FIFTH DIVISION MCFADDEN, P. J., GOBEIL and PINSON, JJ.
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
June 9, 2022
In the Court of Appeals of Georgia A22A0448, A22A0449. THE STATE v. BERRIEN & vice versa.
PINSON, Judge.
Neil Berrien was indicted on one count of rape. Before trial, the trial court
granted the defense’s motion to suppress a pre-arrest statement Berrien made to
investigators without first being given Miranda1 warnings. The court also granted the
State’s motion under OCGA § 24-4-413 to admit evidence of a prior rape that Berrien
was accused of. The State challenges the suppression ruling, and Berrien challenges
the ruling admitting the evidence of the prior alleged rape.
We conclude that the trial court erred in granting Berrien’s motion to suppress
his statement. He gave that statement in a 45-minute pre-arrest interview conducted
in an unlocked room at the police station at a time of his choosing. In addition, he was
1 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). not physically restrained, was told he was not being “accused of” anything, and he
was given water, was allowed to keep his cell phone, and was left alone during a
break. Although he would have needed assistance to leave the secured area of the
building where the interview room was located, a reasonable person in Berrien’s
circumstances would not have perceived that he was in custody. So Miranda
warnings were not required, and the failure to give them is not a basis for suppressing
the statement. We therefore reverse the trial court’s order granting the motion to
suppress.
The trial court did not err, however, in its decision to admit evidence of the
prior alleged rape. Although Berrien was not prosecuted for the alleged rape, the
evidence the State has proffered would be enough to enable a jury to find by a
preponderance of the evidence that Berrien committed that crime. And because the
primary disputed issue here is the victim’s consent, the trial court did not abuse its
discretion in finding that the probative value of this other-act evidence was not
substantially outweighed by its risk of causing unfair prejudice. We therefore affirm
the trial court’s order permitting the introduction of that evidence.
2 Background
(a) The Alleged Offense and Resulting Investigation
Berrien was indicted for rape after the victim, K. C., accused him of getting her
intoxicated and having forcible intercourse with her. According to the State’s proffer
at a pretrial motion hearing, the victim reported to police that Berrien, with whom she
had previously had an “on-and-off consensual sexual relationship,” asked to come to
her home one evening in June 2019. The victim agreed, and Berrien arrived late in the
evening with two bottles of Sangria and a hookah. After finishing one glass of
Sangria and starting another, the victim “began to feel as if she had no control over
her body” and noticed that Berrien was looking at her “with . . . a sinister grin on his
face.” The victim alleged that Berrien helped her onto her bed, took off her pants, and
began penetrating her vagina with his fingers. According to the victim, she asked him
to stop, but he continued, and she felt “paralyzed” from the Sangria. Berrien held her
in place and ultimately began “pounding” into her vagina with his penis, refusing to
stop despite her repeated pleas and her effort to “block him with her hand.”
Afterward, the victim vomited and “began yelling at [Berrien] for what he’d done.”
He claimed he had done nothing wrong, and she then passed out. The next day, the
victim reported the attack and underwent a sexual assault examination. According to
3 the victim, the nurse who examined her stated that she “had been raped with such
force that her cervix had shifted.”
About two weeks after the alleged rape, Berrien was interviewed by
investigators with the Kennesaw Police Department. In the interview, which was
recorded on video, Berrien admitted to having sex with the victim and acknowledged
that he had continued to do so even after she told him twice to stop. An arrest warrant
was issued the following day, and Berrien was later indicted.
(b) Pretrial Proceedings
Before trial, both Berrien and the State filed evidentiary motions. Berrien filed
a Jackson-Denno2 motion to suppress evidence of his statements to investigators. He
argued in the motion that he was in custody at the time of his interview and thus
should have been given Miranda warnings before being questioned. And the State
filed a notice of intent to offer evidence of another alleged rape committed by
Berrien, relying on OCGA § 24-4-413.3 .
2 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964). 3 Under OCGA § 24-4-413 (a), when “the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.”
4 Both motions were argued at a pretrial hearing.
(1) Jackson-Denno Motion
For the Jackson-Denno motion, the State presented the testimony of one of the
interviewing officers, Detective Michael Alvarez, and introduced the video recording
of Berrien’s interview, which was played for the trial judge. Before interviewing
Berrien, Detective Alvarez had interviewed the victim and several other witnesses,
including the victim of the prior alleged rape. He had also reviewed the sexual-
assault-examination report, which showed injuries resulting from the alleged attack
on K.C.
Detective Alvarez testified that he called Berrien on July 10, 2019 and asked
him to come to the police station annex for an interview on July 12. Berrien agreed
but then called back to ask if he could come sooner, and Detective Alvarez agreed to
meet that afternoon. When Berrien arrived at the annex building, Detective Alvarez
met him in the waiting room, which was separated from the rest of the building by a
locked door. Detective Alvarez escorted Berrien down the hall to an interview room,
where another detective was waiting to help conduct the interview, and shut the door
behind them. Detective Alvarez could not recall whether that door had a lock, but in
5 the video the door appears not to have one, and the detectives are shown freely
opening and closing the door without locking or unlocking it.
Detective Alvarez testified that Berrien was a suspect at the time he was
interviewed. He acknowledged that Berrien was not given Miranda warnings before
or during the interview, explaining that this was because Berrien “was not in
custody.” As Detective Alvarez testified and as the video confirms, Berrien was not
told that he was under arrest, or that he was not under arrest, and there was no
discussion at any time of whether he was free to leave. But at one point during the
latter half of the interview, one of the detectives implied Berrien would be leaving,
stating, “I don’t want you to walk out of here and us not be clear about” what
happened.
The interview lasted approximately 45 minutes. Berrien told the officers that
he had gone to the victim’s apartment with a hookah and some wine and that, after
drinking and talking, they began kissing and then had sex. He denied intending to
have sex against the victim’s will, but he did eventually admit that she had told him
to stop at least twice. As Berrien’s account of events unfolded, the officers told him
several times that they already “[knew] what happened,” but that there were “some
things” they needed him “to fill in.” They asked whether he had “[made] a mistake,”
6 positing, for example, that perhaps he had “[had] a little too much to drink and
[gotten] carried away.” They also informed him that they had received “medical
information” indicating that the victim was “pretty hurt.” After hearing this, Berrien
remarked, “I feel like I’m being cornered.” In response, one of the detectives told
Berrien they were “not accusing” him.
The video shows that, during the interview, Berrien was sitting in a chair
against the wall, diagonal from the closed door. The second detective was seated next
to the door, and Detective Alvarez, who can be heard but not seen during the
interview, appears to be situated across from Berrien. Berrien was not handcuffed or
otherwise physically restrained, and he had his cell phone with him during the
interview, including during a brief break when the detectives left him alone in the
room. Berrien had a cup of water with him during the interview, which he was
permitted to refill during the break. When the interview was finished, Berrien left in
his own car, which was parked behind the annex building during the interview.
The evidence is unclear about whether Berrien was able to exit the building on
his own. Although the annex building had a side door leading outside, which
Detective Alvarez believed was unlocked from the inside, Alvarez could not recall
whether Berrien had exited through that door or through the door leading back into
7 the waiting room. As to the latter door, Detective Alvarez first said that he “[didn’t]
believe” there was a code required to open it from the inside, but when further
pressed on this subject, he replied, “I don’t recall.”
(2) Prior Sexual Assault Evidence
As for the OCGA § 24-4-413 motion, the State made a proffer as to Berrien’s
alleged rape of another victim, S. R. According to the proffer, S. R. went to the
Cartersville Medical Center in February 2019 for a sexual-assault examination. She
reported to police that the previous night, Berrien, whom she described as a “friend”
that she had known “for about a month,” had come to her apartment to have drinks
and smoke marijuana. She recalled falling asleep with her clothes on, but woke up the
next morning in her bed, unclothed, “[feeling] like she had had sex.” When Berrien
was later interviewed by police, he admitted to having sex with S. R., but he claimed
it was consensual. The police ultimately declined to bring charges.
In response to the State’s proffer of S. R.’s accusation, the defense offered the
police report and the sexual assault nurse examiner (SANE) report from the incident.
After detailing the victim’s allegations and Berrien’s statements to police, the police
report concludes that the case was being closed “[d]ue to lack of probable cause” that
a crime was committed. The SANE report reflects S. R.’s statements to the police and
8 the nurse examiner that she did not remember what had happened after she fell asleep
and that she had vomited at some point during the evening. The SANE report
indicates that there were no “assault-related findings” from the exam.
(3) Evidentiary Orders
Following the hearing, the trial court, in separate orders, granted Berrien’s
Jackson-Denno motion and the State’s OCGA § 24-4-413 motion.
For the Jackson-Denno motion, the trial court concluded that, at the time of his
interview, Berrien was in custody and thus Miranda warnings should have been
given. In support of this conclusion, the court cited its findings that Berrien was the
only suspect at the time of the interview; that access into and out of the police annex
where the interview took place was restricted, such that Berrien had to be “let in” and
“let out” of the building; that the interview room itself “was locked behind Mr.
Berrien” and “the doors to leave the room were behind one of the officers involved
in the interview”; and that Detective Alvarez told Berrien during the interview “he
already knew what happened” but “never told Mr. Berrien that he was not under
arrest or that he was free to leave.” Under these circumstances, the court concluded,
a reasonable person would have believed he was in custody, and therefore Miranda
warnings were required.
9 As for the OCGA § 24-4-413 motion, the court concluded that the evidence of
Berrien’s prior alleged sexual assault against S. R. was “properly admissible . . . to
show [Berrien’s] propensity to commit” the crime charged here. In reaching this
conclusion, the court found that the probative value of the evidence was not
substantially outweighed by the danger of undue prejudice.
The State appealed the grant of the motion to suppress,4 and Berrien cross-
appealed the OCGA § 24-4-413 ruling.
Discussion
Case No. A22A0448
1. In its appeal, the State contends that the trial court erred in concluding that
Berrien was in custody at the time of his police interview, and so the court erred in
suppressing the statements he made during the interview.
“A person is considered to be in custody and Miranda warnings are required
when a person is (1) formally arrested or (2) restrained to the degree associated with
a formal arrest. Unless a reasonable person in the suspect’s situation would perceive
that he was in custody, Miranda warnings are not necessary.” State v. Troutman, 300
4 See OCGA § 5-7-1 (a) (5) (permitting State’s appeal from an order excluding certain evidence the State seeks to offer at trial).
10 Ga. 616, 617 (1) (797 SE2d 72) (2017) (citation and punctuation omitted). Put
another way, whether a person is “in custody” for Miranda purposes depends on
“whether a reasonable person in the suspect’s situation would perceive that he was
at liberty to terminate the interview and leave.” Drake v. State, 296 Ga. 286, 289 (1)
(766 SE2d 447) (2014). In making this determination, courts must consider the
totality of the circumstances, viewed from the standpoint of a reasonable person,
“without regard for the subjective views of the suspect or the interrogating officer.”
State v. Walden, 311 Ga. 389, 390 (858 SE2d 42) (2021) (citation and punctuation
omitted). To this end, courts look at things like the location and duration of the
questioning, statements made during the interview, and whether the suspect was
physically restrained during, and released after, the questioning. Id.
This “in custody” question is a mixed question of fact and law. Walden, 311
Ga. at 390. In reviewing the trial court’s ruling on this issue, we accept the trial
court’s findings on disputed facts and credibility of witnesses unless they are clearly
erroneous. Id. We may also consider facts that are “‘indisputably discernible’” from
the video recording. State v. Abbott, 303 Ga. 297, 299 (1) (812 SE2d 225) (2018). We
then apply the relevant legal principles to these facts de novo. Walden, 311 Ga. at
390. Many of the relevant facts here are undisputed, and most of the undisputed
11 facts support the conclusion that Berrien was not in custody during the interview.
Detective Alvarez called Berrien to request that Berrien come for an interview, and
suggested their meeting take place two days later—hardly the type of request that
would be expected if Berrien was being detained. Berrien agreed, even requesting to
meet sooner than initially proposed, and he drove himself to the interview. The
interview lasted less than an hour, and Berrien was not denied necessaries like food,
water, or a bathroom break. Berrien was also told he was not being “accused of”
anything, and he was not told he was under arrest or not free to leave—in fact, more
than halfway through the interview, one of the detectives alluded to Berrien’s
“walk[ing] out of here.” And Berrien did leave at the end of the interview, in his own
car.
The primary factual dispute centers on Berrien’s ability to exit the interview
and leave the premises at will. On this issue, we accept the trial court’s finding that
Berrien had to be “let out” of the doors of the building, but we must reject its finding
that the door to the interview room was locked and “behind” one of the detectives.
The only evidence on the status of the building doors was the testimony of
Detective Alvarez. He equivocated on whether the door leading back through the
waiting room required a passcode, and although he recalled that the side exit door
12 was unlocked, he did not say whether Berrien knew about that door. Based on this
evidence, the trial court concluded that Berrien had to be “let out” of the building.
Because these “legally significant facts were proved by evidence other than the video
recording, the trial court as fact-finder was entitled to determine the credibility and
weight of that other evidence.” Abbott, 303 Ga. at 299 (1). So we defer to the trial
court’s finding.
But we must reject the trial court’s findings that the door to the interview room
was locked and “behind” a detective. If an appellate court can definitively discern
material facts exclusively from a video recording, “no deference to [the] findings of
[the] trial court” on those issues is required. Hughes v. State, 296 Ga. 744, 746 n.5
(770 SE2d 636) (2015) (citing Vergara v. State, 283 Ga. 175, 178 (1) (657 SE2d 863)
(2008)). Accord Walden, 311 Ga. at 395 (noting that because defendant’s encounter
with law enforcement was documented on video recordings, the Court “review[s] that
evidence de novo”). In the video of the interview, the door appears not to have a lock,
and the detectives are clearly shown freely opening and closing the door without
locking or unlocking it. And although the video shows that Berrien would have had
to walk past the second detective to leave the room, the door was clearly not “behind”
that detective.
13 So, for purposes of our review, the evidence about Berrien’s ability to leave
shows that Berrien was neither locked in the interview room nor blocked from its
door, but that he would have needed assistance to leave the building. These
circumstances alone do not establish that Berrien was in custody. Our Supreme Court
has held, for example, that a defendant was not in custody even though he was
interviewed in a secure section of the sheriff’s office where guests were not allowed
to move about unaccompanied, because other circumstances indicated that he was
free to leave. State v. Rumph, 307 Ga. 477, 479, 481-82 (837 SE2d 358) (2019).
Similarly, a defendant was not in custody when he was interviewed in a monitored
back room of the police station, because other circumstances would have led him to
believe he was free to leave. Ward v. State, 313 Ga. 265, 274-75 (4) (b) (869 SE2d
470) (2022). Because the relevant inquiry is whether the totality of the circumstances
would lead a reasonable person to believe he was not free to leave upon request,
Drake v. State, 296 Ga. at 289 (1), the mere fact that the questioning took place in a
limited-access room in a police station is not enough to establish that Berrien was in
custody.
Nor does the fact that Berrien was a suspect at the time he was interviewed
necessarily establish that he was in custody. The question “is not whether the
14 investigators believed the appellant [was] a suspect but rather . . . whether a
reasonable person in the appellant’s position would have believed his freedom was
restrained.” Grayer v. State, 282 Ga. 224, 229 (3) (647 SE2d 264) (2007). Even the
fact that a defendant was the “prime suspect” at the time of the questioning does not
establish that the defendant was in custody for Miranda purposes, as long as a
reasonable person would have believed he was free to leave. Tolliver v. State, 273 Ga.
785, 786 (546 SE2d 525) (2001). And here, even if the detectives became more
convinced as the interview progressed that they had probable cause to arrest Berrien,
an intent to arrest in the future is irrelevant to the custody determination “unless the
police communicate [that] intent during the course of the interrogation.” State v.
Billings, 303 Ga. App. 419, 421 (693 SE2d 627) (2010). No such intent to arrest was
communicated to Berrien here. To the contrary, the detectives alluded to his
“walk[ing] out of here,” even after he admitted that he continued having sex with the
victim after she told him to stop.
Considering the totality of the circumstances outlined above, we conclude that
Berrien was not in custody at the time of his interview. Berrien drove himself to and
from the interview, which was scheduled at a time of his choosing, and he was
interviewed for less than an hour, free of physical restraints in an unlocked room,
15 where he was allowed to keep his cell phone and was left alone for a break. He was
told during the interview that he was not being “accused of” anything, and one of the
detectives even made reference to Berrien’s leaving the station after the interview.
Although he would have needed assistance to leave the building, a reasonable person
in Berrien’s shoes would have perceived that he was free to end the interview and
leave. See Drake, 296 Ga. at 289 (1). See, e.g., Acosta v. State, 311 Ga. 320, 321-23
(1) (a) (857 SE2d 701) (2021) (defendant was not in custody when, among other
things, he agreed to accompany investigators to the police station to be interviewed,
was not physically restrained, and was allowed to keep and use his phone); Harper
v. State, 310 Ga. 679, 683 (2) (853 SE2d 645) (2021) (defendant was not in custody
when, among other things, he agreed to go with officers to police headquarters, was
not handcuffed or threatened, and was allowed to leave after the hour-long interview).
Because Berrien was not in custody for his interview, he was not entitled to a
Miranda warning at that time, and the failure to give that warning was not a valid
basis for suppressing his statements made during the interview. See, e.g., Walden, 311
Ga. at 395-96. It was error to conclude otherwise.
16 Case No. A22A0449.
2. In his cross-appeal, Berrien contends that the trial court erred in admitting
evidence of his alleged sexual assault on S. R. under OCGA § 24-4-413. He contends
that the evidence is not relevant and will be unduly prejudicial, noting that
investigators declined to pursue criminal charges.
Code Section 24-4-413 generally allows the prosecution in a sexual-assault
case to offer “evidence of the accused’s commission of another offense of sexual
assault” for its bearing on “any matter to which it is relevant,” id. at (a), including the
defendant’s propensity to commit sexual assault. Dixon v. State, 350 Ga. App. 211,
213 (1) (828 SE2d 427) (2019).5 This provision creates “a rule of inclusion, with a
strong presumption in favor of admissibility.” Dixon, 350 Ga. App. at 213 (1)
(citation and punctuation omitted). At the same time, in considering extrinsic
evidence of another offense, the trial court must balance the relevance of the evidence
against its potential to cause unfair prejudice to the defendant. Id. at 213-14 (1); see
also OCGA § 24-4-403 (evidence otherwise admissible may still be excluded “if its
probative value is substantially outweighed by the danger of unfair prejudice”). This
5 An “offense of sexual assault” includes “any conduct . . . that would be a violation of” specified Code sections defining sexual offenses, including rape and sexual battery. Id. at (d) (1).
17 balancing requires “a common sense assessment of all the circumstances surrounding
the extrinsic offense, including prosecutorial need, overall similarity between the
extrinsic act and the charged offense, as well as temporal remoteness.” Dixon, 350
Ga. App. at 214 (1) (citation and punctuation omitted). On appeal, a trial court’s
decision to admit evidence of this nature is reviewed only for abuse of discretion. Id.
at 213 (1).
(a) Berrien first contends that evidence about S. R.’s sexual-assault allegation
is not relevant because he was never charged with any crime and thus “there was no
evidence presented that an offense of sexual assault occurred.” This argument is
directly refuted by our precedent, which holds that “‘criminal charges are not required
for the admission of other acts evidence’” under OCGA § 24-4-413. Latta v. State,
341 Ga. App. 696, 700 (2) (802 SE2d 264) (2017) (in child molestation case,
witness’s testimony about defendant’s previous acts of molestation, which were
reported to police but never charged as crimes, was admissible) (citation omitted).
Accord Dixon v. State, 341 Ga. App. 255, 259 (1) (a) (800 SE2d 11) (2017) (evidence
of defendant’s prior act of sexual battery, which was reported but never charged, was
admissible in child molestation case). Rather, it is enough that the evidence would
enable a jury to find by a preponderance of the evidence that the defendant committed
18 the other offense. Latta, 341 Ga. App. at 700-01 (2); Dixon, 341 Ga. App. at 259 (1)
(a). And that standard is met here. The State proffered S. R.’s testimony detailing the
assault, and the police report reflects that Berrien admitted he had sex with S. R. on
the night in question. If offered at trial, this evidence would be sufficient for a jury
to find by a preponderance of the evidence that Berrien had non-consensual sex with
S. R. while she was intoxicated and unconscious. See Dixon, 341 Ga. App. at 258-59
(1) (a) (even a single witness’s uncorroborated testimony can provide adequate basis
for jury to find that prior act occurred). Because this evidence bears on Berrien’s
propensity to engage in non-consensual sex, it would be relevant here, where consent
is an essential element of the charged offense, see OCGA § 16-6-1 (a) (1), and is the
primary issue in dispute.
(b) Berrien also contends that the evidence should be excluded under OCGA
§ 24-4-403 because its probative value will be substantially outweighed by the risk
that it would unfairly prejudice him at trial.
The probative value of this evidence is substantial. The probative value of
specific evidence depends on two things: (1) the need to establish the fact for which
the evidence is offered, which in turn depends on that fact’s significance in the case
and whether or not that fact is disputed, and (2) the “marginal worth” of the evidence
19 in establishing the fact, which depends on what other evidence is available. Olds v.
State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016). Here, the issue of consent is both
essential and disputed, so the need to establish this fact is strong. And the marginal
worth of the other-act evidence is high because the other available evidence on
consent just pits the victim’s word against Berrien’s. See Benning v. State, 344 Ga.
App. 397, 402 (810 SE2d 310) (2018) (where defendant claimed consent, need for
other-act evidence to bolster the victim’s credibility was high). See also Latta, 341
Ga. App. at 702 (2) (evidence of prior sexual offense was probative in rebutting
defendant’s claim that the act of which he was accused was an accident).
On the other side of the ledger, the risk of unfair prejudice from this evidence
is relatively low. “Prejudice is not ‘unfair’ simply because it tends to inculpate the
defendant in an awful crime” but only if it creates an “undue tendency to suggest
decision on an improper basis [such as] an emotional one.” Morgan v. State, 307 Ga.
889, 897 (3) (c) (838 SE2d 878) (2020) (citation and punctuation omitted). The four-
month time span between the prior act and the crime charged here was short and so
does not support a finding of undue prejudice. And the similarity between the two
incidents—each involving allegations that Berrien had sex with unconscious victims
who had become intoxicated in his company—minimizes the risk of inflaming the
20 jury based only on the accused’s general propensity towards criminality. See Dixon,
350 Ga. App. at 214 (1) (holding that prior acts of child molestation were sufficiently
similar to charged crime of child molestation, where all acts involved a similar
manner of touching victims, all of whom were family members who were around the
same age at the time of the incidents); Benning, 344 Ga. App. at 402 (holding that
prior sexual assaults were similar enough to charged crimes where they all involved
victims who were unconscious, barely conscious, or asleep); Latta, 341 Ga. App. at
702 (2) (holding that prior act of sexual battery was sufficiently similar to charged
crime of child molestation, where both involved the defendant’s inappropriate
touching of a vulnerable person, which the defendant claimed was accidental, while
the defendant was working at a job site).
Given the above, the trial court’s determination that this evidence was
admissible under OCGA § 24-4-413 was not an abuse of discretion.
Judgment affirmed in Case No. A22A0449 and reversed in Case No.
A22A0448. McFadden, P. J., and Gobeil, J., concur.