ACOSTA v. THE STATE
S21A0247
In the Supreme Court of Georgia
Decided: April 19, 2021
MCMILLIAN, Justice.
Eder Acosta appeals his convictions for malice murder and first-degree cruelty to children in connection with the death of Bryan Guzman.1 Acosta asserts that the trial court erred in admitting the statements he made during his first interview with law enforcement investigators and denying his request to charge the jury on the lesser offense of misdemeanor involuntary manslaughter.
Discerning no error, we affirm.
The evidence presented at trial showed that on the morning of July 16, 2009, Acosta carried six-year-old Bryan Guzman into a Forsyth County hospital emergency room. The child was not breathing and had no pulse. Bryan was intubated, and after approximately 40 minutes, the emergency room medical staff was able to restart his heart. Bryan was then airlifted to a children‘s hospital in Atlanta, where he died. An autopsy revealed that Bryan had suffered significant injuries to his head, scrotum, and abdomen from blunt force trauma. According to the forensic pathologist who performed the autopsy, Bryan‘s injuries and the bruising on his body were consistent with multiple, repetitive blows to his abdomen, a blow or a kick to his scrotum, and impact wounds to his head. The pathologist also testified that the abdominal injuries resulted in lacerations to Bryan‘s liver and two other organs, causing internal bleeding, and that although the injuries to any one of these organs could have proved fatal, the lacerations to the liver would have led to Bryan‘s death within minutes to hours of the injury.
Subsequent investigation by the Forsyth County Sheriff‘s Department revealed that after Acosta moved into the home where Bryan lived, Bryan exhibited a number of unexplained injuries, including bruises, lumps, and a petechial rash;2 that witnesses had seen Acosta hit Bryan; and that Bryan, who was nonverbal and autistic, appeared to be afraid of Acosta. In his first interview with investigators, Acosta said that he had seen one of Bryan‘s uncles hit him, but in his second interview, Acosta said that on the morning of Bryan‘s death, he had used his hands and fists in an effort to revive the child after he found that Bryan was not breathing. However, the forensic pathologist testified that the bruising on Bryan‘s abdomen was not in a location where cardio-pulmonary resuscitation (CPR) is performed and that Bryan‘s injuries were not consistent with the performance of that procedure.3
In considering the admissibility of a defendant‘s statement to law enforcement officers, “the trial court must look to the totality of the circumstances to decide whether the statement was made freely and voluntarily.” Cain v. State, 306 Ga. 434, 438 (2) (831 SE2d 788) (2019) (citation omitted). On appeal, “[a]lthough we defer to the trial court‘s findings of disputed fact, we review de novo the trial court‘s application of the law to the facts. And following a Jackson-Denno5 hearing, this Court will not disturb the trial court‘s factual and credibility determinations unless they are clearly erroneous.” Id. (citations and punctuation omitted).
With regard to Acosta‘s first interview with investigators, the evidence presented at the pretrial Jackson-Denno hearing showed the following. On the morning after Bryan‘s death, three undercover officers were assigned to surveil the residence where Bryan had lived with his mother, Laura Moreno; two uncles; and Acosta.6 That morning, the officers observed Acosta, Moreno, and Bryan‘s 12-year-old brother leaving the residence in a Dodge Durango, with Acosta driving. The officers followed Acosta‘s vehicle to the parking lot of a nearby grocery store, where the three occupants of the vehicle went inside the store.
When Acosta and the others returned to the vehicle, the undercover officers approached them to ask if they would mind waiting to speak with an investigator who was looking into Bryan‘s death.7 Acosta and the others were told that they did not have to speak with the investigator, but they agreed to wait for him. A short time later, two investigators, Detective Joseph Whirlow and Sergeant Braulio Franco, arrived and asked whether Acosta and Moreno would mind going to the police station to talk. Acosta and Moreno agreed to this request, but when the officers suggested that the couple follow them to the station in their vehicle, Acosta said that he did not have a driver‘s license.8 With Acosta‘s consent, one of the undercover officers drove Acosta and the others to the police station in the Dodge Durango. The officer did not ask Acosta any questions, nor did he discuss the case on the four- to five-mile ride to the station.
The law enforcement officers who were in the parking lot with Acosta testified that Acosta was not under arrest when he was asked to go to the station. Moreover, each officer said that if Acosta had chosen not to accompany the investigators to the station, he was free to leave, and they would not have stopped him. In addition, Detective Whirlow testified that the investigators were not concerned with Acosta‘s lack of a driver‘s license because they were investigating a murder and, as they arrived after Acosta, they had not seen him driving. Another officer testified that Acosta was told that it was “okay” that he did not have a driver‘s license. Nevertheless, once Acosta said he had no license,
At the station, the investigators followed their standard procedure of separating witnesses for their interviews9 by placing Acosta and Moreno in separate interview rooms.10 Sergeant Franco, who was fluent in Spanish, interviewed Moreno because she did not speak much English. Both Detective Whirlow and Sergeant Franco participated in the interviews of Acosta, and they stated that because Acosta was not a suspect and was not under arrest, they did not inform him of his rights under Miranda before the first interview.
The doors to the interview rooms did not have locks, and Acosta was free to, and did, leave the room during the first interview. Although Detective Whirlow accompanied Acosta from the interview room to the bathroom and waited outside until he finished, he did so because a key-coded door separated the interview area from the bathroom; therefore, any visitor using the bathroom required assistance to re-enter the interview area. There was no evidence that Acosta was ever threatened, handcuffed, or otherwise restrained before or during the first interview.
Although Acosta was not allowed to see Moreno while she was being interviewed, the investigators left Acosta alone in his interview room for a time while they were gathering paperwork and while Moreno was being interviewed. They also provided Acosta water and allowed him to keep his cell phone and answer calls during his interview. Acosta‘s side of the telephone calls was recorded, and at the Jackson-Denno hearing, with defense counsel‘s consent, Detective Whirlow read from a translation of the recorded phone conversations, during which Acosta spoke Spanish. According to that translation, Acosta explained to one caller that he was not at the police station because of his lack of a driver‘s license but was there to answer “normal questions, supposedly about Bryan,” and told another caller that he was there because the investigators wanted to ask Moreno and him questions about Bryan‘s death.
During the interview, Acosta told investigators that he had seen one of Bryan‘s uncles strike the child, and after Detective Whirlow and Sergeant Franco completed the interviews with Acosta and Moreno, the investigators left to interview Bryan‘s uncles at another location. Before the investigators left, they asked Acosta and Moreno if the couple would mind waiting until the investigators returned, and Acosta and Moreno agreed. The investigators testified that neither Acosta nor Moreno was under arrest, and both were free to leave the police station. The couple were provided lunch during their wait and were allowed to be together and to keep their phones.
After the uncles provided alibis for each other and furnished information implicating Acosta in Bryan‘s death, the investigators returned to the police station. They then conducted a second interview with Acosta. Because Acosta was considered a suspect at that point, Sergeant Franco read Acosta his rights under Miranda, and, at Acosta‘s request, he read them in Spanish. Acosta signed a waiver-of-rights form, and both officers witnessed his signature. It was during the second interview that Acosta admitted using his hands and fists on Bryan, leaving bruises on the child‘s body.
The trial court concluded that under the totality of the circumstances, Acosta was not in custody at the time of the first interview and expressly found that the statements in that interview were not induced with the hope of benefit.11 Therefore, the trial court
(a) Acosta first asserts that his statements from his initial interview should have been excluded because he did not receive a Miranda warning prior to that interview.
A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect‘s situation would perceive that he was in custody, Miranda warnings are not necessary.
Harper v. State, ___ Ga. ___ (2) (853 SE2d 645) (2021) (citation omitted).
Here, Acosta was not under formal arrest, and, accepting the trial court‘s factual findings and credibility determinations, we conclude that a reasonable person in Acosta‘s position would not perceive that he was in custody at the time of the first interview. The investigators asked, and did not demand, that Acosta talk to them at the police station, and Acosta voluntarily agreed to do so. Acosta then allowed one of the officers to drive him to the station. Moreover, nothing in the circumstances surrounding the first interview shows that Acosta was being detained or otherwise restrained. To the contrary, he was allowed to leave the interview room when he chose and to keep and use his phone, and the trial court found that he was free to leave at any time. Therefore, considering the totality of the circumstances, the investigators were not required to read Acosta his rights under Miranda before conducting the first interview. See State v. Rumph, 307 Ga. 477, 481-82 (837 SE2d 358) (2019) (defendant was not in custody for purposes of Miranda where he voluntarily agreed to go with investigators to sheriff‘s office to give a statement; he was left alone in an unlocked interview room; and he was allowed to retain his phone, take phone calls, and leave the interview room for breaks); Drake v. State, 296 Ga. 286, 289-90 (2) (766 SE2d 447) (2014) (Miranda warning not required because defendant was not in custody where investigators requested, rather than demanded, to speak with him; he voluntarily agreed to go to the police station; and he was never physically restrained or threatened).
(b) Acosta also asserts that his statements in the first interview were not voluntary because they were improperly obtained in violation of former
Here, although the undercover officers observed Acosta in the act of driving, they first approached him in the grocery store parking lot so there is no evidence that Acosta knew the officers had seen him driving. Also, when the officers later learned that Acosta had no driver‘s license, there is no evidence that any of the officers or the investigators made any promises to Acosta with regard to any prior traffic violation. To the contrary, the evidence at the hearing showed that Acosta agreed to talk to investigators and accompany them to the station before the issue of his license arose, and when Acosta said that he did not have a license, he was told that it was “okay” but they could not let him drive. Acosta then consented to having an officer drive him to the station. The trial court expressly credited the officers’ testimony that they would not have detained Acosta if he declined to speak with the investigators and chose instead to leave the parking lot. Additionally, Acosta‘s statements in his two phone conversations during the first interview reflect that he understood that he was not in trouble based on the traffic violation, but rather was there to answer questions about Bryan‘s death.
Under these circumstances, we ascertain no violation of former
2. Acosta also argues that the trial court erred in refusing to give the following charge on the lesser offense of misdemeanor involuntary manslaughter:
A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.
See
During the charge conference, the State opposed the involuntary manslaughter charge, asserting that even if someone were inept at CPR, his or her actions would not be unlawful. Acosta‘s counsel offered no counterargument,13 and the trial court declined to give the charge. Acosta thereafter did not object to the trial court‘s charge as given based on the omission of the involuntary manslaughter charge.
Because Acosta did not object to the trial court‘s charge as given, he is only entitled to plain error review of the omission of the involuntary manslaughter charge. See Merritt v. State, 310 Ga. 433, 440 (4) (a) (851 SE2d 555) (2020). To show plain error, Acosta “must demonstrate that the instructional error was not affirmatively waived,
We discern no error, much less plain error. Although “there need only be slight evidence supporting the theory of [a requested jury] charge” to authorize the giving of that charge, see McClure v. State, 306 Ga. 856, 863 (1) (834 SE2d 96) (2019), a jury instruction on misdemeanor involuntary manslaughter premised on a lawful act performed in an unlawful manner is not warranted in this case. In Folson v. State, 278 Ga. 690, 693 (4) (606 SE2d 262) (2004), the appellant also asserted that the trial court erred in failing to give his requested charge on misdemeanor involuntary manslaughter, based on “his own testimony that he struck [the child victim] on the back to clear his airway and pressed the child‘s abdomen in an effort to perform CPR.” Id. This Court determined that if the jury believed that testimony, “it could have found that the child‘s injuries were inflicted by accident.” Id. However, the record was devoid of “any evidence of an unlawful manner in which his lawful act of attempting to resuscitate the child was performed,” and if the defendant‘s
alleged efforts to perform CPR [were] shown to have become so violent as to produce the injuries described by the medical examiner, his actions would have constituted the offense of reckless conduct and he would not have been entitled to a charge on lawful act-unlawful manner involuntary manslaughter.
Id. Therefore, we concluded that the evidence did not support a charge on misdemeanor involuntary manslaughter, and the trial court did not err in rejecting the defendant‘s requested charge. See id.
Likewise, the only evidence that Acosta attempted to revive Bryan came from Acosta‘s statements to investigators that he had used his hands and fists on the child‘s abdomen to try to do so. Acosta contends that the jury could have found that his lawful attempts to revive Bryan became reckless conduct, which he argues equates with the performance of a lawful act in an unlawful manner. However, the evidence at trial showed that Bryan suffered severe blunt force trauma to his abdomen, resulting in lacerations to three separate organs, the injuries to any of one of which could have led to the child‘s death. As in Folson, if Acosta‘s actions rose to the level of causing Bryan‘s multiple, severe injuries, Acosta would not have been performing a lawful act. Instead, Acosta would have been performing an unlawful act, the crime of reckless conduct. Accordingly, Acosta was not entitled to his requested charge on misdemeanor involuntary manslaughter, and the trial court did not err in refusing to instruct the jury on that offense. See Folson, 278 Ga. at 693 (4); Paul v. State, 274 Ga. 601, 604-05 (3) (a) (555 SE2d 716) (2001) (where in claiming to be disciplining his girlfriend‘s 10-year-old son, appellant‘s act of repeatedly striking the child with a belt to the point of causing severe injuries “comes so plainly within the definitions of reckless conduct that it cannot qualify as a lawful act, the trial court did not err when it declined to instruct the jury on lawful act-unlawful manner involuntary manslaughter.” (footnote omitted)).
Judgment affirmed. All the Justices concur.