THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, 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. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
August 5, 2020
In the Court of Appeals of Georgia A20A0950. THE STATE v. HINES et al.
MCFADDEN, CHIEF JUDGE.
Mikaila Lynne Hines and Samantha Kendrial Watkins, the defendants in this
case, have been charged with committing the offense of exploitation of an elder
person by deceiving Myra Ford to believe that they were her granddaughters and
consequently obtaining checks drawn on her account. Before trial, the trial court
issued an order deeming inadmissible an audio recording of a law enforcement
interview of Ford, who is now deceased. The state now appeals this order pursuant
to OCGA § 5-7-1 (a) (5). Because the defendants did not have an adequate
opportunity to cross-examine Ford about the interview during her deposition, the trial
court did not abuse her discretion, so we affirm.
1. Facts and procedural background. “We review a trial court’s evidentiary rulings under an abuse of discretion
standard of review. However, we accept a trial court’s factual findings unless they are
clearly erroneous.” McCoy v. State, 332 Ga. App. 626, 628 (774 SE2d 179) (2015)
(punctuation omitted).
(a) Ford’s law enforcement interview, deposition, and death.
It appears that in January 2016, Bibb County law enforcement officers who
were investigating the case conducted a recorded interview of Ford, in which she
stated that she did not authorize the checks at issue. After formal charges were
brought against the defendants, the state filed an emergency motion to preserve
Ford’s testimony by deposition, under OCGA § 24-13-130, which is set out in the
margin,1 stating that a deposition was necessary because Ford was approximately 85
years old and in poor health. The trial court granted the motion, scheduled the state’s
direct examination of Ford for July 28, 2017, and ruled that the defendants’ attorneys
1 OCGA § 24-13-130 (a) (1) provides: “At any time after an accused has been charged with an offense against the laws of this state . . . , upon motion of the state or the accused, the court having jurisdiction to try the offense charged may, after notice to the parties, order that the testimony of a prospective material witness of a party be taken by deposition and that any designated evidence not privileged be produced at the same time and place.” Under OCGA § 24-13-130 (b) (6), a deposition may be scheduled for a material witness who is at least 72 years old.
2 had the option to cross-examine Ford either immediately after the state’s direct
examination or within two weeks thereafter.
Ford’s videotaped deposition shows that she was severely infirm and struggled
to understand and answer questions. Indeed, Ford rarely even acknowledged the
questioner, with whom it appears that she never made eye contact; her demeanor for
nearly the entire deposition suggests that she was unaware that questions were being
asked of her; and nearly all of the very few responses she was able to give were
difficult or impossible to hear.
When the state first asked Ford whether she remembered previously speaking
with law enforcement officers about this case, she appeared to say “yes.” However,
when the state asked Ford whether she was shown any checks during this law
enforcement interview, and when the state showed her documents to try to refresh her
memory of the interview, she was nonresponsive. The defendants’ attorneys objected
to further questioning on the basis that Ford was not competent to testify, but the state
continued with its direct examination.
The state again asked Ford whether she remembered speaking with law
enforcement officers, but she still was nonresponsive and mumbled something
unintelligible. The state played a brief portion of Ford’s recorded law enforcement
3 interview and asked her whether she could remember the interview or identify herself
on the recording, but she remained largely nonresponsive and at one point said that
she could not remember the interview. The state stopped playing the recording after
only a few minutes, admitting that it was not helping Ford. After the state indicated
that it was concluding its direct examination, the defendants’ attorneys declined to
cross-examine Ford on the basis that she was not competent to testify. It appears that
Ford died three or four weeks after her deposition.
(b) The trial court’s ruling excluding Ford’s law enforcement interview.
The state sought a pre-trial ruling on the admissibility of the audio recording
of Ford’s law enforcement interview, arguing that admission of the recording would
not violate the Confrontation Clause because, although the defendants’ attorneys were
not, of course, present at the investigative interview, they were given an opportunity
to cross-examine Ford at her deposition, but did not do so. The state asserted that
because Ford was able to acknowledge the interview at her deposition, it did not
matter that she could not remember the details of the interview. The defendants
responded that the Confrontation Clause barred admission of the interview because
their attorneys did not have an opportunity to cross-examine Ford about the interview
4 at the deposition, where she was virtually nonresponsive and not competent to
acknowledge anything that was shown to her.
The trial court issued an order excluding the audio recording, stating:
Upon reviewing the video deposition, the [c]ourt finds that [Ford] did not even acknowledge the audio recording. Beyond that, it was evident that [Ford] was infirm and below any competency level required of a deponent in a deposition, and this is before we even get to the question of medical competency. The [d]efendants have thus not had the opportunity to cross-examine [Ford] regarding her statements in the audio recording, and the audio recording is therefore excluded.
The state filed a timely notice of appeal from the trial court’s order. The court
subsequently issued another order further explaining her reasoning, but we may not
consider that order because “the filing of the notice of appeal operates as a
supersedeas and deprives the trial court of the power to affect the judgment appealed,
so that subsequent proceedings purporting to supplement, amend, alter or modify the
judgment, whether pursuant to statutory or inherent power, are without effect.” Upton
v. Jones, 280 Ga. 895, 896 (1) (635 SE2d 112) (2006) (after notice of appeal was
filed, habeas court lost jurisdiction to enter order clarifying ruling).
2. Opportunity to cross-examine.
5 The state argues that the defendants were given the opportunity to cross-
examine Ford during her deposition, so her inability to recall the details of the
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THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, 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. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
August 5, 2020
In the Court of Appeals of Georgia A20A0950. THE STATE v. HINES et al.
MCFADDEN, CHIEF JUDGE.
Mikaila Lynne Hines and Samantha Kendrial Watkins, the defendants in this
case, have been charged with committing the offense of exploitation of an elder
person by deceiving Myra Ford to believe that they were her granddaughters and
consequently obtaining checks drawn on her account. Before trial, the trial court
issued an order deeming inadmissible an audio recording of a law enforcement
interview of Ford, who is now deceased. The state now appeals this order pursuant
to OCGA § 5-7-1 (a) (5). Because the defendants did not have an adequate
opportunity to cross-examine Ford about the interview during her deposition, the trial
court did not abuse her discretion, so we affirm.
1. Facts and procedural background. “We review a trial court’s evidentiary rulings under an abuse of discretion
standard of review. However, we accept a trial court’s factual findings unless they are
clearly erroneous.” McCoy v. State, 332 Ga. App. 626, 628 (774 SE2d 179) (2015)
(punctuation omitted).
(a) Ford’s law enforcement interview, deposition, and death.
It appears that in January 2016, Bibb County law enforcement officers who
were investigating the case conducted a recorded interview of Ford, in which she
stated that she did not authorize the checks at issue. After formal charges were
brought against the defendants, the state filed an emergency motion to preserve
Ford’s testimony by deposition, under OCGA § 24-13-130, which is set out in the
margin,1 stating that a deposition was necessary because Ford was approximately 85
years old and in poor health. The trial court granted the motion, scheduled the state’s
direct examination of Ford for July 28, 2017, and ruled that the defendants’ attorneys
1 OCGA § 24-13-130 (a) (1) provides: “At any time after an accused has been charged with an offense against the laws of this state . . . , upon motion of the state or the accused, the court having jurisdiction to try the offense charged may, after notice to the parties, order that the testimony of a prospective material witness of a party be taken by deposition and that any designated evidence not privileged be produced at the same time and place.” Under OCGA § 24-13-130 (b) (6), a deposition may be scheduled for a material witness who is at least 72 years old.
2 had the option to cross-examine Ford either immediately after the state’s direct
examination or within two weeks thereafter.
Ford’s videotaped deposition shows that she was severely infirm and struggled
to understand and answer questions. Indeed, Ford rarely even acknowledged the
questioner, with whom it appears that she never made eye contact; her demeanor for
nearly the entire deposition suggests that she was unaware that questions were being
asked of her; and nearly all of the very few responses she was able to give were
difficult or impossible to hear.
When the state first asked Ford whether she remembered previously speaking
with law enforcement officers about this case, she appeared to say “yes.” However,
when the state asked Ford whether she was shown any checks during this law
enforcement interview, and when the state showed her documents to try to refresh her
memory of the interview, she was nonresponsive. The defendants’ attorneys objected
to further questioning on the basis that Ford was not competent to testify, but the state
continued with its direct examination.
The state again asked Ford whether she remembered speaking with law
enforcement officers, but she still was nonresponsive and mumbled something
unintelligible. The state played a brief portion of Ford’s recorded law enforcement
3 interview and asked her whether she could remember the interview or identify herself
on the recording, but she remained largely nonresponsive and at one point said that
she could not remember the interview. The state stopped playing the recording after
only a few minutes, admitting that it was not helping Ford. After the state indicated
that it was concluding its direct examination, the defendants’ attorneys declined to
cross-examine Ford on the basis that she was not competent to testify. It appears that
Ford died three or four weeks after her deposition.
(b) The trial court’s ruling excluding Ford’s law enforcement interview.
The state sought a pre-trial ruling on the admissibility of the audio recording
of Ford’s law enforcement interview, arguing that admission of the recording would
not violate the Confrontation Clause because, although the defendants’ attorneys were
not, of course, present at the investigative interview, they were given an opportunity
to cross-examine Ford at her deposition, but did not do so. The state asserted that
because Ford was able to acknowledge the interview at her deposition, it did not
matter that she could not remember the details of the interview. The defendants
responded that the Confrontation Clause barred admission of the interview because
their attorneys did not have an opportunity to cross-examine Ford about the interview
4 at the deposition, where she was virtually nonresponsive and not competent to
acknowledge anything that was shown to her.
The trial court issued an order excluding the audio recording, stating:
Upon reviewing the video deposition, the [c]ourt finds that [Ford] did not even acknowledge the audio recording. Beyond that, it was evident that [Ford] was infirm and below any competency level required of a deponent in a deposition, and this is before we even get to the question of medical competency. The [d]efendants have thus not had the opportunity to cross-examine [Ford] regarding her statements in the audio recording, and the audio recording is therefore excluded.
The state filed a timely notice of appeal from the trial court’s order. The court
subsequently issued another order further explaining her reasoning, but we may not
consider that order because “the filing of the notice of appeal operates as a
supersedeas and deprives the trial court of the power to affect the judgment appealed,
so that subsequent proceedings purporting to supplement, amend, alter or modify the
judgment, whether pursuant to statutory or inherent power, are without effect.” Upton
v. Jones, 280 Ga. 895, 896 (1) (635 SE2d 112) (2006) (after notice of appeal was
filed, habeas court lost jurisdiction to enter order clarifying ruling).
2. Opportunity to cross-examine.
5 The state argues that the defendants were given the opportunity to cross-
examine Ford during her deposition, so her inability to recall the details of the
interview does not render it inadmissible. But as detailed below, the trial court did not
abuse her discretion in ruling that the interview was inadmissible because the
defendants did not have an adequate opportunity to cross-examine Ford about it.
The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” The right to confront one’s
accusers is “a bedrock procedural guarantee that applies to both federal and state
prosecutions, and is a concept that dates back to Roman times.” Freeman v. State, 329
Ga. App. 429, 433 (2) (765 SE2d 631) (2014) (citation and punctuation omitted).
It is well-settled that the Confrontation Clause bars the admission of out-of-
court statements of an unavailable witness when (1) the statements are testimonial in
nature, and (2) the defendant does not have a prior opportunity to cross-examine the
witness about the statements. See, e.g., Crawford v. Washington, 541 U. S. 36, 68
(124 SCt 1354, 158 LE2d 177) (2004); Soto v. State, 285 Ga. 367, 369 (2) (a) (677
SE2d 95) (2009); Brawner v. State, 278 Ga. 316, 318 (2) (602 SE2d 612) (2004);
Moody v. State, 277 Ga. 676, 679-680 (4) (594 SE2d 350) (2004). Here, Ford will be
6 unavailable to testify at trial, and there is no dispute that her statements in her law
enforcement interview are testimonial. See generally Hatley v. State, 290 Ga. 480,
484-485 (II) (722 SE2d 67) (2012) (statements to law enforcement officers are
testimonial when “the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution[,]” not to meet an
ongoing emergency) (citation omitted). So the admissibility of her interview
statements depends on whether the defendants had a prior opportunity to cross-
examine her about the statements.
The trial court was authorized to find that the defendants did not have an
adequate opportunity to effectively cross-examine Ford about her interview
statements. Ford was nonresponsive throughout her deposition and was essentially
unable to acknowledge or respond to questions regarding whether she remembered
the interview or any other matters in the case. Due to Ford’s inability to acknowledge
or respond to such questions, the defendants had no opportunity whatsoever for
effective cross-examination about her interview. See Crawford, 541 U. S. at 57 (IV)
(“[P]rior trial or preliminary hearing testimony is admissible only if the defendant had
an adequate opportunity to cross-examine.”) (emphasis supplied); cf. Kolokouris v.
State, 271 Ga. 597, 600 (4) (523 SE2d 311) (1999) (while the Confrontation Clause
7 does not guarantee a cross-examination that produces results “in whatever way and
to whatever extent, the defense might wish,” it nevertheless guarantees “an
opportunity for effective cross-examination”) (emphasis supplied); see also Legree
v. State, 344 Ga. App. 793, 797 (1) (812 SE2d 68) (2018) (“[T]he admission at trial
of the victim’s and the minor child’s statements to the police officer infringed upon
[the defendant’s] constitutional right to confront the witnesses against him, since he
had not had a prior opportunity to cross-examine the declarants about the contents of
the hearsay statements.”).
The state relies on cases holding that the admission of the prior statement of
a witness, who is present at trial but does not recall the statement or the reasons for
giving it, does not violate a defendant’s right to confront the witness. See United
States v. Owens, 484 U. S. 554, 559-560 (II) (108 SCt 838, 98 LE2d 951) (1988);
LeBlanc v. State, 283 Ga. App. 434, 436-437 (3) (641 SE2d 646) (2007). The state’s
reliance on these cases is misplaced. There, the witness appeared at trial and was able
to state whether or not he or she remembered the prior statement or the circumstances
surrounding it, and therefore the defendant could cross-examine the witness about any
memory problems regarding the statement. See Brown v. State, 266 Ga. 723, 725 (2)
(470 SE2d 652) (1996) (“The sixth amendment . . . is satisfied if a defendant is given
8 the opportunity to cross-examine a forgetful witness about his bias, his lack of care
and attentiveness, and even the very fact that he has a bad memory.”) (punctuation
omitted).
Here, by contrast, Ford could not meaningfully respond to questions, much less
state one way or another whether she remembered giving the interview statements.
Therefore, the defendants did not have an adequate opportunity to cross-examine her
about the interview — including her memory of it — and this case is more analogous
to cases holding that the Confrontation Clause bars the admission of a prior statement
of a witness who completely refuses to testify when called at trial. See, e.g., Douglas
v. Alabama, 380 U. S. 415, 419-420 (I) (85 SCt 1074, 13 LE2d 934) (1965); Soto,
285 Ga. at 370-371 (2) (b); Horne v. State, 281 Ga. 799, 808 (5) (642 SE2d 659)
(2007); Gay v. State, 279 Ga. 180, 182 (2) (611 SE2d 31) (2005); Barksdale v. State,
265 Ga. 9, 12-13 (2) (b) (453 SE2d 2) (1995). Like a witness who refuses to testify
at trial, Ford was “unavailable for any cross-examination” at her deposition in light
of her inability to acknowledge or respond to questions. See Barksdale, 265 Ga. at 13
(2) (b); see also Soto, 285 Ga. at 370 (2) (b) (“[D]efendant was given no opportunity
whatsoever to cross-examine [the witness] because [he] shut down in the midst of
9 direct examination and refused to answer further questions posed by either the
prosecution or the defense.”).
Because the trial court was authorized to find that the defendants did not have
an adequate opportunity to cross-examine Ford about her testimonial statements in
the interview, the trial court did not err in ruling that the interview was inadmissible.
(3) Other challenges to the trial court’s ruling.
Given the above conclusion, we need not address the state’s other argument,
that the trial court erred in finding that Ford was incompetent at her deposition and
did not acknowledge the interview.
Judgment affirmed. Miller, P. J., and Mercier, J., concur.