Appellee Robert Lenoris Smith was indicted by a Decatur County grand jury for felony murder and other offenses arising out of the shooting death of Octavius Powell. Smith filed a number of prе-trial motions, including a motion to suppress evidence of an oral admission, written statements, and video recordings of any statement made to law enforcement officers while in custody. After
that the State failed to prove by a preponderance of the credible evidence that the statement of defendant was freely, voluntarily, knowingly, and understandably made and entered, and the statement was made аnd entered without any undue influence, compulsion, duress, promise of benefit, or fear of injury.
The State filed this appeal. We hereby affirm the trial court’s ruling.
1. At the Jackson-Denno hearing, the State sought to admit a video disc of the investigating officers’ interview of Smith the day after the crimes occurred. Investigator Nix of the Bainbridge Public Safety Department testified he wаs present at the interview, and he was asked to authenticate a video disc that the State claimed was a recording of the Smith interview. The prosecutor and Investigator Nix engaged in an off-the-record discussion, and it appears that Investigator Nix could not authenticate the first disc the State marked as an exhibit as being the samе disc his department submitted to the prosecutor and which he had already reviewed. That disc was withdrawn, and a second disc was then marked as an exhibit. The prosecutor then asked Investigator Nix whether this second disc was a recording of the videotaped interview of Smith that he had brought with him to court. Investigator Nix indicated he would need to аudition the second disc before he could testify about it. The record reflects a break in the proceedings was taken so that he, Smith, and the two attorneys could view the disc in the judge’s chambers. The parties acknowledge that the judge did not view the recording.
This testimony, however, did not hold up on cross-examination. Investigator Nix testified that his recollection, from prеviously viewing a video recording of the interview, was that the interview lasted one hour and twenty-three minutes. But he admitted he did not view the entire video when he watched it in the judge’s сhambers and he could not attest to whether the recording he reviewed in chambers was one hour and twenty-three minutes long. Instead, he testified that the purpose of his in-chambers review was to confirm that the entire audio portion of the recording was captured, due to problems with the audio on discs in other cases in which he had testified, though he admitted that since he did not watch the entire video he did not have the chance to make that determination. He also stated he wanted to make sure the disc he was being asked to authenticate was the same one he watched earlier in the morning before appearing in court and not one of the othеr copies of the recording. Although he testified that the disc he watched in chambers was the one he had reviewed earlier and then placed in a binder he gavе to the prosecutor, he acknowledged the disc had no identifying markers on it that would confirm this fact. He further testified he was not present when the disc in question was made.
The evidentiary rule regarding authentication of evidence is set forth in OCGA § 24-9-901. With respect to authenticating a video recording of a defendant’s custodial statement, the Stаte must show it is a fair representation of the statement, and may authenticate the recording by any witness familiar with the subject depicted on the recording, as is the case with any other video recording presented as evidence at a criminal trial. See Heard v. State,
2. When reviewing a trial court’s decision on a motion to suppress evidence of a defendant’s custodial statement to investigators, “we must accept the factual findings and credibility dеterminations of the trial court unless clearly erroneous ...” Cheley v. State,
For example, although Investigator Nix was present at the interview and claimed to have reviewed the video rеcording earlier in the morning of the hearing, he could not recall whether a third investigator, who was mentioned by name by Smith’s counsel, was also present. Smith’s counsel asked Investigator Nix whether he told Smith in the course of the interview that if he cooperated he would be willing to tell the victim’s father that he showed remorse. Again, even though he clаimed to have reviewed the video recording that day, the witness could not recall whether he made this statement to Smith. In response to questioning, Investigator Nix testified that if he did make that statement he could not say if his motive would have been to induce Smith to make statements he had not otherwise volunteered to make. Although no evidence was presented that the witness did, in fact, make such a representation to Smith, we cannot say that the witness’ uncertainty and inability to deny such a representation, considered with the evidence as a whole, was insufficient to create doubt about the witness’ credibility. And, given the exclusion of the video recording, his testimony was the only evidence offered that Smith’s statement met constitutional standards that it was given voluntarily, knowingly, and understandingly, and without promise of benefit or threat of injury.
In reviewing the superior court’s ruling on [а motion] to suppress, this Court must be guided by three fundamental precepts: first, when a motion to suppress is heard by the trial judge sitting as the trier of fact, the judge hears the evidence and the judge’s findings on conflicting evidence are analogous to a jury verdict, and consequently, should not be disturbed by the appellate court if there is any evidenсe to support them; second, the trial court’s decisions on questions of fact and credibility are to be accepted unless they are clearly erroneоus; and third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.
(Citations omitted.) State v. Colvard,
Judgment affirmed.
Notes
Jackson v. Denno,
We also note the State did not tender the disc into the record for purpose of appellate review, and thus this Court has also not reviewed the recording.
Miranda v. Arizona,