Commercial Litigation and Arbitration

Videotaped Witness Statement Admitted as Past Recollection Recorded: Wit. Lacked Current Recollection, Testified It Was He in the Video, Remembered Giving the Statement, Told the Truth, and the Matters Were Then Fresh in His Memory

Pierce v. State, 2017 Ga. LEXIS 940 (Ga. Sup. Ct. Oct. 30, 2017):

Appellant Matthew Caleb Pierce was tried before a jury and found guilty on six counts of aggravated child molestation, two counts of child molestation, two counts of sexual battery, and one count each of sexual exploitation of a child, distribution of Hydromorphone, and distribution of Alprazolam.1 The crimes involved acts with three teenage boys, B.M., M.T., and D.D. Pierce filed his appeal in the Court of Appeals, which transferred the case to this Court because it raises the issue of the constitutionality of a statute, an issue over which this Court has exclusive jurisdiction. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). In addition to his constitutional claims, Pierce argues that the trial court erred in admitting a videotaped interview of B.M. and photographs of text messages from D.D.'s cell phone. For the following reasons, we hold that all of Pierce's claims are without merit, and therefore affirm.

Viewed in the light most favorable to the verdict, the evidence showed that in June and July of 2011, B.M., M.T., and D.D., then all 14 years [*2]  old, "hung out" with Pierce, who was then 31 years old, and drank beer and liquor at Pierce's apartment. Pierce lived in the same apartment building as B.M. On one occasion when Pierce invited the teens into his apartment and offered them liquor and beer, B.M. "started not to feel good" and asked Pierce if he "had anything to give [him]." Pierce gave B.M. "something" and all B.M. remembered was passing out on Pierce's couch until later in the evening.

D.D. testified that Pierce gave him and M.T. a pill that he believed was Xanax, and on another occasion, he texted Pierce a picture of his penis in order "to get pills." The State admitted pictures of the text messages from D.D.'s cell phone including the picture that D.D. testified he exchanged with Pierce in order to get the pills.

M.T. testified that he met Pierce through D.D., and that D.D. told him Pierce could get them "free beer and Xanax." M.T. explained further that he spent two nights at Pierce's apartment in July 2011. During that time, Pierce "started, . . . . coming on to [M.T.]," and when M.T. asked about getting Xanax, Pierce told him that he did not give Xanax pills away, but would exchange them for pictures or a "sexual [*3]  act." M.T. explained that he was reluctant to agree to the exchange, but "Xanax makes you do things you'd never do sober." On one of the nights M.T. stayed at Pierce's apartment, Pierce gave M.T. a handful of Xanax pills, pulled out his penis, and fondled M.T.'s penis. After M.T. and Pierce performed oral sex on one another, Pierce retrieved more Xanax pills for M.T. from a safe in his bedroom.

When M.T. later left Pierce's apartment, he was stopped by a courtesy officer from the apartment complex. The officer noticed that M.T.'s speech was slurred and that he smelled of an alcoholic beverage. After asking M.T. a few questions, the officer asked M.T. for consent to search his person. M.T. consented, and in his pocket the officer found Hydromorphone and Alprazolam (Xanax) pills that M.T. told the officer he obtained from Pierce. M.T. explained to police that Pierce gave him pills in exchange for M.T. performing oral sex on Pierce.

Investigators subsequently interviewed all three teens and conducted a search of Pierce's apartment where they found prescription bottles of Hydromorphone and Alprazolam, some empty and some containing pills, in a safe in the closet of his bedroom. B.M. told [*4]  police in a videotaped statement that he and Pierce engaged in oral and anal sex while at Pierce's apartment, although at trial he testified he did not remember the sex acts.

Following the presentation of this evidence, the jury found Pierce guilty of aggravated child molestation for performing both anal and oral sodomy on B.M. and having B.M. perform such acts on him; aggravated child molestation for performing oral sodomy on M.T. and having M.T. perform oral sodomy on him; child molestation and sexual battery for placing his hands on B.M.'s penis and M.T.'s penis; sexual exploitation of a child for enticing D.D. to take a picture of his penis and send the picture to Pierce; and distribution of Hydromorphone and Alprazolam to M.T.

1. Pierce argues that the trial court erred in allowing the admission of B.M.'s videotaped interview. "We review the trial court's decision to admit evidence for an abuse of discretion." (Citation omitted.) Bolling v. State, 300 Ga. 694, 698 (2) (797 SE2d 872) (2017).

When first questioned at trial about this statement to police, B.M. testified that he did not remember talking to police, even after having watched his videotaped statement about a week before trial. The prosecutor asked that B.M. be allowed to watch his [*5]  videotaped interview again to refresh his memory. After discussion with both counsel and further testimony by B.M. that he did not recall what happened on the occasion he was in Pierce's bedroom, the trial court allowed B.M. to watch his videotaped interview outside of the presence of the jury.

When B.M. returned to the witness stand, he testified that he remembered going to Pierce's apartment and being in his bedroom but did not remember what happened in the bedroom. The prosecutor then moved for admission of the videotaped interview pursuant to OCGA § 24-8-803 (5), past recollection recorded. In establishing the foundation for the video's admission, B.M. confirmed that he was the person in the video, testified that he remembered giving the videotaped statement to police, that he had knowledge as to what he was talking about in the video, and that when he gave the statement to police, the things he discussed were fresh in his memory. B.M. stated further that he told the truth when he gave the statement. The trial court ruled that it would allow the jury to watch B.M.'s videotaped interview, and it was then played for the jury.

(a) Pierce argues that B.M.'s videotaped statement was not admissible under [*6]  the past recollection recorded exception to the hearsay rule because B.M. was "a reluctant witness who did not want to testify," and the purpose of the exception is to assist witnesses who genuinely cannot remember events previously recorded. A "recorded recollection" under the applicable exception to the hearsay rule is defined as:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party[.]

OCGA § 24-8-803 (5). This Code section mirrors Federal Rule of Evidence 803 (5). "And 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, 593 (3) (a) (769 SE2d 329) (2015).2

An Eleventh Circuit Court of Appeals case presents facts similar to those adduced here. In United States v. Jones, 601 F3d 1247 (11th Cir. 2010), the witness "lacked 'clear and distinct' [*7]  recollection in her response to the questions." Id. at 1262 (V) (A). Once she viewed her videotaped statement outside the presence of the jury, and was asked if she then remembered more than before she watched the video, the witnessed responded "I remember what was just said." Id. Nevertheless, the appellate court held that the trial court did not abuse its discretion in allowing the videotape to be played for the jury where the witness affirmed that the things she said in the video were true and accurate to the best of her knowledge, that it was "[her] talking" on the video, and that her memory was better then. Id.

Here, after viewing the videotaped statement at trial, B.M. stated that he was the person in the video, he remembered giving the statement, he had knowledge as to what he was talking about in the video, he told the truth when he gave the statement, and the things he discussed were fresh in his memory then. This was sufficient to establish under OCGA § 24-8-803 (5) that the videotaped statement concerned a matter about which B.M. once had knowledge but at trial had insufficient recollection, which was made or adopted when the matter was fresh in his memory, and which correctly reflected his knowledge. [*8]  The trial court therefore did not abuse its discretion in allowing the admission of this evidence. See Jones, supra.

(b) Pierce also argues that the admission of B.M.'s videotaped statement was a violation of the Confrontation Clause, because he was effectively denied any opportunity to cross-examine B.M. in light of the teen's claim of no memory of the sexual offenses. But the

Sixth Amendment guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Kentucky v. Stincer, 482 U

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