X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

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 SCt 2781, 61 LE2d 560 (1979).(citation and punctuation omitted.) Driggers v. State, 291 Ga. App. 841, 841 (662 SE2d 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 SE2d 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 SE2d 861) (2017).[5] In doing so, the court in Cohen noted thatthe 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 reasonable — whether the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.(Citations and punctuation omitted.) Id. at 630 (2) (b). See also Quintrell v. State, 231 Ga. App. 268, 270 (1) (499 SE2d 117) (1998) (“In discerning the scope of the statutory meaning of ‘private place,’ we ascribe the same scope as has been given to the Fourth Amendment protections”).Georgia courts have routinely held that a person does not, without other assurances of privacy not present in the instant case, have a reasonable expectation of privacy while in a police station or police car.[6] See Thompson v. State, 191 Ga. App. 906, 907 (383 SE2d 339) (1989) (a “police station is not a ‘private place’ within the meaning of [the Georgia Eavesdropping Statute]“). In Meyer v. State, 150 Ga. App. 613 (258 SE2d 217) (1979), this Court concluded that the trial court correctly suppressed testimony of a police officer as to an incriminating statement he overheard the defendant make in a telephone call made from the front desk reception area of a police station. Id. at 614 (2). This Court reasoned that because the call was made with police personnel within her vicinity and there was no request for more private accommodations, the defendant had no reasonable expectation that her conversation would be private. Id. at 615 (2) (A). Likewise, in Dickerson v. State, 292 Ga. App. 775 (666 SE2d 43) (2008), this Court held that the admission of a recorded conversation between a defendant and his mother in a police interview room did not violate the Fourth Amendment as there was no subjective expectation of privacy when the defendant failed to ask for a private space to converse, there were no representations that the space would remain confidential, and officers were able to enter into the room during the conversation. Id. at 779 (2). Further, in Burgeson v. State, 267 Ga. 102, 105-106 (3) (d) (475 SE2d 580) (1996), a hidden tape recording device capturing a conversation between arrestees placed in the back of a patrol car did not violate the Georgia Eavesdropping Statute because the Georgia Supreme Court concluded that in a police car, much like a jail cell, there exists no reasonable expectation of privacy. Id.In the instant case, even if the evidence shows that Wilson had a subjective expectation of privacy when she was left alone in a police interview room, we conclude that this expectation of privacy was not reasonable or justifiable under the circumstances of the case. Despite Appellant’s arguments to the contrary, although Wilson was not charged with a crime, the circumstances still should have alerted her that she did not have a reasonable expectation of privacy under the circumstances. Wilson had been given a Miranda warning; she was aware that she was at the police station to give a statement in connection with a crime; she was in the interview room and had been told that she was not free to leave; the detective had made no representation of privacy or confidentiality; she was aware that the interview had not yet been terminated; and she was aware that Detective Manley or other employees could come into the room at any moment.We are unpersuaded by the dissent’s reliance upon the exception to OCGA § 16-11-62 (2) (A). OCGA § 16-11-62 (2) (A) provides that “it is not unlawful to use any device to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated[.]” (Emphasis supplied). This subsection clearly applies only to the “ persons incarcerated[,]” OCGA § 16-11-62 (2) (A). In the instant case, Wilson was not incarcerated or charged with a crime. Rather, she was the victim of a crime who had consented to questioning at the police station.2. Appellant argues that the trial court erred by permitting the State to introduce Wilson’s recorded phone call because it contained impermissible character evidence. We find no error.Specifically, Appellant objects to the admission of the portion of Wilson’s phone call where she stated that Appellant’s “idea in life is he wants drugs, more drugs, more drugs to sell” because it contained impermissible character testimony. The trial court overruled the objection. In its order on the motion for new trial, the trial court ruled that the evidence of the recorded phone call was admissible “to show a possible source of animosity between the parties and a motive for the stabbing.”In evaluating the admission of this evidence, we note that OCGA § 24-4-404 (b) “is, on its face, an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts is deemed relevant and may be properly offered into evidence.” (Citation and punctuation omitted.) Thompson v. State, 302 Ga. 533, 539 (III) (A) (807 SE2d 899) (2017). Despite its inclusive nature, OCGA § 24-4-404 (b) “prohibits the admission of such evidence when it is offered solely for the impermissible purpose of showing a defendant’s bad character or propensity to commit a crime.” (Citation and punctuation omitted; emphasis in original.) Id. However, OCGA § 24-4-404 (b) prohibits the admission of “[e]vidence of other crimes, wrongs, or acts . . . . to prove the character of a person in order to show action in conformity therewith. [Such evidence,] however, may be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” This Court reviews a trial court’s decision to admit evidence pursuant to OCGA § 24-4-404 (b) only for a clear abuse of discretion. Kirby v. State, 304 Ga. 472, 479 (4) (819 SE2d 468) (2018).“Motive is the reason that nudges the will and prods the mind to indulge the criminal intent.” (Citation and punctuation omitted.) Kirby, 304 Ga. App. at 486 (4) (b). The “extrinsic evidence must be logically relevant and necessary to prove something other than the accused’s propensity to commit the crime charged.” (Citation and punctuation omitted.) Id. Because evidence of Appellant’s interest in illegal drugs was being offered to show motive and intent, the State was not required to show an overall similarity between the extrinsic offense and the crime for which he was charged. Whaley v. State, 343 Ga. App. 701, 707 (3) (a) (i) (808 SE2d 88) (2017). Rather, the extrinsic offense needed to have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Citation and punctuation omitted; emphasis in original.) Id., citing OCGA § 24-4-401.Here, Wilson’s recorded phone conversation revealed a motive for why Appellant would want to injure her. It also demonstrated that the stabbing was intentional. Wilson told her friend that she felt like she needed to divorce Appellant because he was “not putting forth an effort to” work, and that “he want[s] to live wrong and he wants me to indulge in his living.” She stated that “I’m still trying to stand up for myself . . . I’m not going to do it because I know it’s wrong. . . . His idea in life is he wants more drugs, more drugs, more drugs to sell. And my idea of life is that’s just not what I want. . . . I dealt with that growing up and I just want more for my kids than that.” Accordingly, the trial court was authorized to conclude that the reference to Wilson’s unhappiness with Appellant’s focus on drugs was relevant to why they argued and why he would have purposefully stabbed her. See OCGA § 24-4-404 (b); Smart v. State, 299 Ga. 414, 417-418 (2) (a) (788 SE2d 442) (2016) (prior acts of domestic violence by the defendant against the victim were admissible to show motive for the crimes charged because they demonstrated that the defendant used violence to control the victim); Sharif v. State, 272 Ga. App. 660, 661-662 (2) (613 SE2d 176) (2005) (under former Evidence Code, evidence that defendant was a drug dealer was relevant when dispute between the defendant and the victim concerned defendant’s drugs as it showed motive).Judgment affirmed. McMillian, J., concurs, and McFadden , P. J., dissents.**THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2 (a).

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
May 01, 2025
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

We are seeking two attorneys with a minimum of two to three years of experience to join our prominent and thriving education law practice in...


Apply Now ›

Description: Fox Rothschild has an opening in the New York office for a Real Estate Litigation Associate with three to six years of commerci...


Apply Now ›

Downtown NY property and casualty defense law firm seeks a Litigation Associate with 3+ years' experience to become a part of our team! You ...


Apply Now ›