Opinion
53886.
SUBMITTED MAY 9, 1977.
DECIDED MAY 19, 1977.
Voluntary manslaughter. Cherokee Superior Court. Before Judge Pope.
Baker, Knapp, Conrad Abernathy, H. Clifton Conrad, Jr., Elliott R. Baker, for appellant.
C. B. Holcomb, District Attorney, Frank C. Mills, III, Assistant District Attorney, for appellee.
The defendant appeals from his conviction of voluntary manslaughter.
1. The defendant, while intoxicated, choked his girl friend to death. Approximately fifteen minutes later, he notified his brother of the incident and the police were called. While the defendant was still under the influence of alcohol, he was given his Miranda rights several times (to make sure that he understood), and subsequently made incriminatory statements. The defendant enumerates as error the trial judge's ruling, after a Jackson v. Denno hearing, that the defendant had clearly understood his Miranda warnings and that the statements were admissible in evidence.
The defendant contends that his drunken state and illiteracy rendered the warnings totally ineffective. However, this contention is without merit. The preponderance of the evidence at the Jackson v. Denno hearing indicated that the defendant was not so intoxicated as to be incapable of understanding what was said to him. The trial judge was satisfied "that the rights were adequately explained by the officers and were clearly understood by Mr. Little." See Stapleton v. State, 235 Ga. 513 (1) ( 220 S.E.2d 269) (1975); Hayes v. State, 235 Ga. 46 ( 218 S.E.2d 798) (1975). "Factual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. See Lego v. Twomey, 404 U.S. 477 ( 92 SC 619, 30 L.Ed.2d 618) (1972), and United States v. Watson, 469 F.2d 362 (5th Cir. 1972)." Johnson v. State, 233 Ga. 58 ( 209 S.E.2d 629) (1974).
2. The defendant claims that the trial judge erred in denying his motion for mistrial based on a witness' violation of the sequestration order. The offending witness remarked in the presence of witnesses yet to testify that, after four years, he couldn't remember whose pen was used by the defendant to sign a statement or where each person sat in the car which carried the defendant to police headquarters. Under the facts of this case, the judge did not abuse his broad discretion by refusing to grant a mistrial. See Pearley v. State, 235 Ga. 276, 277 ( 219 S.E.2d 404) (1974); Byrd v. Brand, 140 Ga. App. 135 (4) ( 230 S.E.2d 113) (1976); McFarland v. State, 137 Ga. App. 354 (6) ( 223 S.E.2d 739) (1976); Silas v. State, 133 Ga. App. 560 (2) ( 211 S.E.2d 609) (1974).
Judgment affirmed. Quillian, P. J., and Shulman, J., concur.