                             FIFTH DIVISION
                            MCFADDEN, C. J.,
        MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                      January 2, 2020




In the Court of Appeals of Georgia
 A19A2326. THE STATE v. RICHARDSON.

        PHIPPS, Senior Appellate Judge.

        On appeal from an order suppressing statements made at and evidence

recovered from the scene of a car hijacking, the State asserts that the evidence should

not have been suppressed because defendant Darieuq Richardson’s self-incriminating

statements were voluntarily made. We agree as to Richardson’s first statement to

police, made before he was arrested, and we therefore reverse in part and vacate in

part.

        [I]n reviewing a ruling on the admissibility of a defendant’s statements
        where the facts are disputed, we accept the trial court’s factual findings
        and credibility determinations unless they are clearly erroneous, but we
        independently apply the law to the facts. . . . [A] reviewing court may
        consider facts that definitively can be ascertained exclusively by
        reference to evidence that is uncontradicted and presents no questions
      of credibility, such as facts indisputably discernible from a videotape.
      On the other hand, to the extent that legally significant facts were
      proved by evidence other than the video recording, the trial court as
      fact-finder was entitled to determine the credibility and weight of that
      other evidence.


(Citations and punctuation omitted.) State v. Abbott, 303 Ga. 297, 299 (1) (812 SE2d

225) (2018).

      Thus viewed in favor of the trial court’s judgment, including those facts

“indisputably discernable” from the videotape of Richardson’s arrest, Abbott, 303 Ga.

at 299 (1), the record shows that at around 10:00 p.m. on the evening of January 22,

2018, a Douglas County deputy responded to a domestic dispute call at the apartment

where Richardson lived with his mother and sister. The mother said that Richardson

had been drinking and described her son to police as wearing a black hoodie and dark

pants. The deputy promised to “try to find him and see if he would come home.”

      At approximately 5:00 on the following morning, while it was still dark, the

same deputy was recalled to the same apartment complex by a 911 call reporting a car

hijacking and attempted armed robbery. The caller told police that he had left his car

running to warm up in the winter weather before returning to the car, at which time

he saw a young man standing at the top of the stairwell in the breezeway. As the

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victim approached his car, the young man, who was wearing a black hoodie with

white spots on the right rear shoulder and dark jeans and was carrying a gun, came

up behind the victim and demanded his car keys and wallet. The victim threw his

wallet onto the ground and ran away, with the young man in pursuit. The victim later

returned to the apartment parking lot, retrieved his wallet, and ran to the entrance of

the complex, where he called 911. The first deputy noted the resemblance between

the suspect and the description given of Richardson earlier that night.

      The two deputies now on scene accompanied the victim back to his car, which

was parked within view of Richardson’s apartment. The car’s engine was still

running, but its windshield was shattered, and a fire extinguisher was underneath its

front. As shown on the officers’ bodycam videos, the first deputy saw blinds moving

in the front window of Richardson’s apartment. When the officers knocked on the

door, Richardson’s mother answered. The officers asked her whether Richardson was

there and if they could “talk to him for just a second.” The mother agreed, and shortly

thereafter, with the second deputy’s gun drawn, Richardson walked out of the

apartment with his hands in the air, saying, “I ain’t got nothing on me.” He was

wearing a black hoodie with white markings on the right rear shoulder. The first



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deputy then placed Richardson in handcuffs, instructing him to “put your hands up

until I can figure out what is going on.” The following conversation then occurred:

      [Investigator:] Let’s turn [Richardson] around so [the victim] doesn’t see
      him in cuffs. Do you want to tell us what you did tonight?


      [Richardson:] Yes, sir.


      [Investigator:] Tell us what you did then.


      [Richardson:] Something dumb.


      [Investigator:] What did you do? [Deputy 1, also in response:] Yeah, I
      can imagine.


      [Richardson:] I had a BB gun.

      [Deputy 1:] Where is it at? [Investigator:] Did you try to get the guy’s
      car?


      [Richardson:] Yes, sir.

      [Deputy 1:] Where is the BB gun at?

      [Richardson:] In there. [Pause.] I’m sorry.


      [Deputy 1:] I came out here earlier tonight because your sister called
      about you and your momma getting into it.


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      [Richardson:] Yes, sir.


      [Deputy 1:] Your momma said she was pissed at you about drinking
      alcohol or something. So when the dude, uh, well, never mind. You
      know you have the right to remain silent. [Richardson nods.] Anything
      you say can and will be used against you in a court of law.


      [Richardson:] Yes, sir.


      [Deputy 1:] You have the right to have an attorney present before any
      questioning.


      [Richardson:] Yes, sir.1


      [Deputy 1:] You want to answer questions without an attorney present?


      [Richardson:] I don’t care.


      [Deputy 1:] Okay, it’s not I don’t care. It’s yes or no.


      [Richardson:] Yes, sir.




      1
        As the deputy admitted at the hearing, this reading of the Miranda warning
omitted the portion as to Richardson’s right to a court-appointed attorney if he could
not afford his own. See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d
694) (1966).

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(Emphasis supplied.) In response to further questions, Richardson admitted to chasing

the victim, having the BB gun in the front room, and looking out the front window

at police.

      Based on this first statement, the second deputy got the mother’s permission

to search the family’s apartment and recovered the BB gun. The victim identified

Richardson, at which point the officers considered him under arrest, though they did

not tell him so. The first deputy then walked Richardson into the parking lot, during

which time Richardson responded to further questions about the location of the gun

and placed him in the patrol car. There, the second deputy read Richardson his

Miranda rights once again, though without inquiring as to whether Richardson

understood them. The second deputy then asked Richardson again whether he wanted

to talk, to which Richardson responded, “Yes.” Richardson then acknowledged that

he had smashed the victim’s car window with the fire extinguisher, had stolen the BB

gun from Walmart, and that he was sorry.

      Richardson was charged with car hijacking, attempted armed robbery,

aggravated assault, and second-degree criminal damage to property. Richardson

moved to suppress his statements and other evidence, including the victim’s on-scene

identification, on grounds including that he had not been given the Miranda warnings

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before being interrogated. After a hearing, including testimony from the two deputies

and the introduction of their bodycam videotapes, the trial court filed an order

holding that although the on-scene identification was not impermissibly suggestive

and police had probable cause to arrest Richardson, all of his statements were

involuntary as a result of the officers’ failure to read him a complete Miranda

warning at any time. The trial court also suppressed the BB gun as the tainted fruit

of these involuntary statements.

      On appeal,2 the State argues that the trial court erred when it concluded that

Richardson’s statements were not voluntary and when it suppressed his statements

and the BB gun as a result. We agree in part.3

      1. Richardson’s first statement.




      2
       See OCGA § 5-7-1 (a) (4) (authorizing a direct appeal from a judgment
“suppressing or excluding evidence illegally seized”).
      3
        As a preliminary matter, we reject the State’s passing assertion that it did not
have proper notice of Richardson’s challenge to the admission of his statements on
the grounds that they were involuntary. Richardson’s filed motion asserted that
because Richardson was not properly Mirandized, his statement was obtained in
violation of his Fifth Amendment right against compelled self-incrimination. See
Benton v. State, 302 Ga. 570, 573 (2) (807 SE2d 450) (2017) (Miranda warnings “are
intended to preserve a defendant’s Fifth Amendment right against self-
incrimination”).

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      A person is considered to be in custody and Miranda warnings are
      required when a person is (1) formally arrested or (2) restrained to the
      degree associated with a formal arrest. Unless a reasonable person in the
      suspect’s situation would perceive that he was in custody, Miranda
      warnings are not necessary. Thus, the proper inquiry is how a reasonable
      person in [the defendant’s] shoes would have perceived his situation.


(Citations and punctuation omitted.) State v. Troutman, 300 Ga. 616, 617 (1) (797

SE2d 72) (2017). It is well-established that the mere use of handcuffs does not,

without more evidence of force, render a person’s statements during an investigative

stop involuntary. Stringer v. State, 285 Ga. 842, 844-845 (2) (684 SE2d 590) (2009)

(“Officers may handcuff a suspect during an investigatory stop when such action is

either reasonable under the circumstances to protect themselves or the public, or to

maintain the status quo”) (citation and punctuation omitted), disapproved on other

grounds, State v. Sims, 296 Ga. 465, 469 n. 7 (2) (a) (769 SE2d 62) (2015).

      The videotape before us confirms the officers’ testimony that they placed

Richardson in handcuffs for their own safety and for purposes of conducting a

second-tier investigatory stop lasting approximately three minutes. See Stringer, 285

Ga. at 845 (2); New York v. Quarles, 467 U. S. 649, 657 (104 SCt 2626, 81 LE2d

550) (1984) (no constitutional violation when police failed to read Miranda warnings


                                         8
while apprehending a suspect and when “confronted with the immediate necessity of

ascertaining the whereabouts of a gun” discarded by the defendant). “[W]here an

accused is neither in custody nor so restrained as to equate to a formal arrest, any

statements made to an investigating officer are made under noncustodial

circumstances and Miranda warnings are not required.” (Citation and punctuation

omitted.) Stallings v. State, 343 Ga. App. 135, 143 (2) (806 SE2d 613) (2017).

Miranda warnings were not necessary during this brief period, which ended when the

victim identified Richardson as his assailant and Richardson was taken to the patrol

car. See State v. Price, 322 Ga. App. 778, 781 (746 SE2d 258) (2013) (an

investigatory traffic stop “was not elevated into an arrest by removing [the defendant]

from [a] vehicle and handcuffing him” pending the outcome of the investigation);

Parker v. State, 326 Ga. App. 175, 179 (3) (754 SE2d 409) (2014) (reasonable

suspicion “developed into probable cause” justifying arrest when the victims

identified the defendant as among their assailants).

      But even assuming that Richardson should have been Mirandized immediately

after being placed in handcuffs, the Supreme Court of Georgia has held that a “failure

to give the prescribed [Miranda] warnings and obtain a waiver of rights before

custodial questioning generally requires exclusion of any statements obtained,” but

                                          9
such a failure “‘does not mean that the statements received have actually been

coerced, but only that courts will presume the privilege against compulsory self-

incrimination has not been intelligently exercised.’” Norwood v. State, 303 Ga. 78,

82 (2) (a) (810 SE2d 554) (2018), quoting Oregon v. Elstad, 470 U. S. 298, 310 (105

SCt 1285, 84 LE2d 222) (1985) (citation omitted); see also OCGA § 24-8-824

(mandating the exclusion of incriminatory statements induced by “the slightest hope

of benefit or remotest fear of injury”). Even when a defendant is in custody for some

hours, our Supreme Court has held that a trial court errs in concluding that a

statement taken without Miranda warnings is involuntary in the absence of any

evidence of “extreme tactics identified as the hallmarks of coercive police activity”

such as “lengthy interrogation, physical deprivation, brutality, or deception.”

Troutman, 300 Ga. at 618-619 (2) (citations and punctuation omitted) (reversing a

trial court’s finding that a confession obtained during a 2-hour 45-minute

interrogation and a 9-hour detention, with an instruction that defendant was not free

to leave and without Miranda warnings, was involuntary).

      Richardson argues that the officers in this case deployed the two-step strategy

of “question first and warn later” disapproved in Missouri v. Seibert, 542 U. S. 600

(124 SCt 2601, 159 LE2d 643) (2004). See Wiggins v. State, 280 Ga. 627, 629 (2) (a)

                                         10
(632 SE2d 80) (2006); Stallings, 343 Ga. App. at 142-143; Abbott, supra, 303 Ga. at

304 (3) (vacating and remanding for findings as to whether investigators deliberately

employed such a strategy). This trial court made an explicit finding, however, that the

officers’ failure to read Richardson his rights before the onset of questioning, as well

as their omission of portions of the warning before and after his arrest, was

“inadvertent” – a credibility determination that we cannot ignore. Abbott, 303 Ga. at

299 (1) (“Credibility of witnesses and the weight to be given their testimony is a

decision-making power that lies solely with the trier of fact”) (citation and

punctuation omitted).

      Here, Richardson’s first conversation with police, which almost immediately

raised the necessity of locating the gun used in the hijacking, was a matter of a few

minutes in a noncustodial setting, and the videotape of the incident provides “no

evidence that [he] was threatened, coerced, or given a hope of a benefit in exchange

for [his] statement.” Norwood, 303 Ga. at 83 (2) (a). Even assuming that the officers

erred when they failed to Mirandize Richardson immediately, his initial response to

questioning “had none of the earmarks of coercion,” and the officers also did not

“exploit the unwarned admission to pressure [him] into waiving [his] right to remain

silent.” Id. (citation and punctuation omitted). Under these circumstances, we must

                                          11
conclude that the trial court erred when it granted Richardson’s motion to suppress

those statements made before his arrest, and when it also suppressed the gun later

recovered from the apartment, which the victim described in the first moments after

he was detained, as fruit of the poisonous tree. Id. at 83-84 (2) (affirming trial court’s

denial of defendant’s motion to suppress a statement made before a Miranda

warning); Troutman, 300 Ga. at 618-619 (2) (reversing a trial court’s finding that a

2-hour 45-minute interrogation without Miranda warnings, during a 9-hour detention

from which defendant was not free to leave, rendered a confession involuntary); see

also United States v. Patane, 542 U.S. 630, 643 (IV) (124 SCt 2620, 159 LE2d 667)

(2004) (plurality opinion) (“fruits” doctrine should not apply to physical evidence,

such as a firearm, because “the exclusion of unwarned [but voluntary] statements is

a complete and sufficient remedy for any perceived Miranda violation”) (citation and

punctuation omitted).

      2. Richardson’s statements after his arrest. Neither the parties nor the trial

court have considered in any detail whether, independent of Richardson’s first

statement, the statements made after the victim’s identification and Richardson’s




                                           12
arrest were properly excluded. We therefore vacate the remainder of the trial court’s

order and remand for further proceedings consistent with this opinion.

      Judgment reversed in part and vacated in part. McFadden, C. J., and

McMillian, P. J., concur.




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