335 Ga. App. 600 782 S.E.2d 494

A15A2242.

BAUGHNS v. THE STATE.

(782 SE2d 494)

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.

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 *601burglars 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 that did not name Baughns as a perpetrator.4 At Baughns’ separate trial, the State, over Baughns’ objection, introduced evidence of all 11 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 video recording 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 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 *602burglaries 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 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 “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.

(Citation and punctuation omitted.) United States v. Nowak, 370 Fed. Appx. 39, 41 (I) (11th Cir. 2010). See also United States v. Edouard, *603485 F3d 1324, 1344 (II) (C) (11th Cir. 2007) (accord). Moreover,

[e]vidence, 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).

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. I, Sec. I, Par. 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 (2) (b), 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 *604art which must be understood in conjunction with the limitations set out in OCGA § 24-8-825 and “does not encompass every conceivable 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 § 24-3-50D] must relate to the charge or sentence facing the 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 assessing the totality of the circumstances. Where *605the 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 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.

*606Decided February 5, 2016.

Ryan M. Ignatius, Michael N. Brooks, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

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. . . .
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 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.

Baughns v. State
335 Ga. App. 600 782 S.E.2d 494

Case Details

Name
Baughns v. State
Decision Date
Feb 5, 2016
Citations

335 Ga. App. 600

782 S.E.2d 494

Jurisdiction
Georgia

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