¶1In the Supreme Court of Georgia
¶2 Decided: April 19, 2021
¶3 S21A0247. ACOSTA v. THE STATE.
¶4 MCMILLIAN, Justice.
¶5 Eder Acosta appeals his convictions for malice murder and
¶6first-degree cruelty to children in connection with the death of Bryan
¶7Guzman. 1 Acosta asserts that the trial court erred in admitting the
¶8statements he made during his first interview with law enforcement
¶9investigators and denying his request to charge the jury on the
¶10lesser offense of misdemeanor involuntary manslaughter.
¶11 1 Bryan died on July 16, 2009, and on March 15, 2011, a Forsyth County grand jury indicted Acosta, charging him with malice murder, felony murder, aggravated battery, and first degree cruelty to children. Acosta’s trial took place from June 11 to June 20, 2012, and the jury found Acosta guilty on all counts. The trial court sentenced Acosta to serve life in prison for malice murder and 20 years concurrent for first-degree cruelty to children. The aggravated battery charge was merged into the murder conviction, and the felony murder count was vacated as a matter of law. Acosta filed a motion for new trial on July 24, 2012, and new counsel amended that motion on August 8, 2018. The trial court denied the motion, as amended, on October 25, 2018, and Acosta filed a timely appeal, which was docketed to the term of this Court beginning December 2020 and submitted for a decision on the briefs. Discerning no error, we affirm.
¶12 The evidence presented at trial showed that on the morning of
¶13July 16, 2009, Acosta carried six-year-old Bryan Guzman into a
¶14Forsyth County hospital emergency room. The child was not
¶15breathing and had no pulse. Bryan was intubated, and after
¶16approximately 40 minutes, the emergency room medical staff was
¶17able to restart his heart. Bryan was then airlifted to a children’s
¶18hospital in Atlanta, where he died. An autopsy revealed that Bryan
¶19had suffered significant injuries to his head, scrotum, and abdomen
¶20from blunt force trauma. According to the forensic pathologist who
¶21performed the autopsy, Bryan’s injuries and the bruising on his body
¶22were consistent with multiple, repetitive blows to his abdomen, a
¶23blow or a kick to his scrotum, and impact wounds to his head. The
¶24pathologist also testified that the abdominal injuries resulted in
¶25lacerations to Bryan’s liver and two other organs, causing internal
¶26bleeding, and that although the injuries to any one of these organs
¶27could have proved fatal, the lacerations to the liver would have led
¶28to Bryan’s death within minutes to hours of the injury.
¶29 2 Subsequent investigation by the Forsyth County Sheriff’s
¶30Department revealed that after Acosta moved into the home where
¶31Bryan lived, Bryan exhibited a number of unexplained injuries,
¶32including bruises, lumps, and a petechial rash; 2 that witnesses had
¶33seen Acosta hit Bryan; and that Bryan, who was nonverbal and
¶34autistic, appeared to be afraid of Acosta. In his first interview with
¶35investigators, Acosta said that he had seen one of Bryan’s uncles hit
¶36him, but in his second interview, Acosta said that on the morning of
¶37Bryan’s death, he had used his hands and fists in an effort to revive
¶38the child after he found that Bryan was not breathing. However, the
¶39forensic pathologist testified that the bruising on Bryan’s abdomen
¶40was not in a location where cardio-pulmonary resuscitation (CPR) is
¶41performed and that Bryan’s injuries were not consistent with the
¶42performance of that procedure. 3
¶43 2 One of Bryan’s treating physicians described the “petechial rash” as “broken capillary blood vessels on the surface of the skin,” which can result from a number of causes, including trauma. 3 Acosta does not contest the sufficiency of the evidence to support his
¶44convictions, and this Court no longer routinely conducts a sua sponte sufficiency review in non-death penalty cases. See Davenport v. State, 309 Ga. 385, 399 (4) (b) (846 SE2d 83) (2020). 3 1. Acosta asserts that the trial court erred in admitting
¶45statements he made in the first of two interviews with investigators
¶46because he was in custody and should have been informed of his
¶47rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16
¶48LE2d 694) (1966), and that his statements were not voluntary
¶49because they were improperly induced in violation of former OCGA
¶50§ 24-3-504 by the hope that he would not be charged with driving
¶51without a license if he spoke with the investigators. We disagree.
¶52 In considering the admissibility of a defendant’s statement to
¶53law enforcement officers, “the trial court must look to the totality of
¶54the circumstances to decide whether the statement was made freely
¶55and voluntarily.” Cain v. State, 306 Ga. 434, 438 (2) (831 SE2d 788)
¶56(2019) (citation omitted). On appeal, “[a]lthough we defer to the trial
¶57court’s findings of disputed fact, we review de novo the trial court’s
¶58application of the law to the facts. And following a Jackson-Denno[ 5]
¶59hearing, this Court will not disturb the trial court’s factual and
¶60 4 Because Acosta was tried in 2012, former OCGA § 24-3-50 applies in this case. See Ga. L. 2011, pp. 99, 214, § 101. 5 See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
¶61 4 credibility determinations unless they are clearly erroneous.” Id.
¶62(citations and punctuation omitted).
¶63 With regard to Acosta’s first interview with investigators, the
¶64evidence presented at the pretrial Jackson-Denno hearing showed
¶65the following. On the morning after Bryan’s death, three undercover
¶66officers were assigned to surveil the residence where Bryan had
¶67lived with his mother, Laura Moreno; two uncles; and Acosta.6 That
¶68morning, the officers observed Acosta, Moreno, and Bryan’s 12-year-
¶69old brother leaving the residence in a Dodge Durango, with Acosta
¶70driving. The officers followed Acosta’s vehicle to the parking lot of a
¶71nearby grocery store, where the three occupants of the vehicle went
¶72inside the store.
¶73 When Acosta and the others returned to the vehicle, the
¶74undercover officers approached them to ask if they would mind
¶75waiting to speak with an investigator who was looking into Bryan’s
¶76 6 Acosta and Moreno were involved in a romantic relationship and together had a young child, who also lived in the home. Moreno’s eldest child, Bryan’s older brother, lived with his father but was visiting Moreno’s home at the time of Bryan’s death.
¶77 5 death. 7 Acosta and the others were told that they did not have to
¶78speak with the investigator, but they agreed to wait for him. A short
¶79time later, two investigators, Detective Joseph Whirlow and
¶80Sergeant Braulio Franco, arrived and asked whether Acosta and
¶81Moreno would mind going to the police station to talk. Acosta and
¶82Moreno agreed to this request, but when the officers suggested that
¶83the couple follow them to the station in their vehicle, Acosta said
¶84that he did not have a driver’s license.8 With Acosta’s consent, one
¶85of the undercover officers drove Acosta and the others to the police
¶86station in the Dodge Durango. The officer did not ask Acosta any
¶87questions, nor did he discuss the case on the four- to five-mile ride
¶88to the station.
¶89 The law enforcement officers who were in the parking lot with
¶90Acosta testified that Acosta was not under arrest when he was asked
¶91to go to the station. Moreover, each officer said that if Acosta had
¶92 7 There is no evidence in the record as to whether Acosta knew he had been followed by the officers, and thus no evidence as to whether Acosta was aware that the officers had previously seen him driving without a license. 8 We could locate no evidence in the record as to whether Moreno had a
¶93driver’s license. 6 chosen not to accompany the investigators to the station, he was free
¶94to leave, and they would not have stopped him. In addition,
¶95Detective Whirlow testified that the investigators were not
¶96concerned with Acosta’s lack of a driver’s license because they were
¶97investigating a murder and, as they arrived after Acosta, they had
¶98not seen him driving. Another officer testified that Acosta was told
¶99that it was “okay” that he did not have a driver’s license.
¶100Nevertheless, once Acosta said he had no license, the officers could
¶101not allow him to break the law by driving to the station without one.
¶102 At the station, the investigators followed their standard
¶103procedure of separating witnesses for their interviews 9 by placing
¶104Acosta and Moreno in separate interview rooms. 10 Sergeant Franco,
¶105who was fluent in Spanish, interviewed Moreno because she did not
¶106speak much English. Both Detective Whirlow and Sergeant Franco
¶107 9 Detective Whirlow and Sergeant Franco testified at trial that they prefer not to interview people together because the interviewees may repeat each other’s information or convey facts based on a collective understanding, even if that understanding is not consistent with each individual’s personal recollection. Additionally, the presence of other people may cause a witness to conceal information. 10 Because of his age, Bryan’s brother was interviewed separately by a
¶108forensic interviewer. 7 participated in the interviews of Acosta, and they stated that
¶109because Acosta was not a suspect and was not under arrest, they did
¶110not inform him of his rights under Miranda before the first
¶111interview.
¶112 The doors to the interview rooms did not have locks, and Acosta
¶113was free to, and did, leave the room during the first interview.
¶114Although Detective Whirlow accompanied Acosta from the interview
¶115room to the bathroom and waited outside until he finished, he did so
¶116because a key-coded door separated the interview area from the
¶117bathroom; therefore, any visitor using the bathroom required
¶118assistance to re-enter the interview area. There was no evidence
¶119that Acosta was ever threatened, handcuffed, or otherwise
¶120restrained before or during the first interview.
¶121 Although Acosta was not allowed to see Moreno while she was
¶122being interviewed, the investigators left Acosta alone in his
¶123interview room for a time while they were gathering paperwork and
¶124while Moreno was being interviewed. They also provided Acosta
¶125water and allowed him to keep his cell phone and answer calls
¶126 8 during his interview. Acosta’s side of the telephone calls was
¶127recorded, and at the Jackson-Denno hearing, with defense counsel’s
¶128consent, Detective Whirlow read from a translation of the recorded
¶129phone conversations, during which Acosta spoke Spanish. According
¶130to that translation, Acosta explained to one caller that he was not at
¶131the police station because of his lack of a driver’s license but was
¶132there to answer “normal questions, supposedly about Bryan,” and
¶133told another caller that he was there because the investigators
¶134wanted to ask Moreno and him questions about Bryan’s death.
¶135 During the interview, Acosta told investigators that he had
¶136seen one of Bryan’s uncles strike the child, and after Detective
¶137Whirlow and Sergeant Franco completed the interviews with Acosta
¶138and Moreno, the investigators left to interview Bryan’s uncles at
¶139another location. Before the investigators left, they asked Acosta
¶140and Moreno if the couple would mind waiting until the investigators
¶141returned, and Acosta and Moreno agreed. The investigators testified
¶142that neither Acosta nor Moreno was under arrest, and both were free
¶143to leave the police station. The couple were provided lunch during
¶144 9 their wait and were allowed to be together and to keep their phones.
¶145 After the uncles provided alibis for each other and furnished
¶146information implicating Acosta in Bryan’s death, the investigators
¶147returned to the police station. They then conducted a second
¶148interview with Acosta. Because Acosta was considered a suspect at
¶149that point, Sergeant Franco read Acosta his rights under Miranda,
¶150and, at Acosta’s request, he read them in Spanish. Acosta signed a
¶151waiver-of-rights form, and both officers witnessed his signature. It
¶152was during the second interview that Acosta admitted using his
¶153hands and fists on Bryan, leaving bruises on the child’s body.
¶154 The trial court concluded that under the totality of the
¶155circumstances, Acosta was not in custody at the time of the first
¶156interview and expressly found that the statements in that interview
¶157were not induced with the hope of benefit.11 Therefore, the trial court
¶158 11 The trial court announced its ruling and findings at the Jackson-Denno hearing, and the limited portions of the trial court record selected by Acosta for inclusion in the record on appeal do not contain a written order on this issue. Acosta’s appellate counsel asserts that no written order was ever entered, but the State represents that the trial court entered a written order consistent with its oral findings at the hearing. 10 ruled that the statements from the first interview were admissible.
¶159In reaching this ruling, the trial court expressly credited the officers’
¶160testimony that they would not have detained Acosta in the parking
¶161lot because they had no probable cause to do so and implicitly found
¶162that Acosta agreed to go to the police station voluntarily to speak
¶163with the investigators. The trial court determined that even though
¶164law enforcement would not let Acosta drive his car, he had a cell
¶165phone to call for a ride or he could have walked away. The trial court
¶166further found that though investigators interviewed Acosta
¶167separately from Moreno in a closed interview room, escorted him to
¶168the bathroom, and did not allow him to see Moreno while she was
¶169being interviewed, Acosta was nonetheless free to leave the building
¶170at any time while Moreno was being questioned. After reviewing the
¶171record, we conclude that the trial court committed no clear error in
¶172making its factual findings, so we review de novo the application of
¶173the law to those facts. See Griffin, 309 Ga. at 868 (4).
¶174 (a) Acosta first asserts that his statements from his initial
¶175interview should have been excluded because he did not receive a
¶176 11 Miranda warning prior to that interview.
¶177 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.
¶178Harper v. State, __ Ga. __, __ (2) (853 SE2d 645) (2021) (citation
¶179omitted).
¶180 Here, Acosta was not under formal arrest, and, accepting the
¶181trial court’s factual findings and credibility determinations, we
¶182conclude that a reasonable person in Acosta’s position would not
¶183perceive that he was in custody at the time of the first interview.
¶184The investigators asked, and did not demand, that Acosta talk to
¶185them at the police station, and Acosta voluntarily agreed to do so.
¶186Acosta then allowed one of the officers to drive him to the station.
¶187Moreover, nothing in the circumstances surrounding the first
¶188interview shows that Acosta was being detained or otherwise
¶189restrained. To the contrary, he was allowed to leave the interview
¶190room when he chose and to keep and use his phone, and the trial
¶191 12 court found that he was free to leave at any time. Therefore,
¶192considering the totality of the circumstances, the investigators were
¶193not required to read Acosta his rights under Miranda before
¶194conducting the first interview. See State v. Rumph, 307 Ga. 477, 481-
¶19582 (837 SE2d 358) (2019) (defendant was not in custody for purposes
¶196of Miranda where he voluntarily agreed to go with investigators to
¶197sheriff’s office to give a statement; he was left alone in an unlocked
¶198interview room; and he was allowed to retain his phone, take phone
¶199calls, and leave the interview room for breaks); Drake v. State, 296
¶200Ga. 286, 289-90 (2) (766 SE2d 447) (2014) (Miranda warning not
¶201required because defendant was not in custody where investigators
¶202requested, rather than demanded, to speak with him; he voluntarily
¶203agreed to go to the police station; and he was never physically
¶204restrained or threatened).
¶205 (b) Acosta also asserts that his statements in the first interview
¶206were not voluntary because they were improperly obtained in
¶207violation of former OCGA § 24-3-50 under a hope of benefit that he
¶208would not be charged with driving without a license if he cooperated
¶209 13 with investigators. Under that former code section, “[t]o make a
¶210confession admissible, it must have been made voluntarily, without
¶211being induced by another by the slightest hope of benefit or remotest
¶212fear of injury.” 12 And “this Court consistently . . . interpreted the
¶213phrase ‘slightest hope of benefit’ as used in OCGA § 24-3-50 . . . to
¶214focus on promises related to reduced criminal punishment—a
¶215shorter sentence, lesser charges, or no charges at all.” Brown v.
¶216State, 290 Ga. 865, 868-69 (2) (b) (725 SE2d 320) (2012).
¶217 Here, although the undercover officers observed Acosta in the
¶218act of driving, they first approached him in the grocery store parking
¶219lot so there is no evidence that Acosta knew the officers had seen
¶220him driving. Also, when the officers later learned that Acosta had
¶221no driver’s license, there is no evidence that any of the officers or the
¶222investigators made any promises to Acosta with regard to any prior
¶223traffic violation. To the contrary, the evidence at the hearing showed
¶224 12This language was carried forward almost verbatim in OCGA § 24-8- 824 of the current Evidence Code, which 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.” (Emphasis supplied.) 14 that Acosta agreed to talk to investigators and accompany them to
¶225the station before the issue of his license arose, and when Acosta
¶226said that he did not have a license, he was told that it was “okay”
¶227but they could not let him drive. Acosta then consented to having an
¶228officer drive him to the station. The trial court expressly credited the
¶229officers’ testimony that they would not have detained Acosta if he
¶230declined to speak with the investigators and chose instead to leave
¶231the parking lot. Additionally, Acosta’s statements in his two phone
¶232conversations during the first interview reflect that he understood
¶233that he was not in trouble based on the traffic violation, but rather
¶234was there to answer questions about Bryan’s death.
¶235 Under these circumstances, we ascertain no violation of former
¶236OCGA § 24-3-50 and affirm the trial court’s finding that Acosta’s
¶237statements in the first interview were not induced by a hope of
¶238benefit. See Wilson v. State, 293 Ga. 508, 510 (2) (748 SE2d 385)
¶239(2013) (no hope of benefit inducing statement where record reflects
¶240no promises, explicit or implicit, related to leniency in charges or
¶241sentence). Compare Foster v. State, 283 Ga. 484, 487-88 (2) (660
¶242 15 SE2d 521) (2008) (defendant’s statements connecting himself to the
¶243murder weapon were involuntary where they were induced by law
¶244enforcement officers’ written promise not to charge defendant with
¶245additional crimes related to the weapon).
¶246 2. Acosta also argues that the trial court erred in refusing to
¶247give the following charge on the lesser offense of misdemeanor
¶248involuntary manslaughter:
¶249 A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.
¶250See OCGA § 16-5-3 (b) (providing that “[a] person who commits the
¶251offense of involuntary manslaughter in the commission of a lawful
¶252act in an unlawful manner, upon conviction thereof, shall be
¶253punished as for a misdemeanor.”). Acosta asserts that the evidence
¶254supported a finding that he caused Bryan’s death without any
¶255intention to do so by performing the lawful act of attempting to
¶256revive the child in a manner that became unlawful when it rose to
¶257 16 the level of reckless conduct.
¶258 During the charge conference, the State opposed the
¶259involuntary manslaughter charge, asserting that even if someone
¶260were inept at CPR, his or her actions would not be unlawful. Acosta’s
¶261counsel offered no counterargument, 13 and the trial court declined to
¶262give the charge. Acosta thereafter did not object to the trial court’s
¶263charge as given based on the omission of the involuntary
¶264manslaughter charge.
¶265 Because Acosta did not object to the trial court’s charge as
¶266given, he is only entitled to plain error review of the omission of the
¶267involuntary manslaughter charge. See Merritt v. State, 310 Ga. 433,
¶268440 (4) (a) (851 SE2d 555) (2020). To show plain error, Acosta “must
¶269 13 However, Acosta notes on appeal that he had previously requested a charge on reckless conduct, and with regard to that charge, his counsel argued that although their “number one defense” was that Bryan was killed by one of his uncles, they also planned to argue that performing CPR incorrectly is negligence, which would justify a reckless conduct charge. The prosecutor countered that the evidence showed that either Acosta beat the child to death or the uncle did and Acosta performed CPR, but there was no evidence that Acosta consciously disregarded a substantial and unjustifiable risk in performing CPR as required for reckless conduct. The trial court declined to give the reckless conduct charge, and Acosta neither objected to that omission nor asserts error on that ground on appeal. 17 demonstrate that the instructional error was not affirmatively
¶270waived, was obvious beyond reasonable dispute, likely affected the
¶271outcome of the proceedings, and seriously affected the fairness,
¶272integrity, or public reputation of judicial proceedings.” Hill v. State,
¶273310 Ga. 180, 194 (11) (a) (850 SE2d 110) (2020) (citation omitted).
¶274 We discern no error, much less plain error. Although “there
¶275need only be slight evidence supporting the theory of [a requested
¶276jury] charge” to authorize the giving of that charge, see McClure v.
¶277State, 306 Ga. 856, 863 (1) (834 SE2d 96) (2019), a jury instruction
¶278on misdemeanor involuntary manslaughter premised on a lawful act
¶279performed in an unlawful manner is not warranted in this case. In
¶280Folson v. State, 278 Ga. 690, 693 (4) (606 SE2d 262) (2004), the
¶281appellant also asserted that the trial court erred in failing to give
¶282his requested charge on misdemeanor involuntary manslaughter,
¶283based on “his own testimony that he struck [the child victim] on the
¶284back to clear his airway and pressed the child’s abdomen in an effort
¶285to perform CPR.” Id. This Court determined that if the jury believed
¶286that testimony, “it could have found that the child’s injuries were
¶287 18 inflicted by accident.” Id. However, the record was devoid of “any
¶288evidence of an unlawful manner in which his lawful act of
¶289attempting to resuscitate the child was performed,” and if the
¶290defendant’s
¶291 alleged efforts to perform CPR [were] shown to have become so violent as to produce the injuries described by the medical examiner, his actions would have constituted the offense of reckless conduct and he would not have been entitled to a charge on lawful act-unlawful manner involuntary manslaughter.
¶292Id. Therefore, we concluded that the evidence did not support a
¶293charge on misdemeanor involuntary manslaughter, and the trial
¶294court did not err in rejecting the defendant’s requested charge. See
¶295id.
¶296 Likewise, the only evidence that Acosta attempted to revive
¶297Bryan came from Acosta’s statements to investigators that he had
¶298used his hands and fists on the child’s abdomen to try to do so.
¶299Acosta contends that the jury could have found that his lawful
¶300attempts to revive Bryan became reckless conduct, which he argues
¶301equates with the performance of a lawful act in an unlawful manner.
¶302 19 However, the evidence at trial showed that Bryan suffered severe
¶303blunt force trauma to his abdomen, resulting in lacerations to three
¶304separate organs, the injuries to any of one of which could have led to
¶305the child’s death. As in Folson, if Acosta’s actions rose to the level of
¶306causing Bryan’s multiple, severe injuries, Acosta would not have
¶307been performing a lawful act. Instead, Acosta would have been
¶308performing an unlawful act, the crime of reckless conduct.
¶309Accordingly, Acosta was not entitled to his requested charge on
¶310misdemeanor involuntary manslaughter, and the trial court did not
¶311err in refusing to instruct the jury on that offense. See Folson, 278
¶312Ga. at 693 (4); Paul v. State, 274 Ga. 601, 604-05 (3) (a) (555 SE2d
¶313716) (2001) (where in claiming to be disciplining his girlfriend’s 10-
¶314year-old son, appellant’s act of repeatedly striking the child with a
¶315belt to the point of causing severe injuries “comes so plainly within
¶316the definitions of reckless conduct that it cannot qualify as a lawful
¶317act, the trial court did not err when it declined to instruct the jury
¶318on lawful act-unlawful manner involuntary manslaughter.”
¶319(footnote omitted)).
¶320 20 Judgment affirmed. All the Justices concur.
¶321 21