London v. the State
333 Ga. App. 332
Ga. Ct. App.2015Background
- Defendant Bartholomew London was indicted for child molestation and two counts of aggravated child molestation based on acts alleged to have occurred between Aug. 1 and Oct. 1, 2009 against his then-15-year-old stepdaughter C.S.
- C.S. reported the incidents to her mother and police; a videotaped forensic interview of C.S. was conducted by police.
- Police had C.S. return to the station and, via a reverse phone call, recorded a telephone conversation between C.S. and London on police video equipment; a DVD of that recording and a transcript were admitted at trial and played for the jury.
- The recorded call contained statements by London acknowledging "fingering" and assuring C.S. a medical exam would not show evidence, which were incriminating at trial.
- London moved to suppress the recording; the trial court denied the motion and he was convicted. On appeal the State conceded the recording was made by police equipment but argued C.S. knowingly participated.
- The appellate court held police failed to obtain the court-ordered consent required by OCGA § 16-11-66(b) for recording a minor’s telephone conversation and reversed the convictions (but allowed retrial because the remaining evidence was sufficient).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of recorded telephone call involving a minor | State: recording admissible because C.S. knew of and participated in the taping (so consent exception applies) | London: police initiated and executed the recording without required court order under OCGA § 16-11-66(b) and without proof of child’s consent | Court: Recording was obtained by law enforcement without the court order required by OCGA § 16-11-66(b); suppression should have been granted |
| Harmless error / retrial | State: admission of DVD was proper so conviction stands | London: admission of DVD was prejudicial and not harmless given lack of physical evidence and his denial | Court: Admission was not harmless beyond a reasonable doubt; conviction reversed but retrial permitted (evidence sufficient for retrial) |
Key Cases Cited
- Fetty v. State, 268 Ga. 365 (1997) (third-party interception prohibited; recordings by others of minor’s calls require scrutiny)
- Malone v. State, 246 Ga. App. 882 (2000) (recording admissible where minor voluntarily initiated and encouraged taping in home setting)
- Legg v. State, 207 Ga. App. 399 (1993) (pre-amendment case on recordings; not dispositive after statutory change requiring court order)
- Bishop v. State, 241 Ga. App. 517 (1999) (discusses statutory exceptions to interception prohibition)
- Vansant v. State, 264 Ga. 319 (1994) (standard of review guidance on suppression rulings)