LONDON v. THE STATE
A15A0751
Court of Appeals of Georgia
July 16, 2015
775 S.E.2d 787
PHIPPS, Presiding Judge.
Bartholomew London was convicted of child molestation and two counts of aggravated child molestation involving his then-15-year-old stepdaughter, C. S. He appeals from the denial of his motion for new trial, contending, among other things, that the trial court erred when it denied his motion to suppress a recording of a telephone conversation between him and the child. Because the state failed, pursuant to
While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.1
On March 16, 2010, an indictment was returned filed against London. Counts 1 and 2 of the indictment alleged that London committed the crime of aggravated child molestation “by placing his mouth on [C. S.’s] vagina”; Count 3 alleged that London committed the crime of child molestation “by placing his finger into [C. S.’s] vagina[.]” The offenses were alleged to have been committed “on or between” August 1, 2009 and October 1, 2009.
At trial, C. S. testified that London was married to her mother and that they all lived together on the dates at issue. C. S. testified
A detective interviewed C. S. and videotaped the interview. C. S. testified that the detective asked her to call London “[t]o get him to admit what he did,” but C. S. could not reach London at that time. C. S. went back to the police station two days later; her mother was with her initially, but she had to leave and was not present when C. S. called London from the police station that day. The detective recalled specifically that police had “decided for C. S. to come back in and [C. S.] agreed to . . . come back in . . . October the 4th, and [C. S.] attempted to make another call to [London].” This time, London answered the phone; police conducted what the detective referred to as a “reverse phone call,” recorded the conversation with a video device, and reduced the recording to a DVD format.2
The court allowed the state to introduce into evidence the DVD, which was played for the jury. The court also allowed the state to introduce a transcript of the conversation that had been recorded and preserved on the DVD. C. S. testified that the transcript was made as she watched the video and that the transcript was true and accurate to the best of her knowledge. Therein, at one point C. S. informed London that she had an impending doctor’s appointment, and she wanted to ask London whether he thought the doctor would “find anything.” Particularly incriminating to London was the following excerpt.
[C. S.]: I was just thinking with the fingering and stuff like that they —
LONDON: No.
[C. S.]:— may find something.
LONDON: No.
[C. S.]: Or in the —
LONDON: No. Whenever I did stick my finger inside you, it hurt. You understand me?
[C. S.]: Or with the saliva or whatever.
LONDON: There ain’t gonna be nothing, [C. S.]. You wash. Excuse me. You wash every day. Every day. So, it won’t wash with soap every day, and your finger, finger went inside of your coochie, too, when you wash sometimes. So, don’t worry about none of that. You good. Excuse me. I miss you. I know it, I miss you.
Throughout the conversation, London attempted to assure C. S. that a medical examination would not reveal evidence of “fingering” or of his saliva.
London took the stand, testifying in his own defense. He denied having committed the charged offenses. He also disputed the accuracy of the state’s transcript of the reverse phone call recording.
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OCGA § 16-11-66 (b) provides that the telephone conversations of a child under 18 years of age may be recorded and divulged if, upon written application by a private citizen, law enforcement agency, or prosecutor’s office, a judge of a superior court and the child consent to such taping.7
After obtaining the consent required by this subsection, the telephonic conversations or electronic communications to which a child under the age of 18 years is a party may be recorded and divulged, and such recording and dissemination may be done by a private citizen, law enforcement agency, or prosecutor’s office. Nothing in this subsection shall be construed to require that the recording device be activated by the child. Consent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application, as provided in subsection (c) of this Code section, or by a parent or guardian of said child as provided in subsection (d) of this Code section. . . .
London contends that there was no evidence that C. S. had consented to the conversation being recorded; that the recording
clearly had been obtained at the behest of law enforcement and not C. S.; and that because the state had failed to follow the procedure outlined in
But Malone is distinguishable. In that case, several persons were involved in the recording of a minor’s phone conversation — the alleged child molestation victim (a minor), her mother, and her mother’s friend. Thereafter, criminal charges were brought against the defendant, who moved to suppress the audiotape recording.9 Citing Fetty v. State,10 this court in Malone affirmed the trial court’s denial of the motion, and held that the recording was admissible because the child “was fully aware that the conversation was being taped[ and] . . . she voluntarily participated in the recording of her conversation; in fact, she encouraged it.”11 This court in Malone clearly did not construe the circumstances of that case — namely, that the idea to record the conversation had originated with the child, the child had consented to the taping, the mother and a friend had participated in the recording, the child knew
legislature had amended
In this case, unlike in Malone, there was undeniably third-party interception of the conversation by law enforcement. The idea to record the conversation originated with the police, C. S. went to the police station twice at the behest of the police to make the reverse phone call, and police recorded the conversation on their equipment. Moreover, there is no evidence that police had informed C. S. of their intent to record the conversation, let alone evidence that they had obtained C. S.’s consent to record it. In either event, police would still have been required to obtain consent for the recording by a court order pursuant to
The DVD recording contained incriminating statements by London, and its admission into evidence was not harmless.18 London took the stand and denied having committed the indicted offenses, and there was no evidence that he had given police any confession or other incriminating statement(s). Nor was there any physical evidence connecting London to the crimes. A sample of carpet from C. S.’s bedroom was tested for the presence of seminal fluid and the results were negative; a sexual assault examination that was performed on C. S. on October 6, 2009, revealed no evidence of injury or of penetration; and the nurse who had conducted the examination made no “assault-related findings.” Moreover, during deliberations, the jury asked to view the DVD of the telephone conversation with the transcript. Therefore, we cannot conclude the admission of the DVD was harmless beyond a reasonable doubt.19
Judgment reversed. Doyle, C. J., concurs. Boggs, J., concurs specially.
BOGGS, Judge, concurring specially.
I agree with the majority that the State failed to obtain consent for the recording and for the divulging of the recorded conversation “by order of a judge of a superior court upon written application” as required by
16-11-66 (c) (judge must make findings regarding the child’s understanding that the conversation is to be recorded and a true and correct copy of the recording shall be returned to the superior court judge to keep under seal). Here, the State opted to play the DVD recording of the call and provide the jury with a transcribed version of the call, rather than elicit the investigator’s testimony as to what he overheard London say during the call. The investigator explained only that the DVD truly and accurately depicted the conversation.
While I agree that a court order was required for the playing of the recording, I believe it is important to note that a court order would not be required had the State chosen instead to elicit testimony about what the investigator overheard during the interception. Because it chose to play the recording, we are constrained to reverse the conviction.
Decided July 16, 2015.
Bentley C. Adams III, for appellant.
Julia F. Slater, District Attorney, Robert B. Bickerstaff II, Michael E. Craig, Assistant District Attorneys, for appellee.
JERNIGAN v. THE STATE
A15A0765
Court of Appeals of Georgia
July 16, 2015
775 S.E.2d 791
PHIPPS, Presiding Judge.
Demetrius Jernigan was found guilty of kidnapping, hijacking a motor vehicle, armed robbery (two counts), aggravated assault with a deadly weapon, and aggravated assault with intent to rape.1 He appeals from the convictions, contending that the evidence was insufficient to support the verdict for aggravated assault with intent to rape, and that the court erred by sentencing him on convictions that should have merged. For the reasons that follow, we hold that the evidence was sufficient and that the two armed robbery convictions