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Kaye v. State

Court of Appeals of Georgia, Fifth Division

June 20, 2017

KAYE
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         James Kaye was tried before a jury and convicted of multiple offenses arising out of a home invasion robbery. Kaye appeals, challenging the denial of a motion to suppress the statement he gave to police and the effectiveness of his trial counsel. However, the denial of the motion to suppress was not erroneous and trial counsel's performance was not both deficient and prejudicial. Accordingly, we affirm.

         1. Facts and procedural posture.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Hoglen v. State, 336 Ga.App. 471 (784 S.E.2d 832) (2016) (citation and punctuation omitted). So viewed, the evidence shows that Kaye helped James Marino and Rueben Allen plan the home invasion robbery of a family whom Kaye had known for many years. Kaye told Marino and Allen that the family kept large amounts of money and jewelry in safes in their house, described the locations of the safes to them, drove with Marino and Allen to show them where the house was located, discussed carrying out the robbery when the house was occupied since none of them knew the combinations to the safes, described a family vehicle and the work schedules of the husband and wife, and said that he could obtain a can of pepper spray for them to use during the robbery. Several days later, Marino and Allen bought a pellet gun and pepper spray and then went to the house to carry out the robbery. They attacked the husband when he came outside the house, went inside and forced the wife to open a safe, grabbed two minor children who were in the house, put the gun to the head of one of the children, and fled from the house with money taken from the safe.

         Police investigators subsequently identified Kaye, Marino, and Allen as suspects. During the investigation, Kaye gave a videotaped statement to police in which he admitted, among other things, that he had told Marino and Allen about the safes in the house and had driven them to see the house prior to the robbery. Kaye, Marino, and Allen were jointly indicted for multiple counts of armed robbery, aggravated assault, battery, and false imprisonment. Marino pled guilty to various counts and testified at Kaye's jury trial, which had been severed from Allen's trial.[1]The jury returned guilty verdicts on all charges, the trial court entered judgments of conviction and imposed sentences, and the court denied Kaye's motion for new trial. This appeal followed.

         2. Denial of motion to suppress videotaped statement.

         Kaye contends that the trial court erred in denying his motion to suppress his videotaped statement to a police detective because the statement was induced by a hope of benefit when the detective indicated that he would help Kaye out and let the district attorney know of Kaye's cooperation, stating "as much cooperation as you give will be reflected down there." We find no reversible error.

         As an initial matter, we acknowledge that Kaye is correct in noting that the trial court, in announcing its ruling, incorrectly distinguished between an incriminating statement and a confession by finding that Kaye's statement constituted "an admission and not a confession." But that distinction is immaterial because "[i]t has long been the law in this [s]tate that the rule as to the admissibility of an incriminatory statement is the same as that applied to a confession. [Cits.]" Vergara v. State, 283 Ga. 175, 177 (1) (657 S.E.2d 863) (2008). So, that mistake does not amount to reversible error: the trial court went on to also deny the motion to suppress based on a correct finding that the detective's comments did not constitute a hope of benefit that would render Kaye's statement involuntary.

         Under former OCGA § 24-3-50, in effect at the time of Kaye's trial, [2] incriminating statements are only admissible if "made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury."

Thus, to overcome suppression, the [s]tate must show that (1) the suspect was not presented with the slightest hope of benefit, and (2) even if a hope of benefit was presented to the criminal defendant by the [s]tate, the suspect's incriminating statements were not actually induced by this hope of benefit, such that his or her confession was rendered involuntary as a matter of law.

State v. Munoz, 324 Ga.App. 386, 390 (749 S.E.2d 48) (2013) (citations and punctuation omitted; emphasis in original).

         In this case, Kaye was not under arrest at the time he gave the taped interview. He had contacted a police officer he knew in order to provide information about the robbery, the officer took him to a police station to be interviewed by the lead detective on the case, and after the interview Kaye left the station. A review of the taped interview reveals that the interview lasted for approximately 24 minutes and that the complained of comments by the detective indicating that he would let the district attorney know of Kaye's cooperation did not occur until over 16 minutes into the interview. Thus, the record plainly shows that any of Kaye's incriminating statements that came prior to the detective's comments were not actually induced by those comments. "[E]ven if such verbiage is considered to be improper as holding out hope of benefit, it could not relate back to influence anything said by [Kaye] prior to that time." Burley v. State, 190 Ga.App. 75, 79 (3) (b) (378 S.E.2d 328) (1989) (citation and punctuation omitted). Although the motion to suppress in this case was denied on other grounds, "a trial court's ruling on a motion to suppress will be upheld if it is right for any reason." Fincher v. State, 276 Ga. 480, 481 (2) (578 S.E.2d 102) (2003) (citations and punctuation omitted). See also Gaston v. State, 257 Ga.App. 480, 483-484 (2) (571 S.E.2d 477) (2002) (even if a trial judge incorrectly denies a motion to suppress on one basis, we may affirm the denial on another basis). Because the detective's comments could not have actually induced any of Kaye's previously made incriminating statements, the denial of Kaye's motion to suppress as to those previous statements must be affirmed.

         Kaye has not identified any specific incriminating statements made after the detective's comments that should have been suppressed, and we note that at that point of the interview the detective was asking about Kaye helping to find Rueben Allen. So it appears that the detective's comments about Kaye's cooperation referred to such help by Kaye, not to Kaye giving any further statements to the detective. Regardless, even assuming that Kaye made incriminating statements after the detective's comments, the comments about informing the district attorney of Kaye's cooperation did not constitute an improper hope of benefit rendering Kaye's subsequent statements inadmissible. "Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the hope of benefit sufficient to render a statement inadmissible under OCGA § 24-3-50." Samuels v. State, 288 Ga. 48, 50 (2) (701 S.E.2d 172) (2010) (citations and punctuation omitted). Accord Arline v. State, 264 Ga. 843, 844 (2) (452 S.E.2d 115) (1995); Davis v. State, 245 Ga.App. 508, 509 (538 S.E.2d 159) (2000) (investigator does not make an improper offer of hope of benefit by telling defendant that his cooperation will be made ...


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