Steele v. State

• Decision Date: 24 June 2016
• Docket Number: A16A0617
• Citation: 337 Ga.App. 562,788 S.E.2d 145
• Parties: Steele v. The State
• Court: Georgia Court of Appeals

337 Ga.App. 562

788 S.E.2d 145

Steele

v.The State

A16A0617

Court of Appeals of Georgia.

June 24, 2016

Steven Alexander Miller, for Appellant.

Alan Christopher Norton, Asst. Dist. Atty., Herbert E. Franklin, Dist. Atty., La Fayette, for Appellee.

McMillian

, Judge.

A jury convicted Calvin Sydney Steele III of one count of statutory rape and one count of child molestation.¹ Steele appeals following the trial court's denial of his motion for new trial, asserting that the trial court erred in admitting (1) his statement to police, (2) DNA evidence, and (3) evidence of his prior conviction for statutory rape. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence at trial showed that in or around August and September 2012, after engaging in communications of a sexual nature on Facebook with the 14-year-old victim, Steele had sexual intercourse with her in her bedroom, while her parents were asleep in the residence. The two engaged in sexual intercourse on more than one occasion, even though the victim's parents had told Steele, who was 24, that the victim was under the age of 16. 1. Steele first asserts that the trial court erred in admitting his statement to police into evidence because it failed to consider evidence that he had used drugs earlier in the day.

“In deciding the admissibility of a statement during a Jackson–Denno

hearing, the trial court must consider the totality of the circumstances.” (Citation and punctuation omitted.) Norton v. State , 293 Ga. 332, 334, 745 S.E.2d 630 (2013). The State has the burden to prove the voluntariness of a confession by a preponderance of the evidence. Currier v. State , 294 Ga. 392, 398, 754 S.E.2d 17 (2014). After the trial court determines that the State has met its burden of demonstrating that a defendant's statement was freely and voluntarily given in compliance with Jackson v. Denno, it may permit the statement to come into evidence. Wright v. State , 285 Ga. 428, 431–32, 677 S.E.2d 82 (2009). On appeal, this Court will not disturb the trial court's factual findings and credibility determinations unless they are clearly erroneous. Colton v. State , 296 Ga. 172, 178, 766 S.E.2d 38 (2014).

At the Jackson–Denno²

hearing, Detective Tim Deal of the Catoosa County Sheriff's Department testified that he conducted a custodial interview of Steele in connection with this case on the evening of September 19, 2012. At the time of the interview, Steele stated that he was 24 years old, he had obtained a GED, and his reading and writing ability was good. Before the interview began, Deal informed Steele of the nature of the charges against him and reviewed his Miranda³ rights. Deal testified that although Steele stated that he had smoked marijuana approximately nine hours earlier in the day, he told Deal that he did not feel that he was impaired by it at the time of the interview. Deal, who had been a paramedic as well as a police officer, said that based on his medical and law enforcement experience, Steele did not appear to be under the influence of any alcohol or drugs and appeared to understand his rights as they were read to him. Steele signed a written waiver of rights form, and he never indicated that he wanted an attorney or that he did not want to talk to police. Deal said that he neither threatened Steele nor made any promises or offers of benefit or reward.

Based on the evidence, the trial court found that Steele's statement was admissible, and we cannot say that this finding was clear error. See, e.g., Watkins v. State , 289 Ga. 359, 363–64, 711 S.E.2d 655 (2011)

(no error in admitting defendant's statement where detective who interviewed defendant and who had experience in dealing with people under the influence of alcohol or drugs testified that he saw no evidence that Watkins was under the influence of alcohol or drugs and that defendant understood each of these rights); Philmore v. State , 263 Ga. 67, 68(2), 428 S.E.2d 329 (1993)

(even assuming the defendant had used crack cocaine an hour before his police interview and was still under the drug's influence, the trial court did not err in ruling that he gave a voluntary statement and knowingly and intelligently waived his rights); Borden v. State , 247 Ga. 477, 480(3), 277 S.E.2d 9 (1981) (no clear error in admitting statement where detective testified that defendant was not in such a condition that he did not know what he was doing and defendant said he understood his rights even though defendant claimed that on the night of the crime, he had drunk two cases of beer, taken nine valium tablets, and used about half a bag of marijuana).

2. Steele next asserts that the trial court also erred in admitting DNA evidence obtained from him pursuant to his consent. Steele filed a motion to suppress the DNA evidence, and following a hearing on the matter, the trial court denied the motion.

“A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” (Citation and punctuation omitted.) Kendrick v. State , 335 Ga.App. 766, 769, 782 S.E.2d 842 (2016)

. The trial court may also consider as factors in its analysis “prolonged questioning[,] the accused's age, level of education, intelligence[,] and advisement of constitutional rights; and the psychological impact of these factors on the accused.” (Citation and punctuation omitted.) Id.

Moreover, while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. Instead, the court should consider whether a reasonable person would feel free to decline the officers' request to search or otherwise terminate the encounter.

(Citation and punctuation omitted.) Id.

In reviewing the trial court's ruling on a motion to suppress, this Court construes the evidence most favorably to uphold the trial court's findings and judgment. Harris v. State , 298 Ga. 588, 590, 783 S.E.2d 632 (2016).

So viewed, the evidence at the hearing showed that at approximately 9:45 p.m. on September 20, 2012, the day after Steele's interview with police, Detective Daniel Thacker of the Catoosa County Sheriff's Office obtained Steele's consent to take a DNA sample. In the presence of another officer, Thacker read Steele a consent form that informed Steele that he had a constitutional right not to have a search conducted of his “blood, hair[,] or any body fluids” without a search warrant. Steele executed the consent form, acknowledging that although he was aware of that right, he nevertheless voluntarily consented to a search and granted permission for the officers to take bodily materials from his person for use as evidence in any criminal proceeding. He further acknowledged that his consent was voluntarily given without any threats or promises of any kind.

Steele's attorney argued at the hearing and asserts on appeal that the DNA evidence should be suppressed because Steele's consent was merely an acquiescence to authority as Steele had been in custody approximately 24 hours and the two officers involved made no attempt to conceal their identities as peace officers. He contends that under such circumstances, any reasonable person would have felt no alternative but to consent.

However, we find no error in the trial court's denial of Steele's motion to suppress the DNA evidence. The record contains no indication that the two officers present threatened or intimidated Steele into giving his consent or that they promised him a hope of benefit. Although Steele had been in custody around 24 hours at the time he gave his consent to search, he was specifically told that he had the right to refuse the search, and he signed a form indicating that despite his knowledge of his rights, he was voluntarily consenting to the search. See, e.g., State v. Reid , 337 Ga.App. 77, 786 S.E.2d 694 (2016)

(consent voluntary where no evidence of promise or threat and defendant verbally agreed to submit to blood test and also executed a written consent that specifically indicated it was for the purpose of determining the presence of alcohol in her blood); Park v. State , 308 Ga.App. 648, 652, 708 S.E.2d 614 (2011) (consent voluntary even where six to eight officers present and defendant handcuffed).

3. Steele further contends that the trial court erred in admitting evidence of his prior 2007 conviction based on his plea of guilty to a charge of misdemeanor statutory rape. Although he acknowledges that the circumstances involved in that conviction were similar to the facts in this case, he asserts that such similarity does not amount to relevance and that the evidence did not aid the State in presenting its case or the jury in considering the case in any proper way. Under the new Evidence Code, which is applicable in this case,⁴ “[a] trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.” State v. Jones , 297 Ga. 156, 159, 773 S.E.2d 170 (2015)

.

Under the new Code, OCGA § 24–4–413 (a)

provides that “[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” (Emphasis supplied.) The statute defines sexual assault to include the crime of statutory rape. OCGA § 24–4–413 (d). The language of this provision was intended to create a “rule of inclusion,” with a strong presumption in favor of admissibility as it provides that such evidence “shall be admissible.” See State v. Frost , 297 Ga. 296, 300–01, 773 S.E.2d 700 (2015) (OCGA § 24–4–417 applying to DUI cases is a “rule of inclusion,” with a stronger presumption of admissibility than OCGA § 24–4–404 (b) as it provides...