Howard v. the State , 334 Ga. App. 7 ( 2015 )

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
September 25, 2015
In the Court of Appeals of Georgia
A15A1219. HOWARD v. THE STATE.
MCFADDEN, Judge.
After a jury trial, Garrett Delmar Howard III was convicted of aggravated
assault (OCGA § 16-5-21 (c)) and possession of a firearm during the commission of
a crime (OCGA § 16-11-106). Howard argues that the trial court erred in denying his
motion for directed verdict, but evidence authorized the jury’s verdict of guilty.
Howard argues that the trial court erred in admitting evidence of inculpatory
statements he made when he was 15 years old, but the statements were spontaneous
utterances that did not implicate Howard’s Fifth Amendment rights. Finally, Howard
argues that the trial court erred in failing to give one of his requested jury charges
regarding the inculpatory statements, but the record shows that the requested charge
was not adjusted to the evidence. Accordingly, we affirm.
1. Directed verdict.
On appeal, we review the denial of a directed verdict of acquittal in a criminal
case under the standard of review set forth in Jackson v. Virginia, 443 U. S. 307 (99
SCt 2781, 61 LE2d 560) (1979). See Rivers v. State, 296 Ga. 396, 404 (10) (768 SE2d
486) (2015); Stansell v. State, 270 Ga. 147, 148 (1) (510 SE2d 292) (1998).
Accordingly, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U. S. at 319(III) (B) (citation omitted; emphasis in original).
So viewed, the evidence showed that in the early afternoon of December 3,
2011, a convenience store employee called 911 after seeing 15-year-old Howard,
whom he recognized as an occasional store customer, waving a gun and arguing with
someone outside the store. Corporal Donald Chad Cheek, a uniformed law
enforcement officer driving to a special assignment, heard a dispatch call about
“trouble with a subject with a gun,” and shortly thereafter saw someone, whom he
later identified as Howard, standing outside, jumping up and down, waving a
handgun, and screaming. Officer Cheek pulled his vehicle near Howard and turned
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on his emergency lights and siren. Howard turned toward the officer, pointed the gun
directly at Officer Cheek’s face and shot at him.
Howard fled, and Officer Cheek chased him on foot. The two exchanged
gunfire during the chase. Ultimately Howard escaped but was arrested several days
later. As a law enforcement officer at the sheriff’s office walked Howard down a
hallway to the booking desk, Howard spontaneously “apologiz[ed] for what had
happened.” He stated “that he was angry at the time and wanted to write Mr. Officer
Chad Cheek a letter of apology.” He also asked repeatedly “how much time he was
going to get over this.”
Howard argues that the trial court should have granted his motion for directed
verdict because the state did not present sufficient evidence that he was the
perpetrator, especially given some discrepancies in witness descriptions of his
apparent age and height. But Officer Cheek affirmatively identified Howard as the
perpetrator, both from a photographic lineup conducted a few hours after the shooting
and in court during trial. It was for the jury to gauge the credibility of the officer’s
identification. Colzie v. State, 289 Ga. 120, 121 (1) (710 SE2d 115) (2011). The trial
court did not err in denying the motion for directed verdict of acquittal. See id. at 121-
122 (1).
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2. Suppression of evidence of Howard’s statements.
Howard argues that the trial court erred in admitting evidence of the statements
of apology he made as a law enforcement officer walked him to the booking desk at
the sheriff’s office. He argues that the statements should have been suppressed
because some of the statutory booking procedures for juveniles then in effect, see
former OCGA §§ 15-11-47 (setting forth procedures for taking child into custody)
and 15-11-48 (setting forth procedures for detaining child alleged to have committed
violent offense),1 were not followed, noting that the record was silent as to whether
he had been allowed to speak with either a family member or attorney before he made
the statements. He also argues that his Fifth Amendment right against self-
incrimination was violated. We disagree.
Our Supreme Court has held that a “violation of the Juvenile Code does not
render [a juvenile’s] incriminating statement per se inadmissible.” Hanifa v. State,
269 Ga. 797, 805 (3) (505 SE2d 731) (1998); see also Johnson v. State, 261 Ga. App.
98, 101 (3) (581 SE2d 715) (2003). “The relevant inquiry is not whether the
[booking] procedures were followed to the letter before [a juvenile made a] statement
1
Current Code provisions setting forth the procedures for detaining and taking
a child into custody are at OCGA §§ 15-11-500 et seq.
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. . . , but whether [the juvenile] made a knowing and intelligent waiver of his
constitutional rights when he gave the incriminating statement.” Williams v. State,
273 Ga. App. 42, 45 (4) (614 SE2d 146) (2005); see also Johnson, 261 Ga. App. at
101 (3). Howard argues that he made the statements in violation of his Fifth
Amendment right against self-incrimination, and he cites the lack of evidence in the
record addressing factors relevant to a juvenile’s waiver of rights. See generally
Johnson, 261 Ga. App. at 101 (3). The Fifth Amendment, however, concerns
statements made by an accused during custodial interrogation. See Franks v. State,
268 Ga. 238, 239 (486 SE2d 594) (1997). A person’s Fifth Amendment rights are not
implicated when that person makes a spontaneous, unprompted utterance while in
custody. See Haggins v. State, 277 Ga. App. 742, 745 (2) (a) (627 SE2d 448) (2006).
Because the undisputed evidence in this case showed that Howard made the
statements at issue to a law enforcement officer spontaneously, and not in response
to any police interrogation, the trial court did not err in allowing the jury to hear
evidence of those statements. See id.
3. Jury charge.
Howard argues that the trial court erred in declining to give his requested jury
charge regarding the factors relevant to a determination of whether a statement by a
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juvenile was made with a knowing and intelligent waiver of his or her constitutional
rights. But as discussed above, because Howard made a spontaneous utterance, his
constitutional rights were not implicated. Consequently, Howard’s requested jury
charge was not adjusted to the facts of this case and the trial court did not err in
declining to give the charge. See Gardner v. State, 273 Ga. 809, 813 (6) (546 SE2d
490) (2001) (a “requested charge must be legal, apt and precisely adjusted to some
principle involved in the case and be authorized by the evidence” and a trial court
does not err in not giving a requested charge that fails to meet these requirements)
(citations and punctuation omitted).
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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