And
I'm gonna, I'm gonna burn a copy for him. And we'll have a copy of this tape. And
it ain't gonna go any further than this room. That's why we got the door shut, the
blinds pulled, there's no sound device in here. I want you to be honest with me and
tell me what you think."
In ruling on the matter, the trial court found "the seminal issue" as to the recorded
statement was whether Appellant was Mirandized, and the court determined
Appellant made a "knowing, voluntary and intelligent waiver of those rights."
Remarking that the State must show by a preponderance of the evidence that
Appellant waived his rights after being advised under Miranda, it found "that
showing has certainly been made." The trial court noted that voluntariness hinged
on whether there was police coercion. In contemplating the voluntariness of his
statement, the trial court considered the characteristics of Appellant and found he
had "the requisite intelligence to knowingly and intelligently waive his right to
remain silent as well as his right to an attorney at the time the statements were
made." It found "absolutely no evidence of coercion or threats made to [Appellant]
at any time during the investigative interrogation." It further found the testimony
of the two officers more credible than Appellant regarding his understanding of his
rights and found the recorded statement was admissible.
B. Discussion
Appellant argues the trial court erred in admitting his recorded statement as it was
induced by deception regarding its use, promises of leniency, threats of severe
punishment, and other factors which indicate his statement was not voluntary. In
particular, he contends he was coerced and tricked into making inculpatory
statements by the officers' misrepresentation that his statement would not be used
against him. He maintains their promises that his statement would not leave the
room and the recording would be placed only in their file conveyed it would not be
used against him and rendered the previous Miranda warnings meaningless.
Although it does not appear South Carolina has addressed the voluntariness of a
statement after police have assured confidentiality, Appellant notes other
jurisdictions have ruled such assurances preclude a finding of voluntariness.
Additionally, Appellant argues his statement was induced by implied promises of
leniency and threats that he would die in prison if he did not cooperate. He also
asserts his low level of education, recent stroke and cognitive impairments, along
with the officers' coercive tactics, demonstrate his confession was not voluntary.
Appellant contends, under the totality of the circumstances, his will was overborne
and his statement was not voluntarily given. We agree.
"A confession is not admissible unless it was voluntarily made." State v. Myers,
359 S.C. 40, 47, 596 S.E.2d 488, 492 (2004). "If a defendant was advised of his
Miranda rights, but chose to make a statement anyway, the 'burden is on the State
to prove by a preponderance of the evidence that his rights were voluntarily
waived.'" State v. Childs, 299 S.C. 471, 475, 385 S.E.2d 839, 842 (1989) (quoting
State v. Washington, 296 S.C. 54, 55, 370 S.E.2d 611, 612 (1988)). "The State
bears this burden of proof even [when] a defendant has signed a waiver of rights
form." Id. "On appeal, the trial [court's] ruling as to the voluntariness of the
confession will not be disturbed unless so erroneous as to constitute an abuse of
discretion." Myers, 359 S.C. at 47, 596 S.E.2d at 492. "In determining whether a
confession was given 'voluntarily,' [the appellate court] must consider the totality
of the circumstances surrounding the defendant's giving the confession." State v.
Collier, 421 S.C. 426, 435, 807 S.E.2d 206, 211 (Ct. App. 2017) (alteration in
original) (quoting State v. Pittman, 373 S.C. 527, 566, 647 S.E.2d 144, 164
(2007)).
"The history of the Fifth Amendment right against compulsory self-incrimination,
and the evils against which it was directed, have received considerable attention in
the opinions" of the United States Supreme Court (USSC). Michigan v. Tucker,
417 U.S. 433, 439 (1974). These "decisions have referred to the right as 'the
mainstay of our adversary system of criminal justice,' and as 'one of the great
landmarks in man's struggle to make himself civilized.'" Id. (citations omitted)
(first quoting Johnson v. New Jersey, 384 U.S. 719 (1966); then quoting Ulmann v.
United States, 350 U.S. 422, 426 (1956)). "Prior to Miranda, [the courts]
evaluated the admissibility of a suspect's confession under a voluntariness test."
Dickerson v. United States, 530 U.S. 428, 432-33 (2000). "Over time, [the courts]
recognized two constitutional bases for the requirement that a confession be
voluntary to be admitted into evidence: the Fifth Amendment right against self-
incrimination and the Due Process Clause of the Fourteenth Amendment." Id. at
433. The courts have not "abandoned this due process jurisprudence, and . . .
continue to exclude confessions that were obtained involuntarily." Id. at 434. The
issue of voluntariness "is not limited to instances in which the claim is that the
police conduct was 'inherently coercive.'" Miller v. Fenton, 474 U.S. 104, 110
(1985) (quoting Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944)). Rather, it
"applies equally when the interrogation techniques were improper only because, in
the particular circumstances of the case, the confession is unlikely to have been the
product of a free and rational will." Id."A criminal defendant is deprived of due process if his conviction is founded, in
whole or in part, upon an involuntary confession." Pittman, 373 S.C. at 565, 647
S.E.2d at 164. "This principle is best justified when viewed as part and parcel of
'fundamental notions of fairness and justice in the determination of guilt or
innocence which lie embedded in the feelings of the American people and are
enshrined in the Due Process Clause of the Fourteenth Amendment.'" Id. (quoting
Haley v. Ohio, 332 U.S. 596, 607 (1948)). "In determining whether a confession
was given 'voluntarily,' [the appellate court] must consider the totality of the
circumstances surrounding the defendant's giving the confession." Id. at 566, 647
S.E.2d at 164. "The due process test takes into consideration 'the totality of all the
surrounding circumstances—both the characteristics of the accused and the details
of the interrogation.'" State v. Miller, 375 S.C. 370, 384, 652 S.E.2d 444, 451 (Ct.
App. 2007) (quoting Dickerson, 530 U.S. at 434).
[C]onvictions following the admission into evidence of confessions
which are involuntary, i.e., the product of coercion, either physical or
psychological, cannot stand. This is so not because such confessions
are unlikely to be true but because the methods used to extract them
offend an underlying principle in the enforcement of our criminal law:
that ours is an accusatorial and not an inquisitorial system—a system
in which the State must establish guilt by evidence independently and
freely secured and may not by coercion prove its charge against an
accused out of his own mouth.
Rogers v. Richmond, 365 U.S. 534, 540-41 (1961). Improperly extorted
confessions "may be and have been, to an unascertained extent, found to be
untrustworthy." Id. at 541. "But the constitutional principle of excluding
confessions that are not voluntary does not rest on this consideration." Id. Though
independent corroborating evidence may verify the truth of a defendant's
confession, if a defendant has "been subjected to pressures to which, under our
accusatorial system, an accused should not be subjected, [the courts are]
constrained to find that the procedures leading to his conviction [have] failed to
afford" the defendant due process of law. Id. In determining the voluntariness of a
statement, the question is "whether the behavior of the State's law enforcement
officials was such as to overbear [the defendant's] will to resist and bring about
confessions not freely self-determined—a question to be answered with complete
disregard of whether or not [the defendant] in fact spoke the truth." Id. at 544. "As
important as it is that persons who have committed crimes be convicted, there are
considerations which transcend the question of guilt or innocence." Blackburn v.
Alabama, 361 U.S. 199, 206 (1960). Therefore, when faced with involuntary
confessions, our courts "enforce[] the strongly felt attitude of our society that
important human values are sacrificed [when] an agency of the government, in the
course of securing a conviction, wrings a confession out of an accused against his
will." Id. at 206-07.
[T]he [USSC] has instructed [that] the totality of the
circumstances includes "the youth of the accused, his
lack of education or his low intelligence, the lack of any
advice to the accused of his constitutional rights, the
length of detention, the repeated and prolonged nature of
the questioning, and the use of physical punishment such
as the deprivation of food or sleep."
Pittman, 373 S.C. at 566, 647 S.E.2d at 164 (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 226 (1973)). Our appellate courts have also "recognized that
appropriate factors to consider in the totality-of-circumstances analysis include:
background, experience, and conduct of the accused; age; length of custody; police
misrepresentations; isolation of a minor from his or her parent; threats of violence;
and promises of leniency." Miller, 375 S.C. at 386, 652 S.E.2d at 452. "[N]o one
factor is determinative, but each case requires careful scrutiny of all the
surrounding circumstances." Pittman, 373 S.C. at 566, 647 S.E.2d at 164. "The
pertinent inquiry is, as always, whether the defendant's will was 'overborne.'"
Myers, 359 at 47, 596 S.E.2d at 492 (quoting State v. Von Dohlen, 322 S.C. 234,
244, 471 S.E.2d 689, 695 (1996)). "Coercive police activity is a necessary
predicate to finding a statement is not voluntary." Miller, 375 S.C. at 386, 652
S.E.2d at 452. "Coercion is determined from the perspective of the suspect." Id.
"A statement may not be 'extracted by any sort of threats or violence, [or] obtained
by any direct or implied promises, however slight, [or] obtained by the exertion of
improper influence.'" Id. (alterations in original) (quoting State v. Rochester, 301
S.C. 196, 200, 391 S.E.2d 244, 246 (1990)). "A statement induced by a promise of
leniency is involuntary only if so connected with the inducement as to be a
consequence of the promise." Rochester, 301 S.C. at 200, 391 S.E.2d at 246-47.
"The test of voluntariness is whether a defendant's will was overborne by the
circumstances surrounding the giving of a confession." State v. Goodwin, 384 S.C.
588, 601, 683 S.E.2d 500, 507 (Ct. App. 2009). "If a suspect's will is overborne
and his capacity for self-determination critically impaired, use of the resulting
confession offends due process." State v. Saltz, 346 S.C. 114, 136, 551 S.E.2d 240,
252 (2001).
Both parties agree that the voluntariness of a statement, following law enforcement
assurance of the statement's confidentiality, has not been addressed in South
Carolina. However, as noted by Appellant, this issue has arisen in other
jurisdictions.
In Redmond v. People, 501 P.2d 1051 (Colo. 1972), the Colorado Supreme Court
reversed the admission of the defendant's confession, finding the Miranda warning
given to the defendant was meaningless after the defendant was told parts of his
statement would not be used and that the focus of attention was not upon him but
upon another.7 Id. at 1052-53. In that case, the evidence showed Douglas
Redmond and an individual named Wolford devised a scheme to acquire hashish in
San Francisco for eventual sale in Colorado. Id. at 1051. Marc Tobias, a part-time
police informant, became included in the plan and subsequently alerted the police
about airline reservations made for transportation of the drug as well as the
location of the drug once they arrived in Colorado. Id. at 1051-52. Redmond was
given a full Miranda warning, signed an advisement form including the same, and
was then interrogated. Id. at 1052. Before Redmond made any incriminating
statements, an officer told him the police were interested in the involvement of
Tobias and told him the information he provided, apart from that which involved
Tobias, "would just be between the two of them and would be off-the-record and
would not be used against him, even if it were incriminating." Id. The officer
proceeded to take notes during the interview regarding the defendant's statements
related to Tobias but stopped taking notes when Redmond discussed matters
unrelated to Tobias. Id. "Redmond . . . was never told that the barrier of immunity
from prosecution, [created by the officer], had disappeared." Id. The trial court
7
Notably, as is the law of this state, Colorado law provides the appellate court is
required to accept the trial court's findings and ruling on admissibility of a
statement if there is sufficient evidence to support the same. Id. at 1052.
admitted the portions of the statement included in the officer's notes, i.e., those that
related to Tobias. Id. On appeal, the sole issue before the appellate court was
"whether the admission of the defendant's statement to [the officer], in . . . light of
the non-disclosure agreement which [the officer] made, foreclose[d] the admission
of the statement made by Redmond." Id. The court determined the clear language
of Miranda "prohibit[ed] the use of a blue-pencil test as a means of admitting part
of Redmond's statement," and found, given the type of promise that prompted
Redmond's confession, it was not possible to determine what parts of the statement
were truly voluntary and what parts were, at best, inadmissible. Id. at 1052-53.
Accordingly, the court reversed and remanded for a new trial. Id. at 1053.
In Porter v. State, 239 S.E.2d 694 (Ga. Ct. App. 1977), the Court of Appeals of
Georgia found the defendant's confession was inadmissible on the face of the
record before the appellate court.8 Id. at 642. There, after Porter was read his
Miranda rights, the Sheriff said, "We don't want to get on the street and say
anything about what he said now?" Id. Another individual in the room responded,
"No, that's right. That's what I've told him and the GBI [agent] explained to him
this is just for his secretary in typing . . . [.]" Id. The court found "the clear thrust
of the conversation [was] that Porter was being told his statement would not be
used against him" and it was being recorded for the purpose of the agent's notes
being typed by his secretary. Id. The court then held, "A confession given under
such a pretense may not be admitted against the confessor." Id.
In United States v. Preston, 751 F.3d 1008 (9th Cir. 2014), the United States Court
of Appeals for the Ninth Circuit determined that under the totality of
circumstances—which included Preston's intellectual disability as well as a
promise by officers during questioning that they would not "tell this to
anybody,"—Preston's confession was involuntarily given and should not have been
admitted at trial. Id. at 1010, 1014. The court observed Preston had an IQ of sixty-
five—which was in the range of intellectual disability as recognized by the USSC.
8
Though not addressed in Porter, Georgia courts also appear to apply an abuse of
discretion standard in reviewing the admissibility of statements. See Berry v. State,
326 S.E.2d 748, 751 (Ga. 1985) ("Unless clearly erroneous, a trial court's findings
as to factual determinations and credibility relating to the admissibility of a
confession will be upheld on appeal."); Golden v. State, 852 S.E.2d 524, 530 (Ga.
2020) (noting the appellate court defers to the trial court's findings of disputed facts
and will not disturb the trial court's factual and credibility determinations unless
they are clearly erroneous, but applies de novo review of the trial court's
application of the law to the facts).
Id. at 1010. The court also looked at other factors occurring during the
questioning—including some with similarities to the case at hand—such as the fact
that: the officers minimized culpability of one type of perpetrator and the
consequences of such to those individuals if they were truthful; they told Preston
he was not arrested or in custody but also informed him he was "free to go" after
the interview while indicating he was free to stop talking to them only when they
terminated the interview and conveying that he had to tell them something or they
would keep coming back to him until he did; they asked Preston questions that
required him to choose between two incriminating alternatives; they asked a
number of leading questions that introduced facts Preston did not mention until
brought up by the officers; they mislead Preston about the purpose of the
statement, promising they would not tell anybody and that his statement would
never leave the U.S. Attorney's file; and the summary of Preston's confession was a
brief gathering of details chosen by the officers and handwritten by one of the
officers, but which Preston never corrected when repeated back to him. Id. at
1013-15. The court concluded, "in light of the totality of the circumstances,
including Preston's individual characteristics, his confession was involuntary." Id.
at 1020. In doing so, the court noted Preston's reduced mental capacity, his
susceptibility to interrogative pressure based upon such, and the techniques used
by the officers during their interrogation of Preston. Id. 1020-26. The court
cautioned that "when questioning people of low intelligence, investigators should
avoid offering promises of leniency or using deceptive interrogation techniques
due to the vulnerability of [such a] group." Id. at 1026. It then stated as follows:
The officers misled Preston in other ways as well, telling him that his
written confession was just an apology note to the child, that they
would not tell anyone else what he said, and that the confession would
never leave the "folder" or the United States Attorney's Office. At the
same time, they told Preston that he was free to leave only after he
finished answering their questions, and threatened that they would
keep returning until Preston did so. In this way, the police paired the
prospect of relentless questioning with false promises of leniency.
Such tactics, in combination, would be hard for a person of Preston's
impaired intelligence to withstand or rationally evaluate.
Assuredly, interrogating officers can make false representations
concerning the crime or the investigation during questioning without
always rendering an ensuing confession coerced. But false promises
stand on a different footing.
Id. (second and third emphases added) (footnotes omitted) (citation omitted).
Other states have also determined that trial courts should have suppressed
defendants' statements that were induced by misleading tactics of law enforcement.
In Ex parte Johnson, the trial court conducted a hearing to determine the
voluntariness of the defendant's statement, during which the defendant testified that
he consented to answer the trooper's questions only upon the trooper's assurance
that his responses were for use in the completion of a traffic accident report in an
incident in Tennessee and that those responses would not be used against him in
any criminal proceeding in Tennessee or Alabama. 522 So. 2d 234, 236 (Ala.
1988). The trooper testified that he did not recall telling Johnson that the statement
and accident report would not be used against him in subsequent proceedings in
Alabama. Id. The testimony being in dispute, the trial court made a credibility
determination regarding the disputed testimony in favor of the trooper. Id. The
Alabama Supreme Court noted,
[B]ecause the determination of voluntariness of a
confession is within the sound discretion of the trial
judge, it has been generally held that "his decision will
not be disturbed unless it is palpably contrary to the great
weight of the evidence. He need only be convinced by a
preponderance of the evidence that it was voluntarily
made."
Id. (quoting Hammins v. State, 439 So.2d 809, 811 (Ala. Crim. App. 1983)).
Nonetheless, it found, under the totality of the circumstances—the standard by
which the court was bound—the defendant's statement to the trooper was the
product of deception. Id. at 237. The court observed that the trooper's own
testimony showed the defendant "was told the interview was 'strictly' for the
purpose of investigation of a traffic accident." Id. It further noted the trooper
could not affirmatively and unequivocally testify that he did not tell the defendant
that the accident report would not be used in Alabama as asserted by the defendant.
Id. Also, in spite of the fact that there was another witness present during the
entire interview, that person was not called to corroborate the trooper's testimony.
Id. The court thus concluded the defendant's purported waiver of rights was not
voluntarily, knowingly, and intelligently made and concluded his statement was
inadmissible at trial. Id.; see also State v. Stanga, 617 N.W.2d 486, 487 (S.D.
2000) (holding the defendant's confession should have been suppressed when the
interrogating officer repeatedly told the defendant that any statement he gave was
"between you and me," signifying that it would not go beyond the interrogation
room, as law enforcement is not allowed to mislead suspects on their constitutional
rights).
We note there is no dispute as to what occurred and what was said during the
interview at hand, as we have the video of it before us. Upon a thorough review of
the recording, as well as the Jackson v. Denno hearing, we find, under the totality
of the circumstances, the trial court erred in admitting Appellant's recorded
statement. See Collier, 421 S.C. at 435, 807 S.E.2d at 211 ("In determining
whether a confession was given 'voluntarily,' [the appellate court] must consider
the totality of the circumstances surrounding the defendant's giving the
confession." (alteration in original) (quoting Pittman, 373 S.C. at 566, 647 S.E.2d
at 164)). First, like the Georgia, Colorado and Alabama courts, we believe that if a
defendant receives Miranda warnings and it is thereafter conveyed to him during
the interview that his statement, whether in whole or in part, would not be used
against him and/or is being obtained for some other purpose, such may render the
statement inadmissible.9 As previously noted, Agent Hardee assured Appellant—
before any inculpatory statement made by Appellant—"Whatever you tell me, it
ain't gonna leave this room. This, um, tape is going into my file. . . . . And we'll
have a copy of this tape. And it ain't gonna go any further than this room. That's
why we got the door shut, the blinds pulled, there's no sound device in here." As in
Porter, "the clear thrust" of this statement by Agent Hardee was that Appellant was
being told his statement was not going to be told to others to be used against him
but was recorded simply for their own files. As in Redmond, the officer
indisputably conveyed to Appellant that his statement would not be used against
him, and the focus of attention was not on Appellant but was on another—Cohen.
Further, at no point during the interview did the officers here communicate that
this promise to Appellant was no longer effective. We agree with Appellant that,
though interrogating officers may sometimes make false representations
concerning the facts surrounding the crime without rendering an ensuing
confession coerced, they cannot make false promises, whether direct or implied,
that induce a confession from the individual. See Miller, 375 S.C. at 386, 652
S.E.2d at 452 ("A statement may not be 'extracted by any sort of threats or
violence, [or] obtained by any direct or implied promises, however slight, [or]
obtained by the exertion of improper influence.'" (alterations in original) (quoting
Rochester, 301 S.C. at 200, 391 S.E.2d at 246)); Preston, 751 F.3d at 1026
("[I]nterrogating officers can make false representations concerning the crime or
9
The State conceded in oral argument that if Miranda warnings were required
here, Agent Hardee's assurance negated the warnings, rendering Appellant's
statements inadmissible as a matter of law.
the investigation during questioning without always rendering an ensuing
confession coerced[, b]ut false promises stand on a different footing." (citation
omitted)).
Further, even if Agent Hardee's assurance of the confidentiality of Appellant's
statement, on its own, is not sufficient to render Appellant's statement involuntary,
we find various other factors unquestionably pushed his statement over the line
into one in which Appellant's will was overborne. The officers repeatedly
informed Appellant that they would speak to the solicitor on his behalf. We
acknowledge that the officers' assurances that they would speak on Appellant's
behalf are not, alone, sufficient to constitute promises of leniency that induced
Appellant's statement. See State v. Arrowood, 375 S.C. 359, 368-69, 652 S.E.2d
438, 443 (Ct. App. 2007) (holding an offer by police officers to attest to a
defendant's cooperation with an investigation was not a promise of leniency, and
his statements were not produced as a consequence of any promise); Rochester,
301 S.C. at 200, 391 S.E.2d at 246-47 ("A statement induced by a promise of
leniency is involuntary only if so connected with the inducement as to be a
consequence of the promise."). Nevertheless, the officers conveyed this to
Appellant in conjunction with various coercive tactics. In particular, the officers
pushed for the information they sought while simultaneously indicating to
Appellant the following: they sought the information for the purpose of
prosecuting Cohen; they did not care who started the fire; they were there to help
Appellant; and no matter what he told them, Appellant was going to get to go
home after the interview. They also made a promise to speak up for Appellant
while threatening Appellant that if he did not give them the information they
sought, they would go after Appellant and "put [him] there" with Cohen. They
informed Appellant that, while they wanted Cohen to serve thirty-four years for the
crime, if it was not her, it would be someone else—implicitly Appellant—and
suggested at his current age and health condition, Appellant was "not built" for
such a prison sentence and would not survive it. We acknowledge the evidence
presented here does not disclose Appellant's IQ or that he suffered an intellectual
impairment to the same degree as that of the defendant in Preston. Nonetheless,
there is evidence that Appellant suffered from a mental deficiency as evidenced by
(1) his low level of education and the fact that while in school he was enrolled in
special education classes and (2) his physical health issues that may have
additionally impaired his cognitive abilities. We find Appellant's statement to be
the product of: promises that no matter what he told them, he would be allowed to
go home; consistent assurances that Appellant was not the person they sought to
hold culpable of the crime; suggestions that if they did not get information from
him implicating Cohen, they would come after him; threats that Appellant could go
to jail for thirty-four years and, given his age and poor health, he likely would
never come home from incarceration; promises to "speak up" for Appellant and
"talk" for him if he gave them the information they wanted; and, most importantly,
assurances that whatever Appellant told them would not leave that room. Further,
we note, while Appellant may not suffer from an "intellectual disability"—as
defined in our statutes—it is undisputed that Appellant does suffer from an
intellectual deficit or impairment. Our review of the record demonstrates the
officers' coercive and deceptive tactics during the interview caused Appellant's will
to be overborne, inducing him to make the inculpatory statement. See Saltz, 346
S.C. at 136, 551 S.E.2d at 252 ("If a suspect’s will is overborne and his capacity
for self-determination critically impaired, use of the resulting confession offends
due process.").
We are not insensitive to the deferential standard of review we apply to the trial
court's determination of the voluntariness of a statement. See Myers, 359 S.C. at
47, 596 S.E.2d at 492. ("On appeal, the trial [court's] ruling as to the voluntariness
of the confession will not be disturbed unless so erroneous as to constitute an abuse
of discretion."). However, this court is still tasked with considering the totality of
the circumstances surrounding the defendant's giving of a confession in
determining whether a confession was given voluntarily. See Collier, 421 S.C. at
435, 807 S.E.2d at 211 ("In determining whether a confession was given
'voluntarily,' [the appellate court] must consider the totality of the circumstances
surrounding the defendant's giving the confession." (alteration in original) (quoting
Pittman, 373 S.C. at 566, 647 S.E.2d at 164)); Ex parte Johnson, 522 So. 2d at
236-37 (observing, while the determination of voluntariness of a confession is
within the sound discretion of the trial judge and generally will not be disturbed
unless contrary to the great weight of the evidence, the appellate court is bound by
the totality of the circumstances). In considering the totality of all the surrounding
circumstances—including the characteristics of the accused and the details of the
interrogation—we find the trial court abused its discretion in finding Appellant's
recorded statement was voluntarily made, and the trial court erred by admitting it
into evidence. See State v. Osborne, 301 S.C. 363, 365, 367, 392 S.E.2d 178, 179,
180 (1990) (finding the State failed to meet its burden by a preponderance of the
evidence and the trial court erred in admitting Osborne's statements into evidence
when she was told on numerous occasions that she could remain silent, but if she
knew any information, she could be charged with the crime of withholding
evidence); State v. Peake, 291 S.C. 138, 139, 352 S.E.2d 487, 488 (1987) (holding
the State failed to meet its burden of showing the appellant's statement was
voluntary and not the product of the officer's promise of leniency when the
officer's promise was tantamount to a promise not to seek the death penalty if the
appellant gave a statement). Cf. State v. Compton, 366 S.C. 671, 680, 623 S.E.2d
661, 666 (Ct. App. 2005) (finding the trial court properly concluded the appellant's
statements were given knowingly and voluntarily, noting the record indicated the
appellant "was never told his statements would not be used against him" and
nothing indicated the appellant "made the statements involuntarily and based upon
a promise of leniency"). Based upon the record before us, we come to the
inescapable conclusion that Appellant's confession can fairly be characterized only
as involuntary and, therefore, his convictions must be reversed and the matter
remanded for a new trial.
II. Competency
Appellant also challenges the trial court's failure to require further evaluation of
him by the Department of Disabilities and Special Needs after his examination by
the Department of Mental Health. The record reveals that one of the concerns of
the trial court was the timing of Appellant's argument that he required further
evaluation. Because we are reversing and remanding for a new trial, and inasmuch
as Appellant's mental competency may have changed over the course of time—
thereby requiring a new evaluation and hearing—we decline to address the
competency issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C.
598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not address
remaining issues on appeal when its determination of a prior issue is dispositive);
State v. Mekler, 379 S.C. 12, 17, 664 S.E.2d 477, 479 (2008) (affirming this court's
decision reversing defendant's conviction and granting a new trial, but finding it
unnecessary to address another issue, noting resolution of the issue upon retrial
would be dependent on updated factors).
CONCLUSION
For the foregoing reasons, we reverse Appellant's convictions and remand for a
new trial.
REVERSED AND REMANDED.
LOCKEMY, CJ., and HEWITT, JJ., concur.