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Wilson v. State

Court of Appeals of Georgia, Fifth Division

June 25, 2019

WILSON
v.
THE STATE.

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          Goss, Judge.

         After a jury trial, Appellant David Wilson was convicted of one count of aggravated assault, family violence (OCGA § 16-5-21 (j))[1] and one count of misdemeanor escape (OCGA § 16-10-52). Appellant appeals from the denial of his motion for new trial, arguing that the trial court erred in allowing the State to introduce a recorded telephone conversation conducted by the victim while she was alone in a police interview room because the recording violated Georgia's Eavesdropping Statute, OCGA § 16-11-62. He also argues that the trial court erred in admitting the recorded telephone conversation because it contained impermissible character evidence. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(citation and punctuation omitted.) Driggers v. State, 291 Ga.App. 841, 841 (662 S.E.2d 872) (2008).

         So viewed, the evidence produced at trial shows that on May 15, 2013, Jessica Wilson, the victim and wife of Appellant, was driving in a car with Appellant and her two children. An argument occurred between Appellant and Wilson, and they pulled the car over at a gas station. Wilson exited the car and would not return to it despite Appellant's demands that she do so and take him to his mother's house. Shaniqua Harris, a clerk at the gas station, watched the altercation while she was standing outside on a smoke break. Harris testified at trial that Wilson "looked pretty scared" and "didn't want to go in that car with him." Harris testified that Appellant then exited the car and that another verbal altercation erupted between the two before Appellant returned to his car, retrieved a kitchen steak knife, and stabbed Wilson in the thigh. Harris explained that Wilson screamed, "[y]ou stabbed me," and Appellant fled the scene in his vehicle with her two children still in the backseat. Harris observed Wilson pull the knife out of her leg and toss it into a garbage can. Harris identified the knife at trial. Harris recounted that she told Wilson to come into the gas station so she could call the police, but Wilson refused. The gas station manager called 911, and police responded to the scene.

         Later that afternoon, Wilson agreed to waive her Miranda rights and speak with police officers. Wilson was interviewed by Detective Manley in an interview room at the police station. The interview was videotaped. During the police interview, Wilson told Detective Manley that Appellant had unintentionally stabbed her in the leg with a "metal comb thing" that was in his pocket, and that she had retrieved the knife from the car and thrown it in the trash can herself.

         After questioning Wilson, Detective Manley left the room explaining, "I'll be right back then." He did not state that the interview was over. Wilson then made phone calls to undisclosed recipients. Her side of these phone conversations were captured on the video recording and played for the jury. During one of these conversations, Wilson discussed her marriage to Appellant, her frustrations with him, and his desire to sell drugs.

         The recorded interview and Wilson's subsequent telephone conversations were introduced as State's Exhibit 23. Appellant objected to the portion of Exhibit 23 that contained Wilson's phone conversations on the basis that the substance of her statements contained highly prejudicial character evidence relating to Appellant which was not admissible for any purpose under OCGA § 24-4-404. The trial court overruled the objection. Immediately prior to the State's introduction of Exhibit 23, Appellant further objected to the admission of that portion of Exhibit 23 on the basis that the telephone conversation was inadmissible pursuant to Georgia's Eavesdropping Statute, OCGA § 16-11-67. The trial court overruled the objection.

         The State heard expert testimony from Rose Grant Robinson about the contradictory behavior of domestic violence victims, as well as evidence of several prior difficulties between Wilson and Appellant wherein Appellant had previously beaten her with a crowbar, a curtain rod, and had punched her in the face in front of his parole officer.

         1. Appellant argues that the trial court erred in allowing the State to introduce the portion of Exhibit 23 which recorded a phone call Wilson made after being left alone in the police interview room. Appellant argues that this recording violates Georgia's Eavesdropping Statute, OCGA § 16-11-62.[2] Pretermitting the issue of whether Appellant has standing to contest the admission of Exhibit 23, [3] we find that the trial court did not err in overruling Appellant's objection because Wilson did not have an expectation of privacy at the time the call was made.

         Georgia's Eavesdropping Statute provides that "[n]o evidence obtained in a manner which violates any of the provisions of [the Eavesdropping Statute] shall be admissible in any [Georgia] court[.]" OCGA § 16-11-67. Our Supreme Court has held that this prohibition includes the use of a recording for impeachment purposes. Ransom v. Ransom, 253 Ga. 656, 658 (1) (324 S.E.2d 437) (1985). Under the former Eavesdropping Statute, it is unlawful for "[a]ny person in a clandestine manner intentionally to . . . record . . . the private conversation of another which shall originate in any private place." OCGA § 16-11-62 (1) (2000). Furthermore, the Eavesdropping Statute provides that it is unlawful to "record the activities of another which occur in any private place and out of public view" when recorded without the consent of the person observed. OCGA § 16-11-62 (2) (2000). It also prohibits "any other acts of a nature similar to those set out in [the statute] which invade the privacy of another." OCGA § 16-11-62 (7) (2000).

         Our analysis hinges upon whether Wilson was in a "private place" while she was unaccompanied in a police interview room. Former OCGA § 16-11-60 (3)[4]defines "'private place' [as] a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance." Our Supreme Court has "looked to Fourth Amendment jurisprudence as a guide when interpreting the scope of privacy protected by [former] OCGA § 16-11-62." (Citations and footnote omitted.) State v.Cohen, 302 Ga. 616, 629 (2) (b) (807 S.E.2d 861) (2017).[5] In doing so, the court in Cohen noted that

the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy that has been invaded." This inquiry normally embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy - whether the individual has shown that he seeks to preserve something as private. The second question is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as ...

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