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State v. Parks

Court of Appeals of Georgia, Third Division

June 24, 2019

PARKS; and vice versa.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          Gobeil, Judge.

         In this appeal and cross-appeal, the State appeals from the Superior Court of Gilmer County's order granting Daniel Franklin Parks a new criminal trial (Case No. A19A0491). Specifically, the State contends that, in granting the motion for a new trial, the lower court[1] erred when it: (1) ruled that the trial court erred by allowing in evidence of Parks's polygraph refusal; (2) ruled that the polygraph examiner should not have been able to testify through video as to the pre-test interview; (3) ruled that the trial court improperly excluded evidence of K. P.'s prior false allegation; and (4) raised and commented sua sponte on the alleged inappropriate comments by the State in its opening statement and the issue of whether Parks waived his right to be present at bench conferences.

         Parks cross-appeals from the same order, arguing that, the trial court erred in admitting at his trial other acts evidence relating to an uncharged anal sodomy allegation (Case No. A19A0873). For the reasons set forth below, we affirm in part, and reverse in part.

         The facts related to this appeal, show that, in 2013, Parks was indicted in the Superior Court of Gilmer County on charges of aggravated child molestation, sodomy (oral), and contributing to the delinquency of a minor based on acts that occurred on July 25, 2012. The case proceeded to a jury trial in 2014.

         Prior to the trial, Parks filed a motion to allow him to present evidence and/or question the complaining witness, K. P., regarding prior false allegations of rape and child molestation made by her. At the pretrial hearing on this motion, K. P.'s brother, T. P., then age 23, testified that approximately four years prior, when K. P. was 11 years' old, she accused him of inappropriately touching her. T. P. testified that the allegations were not true and he took a polygraph and passed it, and no charges were ever brought against him. On cross-examination, T. P. could not recall what the nature was of the inappropriate touching allegation. T. P. testified that K. P. was raped by someone a few months before she made the allegations against him. He acknowledged that K. P. had a change in personality after the rape and would do things to get attention. The State informed the court that the rape had been committed by a stranger and that the perpetrator had been prosecuted and convicted. On redirect examination, T. P. acknowledged that as a result of the inappropriate touching allegation, the Division of Family and Children Services ("DFCS") conducted an investigation, but "nothing ever became of that."

         Despite attempts to refresh her recollection, K. P. (then age 16), testified that she did not remember previously making any allegation against her brother. Following argument by both parties, the court held that this evidence would not be allowed at trial for the following reasons: (1) it was a "non-specific comment as to inappropriate touching which could fall into other categories other than the inappropriate sexual contact as required by the [OCGA § 24-4-412]"; (2) given the context of everything happening in K. P.'s life at the time and the non-specific nature of the comment, it did not "rise to the level of a true false allegation as contemplated by [OCGA § 24-4-412] which would show somebody's reputation for untruthfulness about something that critical"; and (3) the court was concerned that allowing in T. P.'s testimony that he took a polygraph test and passed would harm Parks, because it might "misdirect" the jury and cause them to give too much weight to the fact that Parks declined to take a polygraph.

         At trial, K. P., who was 14 years old at the time of the alleged offenses, testified that, on July 25, 2012, Parks, who was a friend of K. P.'s mother and the mother's boyfriend, came over to K. P.'s house while her mom was at work. Prior to Parks's visit, he and K. P. had been talking to and texting one another. During one of these conversations, K. P. disclosed that she had tried drugs with her boyfriend, which she testified was information she did not want her mother to know because she was "scared of her [mother's] opinion." K. P. testified that she met Parks outside when he arrived and they went inside the house and sat on the couch in the living room. She stated that Parks "placed his hand on [her] knee" for a few seconds, but then indicated that he was ready to leave, so she walked him back outside. After they got outside, Parks grabbed K. P.'s arm, and asked her if she wanted him to tell her mother that she had done drugs. K. P. responded "no," and Parks gave her a "weird little smile" and "looked like he wanted something." K. P. stated that Parks then pulled his penis out of his pants, and asked her to perform oral sex on him, or else he would tell her mother that she had tried drugs. K. P. then performed oral sex on Parks, during which time, Parks placed his hands on the back of K. P.'s head and moved her head back and forth. While K. P. was performing oral sex on Parks, her older brother saw what was happening and started banging on the window, and Parks pushed K. P. to the ground, got in his truck, and left. K. P. asked her brother not to tell their mother what had happened.

         K. P. testified that, a few days later, on July 30, 2012, she asked Parks to give her a ride to a friend's house and he agreed. During the ride, they discussed what happened at her house a few days earlier, but K. P. could not remember any details of the conversation or who started the conversation. Instead of taking her to her friend's house, Parks pulled into a local park, grabbed her leg, flipped her over onto her stomach, pulled down her pants and underwear, and forcibly stuck his penis inside her anus.[2] Parks's counsel objected to this testimony on the grounds that it was not relevant because Parks was not charged with anything that allegedly occurred on July 30, 2012. The State maintained that the events were connected and went to "continuing course of conduct." The trial court initially reserved ruling on the issue, but ultimately overruled the defense's objection, concluding that it was for the jury to determine whether the two events were "properly connected."

         K. P. testified that, after the rape, she tried to use her phone to call her mom, but Parks took the phone and smashed it with a rock and hit K. P. on the forehead with a rock. K. P. then got out of the truck and went and hid underneath a bridge until Parks left. After Parks left, K. P. went to her grandmother's house, and her grandmother called the police. K. P. admitted that she initially lied to authorities and did not tell them that it was Parks because she was afraid of him. That night, K. P.'s brother told her mother what had happened between K. P. and Parks at their house a few days prior.

         On cross-examination regarding the incident on July 25, K. P. stated that she could not remember where Parks's truck was, which direction it was parked, or where she and Parks were standing in the driveway when she performed oral sex on Parks. She stated that, when Parks came to her house that day, her brother was home but was taking a nap, although she did not remember where he was napping. She denied that she had run away from home on July 30. She acknowledged that she spoke with an EMT on July 30 after the police were called to her grandmother's house and remembered telling the EMT that she was picked up and raped by a man named Christopher who drove a white truck, which she admitted was a lie. She did not remember any more details about what she may have said to the EMT or anyone at the hospital.

         K. P.'s brother, T. P., testified that, on July 25, 2012, he was taking a nap before work, and K. P. told him she was going outside to talk on the phone. T. P. was napping on the living room couch when a truck engine woke him up, and he went to his parents' bathroom, stood up on the sink, and looked out of the window, which is when he saw K. P. performing oral sex on Parks against the passenger side of Parks's truck. T. P. stated that Parks's hands were on top of K. P.'s head. T. P. started banging on the window and yelling and ran outside to confront Parks, but by the time he got outside, Parks was speeding away in his truck. T. P. testified that he never heard or saw anyone come into the house. T. P. stated that he wanted to call the police, but K. P. wanted to keep it a secret. However, he testified that he told his mother about the incident "a few weeks later" when "the other stuff happened."

         On cross-examination, T. P. confirmed that there were only two couches in their house and both of them were in the living room. T. P. acknowledged that, in his statement to police on July 30, 2012, he said that he observed K. P. and Parks against the driver's side of the truck, but he explained that he must have "mixed [it] up." He also confirmed that only a few days passed between the oral sex incident and when he gave his statement to police.

         Pamela Rushton, an agent and polygraph examiner with the Georgia Bureau of Investigation, testified that she was contacted by an investigator with the Gilmer County Sheriff's Office to conduct a polygraph exam on Parks. Rushton testified that Parks came in voluntarily. Rushton explained that the first part of the polygraph procedure involves getting the individual to sign a waiver form advising the person of his or her Miranda[3] rights. Next, the examiner conducts a pre-test interview, during which the examiner reviews the allegations in the case (as relayed to her by law enforcement), the questions that will be asked, and explains the polygraph procedure/how the polygraph machine works to the individual. Rushton testified that she never completed a polygraph examination on Parks because, during the pre-test interview, Parks stated that he needed an attorney which ended the interview. A copy of the waiver of rights form and the consent to undergo a polygraph examination form, both signed by Parks, were admitted without objection. Rushton explained that the pre-test interview with Parks was recorded, and a copy of the interview was admitted into evidence without objection.[4] The recording of the approximately hour long pre-test interview was then played for the jury.

         During the interview, Parks stated that he understood that he was being interviewed because he was being accused of rape, but he denied the allegations. Parks stated that he knew K. P. (although not well) through her mother, and that he had been to K. P.'s house on a few occasions.

         For approximately the next 30 minutes, Rushton reviewed the allegations against Parks, gave her opinion on the case, explained Parks's options and pleaded with him to tell the truth. Parks did not speak during this time. Specifically, Rushton explained that she knew that Parks had denied all of the allegations against him, but Rushton stated that she would expect him to say that regardless of whether he committed the rape because the human reaction is to shut down or retreat when threatened.

         Rushton told Parks that he had "three options." First, if he had not participated in any type of sexual activity with K. P., including oral or anal sexual activity, then he should have no problem taking the polygraph test. Second, if he participated in any sexual activity with K. P., then Parks could walk out the door and not take the polygraph test (which the examiner stated was not a good option), or he could take the polygraph test and fail (which the examiner asserted was far worse than the acts of which Parks was accused, because it would irrevocably strip Parks of his integrity and Parks could never get that back). Third, if something had happened between Parks and K. P., Parks could give his side of the story. Rushton then cautioned that, if he planned on lying to her, he would "come up on the losing end" because she had been conducting polygraph examinations for 10 years and had conducted over 5, 000 exams.

         Rushton continued, further explaining that she had reviewed K. P.'s brother's statement that he witnessed K. P. performing oral sex on Parks. Rushton said that she asked the investigator why K. P.'s brother might have a reason to lie, and the investigator could not give her a reason. Additionally, Rushton told Parks that she did not find his statement credible because she did not know many men who would get up at midnight to give someone a ride out of the "goodness of their heart." She also observed that it apparently took Parks two hours to give a ride that should have only taken fifteen minutes. Rushton further opined that Parks's statement "[did] nothing but corroborate [K. P.'s] story." Then Rushton suggested that, if something did happen between Parks and K. P., then maybe K. P. "came onto" Parks. Rushton stated, "I don't know if [K. P.] rubbed herself on you and got you sexually aroused. I don't know. I know there's two people that [do] know the complete truth, that [were] there, and that's you and [K. P.]. [She] says forced, you say absolutely nothing at all." Rushton encouraged Parks to admit something happened if it was a consensual act, because that would be better than the picture that was being portrayed of a "monster" that held K. P. down and forced her to do something that she did not want to do.

         Next, Rushton explained to Parks that because he denied any sexual activity occurred, she would be using the polygraph test to determine whether any sexual activity occurred between the two of them. Rushton then stated, "my question is are you prepared to take a polygraph test on those questions" solely regarding whether any sexual activity occurred, and advised Parks that if he could answer "no" to those questions then he would pass the test. However, Rushton informed Parks that based on 20 years of law enforcement experience, she saw "red flags all over [his] story." Rushton also noted that, if she had issues with his story as a law enforcement officer, then Parks should imagine "what 12 mamas and daddies sitting on [a] jury [are] go[ing to] say when they bring [K.P.] out there and put her on that stand and she starts crying and talking about how you forced her to do something that she didn't want to do." Although Rushton informed Parks that "the choice [was his]," she advised him that, if something had ...

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