Axelburg v. State
| Decision Date | 31 October 2008 |
| Docket Number | No. A08A0814.,A08A0814. |
| Citation | 669 S.E.2d 439,294 Ga. App. 612 |
| Parties | AXELBURG v. The STATE. |
| Court | Georgia Court of Appeals |
Christopher J. McFadden, Decatur, for Appellant.
Fred Andrew Lane Jr., Dist. Atty., William R. Pardue, Anthony Volkodav Jr., Asst. Dist. Attys., for Appellee.
Michael Scott Axelburg was convicted of aggravated sexual battery against a teenaged babysitter who was spending the night at his house. His defense at trial was that he did not have the requisite intent to commit the crime, because the underlying act occurred while he was sleepwalking.1 On appeal, Axelburg argues that the trial court erroneously admitted into evidence a videorecording and transcript of his police interrogation, contending that the interrogation occurred in violation of his Miranda rights and also that it erroneously presented to the jury the interrogating officer's negative comments concerning Axelburg's credibility and sleepwalking defense. He also contends that the trial court erred in applying the rule of sequestration to his sleepwalking expert. For the reasons set forth below, we find no Miranda violation and no error in the court's application of the rule of sequestration. We find, however, that the court should have required the redaction of certain of the interrogating officer's comments from the recorded interrogation and transcript, and for this reason we reverse Axelburg's conviction. Because we find that the evidence was sufficient to support the verdict, the case may be retried.2
On June 18, 2004, 16-year-old K.M. spent the night at the Axelburg home, to be present to babysit some of the Axelburg children early the following morning. During the night, K.M. awoke to find Axelburg next to her with his fingers in her vagina. When K.M. moved, Axelburg left the room. K.M. did not confront Axelburg at that time, but after he left the house the next morning, she told her mother what had happened, and the police were contacted.
A police officer took K.M. and the Axelburg children to the sheriff's office, leaving a note so indicating on Axelburg's front door. When Axelburg returned later that day and found the note, he drove to the sheriff's office. His wife accompanied him. On the way, Axelburg learned from K.M.'s mother of the allegation.
At the sheriff's office, an officer immediately took Axelburg to an interview room to be questioned. Axelburg first stated that he had not done the act described and denied any knowledge about K.M.'s allegation. But as the interview progressed, Axelburg conceded that something untoward might have occurred the night before, but he had no recollection of any such incident. He also stated that he was a sleepwalker. The officer accused Axelburg of lying about sleepwalking. Later in the interview Axelburg admitted that he recalled having awoken to find himself standing over K.M. with his hand inside her. At this point, the officer read Axelburg his Miranda rights. Axelburg waived these rights and then provided more details about what he recalled when he woke up.
At trial, Axelburg presented evidence that he had a history of sleepwalking. The state countered that Axelburg had not been sleepwalking when he inappropriately touched K.M. Both sides presented expert testimony on whether Axelburg could have committed the alleged act while sleepwalking.
1. Axelburg argues that the trial court erred in admitting the recording and transcript of his interrogation into evidence, because a significant portion of the interrogation occurred before he was given a Miranda warning. We disagree.
Miranda warnings apply to interrogations where a person has been "taken into custody or otherwise deprived of [his] freedom of action in any significant way."3 Whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous.4 We consider whether, under all the circumstances, a reasonable person—"one neither overly apprehensive because of criminal conduct nor insensitive to the seriousness of the circumstances"5—would have felt he or she was "not at liberty to terminate the interrogation and leave."6
Axelburg's interrogation took place in an unlocked interview room at the sheriff's office, which Axelburg described as "real small, about ... 10 x 10" feet. The interrogating officer was joined by a second officer who sat in a chair "right next to the door, or against the door." Axelburg believed that the second officer had a gun. The officer told Axelburg that the door was unlocked and that he was free to leave if at any point in the interview he did not like what was being asked. Axelburg responded that he understood. He did not attempt to leave during the interview.
After conducting a Jackson-Denno hearing on whether Axelburg's interrogation could be admitted into evidence, the trial court determined that under the totality of the circumstances Axelburg was not in custody for Miranda purposes because he was aware of the nature of the allegations against him, went to the sheriff's office voluntarily, was in an interview room, was told several times that he could leave the room, and was not physically restrained.
Numerous cases involving circumstances similar to those here support the court's conclusion that Axelburg was not in custody during the interrogation. In Harmon v. State,7 a defendant was considered not in custody where he voluntarily rode with police to the station; he was not taken through the booking area; he was interviewed in an unlocked room; he was not physically restrained; and he did not ask to leave.8 In Bell v. State,9 a defendant was considered not in custody where he was initially placed in handcuffs but later released from them after voluntarily accompanying police to the station; he was told that he could leave at any time; he was allowed to move about the station in the company of police; and he agreed to remain at the station while police confirmed his statement.10 In Gabriel v. State,11 a defendant was considered not in custody where he went to the sheriff's office voluntarily; he was not handcuffed, arrested, or booked through the detention area; he was told he was not under arrest and was free to leave; and he offered to remain at the station after making his statement.12 In State v. Parks,13 a defendant was considered not in custody where he voluntarily followed police to the station in his own car; he was taken to an unlocked interview room; and he was told he was not under arrest and was free to leave.14 And in Sims v. State,15 a defendant was considered not in custody where he agreed to go to the police station; he was told he was free to leave; he was in a unlocked interview room; and he was not prevented from leaving after giving his interview.16
In contrast, the cases cited by Axelburg to support his argument that he was in custody before being given Miranda warnings involve significantly different circumstances in which the defendants' freedom to leave was impinged. In State v. Pye,17 the state conceded that the defendant was not free to leave during questioning.18 In State v. Wintker,19 a teenaged defendant was deemed to have been in custody when she was involuntarily confined in the back of a locked police vehicle while her parents' car (which she had been driving) was subjected to a search to which she had not consented.20 And in Reinhardt v. State,21 a hospital patient was deemed to have been in custody during an interview when he was escorted by police to a hospital room and asked to remove his pants and shoes.22
The subjective views of Axelburg and the interrogating officer are not determinative of whether Axelburg was in custody.23 Consequently, we find no merit in Axelburg's argument that he believed he was not free to leave, despite the officer's repeated indication and Axelburg's own acknowledgment to the contrary. We also find no merit in Axelburg's argument that the officer's clearly articulated belief that he was guilty rendered him in custody for Miranda purposes.24 "Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue," but merely is a factor in determining "how a reasonable person would perceive his or her freedom to leave."25 Hadley v. State,26 cited by Axelburg, is distinguishable as it did not involve circumstances in which the interrogating officers told the defendant he was free to leave.
Under the facts of this case, the trial court did not err in finding that Axelburg was not in custody for Miranda purposes.
2. Axelburg argues that the trial court erred in admitting the videotape of his interview into evidence without requiring redaction of certain of the interrogating officer's comments. We agree, as explained below, because we find that through his comments the officer cast himself as an expert on Axelburg's veracity and on the critical issue of whether Axelburg was sleepwalking when he accosted K.M., facts which were to be determined by the jury, to Axelburg's prejudice.
During the interrogation, the interrogating officer repeatedly expressed his belief that Axelburg could not have accosted K.M. in the manner Axelburg alleged, while sleepwalking. The officer twice stated that he used to sleepwalk and commented several times that he did not believe Axelburg's story about sleepwalking. When Axelburg denied inserting his finger into K.M., the officer immediately responded, He also remarked, Later during the interrogation, the officer told Axelburg that he was a "certified forensic interviewer" and an expert at discerning whether a person was lying. He then said, ...
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