A Georgia police officer’s indictment for murder has produced an important decision on whether a seemingly voluntary statement can be considered to be “coerced” for purposes of Garrity v. New Jersey, 385 U.S. 493 (1967).
At approximately 3:15 a.m. on September 12, 2006, the DeKalb County, Georgia Police Department received a 911 call reporting a stolen motor vehicle from an apartment complex. When officers arrived, they learned that the incident really involved a hit-and-run accident, and that a suspect in the incident was Lorenzo Matthews. Matthews was wanted for questioning regarding a shooting incident in a nearby apartment complex, as well as for assaulting a police officer, and was known to be armed.
When the officers tried to interview Matthews, he exited through the rear door of his apartment, pointing at Officer Torrey Thompson with an object in his hand. To Thompson and another officer, the object looked like a weapon. However, in spite of an extensive search, a weapon was not found at the scene.
An officer ordered Matthews to stop and drop the object. Matthews began running down the staircase and jumped toward the officer, who fired at Matthews four times. Matthews then ran toward Thompson, still holding the object in his hand. The other officer shouted, “Shoot him!” and, after hesitating briefly, Thompson fired two rounds at Matthews.
Matthews then ran away from Thompson toward a wooded area adjacent to the apartment complex; Thompson pursued on foot. Recognizing that the woods would afford Matthews a tactical offensive advantage, Thompson intermittently fired at Matthews as he ran. Thompson later testified that he was fearful both for his life and for the lives of the residents of the apartment complex. When Matthews entered the wooded area, Thompson fired once more before Matthews jumped over a fence.
At that point, Thompson ceased pursuit and called for backup. Matthews’ body was found later by a canine unit on the other side of the fence. He had sustained eight gunshot wounds, two of which were found to be fatal.
After the incident, a sergeant ordered both officers to separate themselves and wait in their respective patrol cars on the scene until Internal Affairs and the Department’s Major Felony Unit could take their statements. As he was waiting, Thompson exited his patrol car to avoid being filmed by a television news team. Another officer stopped him and informed him he was not free to leave.
Thompson gave a statement to a detective from the Major Felony Unit. He also participated in two “walkthroughs” with a sergeant from Internal Affairs. Neither the detective nor the sergeant told Thompson he was required to participate in the internal investigation; but they did not tell Thompson he was free to refuse to participate, either. Thompson cooperated with each investigation but later testified at the hearing on the motion to suppress that he felt compelled to do so for fear of losing his job. He also testified that he was aware of the Department’s employee manual which states that the failure to answer questions in an “internal department investigation” is prohibited and concludes by stating that an officer who fails to abide by department rules can be disciplined by being terminated from employment.
When Thompson was prosecuted for murder, he filed a motion to suppress his statements made at the scene, citing the Garrity rule. The Georgia Supreme Court agreed, and ordered the statements suppressed.
The Court applied a “totality of the circumstances test” for evaluating whether Thompson’s statement to investigators was voluntary or coerced. Citing one of its earlier decisions, the Court observed that the “factors that a court may consider in evaluating whether an employee’s statement to investigators was coerced include whether the employer made an overt threat to the defendant of the loss of his job if he did not speak with investigators or whether a statute, rule, or ordinance of which the defendant was aware provided that the defendant would lose his job for failing to answer questions. If no express threat is present, the Court may examine whether the defendant subjectively believed that he could lose his job for failing to cooperate and whether, if so, that belief was reasonable given the State action involved. In determining whether the defendant’s belief was objectively reasonable, the Court may examine whether the defendant was aware of any statutes, ordinances, manuals, or policies that required cooperation and provided generally, without specifying a penalty, that an employee could be subject to discipline for failing to cooperate. The Court may also consider whether the investigator implicitly communicated any threat of dismissal either in written or oral form; whether, before the interrogation began, the defendant was told he was free to leave at any time; and whether the defendant was told he had the right to have a lawyer present.”
The prosecution pointed to Thompson’s testimony that he wanted to tell the detective what happened and that detective considered Thompson to be a witness, not a suspect. The prosecution contended that this testimony established that Thompson’s statements to the detective were wholly voluntary.
The Court disagreed, finding: “This argument misses the mark. In the absence of a direct threat to Thompson for failing to cooperate, the trial court properly focused on Thompson’s subjective belief that he could lose his job, and whether that belief was objectively reasonable. The trial court answered these questions affirmatively. That Thompson testified he wanted to tell the detective what happened does not undercut his subjective belief that he would be punished if he did not cooperate. After all, Thompson would have been anxious to tell what happened because he believed that the shooting was justified. Still, he would not have spoken to the detective but for his fear of being punished.
“We reject the prosecution’s assertion that, because the employee manual’s prohibition against refusing to cooperate only applies to investigations conducted by Internal Affairs, Thompson’s subjective belief that he would be punished if he did not speak to the detective (of the Major Felony Unit) could not be deemed to be objectively reasonable. Given the totality of the circumstances, including evidence that the Internal Affairs and Major Felony investigations were proceeding simultaneously, that Thompson was instructed that he was not permitted to leave the scene, and that Thompson’s statements to the detective were included in the Internal Affairs report, we cannot say that the trial court abused its discretion in making that determination.”
Thompson v. State, 2010 WL 4394265 (Ga. 2010).
Note: The Thompson case is one of many examples of court decisions suggesting that an employer that conducts simultaneous internal affairs and criminal investigations runs a significant risk that the employee’s statements will be considered to be “compelled” under the Garrity rule, and thus inadmissible in a criminal trial.
This article appears in the December 2010 issue