Metcalf v. State

Decision Date13 March 2019
Docket NumberA18A1647
Citation349 Ga.App. 408,825 S.E.2d 909
Parties METCALF v. The STATE.
CourtGeorgia Court of Appeals

349 Ga.App. 408
825 S.E.2d 909

METCALF
v.
The STATE.

A18A1647

Court of Appeals of Georgia.

March 13, 2019


825 S.E.2d 911

David James Dunn Jr., Victor Philip Aloisio III, for Appellant

Herbert E. Franklin, Dist. Atty., La Fayette, for Appellee.

Brown, Judge.

349 Ga.App. 408

Daniel Metcalf appeals from his convictions of two counts of criminal attempt to commit aggravated sodomy, three counts of criminal attempt to commit aggravated child molestation, and two counts of computer pornography. He contends that the trial court erred by (1) concluding that he made a knowing and voluntary waiver of his Miranda rights and (2) merging his criminal attempt to commit aggravated sodomy into his criminal attempt to commit aggravated child molestation instead of the other way around. For the reasons explained below, we affirm.

The record shows that Metcalf was arrested following a police operation commonly referred to as "to catch a predator." A police

349 Ga.App. 409

detective assigned to a special task force investigating crimes against children on the Internet created a fictional profile on an online gay male dating site with a screen name of "twistedperv_ATLr/tperv." Metcalf responded to the detective's profile, and the two began corresponding by email. During these conversations, Metcalf and the detective engaged in graphic discussions about meeting in person to have anal and oral sex with 12-year-old and 5-year-old brothers. The detective stated in an email that the brothers were his girlfriend's children whom he already had sexually molested. The girlfriend and children referenced in the detective's emails were fictional. When Metcalf arrived at the prearranged meeting place, he was arrested.

825 S.E.2d 912

1. Metcalf asserts that the trial court erred in ruling that he made a knowing and voluntary waiver of his Miranda rights. We disagree.

Whether a defendant waives his rights under Miranda and makes a voluntary and knowing statement depends on the totality of the circumstances. In ruling on the admissibility of an in-custody statement, a trial court must determine whether a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, we accept the trial court's factual findings and credibility determinations relating to the admissibility of the defendant's statement. When controlling facts discernible from a videotape are not disputed, our standard of review is de novo.

(Citation and punctuation omitted.) Francis v. State , 296 Ga. 190, 194 (3), 766 S.E.2d 52 (2014). Additionally, we "may consider all the evidence of record, in addition to the evidence adduced at the Jackson -Denno hearing, in determining the admissibility of a defendant's statement." (Citation omitted.) Id. at 194-195 (3), 766 S.E.2d 52.

In this case, the record shows that following his arrest, Metcalf was taken to an interrogation room where his interview with police was video-recorded.1 The video begins with Metcalf sitting alone for approximately three minutes. When the detective enters the room, he grants Metcalf's request to use the bathroom, and they both exit the room. Metcalf returns less than two minutes later, and an off-screen officer asks general questions relating to his education and military background. When the detective comes into the room approximately 30 seconds later, he says nothing to Metcalf, sits down, and begins

349 Ga.App. 410

completing a form attached to a clipboard. After filling out a portion of the form, he asks for Metcalf's social security number and information about his education and ability to read and write. After establishing that Metcalf had just begun graduate school to study business, the detective began explaining Metcalf's Miranda rights as follows, while holding and reading a form on a clipboard:

Because you have been placed into custody, anytime we talk to somebody, we have to go over their rights. I'm sure you've seen it on TV. Just to let you know what your rights are, okay? That's what this is. Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him or her with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without the lawyer present, you'll still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. That's probably the most important part. If you start talking and you decide you don't want to talk anymore, you can quit at any time. Now the next is my waiver of rights. I've read this waiver of my rights and I understand what my rights are. I'm willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I'm doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

The detective held the form halfway between himself and Metcalf so that Metcalf had the opportunity to follow along as the detective read from it.

When the detective finished reading the form, he started to hand the clipboard and a pen to Metcalf, who asked, "Can I ask what happens after you guys interview me?" The detective and the off-screen officer in the room explained that the amount of the bond and the length of time he might be incarcerated would be up to a judge. After this explanation, Metcalf states, "I just want to know before I sign anything, because I don't know how everything works." The off-screen officer then states, "That's fine. We'll be happy to answer your questions here." Metcalf then expresses concern that he would

825 S.E.2d 913

need numbers in his phone to call someone to make bond. The detective states they would let Metcalf look at numbers on his phone.

349 Ga.App. 411

After a momentary pause, the detective then holds out the form and a pen and states, "If you want to talk with us about this, I just need you to sign right there." Metcalf then reaches out with both hands, takes the form and the pen, states, "I mean I [unintelligible]" and begins signing the form. After Metcalf has started signing the form, the off-screen officer states: "By signing that, you're not saying you're guilty or anything else. It's just merely saying that you're willing to talk to us in here today." It is clear from the video that Metcalf did not stop signing the waiver while these words were spoken, and he did not even look up while the officer was speaking. His only response, while still signing the form, was that he wanted to try to go to school the following week. He then handed the form back to the detective, and his interview began.

Relying upon State v. Darby , 284 Ga. 271, 663 S.E.2d 160 (2008), Metcalf filed a motion to suppress his statements in the police station because the detective told him that he needed to sign the form if he wanted to talk with the police. After the jury was selected and sworn, the trial court conducted a Jackson-Denno hearing outside of their presence. The detective testified that he informed Metcalf of his rights before questioning him, that Metcalf had no questions specific to these rights, and never invoked any of these rights during the interview. He also denied making any threats or promises of benefit to Metcalf. At the conclusion of the hearing, Metcalf's counsel asserted that his statements in the interview should be suppressed based upon the statement that Metcalf had to sign the waiver in order to speak with the officer, as well as the statement that the form merely said he was willing to speak with them. After hearing argument from the State, the trial court ruled from the bench stating:

I'll find on the date of the interview ... the defendant was fully advised of his rights under the Miranda decision, voluntarily waived those rights and spoke to the officers. He was not threatened in any way or coerced. He was not promised anything to entice him to waive his rights. He was not under the influence of any drugs or alcohol to the extent he could not understand and knowingly waive those rights. He didn't ask for a lawyer and I will allow the jury to hear the statement.

Following the jury's guilty verdict, Metcalf filed a motion for new trial. After a hearing on that motion, a new trial judge, who did not preside over the trial, issued an order denying the motion for new trial based upon its finding "that there is insufficient evidence to set aside the factual findings of the trial court that the Defendant

349 Ga.App. 412

understood his Miranda rights and knowingly, voluntarily and intelligently waived them."

In this case, we conclude that the controlling facts are discernible from the video and support the trial court's...

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5 cases
  • Hawkins v. State
    • United States
    • United States Court of Appeals (Georgia)
    • June 24, 2019
    ...of merger was not raised below, we "have the discretion to correct merger errors sua sponte." (Citation omitted.) Metcalf v. State , 349 Ga. App. 408, 825 S.E.2d 909 (2019). Among other provisions, a crime merges into another if it "is established by proof of the same or less than all the f......
  • Hamby v. State
    • United States
    • United States Court of Appeals (Georgia)
    • January 14, 2021
    ..."Whether offenses merge is a legal question, which we review de novo." (Citation and punctuation omitted.) Metcalf v. State , 349 Ga. App. 408, 414 (2) (c), 825 S.E.2d 909 (2019).We find no error. It is true that if only a single act of sodomy was proved during trial, the single act would b......
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    ...facts required to establish the commission of the other crime charged.(Citation and punctuation omitted.) Metcalf v. State , 349 Ga. App. 408, 419 (2) (d), 825 S.E.2d 909 (2019).Turning to the offenses at hand, the statute governing aggravated assault on a public safety officer is set out a......
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