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Metcalf v. State

Court of Appeals of Georgia, Second Division

March 13, 2019

METCALF
v.
THE STATE.

          MILLER, P. J., BROWN and GOSS, JJ.

          Brown, Judge.

         Daniel Metcalf appeals from his convictions of two counts of criminal attempt to commit aggravated sodomy, three counts of criminal attempt to commit aggravated child molestation, and two counts of computer pornography. He contends that the trial court erred by (1) concluding that he made a knowing and voluntary waiver of his Miranda rights and (2) merging his criminal attempt to commit aggravated sodomy into his criminal attempt to commit aggravated child molestation instead of the other way around. For the reasons explained below, we affirm.

         The record shows that Metcalf was arrested following a police operation commonly referred to as "to catch a predator." A police detective assigned to a special task force investigating crimes against children on the Internet created a fictional profile on an online gay male dating site with a screen name of "twistedperv_ATLr/tperv." Metcalf responded to the detective's profile, and the two began corresponding by email. During these conversations, Metcalf and the detective engaged in graphic discussions about meeting in person to have anal and oral sex with 12-year-old and 5-year-old brothers. The detective stated in an email that the brothers were his girlfriend's children whom he already had sexually molested. The girlfriend and children referenced in the detective's emails were fictional. When Metcalf arrived at the prearranged meeting place, he was arrested.

         1. Metcalf asserts that the trial court erred in ruling that he made a knowing and voluntary waiver of his Miranda rights. We disagree.

Whether a defendant waives his rights under Miranda and makes a voluntary and knowing statement depends on the totality of the circumstances. In ruling on the admissibility of an in-custody statement, a trial court must determine whether a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, we accept the trial court's factual findings and credibility determinations relating to the admissibility of the defendant's statement. When controlling facts discernible from a videotape are not disputed, our standard of review is de novo.

         (Citation, punctuation and footnote omitted.) Francis v. State, 296 Ga. 190, 194 (3) (766 S.E.2d 52) (2014). Additionally, we "may consider all the evidence of record, in addition to the evidence adduced at the Jackson-Denno hearing, in determining the admissibility of a defendant's statement." (Citations and footnote omitted.) Id. at 194-195 (3).

         In this case, the record shows that following his arrest, Metcalf was taken to an interrogation room where his interview with police was video-recorded.[1] The video begins with Metcalf sitting alone for approximately three minutes. When the detective enters the room, he grants Metcalf's request to use the bathroom, and they both exit the room. Metcalf returns less than two minutes later, and an off-screen officer asks general questions relating to his education and military background. When the detective comes into the room approximately 30 seconds later, he says nothing to Metcalf, sits down, and begins completing a form attached to a clipboard. After filling out a portion of the form, he asks for Metcalf's social security number and information about his education and ability to read and write. After establishing that Metcalf had just begun graduate school to study business, the detective began explaining Metcalf's Miranda rights as follows, while holding and reading a form on a clipboard:

Because you have been placed into custody, anytime we talk to somebody, we have to go over their rights. I'm sure you've seen it on TV. Just to let you know what your rights are, okay? That's what this is. Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him or her with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without the lawyer present, you'll still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. That's probably the most important part. If you start talking and you decide you don't want to talk anymore, you can quit at any time. Now the next is my waiver of rights. I've read this waiver of my rights and I understand what my rights are. I'm willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I'm doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

         The detective held the form halfway between himself and Metcalf so that Metcalf had the opportunity to follow along as the detective read from it.

         When the detective finished reading the form, he started to hand the clipboard and a pen to Metcalf, who asked, "Can I ask what happens after you guys interview me?" The detective and the off-screen officer in the room explained that the amount of the bond and the length of time he might be incarcerated would be up to a judge. After this explanation, Metcalf states, "I just want to know before I sign anything, because I don't know how everything works." The off-screen officer then states, "That's fine. We'll be happy to answer your questions here." Metcalf then expresses concern that he would need numbers in his phone to call someone to make bond. The detective states they would let Metcalf look at numbers on his phone.

         After a momentary pause, the detective then holds out the form and a pen and states, "If you want to talk with us about this, I just need you to sign right there." Metcalf then reaches out with both hands, takes the form and the pen, states, "I mean I [unintelligible]" and begins signing the form. After Metcalf has started signing the form, the off-screen officer states: "By signing that, you're not saying you're guilty or anything else. It's just merely saying that you're willing to talk to us in here today." It is clear from the video that Metcalf did not stop signing the waiver while these words were spoken, and he did not even look up while the officer was speaking. His only response, while still signing the form, was that he wanted to try to go to school the following week. He then handed the form back to the detective, and his interview began.

         Relying upon State v. Darby, 284 Ga. 271 (663 S.E.2d 10) (2008), Metcalf filed a motion to suppress his statements in the police station because the detective told him that he needed to sign the form if he wanted to talk with the police. After the jury was selected and sworn, the trial court conducted a Jackson-Denno hearing outside of their presence. The detective testified that he informed Metcalf of his rights before questioning him, that Metcalf had no questions specific to these rights, and never invoked any of these rights during the interview. He also denied making any threats or promises of benefit to Metcalf. At the conclusion of the hearing, Metcalf's counsel asserted that his statements in the interview should be suppressed based upon the statement that Metcalf had to sign the waiver in order to speak with the officer, as well as the statement that the form merely said he was willing to speak with them. After hearing argument from the State, the trial court ruled from the bench stating:

I'll find on the date of the interview . . . the defendant was fully advised of his rights under the Miranda decision, voluntarily waived those rights and spoke to the officers. He was not threatened in any way or coerced. He was not promised anything to entice him to waive his rights. He was not under the influence of any drugs or alcohol to the extent he could not understand and knowingly waive those rights. He didn't ask for a lawyer and I will allow the jury to hear the statement.

         Following the jury's guilty verdict, Metcalf filed a motion for new trial. After a hearing on that motion, a new trial judge, who did not preside over the trial, issued an order denying the motion for new trial based upon its finding "that there is insufficient evidence to set aside the factual findings of the trial court that the Defendant understood his Miranda rights and knowingly, voluntarily and intelligently waived them."

         In this case, we conclude that the controlling facts are discernible from the video and support the trial court's finding that Metcalf made a knowing and voluntary waiver of his Miranda rights. The officer read all of the appropriate rights to Metcalf, and Metcalf, a college graduate, signed the form without expressing any lack of understanding of his rights.

         The Supreme Court of Georgia's opinions in Darby, supra, 284 Ga. at 271, and Benton v. State, 302 Ga. 570 (807 S.E.2d 450');">807 S.E.2d 450) (2017), upon which Metcalf relies, do not require a different result. In Darby, the trial court granted the defendant's motion to suppress because the police officers told the defendant, who made a spontaneous statement after invoking his right to counsel following a reading of his Miranda rights, that he had to sign a waiver in order to tell them his side of the story. 284 Ga. at 271-272 (1). The Supreme Court of Georgia held that the officer's statement "was erroneous because a suspect can always make a spontaneous, voluntary statement which would be admissible at trial." 284 Ga. at 272 (1). Accordingly, "[t]he trial court was authorized to find that [the defendant] did not knowingly and intelligently waive his Sixth Amendment right by executing the Miranda waiver, because he signed that document only after receiving the erroneous information that it was a precondition to telling his side of the story." (Punctuation omitted.) Id.

         In Francis, supra, the Supreme Court of Georgia affirmed a trial court's denial of a motion to suppress where a defendant was told to sign a waiver form "if you'd like to speak with me." 296 Ga. at 195-196 (3) (A). It distinguished its opinion in Darby, by pointing out that in Francis, the defendant "did not make a spontaneous statement or indicate that he wanted to do so." Id. at 195 (3). As that is also the case here, we find that Darby does not control.[2]

         In Benton, supra, the Supreme Court of Georgia conducted a de novo review of a videotaped police interview and reversed the trial court's denial of a motion to suppress. In that case, the defendant "was kicked out of school in the ninth grade and . . . could read, but not that much." (Punctuation omitted.) 302 Ga. at 573 (2). When the officer asked the defendant to explain what the officer had just read to him regarding Miranda, it was very clear that he lacked an understanding of his rights. Id. When the officer attempted to explain the rights in simpler terms, he omitted three of the four Miranda warnings. Id. at 475 (2). The Supreme Court held that

a person must understand his rights in order to knowingly and intelligently waive them. . . . Here, the record clearly demonstrates that [the defendant] did not understand the Miranda warnings as initially read to him. . . . Because the interrogating officer's subsequent explanation of those warnings was incomplete, we cannot say that [the defendant] knowingly and intelligently waived his rights under Miranda.

Id. at 575 (2).

         In this case, unlike Benton, there is no evidence that Metcalf, a college graduate, did not understand his Miranda rights. Moreover, it is clear from the video that he already had made his decision to sign the waiver form before the off-screen officer made a misstatement about the effect of the form. Indeed, he continued signing it as the officer spoke. Based upon the facts and circumstances of this case, and in particular our de novo review of the video, we cannot say that the trial court erred by finding that Metcalf made a knowing and voluntary waiver of his Miranda rights.

         2. Metcalf asserts that the trial court should have merged his attempted aggravated child molestation convictions relating to the five-year-old fictional child into his attempted aggravated sodomy convictions relating to the same child rather than vice versa. We disagree.

         (a) Statutory Provisions.

         Two statutory provisions govern merger in Georgia.[3]Pursuant to OCGA § 16-1-7 (a), an accused may not be convicted of more than one crime arising out of the same criminal conduct where

(1) One crime is included in the other; or
(2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

(Emphasis supplied.) A crime is included in the other when:

(1)It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
(2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

(Emphasis supplied.) OCGA § 16-1-6. As the Supreme Court recognized in State v. Estevez, 232 Ga. 316 (206 S.E.2d 475) (1974), overruled on other grounds, Drinkard v. Walker, 281 Ga. 211, 217 (636 S.E.2d 530) (2006), issues of merger are decided under these statutes. Id. at 317 (1). "Whether offenses merge is a legal question, which we review de novo." (Citation and punctuation omitted.) Regent v. State, 299 Ga. 172, 174 (787 S.E.2d 217) (2016).

         With regard to OCGA § 16-1-6 (1), "the 'required evidence test'[4] is utilized to determine whether multiple convictions are precluded because one of the crimes was established by proof of the same or less than all the facts that were required to establish the other crime." (Citation and punctuation omitted.) Regent, supra, 299 Ga. at 175. The other statutory provisions regarding merger "resolve potential gaps in the . . . 'required evidence' analysis which otherwise might support multiple convictions for closely related offenses where multiple convictions are unwarranted." (Citation omitted.) Id. The Supreme Court of Georgia recently explained the interrelationship between the required evidence test and other statutory provisions regarding lesser included offenses as follows: "Where . . . each offense requires an element of proof beyond the degree of injury or culpability that the other does not, neither of the offenses is included in the other, and the crimes do not merge under OCGA §§ 16-1-7 (a) (1) [and] 16-1-6." Norris v. State, 302 Ga. 802, 805 (III) (809 S.E.2d 752) (2018).[5]

         (b) Charges at Issue.

         With regard to the crimes at issue here, "[a] person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age." (Emphasis supplied.) OCGA § 16-6-2 (a) (2) (2010). "A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2 (a) (1) (2010).

         "A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy." (Emphasis supplied.) OCGA ยง 16-6-4 (c) (2010). Child molestation is defined, in relevant part, as "any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or ...


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