Black v. State, A03A0454.

• Decision Date: 14 May 2003
• Docket Number: No. A03A0454.,A03A0454.
• Citation: 582 S.E.2d 213,261 Ga. App. 263
• Court: Georgia Court of Appeals
• Parties: BLACK v. The STATE.

582 S.E.2d 213

261 Ga. App. 263

BLACK v. The STATE.

No. A03A0454.

Court of Appeals of Georgia.

May 14, 2003.

Diane M. Moore, Jasper, for appellant.

Tommy K. Floyd, Dist. Atty., Sandra G. Rivers, Thomas R. McBerry, Asst. Dist. Attys., for appellee. RUFFIN, Presiding Judge.

A jury found Henry Allen Black guilty of molesting his stepdaughter, A.H. Black appeals, challenging the denial of his motion for directed verdict, as well as the admissibility of his statements to police. He also argues that the proceeding violated his rights to confrontation and a fair trial. For reasons that follow, we affirm.

1. In reviewing the denial of Black's directed verdict motion, we must construe the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found Black guilty beyond a reasonable doubt.¹ "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld."²

Viewed in this light, the evidence shows that 13-year-old A.H. lived with her grandmother. On April 8, 2000, she spent the night with her mother and Black to celebrate her upcoming birthday. That night, all three slept in the same bed, with A.H.'s mother between Black and A.H. At some point during the night, Black reached under A.H.'s shorts and touched her "private area." A.H. left the bedroom and lay down on the sofa in the living room. Black followed her and asked whether she wanted him to touch her. Although A.H. responded negatively, Black placed his hands under her shirt.

A.H.'s mother walked into the living room a short time later and discovered Black kneeling next to A.H. Black returned to the bedroom, and A.H. told her mother what had happened. According to A.H., Black then apologized to her and told her that he would not "`do it again.'" One month later, A.H. reported the incident to a counselor, who notified the police. A.H. spoke with several investigators and described the touching. The record shows, however, that she subsequently wrote several letters to the prosecutor, recanting her statements and claiming that she fabricated the incident. Nevertheless, she testified at trial that Black, in fact, touched her and explained that she wrote the letters because she did not want to testify. She also claimed that she sent several of the letters at her mother's request.

On June 8, 2000, Detective Rene Swanson interviewed Black. During the interview, Black indicated that A.H. would not lie about the incident, but that "if he touched her, he didn't realize it." According to Detective Swanson, Black further stated: "`[A.H.] is small. [S]he's petite.... I just love watching her. I love watching her ride the lawn mower. I love watching her do her chores and stuff around the house.'" At the end of the trial, the State also introduced evidence that Black had previously pled guilty to molesting A.H.'s sister.

On appeal, Black argues that the trial court erred in not directing a verdict of acquittal because the State failed to disprove his defense of accident or mistake and did not prove criminal intent. We disagree. Given the evidence presented, including A.H.'s testimony that Black reached inside her shorts, touched her private area, asked her whether she wanted him to touch her again, and placed his hands under her shirt, the jury was authorized to reject his defense and find him guilty of child molestation beyond a reasonable doubt.³

2. Black also argues that the trial court erroneously admitted into evidence his statements to Detective Swanson because Swanson did not advise him of his Miranda⁴ rights. He further claims that the statements were not voluntary. Again, we disagree.

"A person is entitled to Miranda warnings only if [he] has been taken into custody or deprived of freedom of action in a significant way."⁵ Thus, in addressing the admissibility of pre-Miranda statements, the trial court must determine whether the defendant was in custody.⁶ All of the circumstances surrounding the interrogation should be considered, "but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."⁷ The trial court must consider "how a reasonable person in [the] suspect's position would perceive his situation."⁸ We will not reverse the trial court's determination regarding police custody unless it is clearly erroneous.⁹

At a Jackson-Denno¹⁰ hearing, the State presented evidence that Detective Swanson contacted the Blacks and explained that she wanted to interview them. They agreed to the interview and came that day to the police station. Swanson and another officer first spoke briefly with A.H.'s mother, and then interviewed Black in an office with the door closed, but unlocked, for ten to fifteen minutes. According to Swanson, she advised Black that they "were conducting an investigation into a child molestation case that named him." Black indicated that he was nervous because he had a previous child molestation conviction. He then made the statements discussed above regarding A.H.

Swanson testified that she did not threaten Black or promise him anything in exchange for his cooperation. She also noted that he seemed to understand the interview questions, spoke clearly, and did not appear to be under the influence of drugs or alcohol. At the end of the interview, Swanson told Black that she planned to investigate the matter further and would contact him. Black then asked Swanson to call him "if it looked like there were going to be charges," and she agreed to do so.

Based on this evidence, the trial court concluded that Black was not in custody at the time he made the statements and that the statements were voluntary. We find no error. Despite Black's arguments, "[a] person is not in a state of custody merely because he is a prime suspect at the time he is interrogated by the police."¹¹ Furthermore, as noted above, Black asked the officers to call him if any charges were filed and left the police station. Obviously, therefore, he knew that no charges were pending. Given that knowledge, as well as the interview's brevity, his agreement to speak with the officers, and the lack of any evidence of coercion, the trial court's ruling was not clearly erroneous.¹²

3. Black also argues that the trial court violated his right to confrontation by not ordering the State to produce the victim's juvenile file. The record shows that, after A.H. reported the touching to her counselor, the State placed her in foster care and, at one point, requested that the court hold her and her grandmother in contempt for failing to appear at a court proceeding in this case. Pursuant to that request, the trial court ordered A.H. detained at a juvenile facility pending a hearing on the contempt motion.

Shortly before trial began, Black asked the State to produce all juvenile records and Department of Family and Children Services ("DFCS") records relating to A.H. under Brady v. Maryland.¹³ The prosecutor responded that she did not have any such records in her possession, and the trial court did not order further production. On appeal, Black argues that the trial court erroneously deprived him of these records, which he would have used to impeach A.H.

To establish a Brady violation, Black must show

(1) that the State possessed evidence favorable to the defense; (2) that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; ( 3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.¹⁴

Black did not meet this burden.¹⁵ He has not shown that the prosecution possessed the requested records or suppressed the evidence. He notes on appeal that A.H. was in State custody and that the detective who investigated the case contacted DFCS about placing her in foster care. Information only falls within Brady, however, "when it is possessed by the prosecutor or anyone over whom the prosecutor has authority."¹⁶ Black has offered no evidence that the prosecutor actually had such records in her possession or exercised authority over officials within the juvenile detention system or DFCS that possessed information involving A.H.¹⁷ And he has not presented any evidence to support his vague allegation that "A.H. may have had juvenile delinquency charges pending ... which the State may have agreed to negotiate for her testimony."

Furthermore, even if the prosecutor possessed the DFCS and detention center records, no reasonable probability exists that the outcome of the trial would have been different had this information been produced. Although Black claims that he needed the information to impeach A.H., the trial transcript shows that he successfully cross-examined her about the custody situation, her failure to appear in court, her resulting detention in a youth facility, her efforts torecant her statements to police, and her motivation for testifying against Black. Even without the records, therefore, Black was able to explore the issues they purportedly addressed.¹⁸ Accordingly, he has not shown that the absence of these records impaired his defense.¹⁹

4. Black further contends that the trial court erred in permitting the State to call A.H.'s mother as a witness "solely for the purpose of impeaching and discrediting her." We find no error.

The record shows that A.H.'s mother testified about the events of April 8, 2000. At one point, the prosecutor asked her whether A.H. had described the incident to her that night, and the mother responded negatively. The State subsequently presented the testimony of two investigators, who testified that the mother had told them that A.H. reported the touching to her.

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