Baughns v. the State , 335 Ga. App. 600 ( 2016 )


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  •                               THIRD DIVISION
    ELLINGTON, P. J.,
    DILLARD and MCFADDEN, JJ.
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    http://www.gaappeals.us/rules
    February 5, 2016
    In the Court of Appeals of Georgia
    A15A2242. BAUGHNS v. THE STATE.                                             JE-082C
    ELLINGTON, Presiding Judge.
    A Clarke County jury found Justin Baughns guilty beyond a reasonable doubt
    of aggravated assault, OCGA § 16-5-21 (b) (2) (with a deadly weapon); and four
    counts of burglary in the first degree, OCGA § 16-7-1 (b). Following the denial of his
    motion for a new trial, Baughns appeals, contending that the trial court erred in
    admitting evidence of other acts and in admitting a custodial statement.1 For the
    reasons explained below, we affirm.
    1
    Because this case was tried after January 1, 2013, Georgia’s new Evidence
    Code applies. See Ga. L. 2011, pp. 99, 214, § 101.
    Viewed in the light most favorable to support the verdict,2 the evidence shows
    the following. In the last two weeks of November 2012, Baughns and two other
    young men committed a string of burglaries in Athens-Clarke County. In most of
    them, the burglars gained entry by using a tool to pry around a rear door or window,
    sometimes kicking in the door, and stole computers, televisions, and jewelry.
    Baughns participated in the burglaries primarily as the driver, and he sold items stolen
    in the earlier burglaries to a pawn shop. From one burglary on November 26, the
    thieves obtained the victim’s handgun. One of Baughns’ accomplices carried that
    handgun during another burglary that same day, and, when the homeowner
    confronted the burglars with a knife, he shot and killed the man. The burglars left
    behind a tire iron that was consistent with the pry marks from several of the earlier
    burglaries.
    The State charged the three men in a single indictment, which included six
    counts of burglary that named Baughns as a perpetrator3 and five counts of burglary
    2
    See Jackson v. Virginia, 
    443 U.S. 307
    (99 SCt 2781, 61 LE2d 560) (1979).
    This recitation of facts is based in part on the evidence which Baughns contends the
    trial court erroneously admitted. We have rejected his evidentiary challenges for the
    reasons discussed below.
    3
    Specifically, these burglaries were of 295 Old Monroe Road on November 14
    , 170 Vaughn Road, Apartment 2, on November 19 , 2006 South Milledge Avenue
    2
    that did not name Baughns as a perpetrator.4 At Baughns’ separate trial, the State,
    over Baughns’ objection, introduced evidence of all eleven burglaries. Also over
    Baughns’ objection, the State offered evidence of an inculpatory statement Baughns
    gave while in custody on December 12, 2012, and the State played a videorecording
    of the interview for the jury. In that statement, Baughns admitted picking up one of
    his co-defendants in his car and dropping him off at the time and location of one of
    the burglaries and, in a borrowed car, driving both of his co-defendants to the location
    of the last burglary and waiting for them in the car.
    1. Baughns contends that the five burglaries charged in the indictment that did
    not name him as a perpetrator were extrinsic acts that were irrelevant to his guilt as
    to the six counts of burglary that did name him. He argues that the evidence had at
    best a very slight probative value in explaining how one of his co-defendants came
    into custody, which value was substantially outweighed by the prejudicial effect of
    on November 20-21, and 502 Rustwood Drive, 130 Fair Oaks Drive, and 400
    Jefferson River Road on November 26. Note: the jury found Baughns not guilty of
    the Rustwood Drive and Fair Oaks Drive burglaries.
    4
    Specifically, these burglaries were of 212 Sleepy Creek Drive on November
    16-23, 125 Cardinal Creek Place on November 20-21, 200 Timothy Road on
    November 23-25, 263 Arch Street on November 24, and 195 Pepperidge Lane on
    November 25-26.
    3
    the evidence, and that the evidence was therefore inadmissible under OCGA §§ 24-4-
    4035 and 24-4-404 (b).6 “Evidentiary rulings are reviewed under an abuse of
    discretion standard[.]” (Citation omitted.) Reeves v. State, 
    294 Ga. 673
    , 676 (2) (755
    SE2d 695) (2014).
    In response to Baughns’ objection at trial, the State argued that Baughns and
    his co-defendants were indicted as co-conspirators in “a burglary spree” and that the
    evidence would show that for each of the burglaries Baughns would drive the others
    to the residences to be burgled. The trial court determined that, even if the evidence
    of the uncharged burglaries did not directly implicate Baughns, those burglaries arose
    out of the same burglary spree as the charged burglaries and therefore the evidence
    was admissible as being intrinsic to the charged offenses.
    Under longstanding Georgia law, all the acts and circumstances surrounding
    and constituting the res gestae are admissible, despite the fact that they may reflect
    5
    OCGA § 24-4-403 provides: “[r]elevant evidence may be excluded if its
    probative value is substantially outweighed by the danger of unfair prejudice,
    confusion of the issues, or misleading the jury or by considerations of undue delay,
    waste of time, or needless presentation of cumulative evidence.”
    6
    OCGA § 24-4-404 (b) provides, except as otherwise provided, “[e]vidence
    of other crimes, wrongs, or acts shall not be admissible to prove the character of a
    person in order to show action in conformity therewith.”
    4
    poorly on a defendant’s character.7 This rule carried forward to the new Evidence
    Code under the concept of “intrinsic facts” evidence, as compared to evidence of
    7
    See, e.g., Nash v. State, 
    285 Ga. 753
    , 754 (2) (a) (683 SE2d 591) (2009)
    (“Even though a defendant is not charged with every crime committed during a
    criminal transaction, every aspect of it relevant to the crime charged may be presented
    at trial.”) (citation and punctuation omitted); Roberts v. State, 
    282 Ga. 548
    , 551 (6)
    (651 SE2d 689) (2007) (Evidence that, prior to shooting the victim, the defendant
    purchased marijuana from him was admissible as part of the res gestae because the
    defendant learned from that transaction that the victim was carrying money.); Igidi
    v. State, 
    251 Ga. App. 581
    , 583 (1) (554 SE2d 773) (2001) (“[T]he state is entitled to
    present evidence of the entire res gestae of the crime. Even though a defendant is not
    charged with every crime committed during a criminal transaction, every aspect of it
    relevant to the crime charged may be presented at trial. This is true even if the
    defendant’s character is incidentally placed in issue.”) (punctuation and footnote
    omitted); see also Paul S. Milich, Ga. Rules of Evidence, § 11:3 (database updated
    October 2015) (“[A]ll the acts and circumstances surrounding and constituting the res
    gestae were admissible [under the old Evidence Code], despite the fact that they may
    reflect poorly on a party’s character.”) (footnote omitted).
    5
    “extrinsic acts” which are generally inadmissible pursuant to OCGA § 24-4-404 (b).8
    Under relevant federal authority,9
    evidence is intrinsic to the charged offense, and thus does not fall within
    Rule 404 (b)’s ambit, if it (1) arose out of the same transaction or series
    of transactions as the charged offense; (2) is necessary to complete the
    story of the crime; or (3) is inextricably intertwined with the evidence
    regarding the charged offense.
    8
    As Professor Milich explained:
    The Federal Rules of evidence retired the term “res gestae” in . . . [the]
    character rule context[ ] and the new 2013 Georgia rules do so as well.
    However, the essence of the doctrine in the context of the character rule
    remains the same with new terminology. Facts that are “intrinsic” to or
    “inextricably intertwined” with the events at issue at trial are generally
    admissible to give the factfinder a truer, contextual view of the material
    facts in the case. All of the facts and circumstances surrounding the
    crime for which the accused is charged are admissible as “intrinsic”
    despite the fact that the evidence may incidentally reflect poorly on the
    accused’s character. . . . [For example,] when the crime charged is part
    of a crime spree or “rampage” the entire chain of crimes can be proved
    at trial, even if they were not all charged, as they are all intrinsic to the
    offense.
    (Footnotes omitted.) Paul S. Milich, Ga. Rules of Evidence, § 11:3.
    9
    See State v. Brown, 
    333 Ga. App. 643
    , n. 21 (777 SE2d 27) (2015)
    (explaining extent to which Georgia’s courts look to federal evidence jurisprudence
    in applying our new Evidence Code).
    6
    (Citation and punctuation omitted.) United States v. Nowak, 370 Fed. Appx. 39, 41
    (I) (11th Cir. 2010). See also United States v. Edouard, 485 F3d 1324, 1344 (II) (C)
    (11th Cir. 2007) (accord). Moreover,
    evidence, not part of the crime charged but pertaining to the chain of
    events explaining the context, motive, and set-up of the crime, is
    properly admitted if linked in time and circumstances with the charged
    crime, or forms an integral and natural part of an account of the crime,
    or is necessary to complete the story of the crime for the jury.
    (Citations omitted.) 
    Id. In this
    case, the uncharged offenses were part of a crime spree committed by
    a burglary crew of which Baughns was a part, even if there was no evidence that he
    directly participated in those offenses. All of the offenses were committed in a similar
    way, within a two-week period and in the same area of Athens-Clarke County, and
    included overlapping participants. Consequently, the trial court did not abuse its
    discretion in admitting evidence of the uncharged burglaries. Carter v. State, 
    269 Ga. 891
    , 892 (3), (4) (506 SE2d 124) (1998); Rust v. State, 
    264 Ga. App. 893
    , 897 (1)
    (592 SE2d 525) (2003); Sullivan v. State, 
    242 Ga. App. 839
    , 840-841 (3) (531 SE2d
    367) (2000); Vick v. State, 
    211 Ga. App. 735
    , 737 (2) (440 SE2d 508) (1994); Baird
    v. State, 
    207 Ga. App. 44
    , 44-45 (1) (427 SE2d 37) (1993).
    7
    2. Baughns contends that the record shows that his December 12, 2012
    custodial confession was induced by a hope of benefit and, therefore, that the trial
    court abused its discretion in admitting that confession.
    “No person shall be compelled to give testimony tending in any manner to be
    self-incriminating.” Ga. Const. 1983, Art. 1, § 1, ¶ XVI. OCGA § 24-8-824 provides:
    “To make a confession admissible, it shall have been made voluntarily, without being
    induced by another by the slightest hope of benefit or remotest fear of injury.” The
    following Code section, OCGA § 24-8-825, provides: “The fact that a confession has
    been made under a spiritual exhortation, a promise of secrecy, or a promise of
    collateral benefit shall not exclude it.” The rules set out in OCGA §§ 24-8-824 and
    24-8-825 “have appeared together since Georgia’s first code, see Code of 1863, §§
    3716-3717, and they are carried forward without any substantive change in the new
    Georgia evidence code that [took] effect on January 1, 2013.” (Citations omitted.)
    Brown v. State, 
    290 Ga. 865
    , 868, n. 1 (725 SE2d 320) (2012).10 Our appellate
    decisions have established that the phrase “the slightest hope of benefit” in OCGA
    § 24-8-824 is a term of art which must be understood in conjunction with the
    limitations set out in OCGA § 24-8-825 and “does not encompass every conceivable
    10
    See also State v. Chulpayev, 
    296 Ga. 764
    , 771 (2) (770 SE2d 808) (2015).
    8
    benefit that the police may offer a suspect in an effort to induce him to confess.”
    Brown v. 
    State, 290 Ga. at 868
    (2) (b). “It has also long been understood that
    ‘slightest hope of benefit’ refers to promises related to reduced criminal punishment
    – a shorter sentence, lesser charges, or no charges at all.” (Citations and punctuation
    omitted.) State v. Chulpayev, 
    296 Ga. 764
    , 771 (2) (770 SE2d 808) (2015).11 “The
    promise of a benefit that will render a confession involuntary under [OCGA § 24-8-
    824 (former] OCGA § 24-3-50[)] must relate to the charge or sentence facing the
    11
    State v. Ray, 
    272 Ga. 450
    , 451-452 (2) (531 SE2d 705) (2000) (Where
    interrogators “posited a ‘hypothetical’ to [the defendant] indicating that when a
    murder is committed by two individuals, the party willing to testify against the other
    would have the possibility of not facing the death penalty . . . [and] intimated that [he]
    could save himself from execution by telling the officers truthfully about the
    crimes[,]” and when the defendant asked, “what would I get if I give the other guy
    up?”, an officer replied, “Possibly – here’s what I can tell you. Years of freedom[,]”
    the defendant’s ensuing confession was inadmissible as having been induced by a
    hope of benefit.); State v. Robinson, 
    326 Ga. App. 63
    , 66 (755 SE2d 869) (2014)
    (Where an interrogator told a suspect, who knew that his alleged accomplices were
    also being interviewed, “[t]he person that cooperates is the person that gets help[,]”
    that statement, viewed under the totality of the circumstances, did appear to offer the
    defendant “some hope of benefit – i.e., it indicates that if [he] cooperated truthfully
    with police, he would get a lighter sentence than his accomplices.”); Askea v. State,
    
    153 Ga. App. 849
    , 851-852 (3) (267 SE2d 279) (1980) (“[T]he interrogating officer’s
    remark that ‘it (i.e., telling the truth) would probably help him in court’ [held] out at
    least some hope for reward by special consideration if the suspect cooperate[d]” and
    rendered the confession inadmissible.).
    9
    suspect.” (Footnote omitted, emphasis supplied.) White v. State, 
    266 Ga. 134
    , 135 (3)
    (465 SE2d 277) (1996).
    Thus, our courts have held that it is not a promise that relates to the charge or
    sentence facing the suspect under OCGA § 24-8-824 (and its predecessor statutes)
    where an interrogator merely promises to tell the prosecutor or the court that the
    suspect cooperated, accepted responsibility, was justified in connection with the
    offenses at issue, etc. This is so regardless whether the interrogator’s promise to relate
    such information might encourage the suspect to hope that, ultimately, other actors
    in the criminal justice system will be inclined to be more lenient – the prosecutor in
    drawing up charges, the finder of fact in determining guilt, the judge in imposing
    sentence, etc.12 “Whether a statement was made voluntarily is to be determined by
    12
    Turner v. State, 
    296 Ga. 394
    , 395-396 (2) (768 SE2d 458) (2015) (no hope
    of benefit where an interrogator told the suspect that she should tell him how her baby
    received the injuries discovered on her body because it would be more difficult for
    her to explain them later to a jury or judge and that the court would drill her on such
    issues); Taylor v. State, 
    274 Ga. 269
    , 273-274 (2) (553 SE2d 598) (2001) (no hope
    of a benefit where an investigator told the suspect, in the context of her concerns
    about custody of her children, that he would help her in every way he could, that it
    might look good to the judge if she admitted her role in the crimes rather than lying,
    and that she had a golden opportunity to help herself), overruled in part on other
    grounds, State v. 
    Chulpayev, 296 Ga. at 783
    (3) (b); Gilliam v. State, 
    268 Ga. 690
    ,
    692 (3) (492 SE2d 185) (1997) (no hope of a benefit where interrogator told the
    suspect that it would help if he told the truth and that the judge would know that he
    confessed); State v. Jackson, 
    332 Ga. App. 356
    , 357 (772 SE2d 804) (2015) (no hope
    10
    assessing the totality of the circumstances. Where the facts surrounding a police
    interview are undisputed because the recorded interview is part of the appellate
    record, our review of the trial court’s admissibility ruling is de novo.” (Citations and
    punctuation omitted.) Johnson v. State, 
    295 Ga. 421
    , 424 (2) (761 SE2d 13) (2014).
    In arguing that his confession is inadmissible as having been induced by a hope
    of benefit, Baughns points to the following exchanges that occurred during the
    December 12, 2012 interview, before he admitted that he drove his two co-defendants
    to the deceased victim’s home :
    Investigator:        You had nothing to gain when we first spoke. You had
    nothing. You didn’t have warrants signed on you for
    murder when we first spoke. You have it now. OK? It’s a
    real thing. It’s not like it’s made up. . . .
    To me this is the saddest part, OK? Your daughter is gonna
    grow up without a father. Pretty much the same way you
    grew up without a father. Which is horrible. And I’ve got
    of a benefit where an investigator told the suspect that, if he were not honest with the
    police, he would not be helping his child, who was going to need both parents, and
    that the only way out of jail and to look to the future was to be honest); Cooper v.
    State, 
    257 Ga. App. 896
    , 898 (1) (572 SE2d 417) (2002) (no hope of benefit where
    an investigator told the suspect that he was going to be the prosecuting officer and
    that he would like to be able to tell the judge that the suspect was honest and
    cooperated with him); Frei v. State, 
    252 Ga. App. 535
    , 537-538 (2) (b) (557 SE2d 49)
    (2001) (no hope of a benefit where an investigator told the suspect that he would let
    the district attorney know that he had cooperated and that he would do what he could
    to help the suspect).
    11
    to live with myself to be the person that’s making that
    happen. . . .
    I have to be the one to tell your mom that her baby is going
    to prison. For life. I have to be the one to do that. . . .
    I want to be able to say that [Baughns] was honest with me.
    He cooperated with me and he helped out. And he tried to
    get justice for [the deceased victim’s] family so that
    [Baughns] can give his family peace of mind knowing that
    he did the right thing and that he’ll be with them soon. As
    opposed to saying that [Baughns is] a hardcore mother
    fucker that’s going to prison for the rest of his life. . . .
    Baughns:             I hope [me talking will] change something, man.
    Investigator:        It’s gonna change something! . . .
    Baughns:             I don’t want to go to jail for the rest of my life, but they
    said I did something. . . .
    Baughns:             But [the other two perpetrators are] gonna get the same
    amount of time and they killed [the victim].13
    Investigator:        Bullshit! Bullshit! That’s total bullshit! You’re gonna try
    and tell me that somebody [who is] sorry for what [he] did
    is gonna get the same time as a cold-blooded killer?!
    In other exchanges throughout the interview, investigators repeatedly framed their
    inquiries in terms of what they wanted to be able to tell the judge. Any suggestions
    13
    The trial court transcribed this response, which occurred after an investigator
    began explaining about the liability of parties to a crime, slightly differently, as “But
    that gets the same amount of time that gets for the killing.”
    12
    of a possible benefit were either completely nonspecific (e.g., “help yourself” ) or
    along the lines of allowing Baughns to have more credibility with the jury for having
    been honest early. Under the totality of the circumstances, we conclude that any
    benefits promised by the investigators to induce Baughns’ confession did not relate
    to the charges or sentence he was facing in such a way as to render the confession
    inadmissible under OCGA § 24-8-824.14
    Judgment affirmed. Dillard and McFadden, JJ., concur.
    14
    See cases cited in footnote 
    10, supra
    .
    13
    

Document Info

Docket Number: A15A2242

Citation Numbers: 335 Ga. App. 600, 782 S.E.2d 494

Judges: Ellington, Dillard, McFadden

Filed Date: 2/18/2016

Precedential Status: Precedential

Modified Date: 11/8/2024