Morales v. the State , 337 Ga. App. 614 ( 2016 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER, P. J., and BRANCH, J.
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
June 29, 2016
In the Court of Appeals of Georgia
A15A2386. MORALES v. THE STATE.
BRANCH, Judge.
On appeal from his conviction for rape, Christian Morales argues that the
evidence did not support the jury’s verdict and that the trial court erred when it denied
his motion to suppress his statement to police and when it admitted only the
incriminating portions of that statement. We find no reversible error and affirm.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation
omitted). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only 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 v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).
So viewed, the record shows that on the evening of March 3, 2013, the victim,
a mother of three, went to a DeKalb County club to dance, fully clothed, with men for
a dollar per song. After she had danced with a few men, Morales approached the
victim as she was eating and began talking to her. Morales, who was accompanied by
several others, wrote his name and phone number on the victim’s hand and asked her
to call him. As the victim prepared to leave the club, Morales offered the victim a
ride, which she refused, telling him that she was going to take a taxi. As the victim
went down the steps to the club’s taxi stand, Morales insisted that she ride home with
him. When the victim continued to refuse, Morales put his hand over her mouth and
told her to be quiet or something was going to happen to her.
Morales and another man, Elman Mendez, then forced the victim into the
backseat of a car driven by a third man, Ruperto Mencho, who drove to a nearby park.
A fourth man called Zurdo, who had been seated in the front seat of the car and was
wearing a white shirt, took the victim out of the car, beat her, placed her on the grass,
and told her that she was going to die. When it became clear that the victim was not
going to lose consciousness, the man called the other men for help in taking the
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victim’s clothes off and holding her down on the ground. Zurdo forcibly penetrated
the victim’s vagina with his penis while he held his hand over the victim’s mouth.
Zurdo then forced his penis into the victim’s mouth, during and after which Mencho
and Morales also had forcible intercourse with the victim. The victim’s cell phone,
money, and keys were taken during the attack. Morales later confessed to being
present throughout the attack, to having intercourse with the victim, and to
ejaculating inside her a “little.”
As Mendez also attempted to rape the victim, the three other men heard sirens
and fled. When Mendez apologized to the victim, the victim responded that if he
stayed with her, she would not tell the police anything about the incident. When
Mendez agreed, the victim took him to a house nearby, telling him that her aunt lived
there. No one answered the door at that house, however. At the second house, a
woman opened the door, but she began to scream for the police when the victim told
her that she had been raped. Although no one responded at the third house, two police
cars soon arrived on the street, and the victim, who was found walking with Mendez,
mouthed the words “Help me” to one of the police officers. After she had been
separated from Mendez, the victim told the officers that she had been attacked by four
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men, including Mendez. On the basis of information gained from Mendez the
following day, police arrested Mencho and Morales. Zurdo was never apprehended.
At the hospital to which the victim was taken by police, an examination
showed that the victim, who was crying, dirty, and disheveled, had suffered numerous
external injuries, including scratches on her face and bruises on her neck, inner
thighs, and genitals, as well as injuries to her cervix. Two unarmed detectives were
present at an interview with Morales, who was not restrained. One of the detectives,
who spoke Spanish, read a Miranda warning printed in Spanish to Morales and
obtained Morales’s initials and signature on that warning. The detective then
interviewed Morales in Spanish. During the first part of the fifty-two minute
interview, all of which was transcribed, Morales admitted that the other men had told
him that they “were going to rape” the victim, but denied that he had done so. Toward
the end of the interrogation, however, Morales admitted that he had intercourse with
the victim and had ejaculated a “little” into her body. In the course of the interview,
the detective urged Morales to “tell the judge” “sincerely” that he had “made a
mistake” and to write the words “Forgive me for everything” on his recorded
statement.
4
Mencho, Morales, and Mendez were charged with rape and kidnapping. Only
Mencho’s DNA was detected in a swab taken from the victim’s vagina. Mencho pled
guilty to rape, and Mendez to aggravated assault with intent to rape. After a hearing,
Morales’s motion to suppress his statement on the ground that it was not voluntarily
given was denied. After a trial at which Morales did not testify, a jury acquitted him
of kidnapping but found him guilty of rape. Morales was convicted and sentenced to
life in prison. His motion for new trial was denied.
1. Although Morales challenges the sufficiency of the evidence against him,
that evidence, including his confession to having intercourse with the victim after his
confederates had beaten and raped her, authorized the jury to conclude that Morales
had sexual intercourse with the victim forcibly and against her will and was therefore
guilty of rape. See OCGA § 16-6-1 (a) (1) (defining rape); McKenzie v. State, 187 Ga.
App. 840, 842 (1) (371 SE2d 869) (1988) (affirming co-defendants’ convictions for
rape when victim had cervical abrasions consistent with forcible sex); Jackson, supra.
2. Morales argues that the trial court erred in denying his motion to suppress
his statement because (a) his Miranda rights were not waived knowingly and
intelligently and (b) his statement to police was not freely and voluntarily given. We
disagree.
5
On appellate review of “a trial court’s grant or denial of a motion to suppress,
the trial court’s findings on disputed facts will be upheld unless clearly erroneous,
and its application of the law to undisputed facts is subject to de novo review.”
Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011) (citation omitted).
“[W]hether a defendant lacks the capacity to understand and waive such rights due
to a mental deficiency or illiteracy is a question of fact for the trial court to
determine.” Id. “The admissibility of a defendant’s statements is determined based on
the totality of the circumstances.” Drake v. State, 296 Ga. 286, 289 (2) (766 SE2d
447) (2014) (citation omitted).
(a) The record shows that at the time of his interview, Morales was 18 years
old, had been in the United States for four months, and had finished the sixth grade
in Guatemala. The copy of the Miranda warnings that Morales initialed and signed
was in Spanish, and was read to Morales in Spanish, and the transcript of the
interview shows that when Morales responded to questions as to whether he
understood his Miranda rights, he responded, “Hmm” and nodded his head, at which
point the detective told him that he was required to respond affirmatively by saying,
“Yes,” which Morales did. This trial court did not clearly err when it concluded that,
under the totality of the circumstances, Morales understood his Miranda rights and
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knowingly and voluntarily, without coercion, waived those rights. Barrett, 289 Ga.
at 200 (trial court’s factual finding that defendant did not suffer from cognitive
impairment sufficient to show that he did not have the capacity to understand and
knowingly waive Miranda rights was not clearly erroneous).
(b) 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 promise of a benefit that will render a confession involuntary . . .
must relate to the charge or sentence facing the suspect. Generally, the
“hope of benefit” to which the statute refers has been construed as a
hope of lighter punishment.
Foster v. State, 283 Ga. 484, 485-486 (2) (660 SE2d 521) (2008) (citations and
punctuation omitted). Specifically, neither a police officer’s nor a family member’s
exhortation that a defendant tell the truth or ask for forgiveness constitutes an
impermissible hope of benefit. Lee v. State, 270 Ga. 798, 800 (2) (514 SE2d 1) (1999)
(officer’s advice that a defendant should “help [him]self out” was merely an
encouragement to tell the truth, which did not amount to a hope of benefit under
former OCGA § 24-3-50); see also Duke v. State, 268 Ga. 425, 426 (2) (489 SE2d
811) (1997); Davenport v. State, 277 Ga. App. 758, 759 (627 SE2d 133) (2006)
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(victim’s mother’s promise that if the defendant “confess[ed] right away,” the family
would ask the judge “for some amount of mercy,” did not amount to any hope of
benefit).
Here, this officer’s statements that Morales should “tell the judge” “sincerely”
that Morales had “made a mistake” and write the words “Forgive me for everything”
on his recorded statement were mere exhortations that Morales should tell the truth.
Because “no ‘hope of benefit’ springs from such an admonishment,” Edenfield v.
State, 293 Ga. 370, 375 (2) (744 SE2d 738) (2013), this trial court did not err when
it concluded that Morales’s confession was voluntary. Id.; see also Drake, 286 Ga.
at 290-291 (3) (affirming trial court’s determination that officers’ pleas that defendant
should tell the truth, their exaggerations of the strength of incriminating evidence,
their falsehood that the victim had survived the shooting, and their insistence that
they wanted to “help” did not, under the totality of the circumstances, make that
defendant’s statement involuntary); Johnson v. State, 295 Ga. 421, 425 (2) (761 SE2d
13) (2014) (officer’s suggestion that defendant would be “well served by offering his
version of events as a means of justifying or mitigating his role in the assaults” at
issue did not render that defendant’s statement involuntary) (citations omitted).
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3. Morales also argues that in light of the admission of the incriminating
portions of his statement into evidence, the trial court should have also admitted the
earlier portions of that statement under the “rule of completeness” codified at OCGA
§§ 24-1-106 and 24-8-822, and therefore erred when it granted the State’s motion in
limine to exclude those earlier portions. The State responds that because the earlier
portions of the statement are self-serving declarations, they are not admissible as
admissions against interest and remain inadmissible hearsay. We agree that Morales’s
entire statement should have been admitted under the rule of completeness, but
conclude that the error was harmless.
(a) We review a trial court’s ruling on a motion in limine for an abuse of
discretion. Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010) .
However,
[b]y its very nature, the grant of a motion in limine excluding evidence
suggests that there is no circumstance under which the evidence under
scrutiny is likely to be admissible at trial. In light of that absolute, the
grant of a motion in limine excluding evidence is a judicial power which
must be exercised with great care.
Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995) (citation omitted).
9
The record shows that the State filed a motion in limine to exclude the
“exculpatory and neutral portions” of Morales’s statement in which he denied raping
the victim on the ground that self-serving declarations of a defendant are inadmissible
hearsay. The trial court granted the motion such that Morales was barred from cross-
examining the detective as to all except the inculpatory sections of Morales’s
statement unless Morales decided to testify in his own defense. At trial, and after
consultation with counsel, Morales decided not to take the stand, with the result that
the detective testified only on direct examination as to Morales’s admissions that he
had sex with the victim and ejaculated inside her a “little.”
A party’s own admission, offered by an opponent, is not hearsay and is always
admissible. OCGA § 24-8-801 (d) (2) (A).1 However, a self-serving declaration, such
as a statement of one’s innocence, remains “inadmissible hearsay unless the declarant
testifies and is subject to cross-examination.” Parker v. State, 276 Ga. 598 (2) (581
SE2d 7) (2003) (citation omitted); see also OCGA § 24-8-802 (2014) (“Hearsay shall
not be admissible except as provided by” other provisions of the Evidence Code).
1
OCGA § 24-8-801 (d) provides in relevant part: “(2) Admissions by
party-opponent. Admissions shall not be excluded by the hearsay rule. An admission
is a statement offered against a party which is: (A) The party’s own statement, in
either an individual or representative capacity[.]”
10
On appeal, the State repeats that under these general principles, the exculpatory
portions of Morales’s statement remain inadmissible hearsay. But such a result would
ignore Georgia’s longstanding “rule of completeness,” now codified as OCGA § 24-
8-822 (formerly OCGA § 24-3-38), which provides that “[w]hen an admission is
given in evidence by one party, it shall be the right of the other party to have the
whole admission and all the conversation connected therewith admitted into
evidence.” (Emphasis supplied.) OCGA § 24-1-106, the counterpart of Federal Rule
of Evidence 106,2 likewise provides that
[w]hen a writing or recorded statement or part thereof is introduced by
a party, an adverse party may require the introduction at that time of any
other part or any other writing or recorded statement which, in fairness,
should be considered contemporaneously with the writing or recorded
statement.
As the Supreme Court of Georgia has recently noted, the rule of completeness
2
Federal Rule 106 provides: “If a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that time, of any
other part--or any other writing or recorded statement--that in fairness ought to be
considered at the same time.” OCGA § 24-1-106 “mirror[s]” Rule 106 of the Federal
Rules of Evidence, and the Supreme Court of Georgia has held that “where the new
Georgia rules mirror their federal counterparts, it is clear that the General Assembly
intended for Georgia courts to look to the federal rules and how federal appellate
courts have interpreted those rules for guidance.” Parker v. State, 296 Ga. 586, 592
(3) (a) (769 SE2d 329) (2015).
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prevents litigants from misleading the jury by presenting portions of
prior statements taken out of context and is often “essential in order to
arrive at the true drift, intent and meaning of what was said on the
previous occasion.” Smalls v. State, 105 Ga. 669, 671 (31 SE 571)
(1898). Thus, “[i]t is the universal rule, in both civil and criminal cases,
that, if part of a conversation is introduced, all that is said in the same
conversation which is relevant to the issue should be admitted.” West v.
State, 200 Ga. 566, 569 (37 SE2d 799) (1946).
Westbrook v. State, 291 Ga. 60, 62 (2) (727 SE2d 473) (2012) (emphasis supplied);
see also Fitzgerald v. State, 201 Ga. App. 361, 363 (2) (411 SE2d 102) (1991).
Further, the Eleventh Circuit has recently held that a trial court violated the rule
of completeness and abused its discretion when it excluded only the exculpatory
portions of a defendant’s custodial statement concerning the cocaine found in his bag
soon after he disembarked from an airplane. United States v. Pacquette, 557 Fed.
Appx. 933, 936-937 (II) (11th Cir. 2014). The defendant had initially claimed
ownership of everything in the bag, but denied knowledge of the cocaine once that
contraband was found in the same bag. Id. at 934-935. The Eleventh Circuit
concluded that the defendant’s entire statement, including his denial, was “relevant
to the primary issue in the case” – his “knowledge” of the cocaine found in the bag
– and was also “relevant to the admitted portions of his statement” such that the trial
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court abused its discretion in excluding the exculpatory portions of the statement and
in barring cross-examination as to the inculpatory portions of the same. Id. at 937 (II)
(B).
Here, as in Pacquette, the State proffered only a portion of Morales’s single
custodial interrogation (which lasted fifty-two minutes), and successfully argued for
the exclusion of all other parts of that interrogation. But the earlier portions of
Morales’s statement remained “relevant” to the central issue before this jury: whether
he committed the crime of rape. See Westbrook, 291 Ga. at 62 (2) (“if part of a
conversation is introduced, all that is said in the same conversation which is relevant
to the issue should be admitted”) (emphasis supplied). The earlier parts of the
interrogation also remained relevant on the subject of the voluntariness of his
confession, which remained for the jury’s consideration even after the denial of his
motion to suppress his statement. See Spence v. State, 252 Ga. 338, 343 (3) (313
SE2d 475) (1984) (“the ultimate question of the voluntary character of [a defendant’s]
statement and its truthfulness is for the jury, and they are not bound by the trial
court’s earlier determination on this issue”) (citation omitted). Because the earlier
portions of Morales’s transcribed statement were relevant as to both whether he
committed the rape and whether the statement was voluntary, the trial court violated
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the rule of completeness and abused its discretion when it excluded those earlier
portions of that statement. See Westbrook, 291 Ga. at 62 (2) (affirming admission of
a witness’s entire statement, including its inculpatory portions, when it was relevant
to defendant’s self-defense claim); Pacquette, 557 Fed. Appx. at 937 (II) (B)
(reversing the exclusion of portions of defendant’s custodial statement as a violation
of the rule of completeness and an abuse of discretion).3
(b) Even if the trial court erred in excluding most of Morales’s statement,
however, we must also consider whether that error was harmless – that is, whether it
is highly probable that the error did not contribute to the jury’s verdict and to the trial
court’s entry of judgment on that verdict. Westbrook, 291 Ga. at 63 (2); see also
Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976) (adopting the “highly
probable” test for harmless error).
3
The State’s citations to Williamson v. United States, 512 U. S. 596 (114 SCt
2431, 129 LE2d 476) (1994), and United States v. Allen, 416 Fed. Appx. 875 (11th
Cir. 2011), are unavailing. Williamson does not mention the rule of completeness, let
alone rule on it. See Williamson, 512 U. S. at 600-601 (II) (A). The statements at
issue in Allen were merely those overheard by the arresting officers, and the
government did not seek to introduce any transcribed statement. Allen, 416 Fed.
Appx. at 883-884 (VIII) (when “[t]he government did not introduce any written or
recorded statement,” the defendant could not obtain admission of his exculpatory
written statement under the rule of completeness).
14
Morales points out that for most of the duration of his custodial statement, he
denied that he had intercourse with the victim. Morales also points to his acquittal on
the kidnapping charge as support for his contention that the evidence against him was
short of overwhelming. The State’s evidence authorized the jury to conclude,
however, that Morales approached the victim at the club, wrote his name and phone
number on her hand, put his hand over her mouth and threatened her, had intercourse
with her, ejaculated inside her, and fled the scene even before the approach of police.
Morales also fails to note that the admission of the earlier portions of his statement
would have led the jury to consider that by his own account, he remained at the scene
after the three other men told him that they were “going to rape” the victim and after
Zurdo and Mencho actually did so – in short, that, as he himself put it, he “just stayed
there watching.” Further, Morales never suggested that he took any action to help the
victim as she was raped by Zurdo and Mencho. The erroneous exclusion of this
highly inculpatory evidence makes it impossible for Morales to show that he was
harmed by the trial court’s error in excluding the arguably exculpatory sections of his
statement.
Taken together, the admitted and improperly excluded evidence showed
overwhelmingly that Morales was guilty of rape, whether principally or as a party to
15
the crime, rendering it highly probable that any error in failing to admit the earlier
portions of his statement did not contribute to the jury’s verdict. See Cole v. State,
279 Ga. App. 219, 221 (1), 225 (8) (a) (630 SE2d 817) (2006) (erroneous admission
of similar transaction evidence was harmless in light of overwhelming evidence that
defendant got the victim drunk, held her in a car, and raised no objection while a co-
defendant raped her such that defendant was guilty as a party to the crime of rape);
Westbrook, 291 Ga. at 63 (2) (any possible error in admitting hearsay evidence of
defendant’s guilt under the rule of completeness was harmless in light of other,
overwhelming evidence); Jackson v. State, 262 Ga. App. 451, 454 (3) (585 SE2d 745)
(2003) (failure to admit defendant’s entire statement under OCGA § 24-3-38 was
harmless where excluded evidence was cumulative of other evidence admitted at
trial), overruled on other grounds, Carter v. State, 266 Ga. App. 691, 693 (2) (598
SE2d 76) (2004), but cited with approval in Mitchell v. State, 293 Ga. 1, 2-3 (2) (742
SE2d 454) (2013). Similarly, in light of our holding in Division 2, and having
reviewed the improperly excluded portions of Morales’s statement, we cannot say that
a jury considering the entire statement would likely have concluded that it was not
voluntarily made. See Colton v. State, 296 Ga. 172, 180 (2) (766 SE2d 38) (2014)
16
(any error in admitting evidence of defendant’s non-custodial statement was
“harmless in light of other properly admitted evidence at trial”).
For all these reasons, the trial court did not err when it denied Morales’s
motion for new trial.
Judgment affirmed. Andrews, P. J., and Miller, P. J., concur.
17