                            SECOND DIVISION
                              MILLER, P. J.,
                         DOYLE, P. J., and REESE, J.

                   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


                                                                     March 7, 2018




In the Court of Appeals of Georgia
 A17A1628. THOMPSON v. THE STATE.

      MILLER, Presiding Judge.

      Lonnie Thompson, Jr., was convicted of burglary (OCGA § 16-7-1 (a) (1980)),

armed robbery (OCGA § 16-8-41 (a)), and aggravated assault (OCGA § 16-5-21 (a)

(2006)) in connection with a home invasion he committed with three other

individuals. He appeals from the denial of his motion for new trial, arguing that (1)

his statement to police was not voluntary because it was given in exchange for a

promise of probation; (2) the trial court plainly erred by failing to exclude this

custodial statement resulting from an illegal detention; and (3) trial counsel was

ineffective for failing to interview a key witness or move to suppress Thompson’s

custodial statement that resulted from an illegal detention. After a thorough review

of the record, we conclude that the trial court properly found that Thompson’s
confession was not made due to a promise of benefit and that trial counsel was not

ineffective for failing to call a witness to testify. However, as to Thompson’s claim

that trial counsel was ineffective for failing to move to suppress his confession on the

ground that it resulted from an illegal detention, we conclude that the trial court’s

order is insufficient for us to consider whether the motion to suppress would have

been meritorious. Accordingly, we vacate the trial court’s order on this issue and

remand the case for further proceedings.

      Viewing the evidence in the light most favorable to the verdict,1 in the middle

of the night of July 30, 2007, Thompson and three others broke into the home of

Larry Bailey.2 Bailey was asleep at the time, but he awoke when he heard the break

in. The intruders demanded money and Thompson struck Bailey on the head with a

hammer. After Bailey’s wife gave the intruders the money, they left, and Bailey’s

wife called police.

      Police investigating the robbery spoke with Thompson at his home before

bringing him to the police station. At the station, two officers read Thompson his




      1
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
      2
          None of the other suspects was charged or prosecuted for the home invasion.

                                           2
Miranda3 rights, which he waived. Thompson then gave a statement denying any

involvement in the crimes. Thompson remained in custody overnight and, when he

was questioned again the following morning, Thompson waived his Miranda rights

and admitted to the armed robbery and burglary, but denied that he struck Bailey with

a hammer.

      Before the trial court admitted the confession at trial, it conducted a Jackson-

Denno4 hearing. Sergeant Taylor of the Upson County Sheriff’s Office testified that

he first interviewed Thompson at the station at 9:27 pm on August 2, 2007. He read

Thompson his Miranda rights, and Thompson gave a statement denying that he

committed the crimes. Thompson was held overnight, and the following morning

Sergeant Taylor interviewed Thompson again at 8:47 am. Thompson waived his

rights a second time and then admitted his involvement in the home invasion.

Sergeant Taylor testified that no one made a promise of a lighter sentence or

probation in exchange for Thompson’s confession. Captain Hosley, who was present

during the questioning, corroborated Sergeant Taylor’s testimony. Thompson also




      3
          Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
      4
          Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

                                          3
confirmed in writing that he was making the statement voluntarily and without the

promise of any benefit.

      Thompson testified at the Jackson-Denno hearing that Captain Hosley told him

he could get 20 years of probation if he cooperated, and he only made his confession

because of this promise. The trial court nonetheless found that Thompson’s statement

was given without any hope of benefit, specifically finding Thompson’s testimony

not credible. Accordingly, the trial court admitted Thompson’s confession.

      During his trial testimony, Sergeant Taylor read Thompson’s confession into

evidence. Thompson testified at trial, admitting entering the home, but denying that

he struck Bailey. The jury convicted Thompson on all three counts with which he was

charged.

      In his first motion for new trial, Thompson alleged that his trial counsel was

constitutionally deficient for failing to investigate his interrogations and call

witnesses to corroborate Thompson’s claim that he was promised probation in

exchange for making a statement.

      During two hearings on the motion for new trial, Thompson’s cousin, Antonio

McDowell, testified that he was present during Thompson’s second interrogation and

he heard Captain Hosley tell Thompson he would get probation if he told the truth.

                                         4
According to McDowell, however, Captain Hosley never mentioned a specific

amount of time for probation. Captain Hosley and Sergeant Taylor both testified that

McDowell was not present during the second interrogation, and they reiterated that

no one made any promise of probation in exchange for Thompson’s confession.

      Thompson testified that he told his attorney both that he was promised

probation, and that McDowell witnessed the interrogation. Trial counsel, however,

testified that Thompson never told him about any promise of probation or that anyone

else was present during his interrogation. Indeed, trial counsel testified that

Thompson specifically told him that no one else was present during the interrogation.

Trial counsel stated that the first time he learned of the claim that McDowell was also

present during the second interrogation was during the Jackson-Denno hearing.

      The trial court denied the motion for new trial. Thereafter, counsel failed to

timely file a direct appeal, and the trial court granted Thompson’s motion for an out-

of-time appeal. Thompson’s new appellate counsel then filed an amended motion for

new trial, adding a claim that trial counsel was ineffective for failing to move to




                                          5
suppress the confession, and that his first appellate counsel was ineffective for failing

to present evidence in support of this ineffective assistance claim.5

      At two subsequent hearings on the amended motion for new trial,6 new

appellate counsel argued that Thompson’s confession should have been suppressed

because a confession obtained after an illegal detention is inadmissible, and the

detention was illegal because there was no probable cause for Thompson’s arrest

prior to his statement. Counsel pointed to the booking and arrest reports showing that

Thompson was arrested for armed robbery, burglary, and aggravated assault before

his second interrogation in which he confessed.

      Sergeant Taylor testified again, this time explaining that Thompson initially

came to the station voluntarily and was arrested only after police determined that he

had lied when he denied that he had asked McDowell to provide a false alibi for one

      5
        Under Georgia law, after an out-of-time appeal is granted, appellate counsel
may file an amended motion for new trial, and the trial court retains jurisdiction to
consider this motion. Ponder v. State, 260 Ga. 841 (1) (400 SE2d 922) (1991). Once
a defendant is granted permission to file an out-of-time appeal, he may raise new
claims of ineffective assistance of counsel through an amended motion for new trial.
See Dawson v. State, 302 Ga. App. 842, 843 (691 SE2d 886) (2010).
      6
        At the conclusion of the first hearing, appellate counsel requested, and the
court granted, a continuance to further investigate the basis for Thompson’s arrest.
At the second hearing, appellate counsel did not present any new evidence or
witnesses, and the trial court heard argument on the motion.

                                           6
of the other intruders. According to Sergeant Taylor, Thompson was arrested for

making a false statement on this basis, although police later decided not to pursue that

charge. Captain Hosley explained that the police could not obtain formal charges

against Thompson on the night of his arrest for making a false statement because the

magistrate judge was not available until the morning.

      The trial court reinstated its initial ruling denying the motion for new trial and

found that neither trial counsel nor first appellate counsel had provided ineffective

assistance in failing to move to suppress Thompson’s confession due to the unlawful

detention. Specifically, the trial court found that Thompson’s detention was lawful

and any motion to suppress would not have been granted. Importantly, at no time in

the two hearings or in its order did the trial court explicitly indicate the basis for its

finding that the detention was lawful or make any express credibility determinations

on the evidence. Thompson now appeals.

      1. Thompson argues that his confession was inadmissible because it was made

only upon the promise of probation. We disagree.

      Under Georgia law, “[t]o make a confession admissible, it must have been

made voluntarily, without being induced by another by the slightest hope of benefit



                                            7
or remotest fear of injury.” OCGA § 24-3-50 (effective through Dec. 2012).7 The term

“slightest hope of benefit” refers to “promises related to reduced criminal

punishment—a shorter sentence, lesser charges, or no charges at all.” (Citation

omitted.) State v. Chulpayev, 296 Ga. 764, 771 (2) (770 SE2d 808) (2015). This rule

applies to any incriminating statements and is not limited to “confessions.” Vergara

v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008).

      “It is the task of the trial court to determine whether a confession was

voluntary, taking into account the totality of the circumstances. We will not disturb

the trial court’s factual and credibility determinations on appeal unless they are

clearly erroneous.” (Citation omitted.) Jackson v. State, 280 Ga. App. 716, 720 (2)

(634 SE2d 846) (2006).




      7
        Here, the trial occurred in 2008, prior to the effective date of Georgia’s new
evidence code. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on
January 1, 2013, and shall apply to any motion made or hearing or trial commenced
on or after such date.”). Nevertheless, the corresponding provision of Georgia’s new
Evidence Code tracks the language of § 24-3-50 of the old code. See OCGA § 24-8-
824. See also Bradshaw v. State, 296 Ga. 650, 654 (2) (769 SE2d 892) (2015)
(explaining that where the new Evidence Code includes a section that is not in the
Federal Rules of Evidence and uses language “nearly identical” to that of the old
code, this Court gives the new provision the same meaning as the old one).


                                          8
      Here, Thompson was read his Miranda rights before making his statement, he

acknowledged and waived those rights, and he confirmed that he was making a

statement voluntarily and that no one had made any promises in exchange for his

statement. Both Sergeant Taylor and Captain Hosley testified that there was no

promise of probation in exchange for Thompson’s confession. Thompson disputed

this, stating that Hosley promised that he would receive 20 years’ probation if he

made a statement. The trial court explicitly found Thompson’s allegation not credible.

We cannot say that this finding was clearly erroneous, and, accordingly, we must

defer to the trial court’s determination that Thompson was not promised a lesser

sentence in exchange for his confession.

      McDowell’s testimony at the motion for new trial hearing does not dictate a

different conclusion. Although McDowell testified that Captain Hosley promised

probation, he also contradicted Thompson’s claim that the promise included a specific

term of probation. Thus, McDowell’s testimony does not call into question the trial

court’s credibility findings and does not require us to conclude that Thompson’s

confession was involuntary on this basis. The officers’ testimony that there was no

offer of a lighter sentence, along with Thompson’s written confirmation that the

statement was made without a promise of a lighter sentence, although contradicted

                                           9
by Thompson in his testimony, were sufficient for the trial court to conclude that

Thompson’s statements were not made due to a promise of benefit. See Jenkins v.

State, 251 Ga. App. 76 (553 SE2d 378) (2001).

      2. Thompson next argues that the trial court committed plain error by failing

to exclude his confession because his arrest was made without probable cause or a

warrant and, thus, was illegal.

      We need not reach this enumeration because Thompson was tried in 2008, and

at that time, plain error review was limited to unpreserved issues involving jury

charges, a trial court’s expression of opinion, and sentencing in a death penalty case.

See Ross v. State, 296 Ga. 636, 639 n. 6 (769 SE2d 43) (2015). Thus, Thompson’s

failure to file a motion to suppress waived this challenge to his arrest.8

      3. Finally, Thompson argues that trial counsel was ineffective for failing to

move to suppress his confession on the ground that his detention was illegal,

interview McDowell, and call McDowell as a witness at the Jackson-Denno hearing.

We discern no error with respect to the claim related to calling McDowell as a

witness. As to the failure to file a motion to suppress based on an illegal detention,


      8
         We note that Thompson objected to the trial court giving a jury instruction on
illegal detention because he did not contend that his detention was illegal.

                                          10
however, we must vacate the trial court’s order and remand for clarification of the

trial court’s order.

       To prevail on a claim of ineffective assistance of counsel, a defendant
       must show that counsel’s performance was deficient and that the
       deficient performance so prejudiced the defendant that there is a
       reasonable likelihood that, but for counsel’s errors, the outcome of the
       trial would have been different. [See] Strickland v. Washington, 466
       U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails
       to meet his or her burden of proving either prong of the Strickland test,
       the reviewing court does not have to examine the other prong. In
       reviewing the trial court’s decision, we accept the trial court’s factual
       findings and credibility determinations unless clearly erroneous, but we
       independently apply the legal principles to the facts. Furthermore, there
       is a strong presumption that the performance of counsel was within the
       wide range of reasonable professional lawyering, and we cannot reach
       a contrary conclusion unless defendant successfully rebuts the
       presumption by clear and convincing evidence. Judicial scrutiny of
       counsel’s performance must be highly deferential.


(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3)

(729 SE2d 442) (2012).

       a. Interview and call McDowell as a witness

       Thompson cannot show that he was prejudiced by trial counsel’s failure to

interview and call McDowell as a witness at the Jackson-Denno hearing.

                                          11
      As discussed in Division 1, the trial court explicitly found Thompson’s claim

of a promise lacked credibility. Moreover, at the motion for new trial hearing,

McDowell testified, and the trial court nonetheless reaffirmed its finding that

Thompson’s confession was not made upon the hope of benefit or promise of

probation. In doing so, the trial court implicitly found that McDowell’s testimony was

not credible. In light of this, Thompson cannot show that the outcome would have

been different had counsel interviewed McDowell prior to the Jackson-Denno

hearing, and there is no merit to his claim of ineffective assistance of counsel on this

ground.

      b. Motion to suppress

      Thompson contends that trial counsel should have, but failed to, move to

suppress his confession because it was the result of an illegal arrest.

      “When trial counsel’s failure to file a motion to suppress is the basis for a claim

of ineffective assistance, the defendant must make a strong showing that the

damaging evidence would have been suppressed had counsel made the motion.”

Richardson v. State, 276 Ga. 548, 553 (3) (580 SE2d 224) (2003). “[F]ailure to pursue

a futile motion does not constitute ineffective assistance.” (Citation, punctuation and



                                          12
footnote omitted.) Rose v. State, 263 Ga. App. 263, 264 (1) (b) (587 SE2d 326)

(2003).

      Thus, the issue before us is whether the motion to suppress – had one been filed

– would have been meritorious. The answer to that question depends on whether

Thompson was lawfully in custody at the time he confessed. We conclude that the

trial court failed to make the requisite findings as to probable cause to enable us to

evaluate whether Thompson was lawfully in custody.

      “A warrantless arrest is constitutionally valid if the arresting officer has

probable cause to believe the accused has committed or is committing an offense.”

(Citation and punctuation omitted.) Brown v. State, 278 Ga. 724, 727 (2) (609 SE2d

312) (2004). See also OCGA 17-4-20 (a) (2006) (“An arrest for a crime may be made

by a law enforcement officer . . . without a warrant if the offense is committed in such

officer’s presence or within such officer’s immediate knowledge. . . .”).9 “Probable

cause exists if the arresting officer has reasonably trustworthy information that would

allow a reasonable person to believe the accused committed a crime.” (Citation


      9
        Thompson cites the current version of § 17-4-20 to support his contention that
a warrantless arrest was improper in this case. The relevant statutory language is
essentially the same. Compare OCGA § 17-4-20 (2006) with OCGA § 17-4-20
(2013).

                                          13
omitted.) Brown, supra, 278 Ga. at 727 (2). Moreover, “[t]he test of probable cause

requires merely a probability—less than a certainty but more than a mere suspicion

or possibility.” (Citation omitted.) Boykins-White v. State, 305 Ga. App. 827, 831-832

(4) (701 SE2d 221) (2010).

      Here, the officers testified that Thompson voluntarily went to the police station

to be questioned about the home invasion. At around 9:27 pm, he was read his

Miranda rights, which he waived. Thompson then denied any involvement in the

home invasion. The following morning, police Mirandized Thompson again, after

which Thompson waived his rights and confessed to his involvement in the home

invasion.

      Based on their conversation with McDowell, police believed Thompson had

asked McDowell to provide a false alibi for one of the other suspects, and lied to

police about doing so.10 As a result, the State contends that the police had probable

cause to, and did, arrest Thompson that night for making a false statement, thus

making his confession the following morning the result of a legal detention.



      10
         At trial, Thompson testified that he had not asked McDowell to lie – one of
the other suspects did. In his confession, however, Thompson admitted that he asked
McDowell to lie to police.

                                         14
      In contrast, Thompson argues that his detention was illegal, as he was not

arrested for making a false statement. In support of this argument, he points to the

arrest/booking report, which indicates that he was arrested at 1:57 am on August 3,

2007, for armed robbery, burglary, and aggravated assault – before he confessed to

the home invasion.

      At the hearing on the amended motion for new trial, Captain Hosley testified,

under subpoena as the custodian of the jail records, that this record was Thompson’s

booking report. He nevertheless testified that Thompson had been arrested for making

a false statement to police, and he did not offer any explanation for the discrepancy

between his testimony about the arrest and the crimes indicated in the booking report.

      After extensive argument regarding whether there was probable cause to arrest

Thompson for making a false statement, and questions regarding the actual basis for

Thompson’s arrest, the trial court indicated that it was “inclined to deny” the motion

for new trial. In a brief order, the trial court indicated that it found Thompson’s

detention was lawful and therefore, any motion to suppress would have been denied.

The trial court did not indicate the basis for its conclusion that the detention was

lawful.



                                         15
       As the question of whether counsel was constitutionally deficient rests on

whether the motion to suppress would have been meritorious, we focus our review

on the probable cause analysis. In doing so, we recognize that our review is limited.

See Williams v. State, 301 Ga. 60, 61 (799 SE2d 779) (2017) (court of appeals cannot

make additional factual findings as to probable cause beyond those contained in the

trial court’s order, and, where those are insufficient to enable appellate review,

remand is warranted). We cannot make factual findings or substitute our

determinations for those of the trial court. Id. at 62. Rather, this Court must focus on

the facts found by the trial court in its order because the trial court sits as the finder

of facts. Id.

       In light of these constraints, we conclude that the trial court’s decision

concerning the motion to suppress lacks the express findings of fact necessary to

enable our review on the issue of probable cause for Thompson’s detention. See

Williams, supra, 301 Ga. at 62. Indeed, the trial court made no express credibility

findings in the face of disputed evidence regarding the basis for Thompson’s arrest,

and thus, we cannot tell if the trial court found that Thompson’s arrest prior to his

confession was for making a false statement or for armed robbery. These findings are

critical to a determination on probable cause and the merit of any motion to suppress

                                           16
based on the allegation that the detention was illegal, and we cannot address

counsel’s performance without them. Therefore, “[g]iven the uncertainty in the trial

court’s order regarding the basis for its ruling, [we] must vacate the [order and] . . .

remand this case to the trial court for further clarification on the specific findings that

form the basis for its legal conclusions.” Id.

       For the foregoing reasons, we conclude that (1) Thompson waived his right to

directly appeal the failure to suppress his confession as the result of an illegal

detention; (2) the trial court properly found that Thompson’s confession was not

made with the hope or promise of benefit; and (3) trial counsel was not ineffective for

failing to call a witness to testify. As to Thompson’s claim that his trial counsel was

ineffective for failing to move to suppress his confession on the ground that it was the

product of an illegal detention, however, the trial court’s order is insufficient for us

to consider whether the motion to suppress would have been meritorious.

Accordingly, we vacate the trial court’s order on this issue, and remand the case for

further proceedings consistent with this opinion.11



       11
         In light of our conclusion that remand is required, we do not consider
Thompson’s claim that the cumulative effect of the alleged errors established
prejudice.

                                            17
      Judgment affirmed in part, vacated and remanded in part. Reese, J. concurs.

Doyle, P. J., concurs in Divisions 1, 2, and 3(a) and dissents in Division 3 (b).*

      *DIVISION 3 (b) OF THIS OPINION IS PHYSICAL PRECEDENT

ONLY. COURT OF APPEALS RULE 33.2 (a).
 A17A1628. THOMPSON v. THE STATE.



      DOYLE, Presiding Judge, dissenting.

      Although I fully concur with Divisions 1, 2, and, 3 (a), I respectfully dissent

to Division 3 (b) of the majority opinion because the evidence supports the trial

court’s conclusion that trial counsel was not ineffective for failing to move to

suppress Thompson’s statement on the basis that it was the result of an illegal arrest.

      I note at the outset that this question arose in the context of Thompson’s claim

of ineffective assistance of counsel under Strickland v. Washington.1 In that context,



      1
          466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

                                          2
      [e]ven when the trial court fails to make specific findings on an
      ineffective assistance of counsel claim, remand is not mandated if we
      can determine from the record that the defendant cannot establish
      ineffective assistance of counsel under the two-prong test set forth in
      Strickland. When reviewing a trial court’s ruling on a claim of
      ineffective assistance of counsel, we accept the trial court’s factual
      findings and credibility determinations unless clearly erroneous, but we
      independently apply the legal principles to the facts.2


      This is not a case in which the trial court made no specific findings at all.

Instead, the trial court made the following findings, after considering the evidence

and argument adduced at the pre-trial Jackson-Denno hearing, the trial, and the

motion for new trial hearing: (1) Thompson had been properly advised of his

Miranda3rights, and (2) he was in lawful custody at the time he gave his statement to

law enforcement. Because there was evidence to support these findings, we must

accept them, even if there is evidence to dispute them.4

      In light of these findings, the trial court was authorized to conclude, as it did,

that a motion to suppress Thompson’s statement would not have been successful.

      2
       (Citations and punctuation omitted.) Diaz v. State, 343 Ga. App. 19 (806
SE2d 1) (2017), quoting Burrell v. State, 301 Ga. 21, 24 (2) (799 SE2d 181) (2017).
      3
          See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).
      4
          See Diaz, 343 Ga. App. at 19.

                                          3
Having done so, the trial court adequately addressed Thompson’s claim for

ineffective assistance of counsel.

         I disagree that we need to remand the case for more explicit findings under the

Jackson-Denno framework5 because the record is sufficient for us to determine that

the trial court did not apply the wrong legal standard or burden of proof, and the trial

court explicitly held that Thompson had been properly Mirandized and was lawfully

in custody. Although there is evidence disputing the lawfulness of his custody, the

trial court found otherwise. Because conflicts in the evidence on a motion to suppress

a custodial statement are for the trial court to resolve,6 that finding does not

demonstrate that the court clearly erred as a factual matter or misapplied the law.

Accordingly, remand is not required, and I would affirm the judgment of the trial

court.




         5
       See, e.g., Bryant v. State, 268 Ga. 664, 666 (6) (492 SE2d 868) (1997), citing
Berry v. State, 254 Ga. 101, 104-105 (1), n. 6 (326 SE2d 748) (1985).
         6
        See Gunn v. State, 342 Ga. App. 615, 622-623 (2) (804 SE2d 118) (2017)
(“[U]nless clearly erroneous, a trial court’s findings as to factual determinations and
credibility relating to the admissibility of the defendant’s statement at a Jackson v.
Denno hearing will be upheld on appeal.”).

                                            4
