*1 A08A0287. v. THE DICKERSON STATE. Judge. Phipps, appeals
John Dickerson his convictions on two counts of armed possession during and one count of of a firearm the commis- felony. years sion of a Dickerson 15was old at the time the crimes years charges were committed and 16 old at trial. He the trial court error its admission of two un-redacted DVDs audio/video showing conversations that and occurred between himself mother in his station interview room and were recorded without knowledge. Finding no error in the court’s admission of the DVDs, we affirm.
Evidence showed that Dickerson lived with his mother and siblings. Papa pizza A Pizza Hut restaurant and a John’s restaurant were located near their residence. Dickerson was convicted deliveryman February 12, armed of a Pizza Hut robberies on Papa deliveryman days deliverymen and of John’s three later. The by gunpoint young responding were robbed at two black males when telephone pizza unoccupied orders deliveries to residences telephone place near Dickerson’s home. The number used to phone registered Pizza Hut order traced a cell was to him at to Dickerson’s being by mother and telephone used the time of the robberies. That provided by person number was the same number who placed Papa Shortly Papa John’s order. after the John’s deliv- eryman robbed, was officer observed Dickerson vicinity robbery. approached questioned officer acting suspiciously descriptions Dickerson because he was fit as gender, age, clothing race, for the robbers. and/or Dickerson was arrested after the officer determined the number possession of the cell in his was connected to both robberies. part markings eyebrows,
Based on distinctive in his Dickerson was by deliverymen positively pizza prior They identified both to trial. positively
also identified him at trial. Immediately transported arrest, after his Dickerson was to the County police Gwinnett station and seated room interview place monitored concealed camera. Events took in the room were recorded the camera two DVDs and later questioning by police The first shows initial Dickerson outset,
detective. At the the detective informed Dickerson of his rights, during Miranda him he have told could there questioning, and asked whether Dickerson wanted to talk to him. responded
Dickerson wanted talk he to his mother and that he her so could wanted there that she tell detective where he had agreed been. The detective left Dickerson alone the room. phone. then
Dickerson made number calls on cell One was to *2 776 Papa During call, her that the John’s he told
his mother. given by acquaintances had to whom he two had been committed question. phone The home at the time that he had been at cell and coming into the interview Dickerson’s mother second DVD shows leaving berating and house with chores undone him for room and letting by allowing get the cell others use himself to into trouble him. she beginning moved in limine to trial, defense counsel At the showing exchange portions DVD those of the second exclude ground that their conver- mother on the between Dickerson to the to the defense than was more sation prosecutor responded prosecution’s the conversation case. The highly because it his mother was relevant Dickerson and between question, being he that, at home at the time rather than showed expressed doing The trial court his chores. the house without had left private “concept taping conversation” be- a about the concern ruling parent on the defense motion. but deferred and child tween subsequently by prosecu- cited of authorities After consideration including DVDs, the conversation the two tion, the court ruled that to the could be Dickerson and argument that admission of merit in Dickerson’s 1. There is no present infringed upon right have his mother first DVD police. during questioning person taking juvenile requires a child into code parent, guardian,
custody give promptly or other notice to requiring parent present provision to be custodian,1 during questioning.2 is no there “consistently held that It has thus been merely juvenile is not rendered inadmissible of a custodial statement parent.”3 Instead, whether made in the absence of because it was or allowed to consult with is held incommunicado determining whether the statement was is a factor knowingly given.4 voluntarily concluding that, err in under the circum- court did not The present here, Dickerson had no reasonable
stances with his mother. in the conversation York,5 where the issue is Lanza v. New lead case on this Supreme challenge Amendment United States addressed a Fourth Court of the prisoner interception of a conversation between in the visitor’s of an electronic device installed visitor means [1] Murray Marshall OCGA 15-11-47 370 U. S. v. (2). SC (c). 8 LE2d (3) 853) (2003) (citations omitted). jail. room at a The Lanza court concluded Fourth Amendment protections jails, jails noting do not extend to share none of the attributes of of homes, offices, automobiles, or hotel rooms prison, “[i]n traditionally that, official surveillance has been the day.”6 order of the Lanza note, however, that, was careful to even in jail, relationships particu- “the which the law has endowed with confidentiality unceasing protec- larized must continue to receive *3 although any tion,” there was no claimed violation of such relation- ship there.7 Supreme rejected
In States,8 Katz v. United Court later “protected analysis employed areas” in Katz, course, Lanza. In of proclamation Court issued its well-known that “the Fourth Amend- protects people, places.”9 ment The Katz test embraces “a requirement, person twofold first that a have exhibited an actual (subjective) expectation privacy expectation and, second, of ”10 society prepared recognize be one that though as ‘reasonable.’ Even question viability
Katz thus called into the continued post consistently Lanza, -Katz decisions have followed Lanza and permits held that federal law in admission evidence of monitored places jails, police police cars, conversations such as stations.11 Thus, in Hearst,12 United States v. the Ninth Circuit Court of Appeals pretrial county jail held that a detainee incarcerated had expectation privacy no reasonable visitor, a conversation with a government adequately practice because the established that its monitoring such conversations was a reasonable maintaining jail security.13 means of Superior Supreme Court,14* Donaldson v. Court of Califor upheld suppress
nia the denial of a defendant’s motion to evidence obtained when recorded a conversation between him finding room, brother station interview the case presented question against of federal law resolved the post Lanza -Katz.
wealth,
751-752
9 Id. at 351.
12 Supra.
[13] 563 F2d at 1344-1346. 14 Supra. Superior Appeals Court,15
In Ahmad A. v. the Court of presented There, California was with a case much like this one. surreptitious tape recording minor claimed that the of his conversa- police interrogation tion with his mother in a room violated his reasonable under the Fourth Amendment. Ahmad A. held that this claim could not surmount Lanza.16As to subjective expectation privacy, whether the minor had a the court although interroga- noted that the officer had left the minor closing represen- door, room with his mother after tion alone inquiries confidentiality.17 tations were made as to or Moreover, observed that such belief would not have the court objectively been reasonable in a station because “in the ”18 jailhouse age-old truism still obtains: ‘Wallshave ears.’ And recognize parent- A., as also noted Ahmad California does not privilege confidentiality.19 child Commonwealth,20
In the more case of Belmer v. recent *4 Virginia Appeals whispered Court held that even a conversation stepfather, and child had been left alone in who police room did not station interview have Fourth Amendment protection.21 police conducting were court noted that investigation, subject criminal that the defendant knew he was the investigation, investigating nothing detective had done believing into would to lull private, interrogation that conversation be that defendant thus had no reason believe sanctuary privileged discussions, room was a simply leaving suspect alone with individual in another while police custody expectation privacy society does not create an recognize prepared as reasonable. Georgia directly point, no case is two are instruc Meyer police permitted testify In tive. v. State officer was as to incriminating statement he claimed to have overheard the telephone parents reception in a defendant make call to her from the police public area of a station. Because the call was made from a personnel vicinity, within room with her immediate and based request private accommodations, on the absence of for more this 15 Supra. Rptr. 263 Cal. at 751. 17 Id. at 750-751. (footnote omitted). Similarly, parent-child privileged Georgia n. Id. at communications are not in seq.
either. See OCGA 24-9-20 et
20 Supra.
21
Guided decision the Eleventh Circuit Court of in Supreme Burgeson United States v. McKinnon25 our Court jail car, concluded that in a much cell, like a there exists no privacy.26 reasonable reasoning employed foregoing
Under the cases, it is questionable objectively whether Dickerson had an reasonable ex- pectation privacy in the conversation with his mother. It is unnecessary, question however, to decide because, under the subjective expectation case, facts of this no was exhibited. although
In case, A., this as in Ahmad the officer left the minor interrogation representations the inquiries room alone with mother, no or confidentiality.
were made as to or Moreover, the prosecution entry states without contradiction that officers’ into the room while Dickerson and his mother conversed did not talking cause them to cease lower their voices. unlike attempted Belmer, neither Dickerson nor his mother to make the private. fact, conversation Dickerson had said that he wanted the detective to hear his mother’s account of his whereabouts. And as Meyer Burgeson, Belmer, as well as Dickerson had been arrested investigation put place containing for crimes under in a guarantees taking place that communications therein would remain *5 confidential. We thus find no merit Dickerson’s claim that the in his conversation with his violated his mother.
3. Nor do we find merit in Dickerson’s claim that the outweighed
effect of his conversation
its
value.
Essentially,
argues
prejudiced
Dickerson
that his mother’s tirade
eyes
jury
appears
him in the
of the
because
the DVDshe
to believe
guilty.
he is
From
DVD, however,
our review of on balance she
appears
e.g.,
reasons,
incensed with him for other
because he
and he
disobeyed
by leaving
doing
her
chores,
the house without
get
by letting
allowed himself
to
trouble
others use the cell
Moreover,
she had
for him.
various of the statements he
exculpatory
made to his mother were
and consistent with his
taped
reasons,
defense. For these
admission of the
conversation
985 F2d 525
curs Judge, concurring specially.
BARNES, Chief majori- express my disagreement separately with the I write recording ty’s officer’s DVD of Dickerson’s conclusion that properly his mother was admitted evidence. conversations with majority only judgment opinion. Thus, I in the of the can concur as a mandates the involvement of 1. Dickerson’s status (c).28 § questioning. In these in his OCGA 15-11-47 his mother through allowed, circumstances, the should not be the use juvenile or his hidden video camera and without notice to the a parent, parent-child secretly encounter invade the integral part which our law authorizes and makes an of the interview juvenile suspect. with a majority correctly analyzed recognize I has general involving jail interrogations, precedents house conversa- telephones, prece- public like, I not find these
*6 tions on dents and the do controlling parent’s in this case involvement is because (c). Indeed, mandated OCGA must be considered before a one of the criteria which 15-11-47 juvenile’s statement is admissible in this “[wjhether State is consult with the accused is held incommunicado or allowed to omitted.) attorney.” (Emphasis relatives, or an friends (1981); Riley Marshall v. v. a Consultation with parent meaningless police may surreptitiously if the record the may prosecutor conversation between the and child and the play just then as we would not ations as to appropriately committed to trial court’s 28 Notice; temporary [27] this Code section shall conform taking court. article and rules of court. shall See promptly give Any temporary generally the child into whether Hicks v. detention or notice custody, detention or State, thereof, effect of evidence is to a 256 Ga. questioning. questioning parent, guardian, discretion). together procedures 715, with of the child outweighed person taking and conditions (13) (352 or other custodian and to the statement of necessary SE2d a child into prescribed by its 762) (1987) (consider comply reason custody with value are this for recording countenance the of a conversation between a defendant attorney, permit recording we should not of conversa- tion between a defendant and his this context. required any case, however, is not Reversal this because admitting recordings clearly
error in evidence was harmless. recognized general justify “This court has rule that order to ruling reversal, new trial or the trial court’s must be both erroneous appellant. and harmful to the The test for harmful error is whether highly probable judgment.” it is error contributed to the (Citations omitted.) punctuation Wright App. State, v. 226 Ga. (2) (486 711) (1997); Phillips App.
499, State, SE2d 241 Ga. though 764, instance, SE2d this even it is recording probative value, doubtful that the the contents of recording, incriminating legally prejudicial. fact, were not This underscored comments of Dickerson’s counsel that he played, played, not if did want the DVD but it were to be he wanted entirety. played it in its He further stated: anticipate, Judge, prosecutor
I when the rests and it’s time go, my going me I’m for to start client’s mother. So — big fight I it’s not this is not a for me because think the
entirety going played of the DVDis to be whether it’s prosecution going I before the rests or before rest. It’s to be played, going big stopping I’mso to make a deal out of starting. appellate acknowledged Further, Dickerson’s counsel that the con- recording tent of the was “redundant of more reliable sources properly highly probable circumstances, admitted.” Under these it is judgment. that the error did not contribute to the Johnson v. 869) (1976); 59, Palmer v. though by admitting court erred even the trial this of Dickerson’s consultation with error was
harmless because it did not contribute to Dickerson’s convictions. —
Decided June July
Reconsideration denied Hopkins, appellant. L.
Sharon *7 Attorney, appellee. Porter, District for J.
Daniel DAVISv. THE A08A0584. STATE.
(666 SE2d
Miller, Judge. County jury guilty Calvin Jerome A Lowndes found Davis kidnapping, robbery, possession rape, armed and three counts of of a during appeal, commission of a crime. Davis firearm the On claims (i) denying trial court erred in his motion for a directed (ii) in-custody acquittal, admitting police, his verdict statements (iii) (iv) failing charge jury theory admitting case, the on (v) hearsay allowing testimony evidence, based on statements not (vi) produced during discovery, improperly charg- to the defense jury ing conspiracy. on the crime of Davis also contends that he received ineffective assistance of trial For the reasons counsel. set below, forth we find error and affirm. appeal
The standard of review of a criminal convic- viewing light whether, tion after the evidence in a verdict, favorable to the rational trier of fact could have guilty charged beyond found the crime longer enjoys The reasonable doubt. presumption defendant no only innocence, and we determine sufficiency weigh do the evidence. We the evidence or credibility. assess witness (Footnotes omitted.) Johnson v. morning May viewed,
So the evidence shows that on County partially 1993, a Lowndes Sheriffs officer found a woman’s body lying County. clothed on the Orr side of Road Lowndes holding pair pants along victim was her left hand. Strewn up quarter body purse, road to a mile from the officer found military change. ID card, card, bill, ATM and some loose $20 $5 subsequently A warrant was issued for Davis’s arrest in connection with the victim’s death. July Department 30, 1994,
On an officer the Kent Police Washington, stopped speeding, computer Kent, Davis check subject Georgia showed that Davis was arrest warrant. Davis apprehended foot, fled the scene on but was short time later. After being apprised rights, gave of Miranda Davis oral statement regarding Georgia, to Kent officers Valdosta, events in