Defendant Bobby Joe Paradise was tried before a jury and found guilty of four counts of aggravated child molestation, four counts of aggravated sodomy, and four counts of child molestation for acts committed against his eight-year-old daughter and seven-year-old stepdaughter. At sentencing, the four counts of aggravated child molestation were merged into the four counts of aggravated sodomy. Defendant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.
1. Defendant confessed during a police interview. He argues the trial court erred in refusing to exclude his confession because it was the product of an unlawful arrest. “ ‘It is true that even though proper Miranda warnings may have been given prior to a defendant’s making an incriminatory statement and even though the statement may have been voluntary for Fifth Amendment purposes, [such a] statement is nonetheless inadmissible under the Fourth Amendment if it is the product of an illegal seizure. [Cit.]’ [Cit.]”
Green v. State,
Although in conflict, the evidence adduced at the hearing held on defendant’s motion to exclude his confession would authorize a rational finder of fact to find the following facts: The defendant’s stepdaughter told a teacher that defendant had “messed” with her and this allegation was reported to an investigator for the Department of Family & Children Services (DFACS) and the police. Both the daughter and stepdaughter detailed incidents in which defendant made the girls perform and submit to acts of sodomy and other sexual contact.
The investigating officer, Detective West, attempted unsuccessfully to reach defendant by telephone. Defendant was later told by his brother-in-law, erroneously, that warrants for his arrest were outstanding based upon the allegations of the stepdaughter that he had “messed” with her. He then telephoned Detective West, telling her that he wanted to speak with the police about the allegations against him. Defendant agreed to come to the police station for an interview but told Detective West that he had no transportation and would require a ride. They agreed that a sheriffs deputy would meet defendant at his home and drive him to the station. Defendant was waiting at the end of his driveway when the deputy arrived. Mistakenly believing that he was to arrest defendant, the deputy, following departmental policy for transporting a prisoner, frisked and handcuffed defendant before placing him in the back of the police vehicle. When Detective West saw defendant in handcuffs at the police station, she immediately ordered them removed and explained to him before the interview began that he was not under arrest. As a preliminary matter, Detective West cautioned defendant of his rights and explained to him a written waiver of those rights. Although defendant had a tenth grade education, Detective West read the waiver form to him before he signed it. Defendant was not verbally coerced or physically threatened. During the interview, which lasted less than one hour, defendant initially denied molesting the girls before admitting the alie *168 gations. At this point, defendant was formally arrested.
Assuming, without deciding, that defendant was subjected to a warrantless arrest without probable cause at the time he was handcuffed and placed in the police vehicle, it is clear that any taint arising therefrom became attenuated. It is undisputed that defendant was not subjected to any custodial questioning by the deputy. The trial court found that defendant knew he was in fact
not
under arrest at the time of the interview, and this determination is supported by the evidence. See
Ferrell v. State,
2. The mother of the victims’ friend testified that one of the victims told her that defendant had “made them lick each other down there.” Defendant moved for a mistrial on the grounds that such testimony implicated his character and was “similar transactions” evidence for which the State gave no notice pursuant to Uniform Superior Court Rules (USCR) 31.1 and 31.3 (B). In related enumerations of error, defendant complains of the failure of the trial court to make findings as to admissibility after the hearing mandated by USCR 31.3 (B) and to the overruling of his motion for mistrial.
The acts mentioned were conduct contemporaneous with the offenses for which defendant was on trial. “Nothing in [USCR 31] is intended to prohibit the [S]tate from introducing evidence of similar transactions or occurrences which are . . . immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” USCR 31.3 (E). Consequently, the failure to con
*169
duct an admissibility hearing under USCR 31.3 (B) was not error with respect to this evidence.
Cooper v. State,
3. Defendant called his ex-wife, Youlanda Hickman, as a defense witness and did not request that she be declared a hostile or adverse witness. Thereafter, on direct examination, defendant elicited from Hickman testimony that was not favorable to him. Defendant never asked her directly whether she was biased against him. On cross-examination by the State, Ms. Hickman admitted having no personal knowledge of the facts as alleged by the girls and denied having coached them in any way. After this witness had been excused, defendant tendered as exhibits certified copies of criminal convictions entered against Ms. Hickman. The trial court admitted her felony conviction for aggravated assault against defendant but excluded four misdemeanor convictions for bad checks on the ground that defendant was improperly attempting to impeach his own witness. This evidentiary ruling is enumerated as error.
The misdemeanor of issuing a bad check in violation of OCGA § 16-9-20 (a) is a crime of moral turpitude and the jury may consider evidence of a witness’ guilty plea to such a crime as proof of general bad moral character which tends to impeach the credibility of that' witness within the meaning of OCGA § 24-9-84.
Carruth v. Brown,
4. The trial court gave a charge on sexual battery as a lesser included offense to the charge of child molestation. That charge follows: *170 “[I]f you do not believe beyond a reasonable doubt that the defendant is guilty of the charges against him as contained in the indictment, but do believe beyond a reasonable doubt that the defendant is guilty of sexual battery, then you would be forced to convict the defendant of the offense of sexual battery in that particular count.” Error is assigned to the emphasized portion of the charge.
(a) Although the State urges that this enumeration of error has been waived, we do not agree. Our Supreme Court recently clarified the available procedures for preserving exceptions to the charge. “[D]efense counsel may [except] to such portions of jury instructions as are perceived at trial to be error and may also reserve the right to raise additional [exceptions] on motion for new trial or on appeal.”
McCoy v. State,
(b) Without question, jury instructions on consideration of a lesser included offense should be couched in terms of what the jury is
authorized
to do (the wording of the pattern jury instruction) and not in terms of what a jury would be
forced
to do. Although the context here clearly shows that the use of the term “forced” is by way of limitation, precluding a verdict of guilt as to the greater offense, the word “forced” is language of command and so needlessly invites harmful error by appearing to direct a verdict of guilt on the lesser offense. See generally
Isaacs v. State,
Judgments affirmed.