In the Supreme Court of Georgia



                                             Decided: November 17, 2014


                     S14A0703. COLTON v. THE STATE.


      HINES, Presiding Justice.

      This is a second appeal by convicted murderer Tyus Colton following a

ruling by the trial court, upon remand, that his confession which was in evidence

at his trial was voluntary.     For the reasons which follow, we affirm such

judgment by the trial court as well as Colton’s judgments of conviction.

                         A. Procedural History

      A jury found Colton guilty of malice murder, felony murder, aggravated

assault, and aggravated battery in connection with the 2002 beating death of

Shannon Blount, and he was sentenced to life imprisonment. In a prior direct

appeal to this Court from his convictions, Colton contended that his confession

was erroneously admitted into evidence at trial without a preliminary finding by

the trial court that the confession was voluntary, and that the trial court erred by

allowing police officers to testify regarding two separate statements made to
them by non-testifying co-defendant Rayford Bussie1 that incriminated Colton

because the admissions violated the Confrontation Clause of the Sixth

Amendment. See Colton v. State, 292 Ga. 509 (739 SE2d 380) (2013).

      This Court found that there was sufficient evidence to enable a rational

trier of fact to find Colton guilty beyond a reasonable doubt of the crimes for

which he was convicted; however, it was necessary to remand the case to the

trial court for a proper consideration of whether Colton's confession was made

voluntarily because although the jury made the express finding on the verdict

form that the confession was indeed voluntary, the trial court failed to make a

preliminary and conclusive finding in that regard. Id. at 513 (3). This Court

also determined that Bussie's custodial statement made to police several months

after the murder was admissible at trial because it did not name Colton

specifically or imply that it was Colton who was involved in the crimes, and the

trial court had specifically instructed the jury that it could not consider any

custodial statements by Bussie that incriminated Colton. Id. at 511 (2). As to

Bussie’s non-custodial statement made to police on the day of the murder, we


      1
          Bussie, who is Colton’s uncle, was tried with Colton and acquitted of all charges.


                                                  2
determined that the admission of this statement violated Colton’s Sixth

Amendment rights; but, the error might be harmless if the admission was

cumulative of other evidence. Id. at 512 (2). However, this Court could not yet

address such issue because the trial court had to first make a finding on the

voluntariness of Colton’s confession.

      Following remand, the trial court held a hearing on June 21, 2013, at

which Colton argued that his confession was not voluntary in that he could not

understand or effectively waive his Miranda2 rights because of his low

intelligence quotient (“I.Q.”). At this hearing, the trial court considered

evidence and argument that had been presented at a pre-trial Jackson v. Denno3

hearing. On July 30, 2013, the trial court issued an order finding that Colton

was advised of each of his Miranda rights, that he understood these rights, that

he voluntarily waived them, and that thereafter he gave his confession freely and

voluntarily without any hope of benefit or fear of injury. The trial court


      2
           Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

      3
          Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).




                                               3
additionally found that Colton’s I.Q. did not prevent him from understanding his

rights and knowingly waiving them.

                  B. Facts Regarding the Murder

      The evidence construed in favor of the verdicts showed the following. On

November 28, 2002, Colton, the victim Shannon Blount, Bussie, Derrick

Cameron, and Curtis Addie attended a house party. The five men left the party

and walked to a car belonging to Bussie's girlfriend, with Colton and Blount

getting into the backseat. Colton and Blount began fighting about a broken

window in the car, for which Bussie and Colton believed Blount was

responsible. Cameron and Addie broke up the fight, and Cameron then got out

of the car and left with someone else. The fight between Colton and Blount

resumed. Blount attempted to walk away, but Colton pursued him. Colton

started "whipping [Blount] real bad . . . kicking [Blount], stomping and beating

on [Blount]." Colton got on top of Blount and continued beating and punching

him while he was on the ground. Colton was on top of Blount for one to two

minutes. Colton beat Blount with a folding chair, choked him, kicked him in

the head and chest while Blount was on the ground, and smashed Blount's head



                                       4
with a rock. Blount was left bloodied and beaten on the ground. Bussie and

Addie had walked to Addie's aunt's house so Bussie could use the telephone.

When Bussie and Addie returned to the car, Colton was sitting in the front seat

of the car and Blount was lying face down on the ground.

      A relative of Colton’s who lived nearby saw the bloody Blount lying on

the ground. She went to her home to get her brother, and when the two returned

to where Blount lay injured, they found Colton, Bussie, Addie, and another man

standing nearby. None of the men standing appeared to be injured, including

Colton. The relative returned to her home to call 911, and Bussie accompanied

her; Bussie was crying and saying that Colton had attacked Blount.

      Emergency personnel responded to the scene, where they observed a

folding chair on the ground with blood on it, approximately five feet from

Blount. They found Blount unresponsive and lying on his back with numerous

lacerations to his face and several broken teeth. He was alive but unconscious.

While transporting Blount to the hospital, they received another emergency call

about a car wreck, and they responded to it. They found Colton, injured and

outside of his vehicle. The intoxicated Colton had left the crime scene and



                                       5
crashed his car, leaving him bleeding from his face and hands. Colton was

crying, but was able to climb unassisted into the same ambulance with Blount,

and was taken to the hospital along with him. Upon arrival at the emergency

room, Colton was found to have facial lacerations and contusions, and a

fractured nose.    He was obviously intoxicated, and very aggressive and

combative with the staff. Blount remained unresponsive and died from his

injuries shortly after arriving at the hospital.

      Blount had sustained bruising to the left side of his forehead, several

lacerations around his left eye, and extensive bruising and lacerations around his

mouth. His mandibular bone, maxillary bone, and hyoid bone were fractured.

Several of his teeth were dislocated and at least one tooth was missing. There

were no physical indications that he had punched anyone. Blount died as the

"result of asphyxia by manual strangulation compounded by blunt force trauma

to the head."

    A tennis shoe collected from Colton at the hospital had blood on it, and the

blood matched Blount’s. Blood on the folding chair found near Blount matched

Blount's DNA.



                                         6
                   C. Colton’s Confession to Police

      Police interviewed Colton on November 29, 2002, at the Meriwether

County Detention Center upon his release from the hospital. He was advised of

his Miranda rights, and he executed a written waiver of them. Colton then gave

a statement, which was typed by an officer and signed by Colton, in which

initially, Colton related that another man at the party inquired if Blount “had

some money in his pocket,” and asked Colton to help him rob Blount. Colton

responded that he would help in the robbery “if [Blount] has some money in his

pocket.” Colton then explained that the fight with Blount started because Colton

refused to give Blount a ride home and because Colton believed that Blount had

thrown a rock through Bussie's girlfriend’s car window. Colton described the

deadly altercation: after Colton accused Blount of busting out the car window,

Blount “swung” at him and they started fighting; Bussie told them to stop

fighting and to get in the car; Colton got into the front passenger seat and Blount

got into the back; Blount hit Colton in the back of the head and Colton got into

the back seat and started fighting; Cameron “pulled [Colton] off” Blount and out

of the car; Addie then told Colton to “beat that ‘m _ _ _ _ _ f _ _ _ _ _’ down”;



                                         7
Blount came after Colton and the fighting resumed; Colton grabbed Blount “by

the neck” and started hitting him in the face; the two fell to the ground with

Colton admitting, “I was holding [Blount] by his throat with my left hand and

hitting [him] in the face with my right hand”; Bussie pulled Colton off Blount

and Colton started to leave, but then he saw Blount trying to get up; Colton

grabbed what looked to him like a stroller from the car trunk and hit Blount in

the head and chest with it; after Colton hit Blount and when Blount was still

lying on the ground, Colton and the man who had proposed robbing Blount

went through Blount’s pockets; Colton saw the man pull “something green” out

of one of Blount’s pockets; Colton covered Blount with a blanket; and then

Colton ran to his father’s house, took his car, and “wrecked it down the road.”

            D. Evidence Presented at the Jackson v. Denno Hearing

      In support of his claim that his intellectual impairment prevented him from

understanding and knowingly waiving his rights, Colton offered the testimony

of a special-education consultant with the Coweta County School Board as the

custodian of Colton’s educational records. The consultant acknowledged that

she did not know Colton personally but only through his school records, which



                                       8
contained his educational and psychological evaluations from kindergarten until

tenth grade. She testified on direct examination: Colton had received special

education services since the age of five as a student who tested at an early age

as one with “moderate intellectual disability,” which was defined as having an

I.Q. of 55 or below; Colton was re-evaluated at age 16 and scored an overall

intellectual potential of 62, with verbal skills measuring 59, and “performance”

or nonverbal reasoning measuring 67, resulting in a re-classification of him as

“mildly intellectually disabled”; his reading and writing capabilities tested at the

elementary school level, which meant that he would have difficulty with

complex words and directions and would have to move slowly through

information. However, on cross and re-direct examination, the consultant

testified that Colton's I.Q. could have improved with age; that his ability to

understand and comprehend ordinary discussions was different than taking an

I. Q. test and that ordinary language might not pose a problem; the classification

of “mild intellectual disability” was in the “top range” of the scale of mental

retardation; Colton could have improved his word comprehension since his last

testing; Colton had taken other I.Q. tests with resulting scores ranging from 66



                                         9
to 72, which would be in the “borderline or mildly intellectually disabled

range”; Colton may have had difficulty understanding certain words used in the

Miranda warnings, such as "appointed," "exercise," and "waiver," but that

Colton would have been able to understand the phrases, "you have the right to

remain silent" and “if you cannot afford a lawyer”; and that Colton might have

had problems with the terms "waived" and "willingly," as used in the sentences,

“I have read the above statement of my rights and I understand each of these

rights. Having these rights in mind, I waive them and willingly make a

statement,” but that he had strength in “self-related self-help behavior,” i.e.,

asking for help or clarification, especially with family and those familiar to him.

      Colton also offered testimony from his mother that he was in special

education classes throughout his schooling and that it was common for her to

have to tell him things more than once. She testified that she believed that

Colton was heavily medicated at the hospital, and that the day after he was

admitted he was in and out of consciousness; nevertheless, she told him that she

would hire a lawyer (which she did not), and gave him explicit instructions not

to say anything. She further acknowledged that she had “normal, everyday



                                        10
interaction” with Colton when he was living with her, and that when he did not

understand something, he would tell her so.

      The State presented evidence4 that at the Meriwether County Detention

Center, Colton was informed of the charges against him and why he was in jail;

Colton, who was seventeen at the time, was advised of his Miranda rights,

which were explained to him with the assistance of a Miranda form; an officer

read the Miranda form to him; the officer testified that it was his "practice . . .

to make sure that [suspects] understand what [is] going on [or] know what [is]

happening," and that he was comfortable with Colton's understanding of his

Miranda rights; of his own free will, Colton initialed the form next to each of

the Miranda rights and signed his name after the waiver was read to him; Colton

never indicated a lack of understanding, and indeed, appeared to understand;

Colton was also asked general questions about his identity, address, social

security number, and level of education, and he supplied the requested

information, including that he had completed the tenth grade; Colton did not

appear confused, and he indicated that he understood his rights; he did not ask



      4
          The police interview of Colton was neither audio nor video recorded.


                                                11
officers any questions about his rights or for assistance and appeared awake and

alert; Colton did not ask for anything, including an attorney; it did not appear

there was anything wrong with Colton; in response to officers' inquiries, Colton

stated that he was not given any medication when he was discharged from the

hospital; he appeared to be coherent, not under the influence of any medications

or alcohol, was laughing with officers, and seemed fine; he was not threatened

or promised any benefit; initially, Colton denied any involvement in the victim's

death, but he later stated that he wanted to "go ahead and get it out of the way"

and make a statement; Colton asked an officer to type his statement, which was

read back to him and which he then signed; and at the conclusion of the 2-3 hour

interview, Colton told officers that he did not mean to hurt the victim. In

response to defense questioning, an interviewing officer testified that he would

be surprised to learn that Colton had an I.Q. of 69 because of Colton’s exhibited

understanding of what was said to him.

      1. Certainly, only voluntary incriminating statements are admissible

against an accused at trial, and it is the State’s burden to prove the voluntariness

of a confession by a preponderance of the evidence. Currier v. State, 294 Ga.



                                        12
392, 398 (3) (754 SE2d 17) (2014). After the determination is made by the trial

court that the State has met its burden and that a defendant's statement is freely

and voluntarily given in compliance with Jackson v. Denno, the trial court may

permit the statement to come into evidence. Wright v. State, 285 Ga. 428, 431-

432 (2) (677 SE2d 82) (2009). And, following a Jackson v. Denno proceeding,

this Court will not disturb the trial court's factual and credibility determinations

unless they are clearly erroneous. Id. at 432 (2). There is no such error in this

case.

        [A] defendant's alleged cognitive impairment is not dispositive on
        the question of voluntariness but is one factor for the trial court to
        consider in the context of the totality of the circumstances
        surrounding a statement and a waiver of Miranda rights. [Cit.] The
        mere showing that a defendant who has confessed to a crime may
        have some mental disability is an insufficient basis upon which to
        exclude the defendant's statement. [Cit.] Indeed, the fact that a
        defendant is of below average intelligence or even has moderate
        mental retardation does not, in and of itself, warrant the exclusion
        of the defendant's inculpatory statement; there must be additional
        and sufficient evidence that the defendant did not have the capacity
        to understand and knowingly waive his Miranda rights. [Cit.]And,
        whether a defendant lacks the capacity to understand and waive
        such rights due to a mental deficiency or illiteracy is a question of
        fact for the trial court to determine. [Cit.]

Barrett v. State, 289 Ga. 197, 199 (1) (709 SE2d 816) (2011) (internal citations



                                         13
omitted).

      Even though Colton’s academic records may have reflected a less-than-

average intellectual range, they by no means established that Colton was

incapable of understanding and knowingly waiving his Miranda rights. Nor did

Colton present any expert testimony at the Jackson v. Denno hearing that

demonstrated such incapacity. See Flowers v. State, 265 Ga. 688, 689 (2) (461

SE2d 533) (1995) (even a defendant’s offer of expert testimony that his mental

age was that of an eight-year-old and prevented him from making a valid waiver

of his Miranda rights, without more, was insufficient). Indeed, the statements

by the educational consultant, who had never met Colton and who was testifying

as merely the records custodian, regarding Colton’s understanding of language

and concepts, was merely speculative. And, the testimony of Colton’s own

mother was that “everyday interaction” with Colton was “normal” and that he

was capable of expressing any lack of understanding. There was no other

evidence offered by Colton to negate the positive showing by the State that

Colton was not impaired by internal or external factors so as to be unable to

understand his rights, knowingly waive them, and voluntarily make his



                                      14
inculpatory statement about the fatal encounter.5

       Simply, when the evidence regarding the voluntariness of Colton's

confession is considered in its entirety, the trial court's finding that the

confession was admissible can not be found to be clearly erroneous. Id.

            E. Bussie’s Statement to Police on November 28, 2002

       The gravamen of what Bussie told police shortly after the murder was that

Colton and Blount got into a fight; that he saw Colton kicking Blount in the

head and chest while Blount was lying on the ground; that he tried to break up

the fight and stop Colton from kicking Blount; and that he did not know how the

chair from the trunk of the car ended up on the ground outside the vehicle.

       2. As this Court noted in Colton’s prior appeal, any error in admitting

evidence of the aforementioned non-custodial statement by Bussie may be found

to be harmless in light of other properly admitted evidence at trial. Colton v.

       5
         The dissent relies principally upon the trial testimony of a child psychologist which
testimony obviously was not a part of the Jackson v. Denno hearing, the evidentiary proceeding that
is the legal vehicle for a trial court’s initial determination of the voluntariness of a defendant’s
statement and which was the basis of the trial court’s ruling in this case. Even assuming that the
psychologist’s testimony is properly considered, the dissent acknowledges that the psychologist
determined that Colton had only a “mild intellectual disability.” But, even more significantly, the
jury heard the testimony and soundly rejected the premise that Colton was unable to understand his
rights and knowingly waive them when it returned a verdict including the express finding that
Colton’s confession was voluntary.



                                                15
State, supra at 512 (2). And, indeed, Bussie’s statement was merely cumulative

of Colton's own inculpatory statement to police and the other properly admitted

evidence of Colton's guilt; therefore, the error in the admission of Bussie’s non-

custodial statement to police was harmless. Jackson v. State, 291 Ga. 22, 24 (2)

(727 SE2d 106) (2012).

      Judgments affirmed. All the Justices concur, except Benham and

Hunstein, J J., who dissent.




                                       16
                   S14A0703. COLTON v. THE STATE.


      HUNSTEIN, Justice, dissenting.

      When Colton’s statement is examined under the totality of the

circumstances, as we are required to do, see Johnson v. State, 295 Ga. 421 (2)

(761 SE2d 13) (2014), I reach the inescapable conclusion that Colton did not

make his statement voluntarily. Therefore, I must dissent.

      A mere 30 hours before he gave his statement to police, Colton had been

in a car wreck; was too intoxicated to communicate with medical personnel; was

combative, aggressive, and in intense pain; and was placed in an ICU unit. Upon

his release from the hospital, he was immediately transported to the sheriff’s

office for interrogation. At the time he gave his statement, the 17-year-old

juvenile’s hands and face were still swollen and injured, and he appeared

puzzled and did not know why he was brought to jail. An expert child

psychologist, who had tested Colton a few years before the incident and

reviewed his most recent records, testified at trial1 that Colton suffers from a



      In determining the admissibility of a confession, we may look to all of the
      1


evidence in the record. Haynes v. State, 269 Ga. 181 (4) (496 SE2d 721) (1998).
mild intellectual disability. She noted that, as of one year prior to the incident,

he had an I.Q. of 62 and read at a third-grade level, meaning that he would not

be able to read food labels or comic books and would not easily understand

words such as “yesterday” or “sentence.” In her expert opinion, Colton would

have had difficulty understanding many of the words in the Miranda waiver

form, such as “statement,” “officer,” “initial,” “form”; would not have

understood the concept that he had the right to remain silent; and would have

been less likely to ask for help. Finally, she opined that a person with Colton’s

mental capacity, particularly coupled with his injuries, would be less likely to

understand his rights. When viewed in its entire context, Colton’s statement

was not made knowingly and voluntarily.

      Even if his co-defendant’s statement was admitted, there is no doubt in my

mind that Colton’s statement influenced the jury’s verdict and contributed to his

conviction, making it a harmful error. See Yancey v. State, 275 Ga. 550, 557

(3) (570 SE2d 269) (2002) (“Whether a constitutional violation constitutes

harmless error depends on whether the state can prove beyond a reasonable

doubt that the error did not contribute to the verdict.”). Accordingly, I would

reverse.

      I am authorized to state that Justice Benham concurs in this dissent.


                                        2
