Lengsfeld v. State
| Decision Date | 03 March 2014 |
| Docket Number | No. A13A0889.,A13A0889. |
| Citation | 751 S.E.2d 566,324 Ga.App. 775 |
| Court | Georgia Court of Appeals |
| Parties | LENGSFELD v. The STATE. |
OPINION TEXT STARTS HERE
Brian Steel, Atlanta, for Appellant.
Peter J. Skandalakis, Dist. Atty., Robert Nicholas Peterkin, Asst. Dist. Atty., for Appellee.
Following a jury trial, Todd Lengsfeld was convicted of four counts of child molestation (OCGA § 16–6–4(a)(1)), four counts of enticing a child for indecent purposes (OCGA § 16–6–5(a)), and five counts of violation of oath by public officer (OCGA § 16–10–1). Lengsfeld appeals from the denial of his motion for new trial, contending that the trial court erred in admitting into evidence statements he made to a Georgia Bureau of Investigation (“GBI”) agent because (1) the statements were protected under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and its progeny and (2) he was not advised of his Miranda rights. Lengsfeldalso contends that (3) his sentences for enticing a child merged into his convictions and sentences for child molestation, and that (4) his trial counsel was deficient for withdrawing a request to charge on the lesser included offense of sexual battery. For the following reasons, we affirm Lengsfeld's convictions.
Viewed in the light most favorable to the jury's verdict,1 the evidence shows that Lengsfeld met the victim 2 through martial arts classes where he was an instructor. Lengsfeld asked for the victim's cell phone number and began communicating with her outside of class.
On the night of May 10–11, 2009, Lengsfeld asked the victim to sneak out of her house to meet him. After sneaking out of the house, the victim called Lengsfeld, who picked her up in his unmarked patrol car and drove to a nearby church parking lot. There, he kissed the victim, removed her shirt and rubbed her breasts and thighs. After approximately an hour, Lengsfeld returned the victim to her home.
On the night of May 15–16, 2009, Lengsfeld again asked the victim to sneak out of her house to meet him. He picked her up and took her to the same church parking lot where he kissed the victim and touched her breast and thighs while she was wearing nothing but her underwear. Lengsfeld then removed his shirt, took out his penis and expressed a desire to have sex with the victim.
One night in early June 2009, the victim was staying at her cousin's house. Lengsfeld asked the victim to sneak out of the house, picked her up in his unmarked patrol car, and drove her to his house. At his house, Lengsfeld removed all of the victim's clothing and kissed her on the buttocks, stomach, inner thighs, and vagina. Lengsfeld had his penis out and was rubbing it between the victim's thighs and was brushing it against her vagina. He stopped at the victim's request.
On June 15, 2009, the victim informed Lengsfeld that she was going to see a movie with her family. Lengsfeld went to the theater and sat with the victim. Following the film, the victim's mother inquired about Lengsfeld's presence at the theater and searched the victim's text messages. When she found out that Lengsfeld and the victim had been exchanging text messages, she told the victim not to have any more contact with Lengsfeld. She also spoke with Lengsfeld, reminded him that the victim was only 15 years old and told him to stay away from the victim.
Later that month, the victim's father contacted the owner of the jiu jitsu academy to express his concerns about Lengsfeld. He forwarded the text messages from the victim's phone to the academy owner. The text messages were subsequently extracted from the academy owner's phone,
Nevertheless, on July 4, 2009, while the victim was at her friend's house, Lengsfeld sent a text message to the victim that he wanted to see her again. Lengsfeld picked the victim up in his patrol car after she snuck out of her friend's house. He then took the victim back to his house where he caressed her body while she sat on his lap, and touched her bare breasts and her inner thighs.
In late July, the Newnan Police Department was made aware of the allegations against Lengsfeld. The deputy chief interviewed the victim, in the presence of her parents. Following an internal and criminal investigation, Lengsfeld was indicted on numerous counts, including multiple counts of child molestation, enticing a child for indecent purposes and violation of oath by public officer.
1. In enumerations one and two, Lengsfeld contends that statements he made to a GBI agent were not voluntarily made, and, therefore, should have been suppressed. We disagree.
(a) Lengsfeld first argues that statements he made during the interview with the GBI agent on July 29, 2009 were protected under Garrity, supra, because he believed that he
would be terminated from his job as a police officer if he refused to speak with the GBI agent.
“In reviewing a trial court's determination regarding whether a statement is voluntary, we defer to the trial court's findings of fact unless clearly erroneous, but we review de novo the trial court's application of the law to [the] undisputed facts.” State v. Aiken, 282 Ga. 132, 136(2), n. 21, 646 S.E.2d 222 (2007). In Garrity, the United States Supreme Court held that statements obtained under the threat of removal from office or government employment cannot be used in a subsequent criminal investigation. Garrity, supra, 385 U.S. at 497–498, 87 S.Ct. 616. In applying Garrity, Georgia courts have employed a totality-of-the-circumstances test to determine whether statements made by a public employee during an investigation into his activities are voluntary. See Aiken, supra, 282 Ga. at 135(2), 646 S.E.2d 222;State v. Stanfield, 290 Ga.App. 62, 63(2), 658 S.E.2d 837 (2008).
In applying that test,
[f]actors that a court may consider include ... whether the State actor 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. A trial court, of course, is free to consider any other factor that it determines is relevant to the determination of voluntariness.
(Footnotes omitted.) Aiken, supra, 282 Ga. at 135–136(2), 646 S.E.2d 222.
So viewed, the record shows that on July 28, 2009, Lengsfeld met with the deputy chief of the Newnan Police Department as part of an internal investigation into the allegations against Lengsfeld. During this conversation, the deputy chief informed Lengsfeld of his Garrity rights and that the resulting conversation was protected under Garrity. He then asked Lengsfeld to report to the station the following day. The deputy chief also met with the victim and questioned her about her relationship with Lengsfeld. Based on this conversation, the deputy chief developed probable cause regarding the victim's allegations of sexual misconduct and determined that a criminal investigation was needed. Chief D.L. Meadows then prepared a letter informing Lengsfeld that he was being put on administrative leave with pay pending the GBI's completion of a criminal investigation.3
On the morning of July 29, 2009, Lengsfeld arrived at the police station to take a polygraph test as part of the internal investigation.Lengsfeld drove his state-issued police car to the station. Upon arrival, Lengsfeld was informed that the internal investigation had concluded and, as a result, he was being placed on administrative leave. Lengsfeld then signed the letter prepared by Chief Meadows, which acknowledged this decision and also informed him that the GBI would be conducting a criminal investigation into the matter.
After signing the letter, Lengsfeld was asked by a GBI agent if he wanted to take the scheduled polygraph test. Lengsfeld declined to take the test, because the deputy chief and the GBI agent told him that it would not be covered under Garrity and an attorney he had spoken to the night before had advised him not to take the polygraph under those circumstances. Nevertheless, Lengsfeld agreed to an interview with the GBI agent, even though the agent told Lengsfeld that he was conducting a criminal investigation.
During the interview, Lengsfeld admitted that he had flirted with the victim, spoken with her on the telephone, sent her text messages, driven her to his home around midnight on two occasions, and transported her to various locations in Coweta County late at night. Lengsfeld also admitted that he had been to the victim's house. When the agent asked Lengsfeld what he did at the victim's house, Lengsfeld asked the agent if he needed an attorney. The GBI agent advised Lengsfeld that the interview would end if he felt he needed an attorney, whereupon Lengsfeld concluded the interview and left the room. Lengsfeld then returned to his supervisor's office and turned over his badge, gun, and car.
Lengsfeld subsequently moved to suppress the statements he made to the GBI agent. The trial court conducted an evidentiary hearing to determine whether those statements were made in violation...
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