Monahan v. State

665 S.E.2d 387

292 Ga.App. 655

MONAHAN v. The STATE.

No. A08A0160.

Court of Appeals of Georgia.

July 10, 2008.

Billy L. Spruell, Atlanta, Jon David Haskin, for Appellant.

David Lee Cannon Jr., Solicitor-Gen. David Martin McElyea, Asst. Solicitor-Gen., for Appellee.

PHIPPS, Judge.

Nichol Marie Monahan was convicted of reckless driving, less safe DUI, and child endangerment by DUI. On appeal, she contends that incriminating evidence she gave to an officer before he advised her of Miranda warnings was inadmissible; that probable cause did not support her arrest; and that the counts of less safe DUI and child endangerment by DUI should have been merged for sentencing. Because Monahan has failed to show merit in any contention, we affirm.

1. Monahan contends that the trial court erred by not excluding evidence she claims was illegally obtained.

When we review a trial court's decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.¹

The state showed at the suppression hearing (which was consolidated with the bench trial) that shortly after 10:00 p.m. on September 22, 2005, the manner in which Monahan was driving a Jeep Grand Cherokee attracted the attention of several other motorists. One such motorist called 911, reported the driving and stated that he would follow the Jeep. The motorist described to the 911 operator that the Jeep had pulled out in front of the car ahead of him, almost hitting that car, his car, and other vehicles; that the Jeep then went "from one side to the other" and "all over the place" amongst other cars and trucks; that it had run over cones and curbs alongside the road; that one of the Jeep's tires had flattened; and that the Jeep's driver was apparently "completely drunk." Further, the motorist reported to the 911 operator that he had followed the Jeep into a particular residential subdivision; that the Jeep had lost part of its fender when it struck a mailbox; that the Jeep had barely missed other mailboxes; that the Jeep had pulled into a driveway of a residence; and that a female driver and a small child had exited the Jeep.

The motorist returned to the entrance of the subdivision to wait for law enforcement to arrive. About five to ten minutes later, two deputies of the county sheriff's office, responding to the dispatch about a possibly intoxicated driver of a Jeep with a flat tire, met the motorist. By this time, another motorist who also had barely avoided a collision with the Jeep had joined them. The motorists and a passenger reported to the officers what they had witnessed before they all went to Monahan's residence.

One of the officers, specially trained in DUI investigations, noted the flat tire on the Jeep parked in the driveway and then knocked on Monahan's front door, which was made of glass. Through the door, the officer saw a child inside. As Monahan walked to the front door, the officer observed her unsteady gait. When Monahan opened the door, the officer noted her red, watery eyes. Monahan stepped outside at the officer's request. As the two talked, the officer detected a slur in Monahan's speech and a strong odor of alcohol on her breath. Monahan told the officer that she had not been driving the Jeep, but after the officer related to her what had been reported to him, she admitted that she had driven the vehicle home. Monahan told the officer she had driven the Jeep home "a long time" ago, but after the officer placed his hand on the Jeep's hood and asked her why the hood was still warm, she admitted that she had been home only about ten to fifteen minutes. Monahan told the officer that she had consumed two alcoholic beverages before driving home and that she had not consumed any alcohol since then. Monahan complied with the officer's request to perform several field sobriety evaluations. Based upon his observations of Monahan and her poor performance during the field sobriety evaluations, the officer determined that she had been driving under the influence of alcohol to the extent she was a less safe driver. The officer handcuffed her and read her the implied consent notice. Monahan refused to submit to a state-administered chemical test of her blood, breath, or urine.

Monahan was the sole defense witness. She recounted that on the evening in question, she and her ten-year-old child had eaten dinner at a restaurant, where she also consumed two alcoholic beverages and water. Not until she and her child were already riding home in the Jeep did she realize that a tire was flat. She testified that the flat tire made it difficult for her to control the Jeep, but that she did not feel comfortable stopping on the side of the road because it was dark; she had her child with her; she had noticed someone driving behind her; and she was not far from home. When she arrived home, she took Tylenol PM, which made her sleepy, and then lay down. Monahan testified that her ability to perform the field sobriety evaluations had been affected by her consumption of the alcoholic beverages, exhaustion, the Tylenol PM, and having recently lay down. She admitted that she had driven the Jeep from the restaurant to her home, that she had driven close to the back of a vehicle stopped at an intersection, and that she had refused a state-administered chemical test of her blood, breath, or urine. However, she claimed that she had not been an unsafe driver.

Monahan's attorney sought to exclude the portion of the officer's testimony and the police video concerning what transpired after Monahan stepped out of her house. He argued that when Monahan exited her house she was entitled to Miranda warnings because no reasonable person would have felt free to leave or otherwise disregard the officer's request to step outside. He pointed out that Miranda warnings were not given until after Monahan had provided incriminating evidence against herself in response to the officer's requests and questions. The trial court rejected this evidentiary challenge.

Miranda protections adhere when an individual is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Where 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. To determine if an individual is in custody for purposes of Miranda, courts must inquire into whether that person's freedom of movement was restrained to a degree associated with a formal arrest. This inquiry involves an examination of the circumstances surrounding the questioning to determine whether a reasonable person would have felt at liberty to terminate the interrogation and leave.²

On appeal, Monahan does not claim that she was coerced into answering the officer's knock; she contends that her "freedom of action was clearly nullified by [the officer's] commands" to step outside her house. She recounted at trial what happened after she walked to her front door, "I cracked the door, and the cops held the door open ... and told me to come outside." Monahan recalled, "He said, `Step outside with me, please,' and then, `Come with me.' Those were his exact words." Monahan testified that she complied because she did not feel that she had any choice, and that once outside, she did not feel that she could leave or go back into her house.

Likewise, the investigating officer testified that after Monahan came to the door, "She opened the door." However, he denied both holding open the door and commanding Monahan out of her house. He recounted, "I asked her to step out of the house," and she complied.

A recording of Monahan's initial encounter with the officer captured the officer saying to her:

How are you doing? — Do what? — Good. Can I get you to come out? You the one driving? — No? Who's driving your car? Oh, OK. Come on out here and talk to me, if you don't mind. Your neighbor was? So, all these people out here who saw you is just gonna lie, right? — No, all these people that followed you. Come on out here for me if you don't mind.

Although Monahan testified that she did not feel that she could leave or go back inside her house, the determination of whether one is in custody for purposes of Miranda does not depend upon the subjective view of the person being interrogated or evaluated.³ "[T]he relevant inquiry in determining whether one is in custody is how a reasonable person in the suspect's position would perceive his or her situation."⁴ Here, the evidence, construed in the light most favorable to the trial court's ruling,⁵ authorized a finding that the investigating officer's request was not with any language, tone, or accompanying gesture such that a reasonable person would have believed that his or her freedom of movement was restrained to a degree associated with a formal arrest. And Monahan cites no other evidence to support her argument that she was then formally arrested or restrained to the degree associated with a formal arrest. Because Monahan has...