Nuckles v. State

310 Ga. 624

853 S.E.2d 81

NUCKLES

v.The STATE.

S20G0492

Supreme Court of Georgia.

Decided: December 21, 2020

Gerard B. Kleinrock, for appellant.

Sherry Boston, District Attorney, Deborah D. Wellborn, Jeanne M. Canavan, Maria O. Banjo, Jason M. Rea, Assistant District Attorneys, for appellee.

Arnall Golden Gregory, Jason E. Bring, Glenn P. Hendrix ; Gautreaux Law, Jarome Gautreaux; Caleb F. Walker ; Warshauer Law Group, Lyle G. Warshauer, amici curiae.

McMillian, Justice.

Wanda Nuckles was charged with depriving James Dempsey, an elder person, of essential services and concealing his death. Prior to her trial on those charges, Nuckles filed a motion seeking to exclude a video recording captured on a camera concealed in Dempsey's room at the residential rehabilitation center where Nuckles worked, asserting that the recording was inadmissible under OCGA § 16-11-67 because she did not consent to its recording as required under OCGA § 16-11-62 (2). The trial court denied the motion, and Nuckles appealed that ruling to the Court of Appeals, which affirmed the trial court in an unpublished opinion. Nuckles v. State, 352 Ga. App. XXV (Case No. A19A1578) (September 30, 2019) (unpublished). This Court granted Nuckles's petition for certiorari on the issue of whether the Court of Appeals erred in determining that the video recording at issue fell within the exception provided in OCGA § 16-11-62 (2) (B). Because we agree that the video recording falls within that exception, we affirm.

Construed in the light most favorable to the trial court's factual findings and judgment,¹ the evidence presented at the motion to suppress hearing showed that in December 2013, following hip surgery, 89-year-old Dempsey was discharged from the hospital to the North Atlanta Rehabilitation Center (the "rehab facility"), where Nuckles was employed.² Although Dempsey was first placed in a room on the main floor, he was moved a day or two later to the portion of the rehab facility housing patients with dementia. Dempsey's son, Timothy, who saw his father daily, noticed that Dempsey appeared "kind of out of it" and asked that a doctor examine him. After the doctor determined that Dempsey was extremely dehydrated, Dempsey was transferred back to the hospital.

Dempsey returned to the rehab facility on February 7, 2014, and although his mind was clear, Dempsey was again placed in the area housing dementia patients because there were no other rooms available. Dempsey shared his room with a roommate, but there was a privacy curtain between the areas assigned to the two residents that was usually drawn. Timothy employed a caretaker to stay with his father during the day, and Timothy visited in the evenings. Dempsey related to Timothy that strange things were happening in his room at night. Dempsey said, for example, that one of the female residents came into his room and tried to get in bed with him, and a male resident came into his room unclothed. Dempsey's personal items also began to go missing, including his hearing aids and various toiletry items. Additionally, Dempsey complained about the care he was receiving, reporting that staff members were sometimes rude to him and that they would not answer his calls for assistance in a timely fashion. Dempsey asked Timothy to spend the night with him, but Timothy was unable to do so because he had to care for his stepchildren at night while his wife worked.

Instead, Timothy decided to install a video surveillance camera in order to see what was going on in Dempsey's room at night, and he found a camera online that was concealed in a four- to five-inch-square alarm clock and that would record "24/7" in five-minute increments onto a memory card. Timothy installed the camera on February 7 or 8, 2014, placing it on the dresser across from Dempsey's bed where it was focused on Dempsey and his belongings. It did not capture Dempsey's roommate's side of the room, and the roommate only appeared on camera when he came over to Dempsey's area. Timothy testified that Dempsey was happy with the camera because he felt like someone was watching what was going on. Only Timothy, Dempsey, the private caretaker hired by Timothy to watch his father during the day, Timothy's wife, and Timothy's stepdaughter knew the camera was there.

Dempsey passed away on February 27, 2014, and by that time, the camera had recorded approximately 400 hours of video. Before viewing the video from the night of Dempsey's death, Timothy contacted law enforcement and requested that an autopsy be performed because Timothy had visited Dempsey the night before his death, thought Dempsey had been doing well, and found his death to be unexpected. Later, after Timothy viewed the video from the camera in Dempsey's room, he forwarded it to law enforcement.³

Nuckles was subsequently indicted by a grand jury⁴ and charged with one count of depriving an elder person of essential services under OCGA § 16-5-102 and one count of concealing the death of another under OCGA § 16-10-31.⁵ She later filed a "Motion to Suppress/Motion in Limine" seeking to exclude the video recording taken in Dempsey's room, asserting that, because she did not consent to the video recording, it was made in violation of OCGA § 16-11-62 (2).⁶ That subsection provides that it is unlawful for

[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view[.]

OCGA § 16-11-62 (2). Nuckles filed her motion to suppress the video recording pursuant to OCGA § 16-11-67, which provides: "No evidence obtained in a manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part." The State argued in response, however, that the video recording was admissible because it fell within the exception set forth in OCGA § 16-11-62 (2) (B) (the "Security Exception"), which provides that it is not unlawful

[f]or an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy[.]

The trial court denied the motion following an evidentiary hearing, ruling that the video recording did not occur in a "private place," under OCGA § 16-11-62 (2), and thus Nuckles lacked standing to contest the recording. Alternatively, the trial court found that the video recording fell within the Security Exception. The trial court concluded, therefore, that the video recording was admissible.

The trial court certified its order for immediate review, and the Court of Appeals granted Nuckles's application for an interlocutory appeal.⁷ After noting that the trial court applied the wrong definition of "private place,"⁸ the Court of Appeals affirmed the trial court's ruling, holding that "even if Dempsey's room was a ‘private place’ " under OCGA § 16-11-62 (2), the recording fell under the Security Exception because it was installed for the purpose of determining who was entering the room, whether someone was stealing Dempsey's belongings, and whether the rehab facility employees were neglecting him. The Court of Appeals did not address whether Nuckles was "an owner or occupier of real property" or whether his room was an area "where there is no reasonable expectation of privacy." Following the decision of the Court of Appeals, Nuckles filed a petition for certiorari, which this Court granted to consider the issue of whether the video recording fell within the Security Exception.⁹

1. In analyzing this issue, "we first look to the text [of OCGA § 16-11-62 (2) (B),] because a statute draws its meaning from its text." Crowder v. State of Ga. , 309 Ga. 66, 69 (2), 844 S.E.2d 806 (2020) (citation and punctuation omitted). The text of the Security Exception sets out the following requirements for its application: (1) the video recording must be made by "an owner or occupier of real property"; (2) "to use for security purposes, crime prevention, or crime detection"; (3) with a device "to observe, photograph, or record the activities of persons who are on the property or an approach thereto"; (4) in an area "where there is no reasonable expectation of privacy[.]" OCGA § 16-11-62 (2) (B).

Nuckles does not contest that the video recording in this case met the second and third of these requirements, that it was made for security purposes to record the activities of persons on the property. However, she takes issue with the first and fourth requirements. Nuckles contends that the exception does not apply because Dempsey was not an owner or occupier of real property and the recording took place in a patient's room, which is an area where there is a reasonable expectation of privacy.

2. With regard to her first contention, Nuckles argues that the phrase "owner or occupier of real property," regardless of its context, is a legal term of art referring only to a person who has ultimate control over the property and is responsible for its maintenance, protection, and guests. Because Dempsey had no such control of, or responsibility for, the rehab facility property, Nuckles asserts that he was not an owner or occupier of real property and the Security Exception does not apply.

We begin our analysis of whether the Security Exception applied to the video recording in this case by considering the meaning of "owner or occupier of real property" under OCGA § 16-11-62 (2) (B). In doing so, we must look to the text of the statute, affording it "its plain and ordinary meaning, viewed in the context in which it appears , and read [it] in its most natural and reasonable way." Carpenter v. McMann , 304 Ga. 209, 210, 817 S.E.2d 686 (2018) (citation and punctuation omitted; emphasis supplied). See also Deal v. Coleman , 294 Ga. 170, 172-73 (...