Matthew Caleb Pierce was tried before a jury and found guilty
on six counts of aggravated child molestation, two counts of
child molestation, two counts of sexual battery, and one
count each of sexual exploitation of a child, distribution of
Hydromorphone, and distribution of Alprazolam. The crimes
involved acts with three teenage boys, B.M., M.T., and D.D.
Pierce filed his appeal in the Court of Appeals, which
transferred the case to this Court because it raises the
issue of the constitutionality of a statute, an issue over
which this Court has exclusive jurisdiction. See Ga. Const.
of 1983, Art. VI, Sec. VI, Par. II (1). In addition to his
constitutional claims, Pierce argues that the trial court
erred in admitting a videotaped interview of B.M. and
photographs of text messages from D.D.'s cell phone. For
the following reasons, we hold that all of Pierce's
claims are without merit, and therefore affirm.
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.
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.
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.
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.
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.
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.
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 S.E.2d 872) (2017).
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 of the
presence of the jury.
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 OCGA § 24-8-803 (5), past
recollection recorded. In establishing the foundation for the
video's admission, B.M. confirmed that he was the person
in the video, testified that he remembered giving the
videotaped statement to police, that he had knowledge as to
what he was talking about in the video, and that when he gave
the statement to police, the things he discussed were fresh
in his memory. B.M. stated further that he told the truth
when he gave the statement. The trial court ruled that it
would allow the jury to watch B.M.'s videotaped
interview, and it was then played for the jury.
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[.]
OCGA § 24-8-803 (5). This Code section mirrors Federal
Rule of Evidence 803 (5). "And where the new Georgia
rules mirror their federal counterparts, it is clear that the
General Assembly intended for Georgia courts to look to the
federal rules and how federal appellate courts have
interpreted those rules for guidance." Parker v.
State, 296 Ga. 586, 593 (3) (a) (769 S.E.2d 329)
Eleventh Circuit Court of Appeals case presents facts similar
to those adduced here. In United States v. Jones,
601 F.3d 1247 (11th Cir. 2010), the witness
"lacked 'clear and distinct' recollection in her
response to the questions." 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.
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 OCGA § 24-8-803
(5) that the videotaped statement concerned a matter about
which B.M. once had knowledge but at trial had insufficient
recollection, which was made or adopted when the matter was
fresh in his memory, and which correctly reflected his
knowledge. The trial court therefore did not abuse its
discretion in allowing the admission of this evidence. See
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 S.Ct. 2658, 2664, 96 L.Ed.2d 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 S.Ct. 838, 841, 844,
98 L.Ed.2d 951) (1988).
(Punctuation omitted; emphasis in original.) Jones,
supra, 601 F.3d 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.
Pierce argues that portions of the videotaped interview
contained evidence of his character inadmissible under OCGA
§ 24-4-404, and that it was unfairly prejudicial and
therefore also inadmissible under the balancing test of OCGA
§ 24-4-403. However, Pierce did not specifically object
on these grounds prior to the videotape being played for the
jury. See OCGA § 24-1-103 (a) (1) (no error in rulings
on admission of evidence unless timely objection is made
stating the specific ground of objection). We therefore
review the ...