Moon v. State
| Decision Date | 09 April 1993 |
| Docket Number | No. A93A0388,A93A0388 |
| Parties | MOON v. The STATE. |
| Court | Georgia Court of Appeals |
Summer & Summer, Daniel A. Summer, Gainesville, for appellant.
Robert E. Keller, Dist. Atty., Deborah C. Benefield, Asst. Dist. Atty., for appellee.
Defendant was indicted for burglary in that "without authority and with intent to commit a theft therein [he] did enter a dwelling house of another...." The evidence adduced at a jury trial revealed the following: On April 1, 1991, George Crowe ("the victim") returned home and, before entering the house, he looked through a window and noticed an intruder inside the house carrying a shotgun. The victim summoned the police and Sergeant Harry W. White of the City of Morrow Police Department arrived at the scene, entered the victim's home and discovered defendant in a bathroom splashing water on his face. Sergeant White searched defendant and found several keys in defendant's possession. One of the keys appeared to be newly cut, so Sergeant White tested it in the lock of the victim's door. The key unlocked the victim's door and the sergeant informed another officer of his discovery. Defendant then stated that it was his house key and that "me and [the victim] have the same front door lock, because my key opens his door." Sergeant White discovered that the victim and defendant were acquainted, but that defendant did not have permission to enter the victim's house.
Defendant was found guilty of burglary. This appeal followed. Held:
1. Defendant contends the trial court erred in allowing the State to introduce evidence of his statement to Sergeant White, i.e., "me and [the victim] have the same front door lock, because my key opens his door." Defendant argues that the statement was made in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that the State failed to produce the statement within 10 days of trial in violation of his OCGA § 17-7-210 demand.
(a) Even if the evidence indicates that defendant's statement to Sergeant White regarding the key was made while defendant was in custody (see Crum v. State, 194 Ga.App. 271, 272, 390 S.E.2d 295), the evidence establishes that the statement was made by defendant voluntarily and not in response to any form of questioning or interrogation. In this vein, Sergeant White testified that defendant spontaneously made the statement in response to Sergeant White's statement to another law enforcement officer (while at the scene of the initial investigation) that the key unlocked the victim's door. McClendon v. State, 201 Ga.App. 262, 264(1b), 410 S.E.2d 760. Consequently, Miranda v. Arizona, supra, provides no basis for excluding defendant's statement to Sergeant White regarding the key to the victim's front door. See Cash v. State, 224 Ga. 798, 799(1), 164 S.E.2d 558; Brown v. State, 183 Ga.App. 476, 478(2), 359 S.E.2d 233.
(b) Cook v. State, 199 Ga.App. 14, 16(4), 17, 404 S.E.2d 128. In the case sub judice, there is no dispute that defendant filed a timely request for copies of any statement he made while in police custody. It is also undisputed that the State produced copies of statements made by defendant while in police custody prior to trial. However, the State's attorney explained at trial that she did not notify defense counsel of defendant's statement to Sergeant White regarding the key to the victim's home because she first learned of the statement on the morning of trial when Sergeant White appeared to testify. Relying on these circumstances, the State contends there was no harm in admitting the newly discovered statement into evidence, arguing that it was given to defense counsel as soon as possible and that defense counsel was given an opportunity to question Sergeant White outside the presence of the jury before admission of the statement into evidence. See OCGA § 17-7-210(e) and Broomall v. State, 260 Ga. 220, 221(2), 391 S.E.2d 918.
We do not agree that the statement given to Sergeant White by defendant was newly discovered within the meaning of OCGA § 17-7-210(e). There is no question that the statement was known to law enforcement officers long before trial and the record discloses no reason why the statement was not made available to the State's attorney prior to trial. However, we find no harmful error.
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