Pierce v. StatePierce v. State
which this Court has exclusive jurisdiction. See
Viewed in the light most favorable to the verdict, the evidence showed that in June and July of 2011, B. M., M. T., and D. D., then all 14 years old, “hung out” with Pierce, who was then 31 years old, and drank beer and liquor at Pierce’s apartment. Pierce lived in the same apartment building as B. M. On one occasion when Pierce invited the teens into his apartment and offered them liquor and beer, B. M. “started not to feel good” and asked Pierce if he “had anything to give [him].” Pierce gave B. M. “something” and all B. M. remembered was passing out on Pierce’s couch until later in the evening.
D. D. testified that Pierce gave him and M. T. a pill that he believed was Xanax, and on another occasion, he texted Pierce a picture of his penis in order “to get pills.” The State admitted pictures of the text messages from D. D.’s cell phone including the picture that D. D. testified he exchanged with Pierce in order to get the pills.
M. T. testified that he met Pierce through D. D., and that D. D. told him Pierce could get them “free beer and Xanax.” M. T. explained further that he spent two nights at Pierce’s apartment in July 2011. During that time, Pierce “started, . . . . coming on to [M. T.],” and when M. T. asked about getting Xanax, Pierce told him that he did not give Xanax pills away, but would exchange them for pictures or a “sexual act.” M. T. explained that he was reluctant to agree to the exchange, but “Xanax makes you do things you’d never do sober.” On one of the nights M. T. stayed at Pierce’s apartment, Pierce gave M. T. a handful of Xanax pills, pulled out his penis, and fondled M. T.’s penis. After M. T. and Pierce performed oral sex on one another, Pierce retrieved more Xanax pills for M. T. from a safe in his bedroom.
When M. T. later left Pierce’s apartment, he was stopped by a courtesy officer from the apartment complex. The officer noticed that M. T.’s speech was slurred and that he smelled of an alcoholic beverage. After asking M. T. a few questions, the officer asked M. T. for consent to search his person. M. T. consented, and in his pocket the officer found Hydromorphone and Alprazolam (Xanax) pills that M. T. told the officer he obtained from Pierce. M. T. explained to police that Pierce gave him pills in exchange for M. T. performing oral sex on Pierce.
Investigators subsequently interviewed all three teens and conducted a search of Pierce’s apartment where they found prescription bottles of Hydromorphone and Alprazolam, some empty and some containing pills, in a safe in the closet of his bedroom. B. M. told police in a videotaped statement that he and Pierce engaged in oral and anal sex while at Pierce’s apartment, although at trial he testified he did not remember the sex acts.
Following the presentation of this evidence, the jury found Pierce guilty of aggravated child molestation for performing both anal and oral sodomy on B. M. and having B. M. perform such acts on him; aggravated child molestation for performing oral sodomy on M. T. and having M. T. perform oral sodomy on him; child molestation and sexual battery for placing his hands on B. M.’s penis and M. T.’s penis; sexual exploitation of a child for enticing D. D. to take a picture of his penis and send the picture to Pierce; and distribution of Hydromorphone and Alprazolam to M. T.
1.
Pierce argues that the trial court erred in allowing the admission of B. M.’s videotaped interview. “We review the trial court’s decision to admit evidence for an abuse of discretion.” (Citation omitted.) Bolling v. State, 300 Ga. 694, 698 (2) (797 SE2d 872) (2017).
When first questioned at trial about this statement to police, B. M. testified that he did not remember talking to police, even after having watched his videotaped statement about a week before trial. The prosecutor asked that B. M. be allowed to watch his videotaped interview again to refresh his memory. After discussion with both counsel and further testimony by B. M. that he did not recall what happened on the occasion he was in Pierce’s bedroom, the trial court allowed B. M. to watch his videotaped interview outside the presence of the jury.
When B. M. returned to the witness stand, he testified that he remembered going to Pierce’s apartment and being in his bedroom but did not remember what happened in the bedroom. The prosecutor then moved for admission of the videotaped interview pursuant to
(a) Pierce argues that B. M.’s videotaped statement was not admissible under the past recollection recorded exception to the hearsay rule because B. M. was “a reluctant witness who did not want to testify,” and the purpose of the exception is to assist witnesses who genuinely cannot remember events previously recorded. A “recorded recollection” under the applicable exception to the hearsay rule is defined as:
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party[.]
An Eleventh Circuit Court of Appeals case presents facts similar to those adduced here. In United States v. Jones, 601 F3d 1247 (11th Cir. 2010), the witness “lacked ‘clear and distinct’ recollection in (her) response to the question(s).” Id. at 1262 (V) (A). Once she viewed her videotaped statement outside the presence of the jury, and was asked if she then remembered more than before she watched the video, the witnessed responded “I remember what was just said.” Id. Nevertheless, the appellate court held that the trial court did not abuse its discretion in allowing the videotape to be played for the jury where the witness affirmed that the things she said in the video were true and accurate to the best of her knowledge, that it was “[her] talking” on the video, and that her memory was better then. Id.
Here, after viewing the videotaped statement at trial, B. M. stated that he was the person in the video, he remembered giving the statement, he had knowledge as to what he was talking about in the video, he told the truth when he gave the statement, and the things he discussed were fresh in his memory then. This was sufficient to establish under
(b) Pierce also argues that the admission of B. M.’s videotaped statement was a violation of the Confrontation Clause, because he was effectively denied any opportunity to cross-examine B. M. in light of the teen’s claim of no memory of the sexual offenses. But the
Sixth Amendment guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Kentucky v. Stincer, 482 U. S. 730, 739 (107 SCt 2658, 2664, 96 LE2d 631) (1987). . . . Ordinarily a witness is regarded as subject to cross-examination when he is placed on the stand, under oath, and responds willingly to questions. United States v. Owens, 484 U. S. 554, 556, 561 (108 SCt 838, 841, 844, 98 LE2d 951) (1988).
(Punctuation omitted; emphasis in original.) Jones, supra, 601 F3d at 1263 (V) (B). Although B. M. stated that he did not remember what occurred while he was in Pierce’s bedroom, he recalled several other details about the nature of his relationship with Pierce and his presence in Pierce’s apartment. The record also reveals that after B. M. watched his videotaped statement at trial, he testified that he recalled giving the statement to police and that he told the truth in the statement. However, defense counsel posed no questions concerning this testimony. Counsel’s cross-examination of B. M. involved only questions about B. M. speaking to his mother during a lunch break in the trial and whether B. M. told the truth when he testified “before lunch that [he] didn’t remember.” B. M. was present at trial and available for cross-examination. There was no violation of Pierce’s right of confrontation here.
(c) Pierce argues that portions of the videotaped interview contained evidence of his character inadmissible under
Pierce argues that B. M.’s statement could not be admitted to prove Pierce’s character and that the State failed to provide the required notice under
(d) Finally, Pierce argues that B. M.’s videotaped statement was inadmissible under the balancing test of
“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
2.
Pierce contends that the court erred in admitting the photographs of text messages from the screen of D. D.’s cell phone. He argues that this evidence was not properly authenticated, was in violation of the best evidence rule, and was improper character evidence.
(a) With regard to authentication, Pierce asserts that the State failed to link him to the pictures of the text messages on D. D.’s phone. Pierce argues that the State did not introduce his cell phone records, he denied sending the messages, and no one testified that they observed him send them.
At issue here is the authentication of a photograph of the display on an electronic device.
[w]ith all electronic sources of information there often are two authentication issues: what computer or other digital device generated the communication and second, who was using the device at that time. Although there may exist evidence that a specific phone sent a certain text message, that does not prove who used the phone . . . . Every form of electronic communication can be “spoofed,” “hacked,” or “forged.” But this does not and can not mean that courts should reject any and all such communications. Indeed the vast majority of these communications are just as they appear to be — quite authentic. The goal is to supply sufficient, nonhearsay evidence as the identity of the source such that a reasonable factfinder could conclude that the evidence is what it is claimed to be.
Paul S. Milich, Georgia Rules of Evidence § 7:6, at 194 (2017-2018).
The State introduced a sheriff’s lieutenant who testified that he was not able to conduct a forensic exam of D. D.’s cell phone because it “was not compatible with any of the software we had at the time for cell phone forensics.” Instead, he used a digital camera to photograph what was shown on the screen of the phone. The lieutenant explained that the images were a fair and accurate representation of what appeared on D. D.’s cell phone screen. Pierce denied sending D. D. the text messages shown in the photographs, but testified that the phone number shown in D. D.’s cell phone under his name was the number assigned to one of four cell phones for his business, Matthew Caleb Salon, and that family members or anyone connected to his business could have used the cell phone. D. D. testified that the phone number shown for the text messages he received was Pierce’s phone number and that he exchanged several text messages with Pierce. When asked how he knew that the phone number belonged to Pierce, he explained that he received the phone number from one of the other teens and in one of the messages he received from the number “it specifically says, Hey, it’s Caleb [Pierce].” And, the text messages were consistent with D. D.’s and M. T.’s testimony that Pierce offered them “pills” in exchange for texting pictures of their genitals or sex acts.
The evidence presented here was sufficient to support a finding that the photographs are what they claim to be, text messages between D. D. and Pierce. The trial court therefore did not abuse its discretion in concluding that they were properly authenticated. See United States v. Arnold, 696 Fed. Appx. 903 (II) (A) (2) (10th Cir. 2017) (trial court did not abuse its discretion in admitting screen shots of text messages between defendant and witness who testified concerning the messages exchanged); United States v. Ramirez, 658 Fed. Appx. 949, 952 (II) (A) (11th Cir. 2016) (court did not abuse its discretion in allowing admission of photographs of text messages when witness testified they were text messages between her and the defendant, law enforcement agent was present for some of the text messages between them, and the subscriber information listed defendant as the user for the phone number).
(b) Pierce argues that the admission of the photographs of the text messages violated the “best evidence” rule. See
“The purpose of the best evidence rule is to prevent inaccuracy and fraud when attempting to prove the contents of a writing.” (Citation and punctuation omitted.) United States v. Trotter, 837 F3d 864, 867 (II) (8th Cir. 2016).
the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An original of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original.
And
3.
Pierce asserts that Georgia’s statutory sentencing scheme for aggravated child molestation is unconstitutional both per se and as applied. He argues that the sentencing scheme violates the Due Process and Equal Protection Clauses of the Georgia Constitution and the United States Constitution, and violates the prohibition against cruel and unusual punishment found in the Eighth Amendment of the United States Constitution and Article I of the Georgia Constitution.
(a) With regard to his due process and equal protection claims, Pierce points to the interplay between
[A] person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
Pierce argues that this sentencing scheme violates his right to due process because it allows a court to impose a term of years
that could far exceed a person’s life expectancy, for example, 300 years, but yet would still theoretically “not exceed life imprisonment.” When combined with
OCGA § 17-10-6.1 (c) (4) , which requires that such defendant serve one hundred percent of the time imposed without any possibility of parole or early release, such a 300-year sentence, if imposed would constitute a de facto life sentence without the possibility of parole.
An identical argument was raised in Merritt v. State, 286 Ga. 650, 652 (690 SE2d 835) (2010), where the defendant challenged as unconstitutional a similar sentencing scheme for rape. Id. Just as we concluded in Merritt with regard to the rape sentencing statutes, the sentencing scheme here gives fair warning and puts a defendant on notice of the potential sentence that for a first conviction of aggravated child molestation he or she can be sentenced to either life or a split sentence that includes not less than 25 years in prison; that if life is imposed, he or she is not eligible for parole until after having served 30 years in confinement; and that if a term not less than 25 years is imposed, it must be served in its entirety. Such unambiguous notice of the potential punishment for the crime precludes Pierce’s “de facto” sentence of life argument. See id. The sentencing scheme here did not violate due process on this ground. See id.7
(b) Pierce argues that the aggravated child molestation sentencing scheme violates equal protection because a defendant could “be subjected to maximum terms of imprisonment substantially different than others charged in the same manner with the exact same offenses.” Pierce presents the example of an individual sentenced to 50 years of incarceration for a first time conviction who would have to serve every day of the 50-year term, while an individual in the same situation sentenced to life, “a theoretically longer sentence,” would be eligible for parole after having served 30 years.
“Where a criminal statute does not discriminate on racial grounds or against a suspect class, equal protection and due process concerns are satisfied if the statute bears a ‘reasonable relation to a proper legislative purpose’ and is ‘neither arbitrary nor discriminatory.‘” (Citations and punctuation omitted.) Rooney v. State, 287 Ga. 1, 5 (3) (690 SE2d 804) (2010).
the claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimant must establish that there is no rational basis for such different treatment. And because the legislation is presumptively valid, the claimant has the burden of proof as to both prongs.
(Citations and punctuation omitted.) Harper v. State of Ga., 292 Ga. 557, 560 (1) (738 SE2d 584) (2013).
“For equal protection purposes, criminal defendants are similarly situated if they are charged with the same crime.” (Citation omitted.) Pitts, supra, 293 Ga. at 516 (2). Pierce complains here of the possibility of a disparity in incarceration time under the statutory scheme for defendants charged with aggravated child molestation, but he “fails to show that any such potential variation in application of the statute is without a rational basis. [Cit.]” Id. As we have held with regard to other sentencing statutes, allowing the court flexibility to fix sentences furthers the goal of individualized treatment at the punishment stage. Such flexibility includes the ability to decide whether under the facts presented a defendant should be sentenced to life or to a split sentence with a term of no less than 25 years, with full knowledge of the minimum period of incarceration required under each option. Moreover, a
statutory difference in treatment is not to be set aside if any state of facts reasonably may be conceived to justify it; if there is some rational basis for the classification, it does not offend constitutional safeguards merely because the classification is not made with mathematical nicety or because in practice it may result in some inequality.
Id. Pierce has failed to meet his burden of showing that there is no rational basis for the sentencing options including different mandatory incarceration periods for defendants charged with aggravated child molestation.
(c) Pierce asserts that the sentencing scheme for aggravated child molestation “on its face and as applied to him individually,” violates the prohibition against cruel and unusual punishment found in both the United States Constitution and the Georgia Constitution.
Pierce argues that the sentencing scheme for aggravated child molestation is unconstitutional per se because the punishment is “grossly out of proportion to the severity of the crime, given the mandatory minimum requirement of 25 years in prison followed by probation for life” and given that no portion of the 25 years may be suspended, probated or paroled. He argues further that under the sentencing scheme, “[a]n adult male defendant in Georgia could be required to spend the remainder of his life in prison, without the possibility of parole, if a consenting male teenager places his mouth on the penis of the adult defendant, without any other aggravating circumstances or harmful conduct.” Pierce then compares Georgia’s sentencing scheme for aggravated child molestation with the sentencing schemes for the crime in other southern states.
Traditionally, it is the task of the legislature, not the courts, to define crimes and set the range of sentences. The legislature’s choice of sentence is insulated from judicial review unless it is wholly irrational or so grossly disproportionate to the severity of the crime that it constitutes cruel and unusual punishment.
(Citation and punctuation omitted.) Rooney, supra, 287 Ga. at 6. As the United States Supreme Court has explained, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare . . . . [W]e stated that the proportionality principle would come in play in the extreme example if a legislature made overtime parking a felony punishable by life imprisonment.” (Citations omitted.) Ewing v. California, 538 U. S. 11, 21 (II) (A) (123 SCt 1179, 155 LE2d 108) (2003). “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.” Harmelin v. Michigan, 501 U. S. 957, 994 (IV) (111 SCt 2680, 115 LE2d 836) (1991).
We hold here that the sentencing scheme, life or a minimum of 25 years to serve, is not so grossly disproportionate to the crime of aggravated child molestation, which involves molestation that physically injures the child or involves an act of sodomy, that would require us to find it “per se” cruel and unusual. See, e.g., United States v. Rolon, 445 Fed. Appx. 314, 332 (II) (H) (11th Cir. 2011) (life imprisonment on drug charges not per se cruel and unusual).
Pierce’s “as-applied” argument also fails. He contends that his life sentence with 30 years to be served and the remainder on probation was cruel and unusual because the evidence showed that the sexual intercourse was not forced, no violence was involved, he did not kidnap or restrain the teens and they were not physically injured, and he had no prior convictions.
Where, as here, no categorical Eighth Amendment restriction applies, we must in the following manner determine whether a sentence for [life with 30 years to serve] is grossly disproportionate for [Pierce’s] crime[s]. A court must begin by comparing the gravity of the offense and the severity of the sentence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. We have emphasized that it is the rare case in which the threshold inference of gross disproportionality will be met and a rarer case still in which that threshold inference stands after further scrutiny.
(Citations and punctuation omitted.) Jones v. State, 290 Ga. 670, 675 (3) (725 SE2d 236) (2012).
Pierce was charged with six counts of aggravated child molestation, and the evidence showed that he engaged in acts of anal and oral sodomy with two 14-year-old boys. The evidence also showed that he offered M. T. and B. M. prescription medication just prior to engaging in sex acts with them. The trial court sentenced Pierce to a life term on each count of aggravated child molestation to be served concurrently to the first count, resulting in a sentence of life with the first 30 years to be served in confinement.
Pierce’s argument that his punishment was too severe because the boys were 14 and there was no force involved is unavailing. “A fourteen-year-old boy is not legally able to consent to sexual relations with an adult male.” Ray v. State, 259 Ga. 868, 869 (3) (389 SE2d 326) (1990), overruled on other grounds, Wilson v. State, 277 Ga. 195 (586 SE2d 669) (2003). Where the legislature saw fit to carve out a sentencing exception where the victim is at least 13 years old but less than 16, and the defendant is under age 18 and no more than four years older than the victim, it did so. See
Under the facts presented here, Pierce’s concurrent life sentences with a total of 30 years to serve for multiple acts of aggravated child molestation do not raise even a threshold inference of gross disproportionality. See Jones, supra, 290 Ga. at 676 (3) (concurrent 25-year sentences for child kidnapping do not raise threshold inference of gross disproportionality; “[s]imilarly severe punishments for crimes against children have withstood previous attacks on constitutional grounds” (Citations and punctuation omitted.)); see also Pepe-Frazier v. State, 331 Ga. App. 263, 273 (3) (c) (770 SE2d 654) (2015) (no ineffective assistance for failing to object to life sentence for one act of oral sex with 14-year-old because it did not “raise threshold inference of gross disproportionality“). Accordingly, we reject Pierce’s claim that his sentence was cruel and unusual “as applied.”
Judgment affirmed. Hines, C. J., Melton, P. J., Benham, Hunstein, Nahmias, Blackwell, Grant, JJ., and Chief Judge Dwayne H. Gillis concur. Peterson, J., disqualified.
Notes
The original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if: (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; (2) No original can be obtained by any available judicial process or procedure; (3) At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) The writing, recording, or photograph is not closely related to a controlling issue.