Holland v. State
| Decision Date | 21 June 1996 |
| Docket Number | No. A96A0728,A96A0728 |
| Citation | 472 S.E.2d 711,221 Ga.App. 821 |
| Parties | HOLLAND v. The STATE. |
| Court | Georgia Court of Appeals |
Jill L. Anderson, Jeffrey P. Manciagli, Atlanta, for appellant.
David McDade, Dist. Atty., Robert L. O'Brien, Asst. Dist. Atty., for appellee.
Raymond D. Holland appeals his conviction for molesting his stepdaughter based, inter alia, upon the State's failure to provide a proper summary of defendant's in-custody statements upon which the State intended to rely, pursuant to former OCGA § 17-7-210. 1
After Holland was arrested by Detective Michael Zachery of the Douglas County Sheriff's Department, he consented to an interrogation by Detective Zachery, which was recorded on audiotape. The State prepared a transcript of the audiotape.
Holland timely requested a copy of all statements he had made while in custody, pursuant to former OCGA § 17-7-210. In response, the State produced a document entitled "Response To Discovery" which included a short, one paragraph summary of Holland's statements to the police and attached a portion of Detective Zachery's incident report and four letters from Holland to the victim (collectively referred to as Response To Discovery). The State did not mention the existence of the audiotape nor the transcript thereof in its Response To Discovery and did not provide Holland with a copy thereof prior to trial.
At trial, Holland initially objected to the introduction of the audiotape, but failed to formally object at the time same was tendered into evidence. The State provided the jury with copies of the written transcript of the audiotape to review as the tape was being played. The transcripts were collected from the jury at the conclusion of the audiotape. The transcript was marked as State's Exhibit 7 and was admitted into evidence but was not sent out with the jury.
1. Holland asserts that the Response To Discovery failed to comply with former OCGA § 17-7-210. The standard of review on the issue of compliance with the requirements of former OCGA § 17-7-210 is de novo.
(a) The audio transcript which was introduced into evidence contains the following colloquy: (Emphasis supplied.)
On cross-examination of Holland, the following colloquy occurred: " (Emphasis supplied.)
While the State used the audiotape transcript for impeachment purposes, the actual trial transcript reflects that the audiotape when played before the jury and as confirmed by this Court reflects the following actually occurred: (Emphasis supplied.)
The above misrepresentation of the statements of the defendant before the jury is made especially troubling because the defendant objected to the use of the transcript even for the jury to read along on the grounds that no foundation had been established and there was no authentication of the transcript with the tape. In response to this objection, the State indicated it would cover defendant's concerns for the record and proceeded to examine Detective Zachery, as follows: (Emphasis supplied.)
(b) The State further relied upon Holland's taped admission that he may have put his stepdaughter "in his wife's place." The Response To Discovery did not advise Holland of this statement, even though the State used it as an incriminatory admission. This statement should have been included in the pre-trial summary. See Reed v. State, 163 Ga.App. 364, 365, 295 S.E.2d 108 (1982); former OCGA § 17-7-210.
(c) The Response To Discovery indicated that Holland stated that he was no blood relation with his stepdaughter and that "he didn't see what the problem was." Contrary to this representation, the tape when played at trial indicates that he recognized that it would be wrong to fondle or have a sexual relationship with his stepdaughter.
(d) The Response To Discovery also indicated that Holland had offered no response when asked why he had previously given flowers to his stepdaughter. This misrepresentation was made to Holland, even though the audiotape clearly shows that he did, in fact, respond to this question, stating that the flowers were intended to cheer her up after she had been severely disciplined. It was improper for the State to misrepresent Holland's responses in its summary of such in-custody statements, as the law requires that such summary be accurate. Former OCGA § 17-7-210.
The effect of such an inaccuracy is compounded where the State seeks to impeach the defendant on the subject of their misrepresentation. The State cross-examined Holland about alleged inconsistencies between his trial testimony and his responses to Detective Zachery's interrogation, while representing in its Response To Discovery to the defendant, that no responses had been made by defendant as to such matter during the interrogation. Former OCGA § 17-7-210.
A proper demand made pursuant to this statute entitles a defendant to a written rendition of any statement he may have made while in police custody "that the State may rely upon to the defendant's disadvantage." Bowe v. State, 201 Ga.App. 127, 129, 410 S.E.2d 765 (1991). In Reed, supra, we held that comments made by a defendant in custody should be revealed to the defendant "if the state intends to use them either as incriminatory admissions during its case in chief or for purposes of impeachment by means of contradictory statements."
This Court has previously determined that the State need not provide a verbatim account of the statement so long as its "written summary of the statement ... include[s] all relevant and material portions of the defendant's statement." (Punctuation omitted.) Johnson v. State, 177 Ga.App. 705, 706, 340 S.E.2d 662 (1986). Implicit in this standard is a requirement that the written summary provided by the State accurately and completely reflect those portions of a defendant's interrogation that the State intends to use against the defendant. At issue here is whether the Response To Discovery met this standard.
If " 'we are unable to say with reasonable certainty that no harm resulted from the State's failure to obey the statutory requirements of [former] OCGA § 17-7-210,' " this matter must be reversed and remanded to the trial court. McKenny v. State, 204 Ga.App. 411, 413, 419 S.E.2d 731 (1992). Since the State did offer compelling evidence from which a jury could have found Holland guilty, it is all the more unfortunate that the misrepresentations of Detective Zachery and the failure of the State to meet its statutory obligation under former OCGA § 17-7-210 require the reversal of this case.
We cannot say with "reasonable certainty" that Holland was not harmed by deficiencies in the Response To Discovery and the improper representations to the defendant,...
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