GA Court of Appeals: Molestation Suspect Not Denied Right to Counsel

The Court held that the trial court correctly admitted a statement made by the defendant after he had asked for a lawyer. The Court also held that several counts of the indictment should not have been merged for sentencing, holding that the evidence supported separate convictions for each count.

The record showed that the alleged victim was taken to the hospital because she had a stomach ache and a brown vaginal discharge—lab testing showed that she had Chlamydia. Her mother questioned her about whether anyone had touched her inappropriately. The child at first denied that anyone had, but after further questioning reported three incidents in which the defendant Cody had touched her, made her touch his penis, and put his penis in her buttocks. After a jury trial, the defendant was convicted of aggravated sodomy, aggravated child molestation, child molestation, and false imprisonment.

On appeal, the defendant argued that the trial court erred in admitting the statement he made to a detective after his arrest on the grounds that he asserted his right to counsel but was not afforded counsel before he gave the statement. During a videotaped interview, after signing a Miranda waiver of rights form, the defendant asked the detective, “Can I get a lawyer now? Right now?” The detective said that they could not get him a lawyer at that time, but that the defendant could ask for a public defender and do the interview after he had one. The defendant replied that he would rather “go on and get this over with.” The detective again told the defendant that he could do the interview later, after getting a public defender, and asked if he wanted to go ahead and do the interview now. The defendant responded “yeah” and they proceeded with the interrogation.

The Court of Appeals cited the United States Supreme Court for the proposition that a suspect who asks for a lawyer during a custodial interrogation cannot be subject to further questioning until a lawyer is made available or the suspect initiates further questioning with the police. The Court reasoned that even if Cody had unambiguously asserted his right to counsel, the detective’s immediate response did not constitute further interrogation. Cody initiated the subsequent questioning when he said that he would rather get the interview over with. Thus, the Court held that the trial court did not err in admitting the statement at trial.

The defendant also argued on appeal that the trial court erred in failing to merge several counts of the indictment for sentencing purposes. Specifically, he argued that Count 1 (aggravated sodomy by performing a sexual act involving his sex organs and [the child’s] anus) should have been merged with Count 2 (aggravated child molestation by inserting his penis into the child’s anus, causing injury and pain to the child). He argued that both counts were based on the same act of sodomy. The Court rejected this argument, holding that the evidence supported two separate convictions involving separate incidents. The defendant argued that Count 5 (child molestation by rubbing his penis on the child’s vaginal area) should have been merged with Count 3 (aggravated child molestation by touching his penis to the child’s vagina and causing injury of a sexually transmitted disease). The Court also rejected this claim, holding that the evidence supported separate convictions.