State v. Ward

361 Ga.App. 684

865 S.E.2d 267

The STATE

v.WARD.

A21A0952

Court of Appeals of Georgia.

October 28, 2021

Deborah Gonzalez Gonzalez, Patricia Jean Brooks, for Appellant.

Brian Steel, Atlanta, for Appellee.

Gobeil, Judge.

Relevant to the instant appeal, in March 2018, a jury found Kristin Matthew Ward guilty of child molestation and enticing a child for indecent purposes. Ward appealed these convictions and in June 2019, this Court affirmed in part, vacated in part, and remanded the case with direction to the trial court. Ward v. State , 353 Ga. App. 1, 836 S.E.2d 148 (2019). Specifically, we instructed the trial court on remand to conduct an evidentiary hearing and issue an order addressing whether the State made derivative use of compelled statements made by Ward during an internal affairs investigation through his employer, and whether Ward's trial counsel was deficient for failing to address this issue. Id. at 14, 16 (3), 836 S.E.2d 148. On remand, the trial court conducted this evidentiary hearing and issued an order granting Ward a new trial. The State has appealed. For the reasons explained below, we affirm the trial court's order.

A complete recitation of the evidence from Ward's trial can be found in our previous opinion, Ward , 353 Ga. App. at 1-3, 836 S.E.2d 148. Relevant to the issues presented in this appeal, the record reflects that a teenage boy, G. W., accused Ward of molesting him on multiple occasions. Id. At the time, Ward was an employee of the Athens-Clarke County Police Department. As a result of the allegations, the police department conducted an investigation, led by Jerry Saulters, the then-lieutenant in charge of internal affairs. As part of the investigation, Ward was interviewed by Saulters and answered questions about his relationship with G. W. The police department generated a file associated with the investigation, which was not admitted at trial, but was included in the appellate record. The investigative file contains many documents, including a report from Saulters that summarizes his investigation and the termination notice issued to Ward (which includes a summary of information obtained during Ward's interview with Saulters). The interview itself was captured on video and also included with the investigative file.

Before Ward's trial, trial counsel filed a motion seeking to exclude "all evidence regarding" the internal affairs investigation. After a hearing, the trial court granted Ward's motion, ruling that any statements made by Ward during the investigation were coerced such that they could not be used against him in a criminal trial. Thus, Ward's interview and his response to learning of the specific allegations were not admissible, although statements Ward made to others upon learning of the investigation or statements he made to Saulters outside of the investigation were not a part of the investigation and were admissible.

Although the investigative file and Ward's interview were not admitted at trial, the prosecution team obtained them through an Open Records Act request. Prosecutor Patricia Brooks read through the investigative file and watched at least part of Ward's interview while working on the case. Other prosecutors and the office's investigator also had access to the investigative file prior to Ward's trial.

At trial, Saulters testified to the fact that an internal affairs investigation was conducted. After Ward testified in his own defense that he did not molest G. W., Saulters was re-called by the State as a rebuttal witness. Saulters was asked: "Without getting into any specifics as to the reason for your opinion, if Kris Ward were to testify under oath, would you believe what he had to say?" Saulters responded, "No."

After Ward was found guilty of the above-stated charges, new defense counsel entered an appearance ("appellate counsel"). In the motion for new trial, appellate counsel asserted that trial counsel was ineffective for failing to object to the State's possession and potential derivative use of the internal affairs file. The trial court denied Ward's motion for new trial on this claim, and Ward raised the claim on appeal. We vacated the trial court's order on this issue and remanded the case with instruction. Ward , 353 Ga. App. at 1, 16 (3), 836 S.E.2d 148. The trial court subsequently granted Ward a new trial on this issue, and the State has appealed.

The parties do not dispute that the statements made by Ward during the internal affairs investigation "constitute compelled, immunized statements subject to the constitutional protections of the Fifth and Fourteenth Amendments." Ward , 353 Ga. App. at 9 (3), 836 S.E.2d 148. See Garrity v. New Jersey , 385 U. S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (statements made by police officers under threat of termination from employment constitute coerced confessions that cannot be used in a subsequent criminal proceeding). Thus, there is no question that any statements made by Ward during the internal affairs investigation were inadmissible at his trial.

Additionally, the United States Supreme Court has ruled that "evidence derived directly and indirectly" from compelled statements is also prohibited. Kastigar v. United States , 406 U. S. 441, 453 (III), 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). This includes a prohibition on "knowledge and sources of information obtained from" compelled statements. Ullmann v. United States , 350 U. S. 422, 437, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Georgia's Supreme Court has recognized this privilege, stating that "the prosecution should not be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused." Muhammad v. State , 282 Ga. 247, 250 (3), 647 S.E.2d 560 (2007) (citation and punctuation omitted).¹

Thus, as we explained in our prior opinion, the State potentially engaged in prohibited "derivative use" of Ward's Garrity -protected statements based on the prosecutors’ possession and knowledge of the contents of the internal affairs investigative file while preparing the criminal case against him. Ward , 353 Ga. App. at 9-12 (3), 836 S.E.2d 148. And trial counsel was potentially ineffective for failing to object to such derivative use. Id. at 11-12 (3), 836 S.E.2d 148. However, because the trial court had not conducted an evidentiary hearing as required by Kastigar , we remanded the case for the trial court to conduct such a hearing.

We explained the standard for the trial court to apply: "the burden is upon the State to show the absence of taint and that the evidence was derived from legitimate, independent sources." Ward , 353 Ga. App. at 13 (3), 836 S.E.2d 148. See also Kastigar , 406 U. S. at 460 (IV), 92 S.Ct. 1653 (the "burden of proof ... is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it ... use[d] [was] derived from a legitimate source wholly independent of the compelled testimony") (citation and punctuation omitted). Further, "neither speculation nor conclusory denials of use or derivative use by government officials will substitute for the affirmative showing of an independent source required for each and every item of evidence presented to the ... jury." Ward , 353 Ga. App. at 13 (3), 836 S.E.2d 148 (punctuation omitted; emphasis supplied) (citing United States v. Hampton , 775 F.2d 1479, 1489 (11th Cir. 1985) ).

Based on these principles outlined in our previous opinion, the trial court conducted a hearing on remand. At the hearing, three prosecutors and the primary investigator involved in Ward's prosecution all testified regarding the acquisition and use of the internal affairs investigative file. Prosecutors Brooks and Caitlin Yalamanchili both testified to reading through the investigative file (which included the termination letter summarizing Ward's interview) and watching part of Ward's interview, but denied using it to gather additional evidence or shape their questioning of witnesses. Three witnesses from Ward's trial testified at the Kastigar hearing: (1) Special Agent Rebecca Herold; (2) Saulters; and (3) Alicia Chandler, who interviewed the victim.

Significantly, Saulters testified at the Kastigar hearing that he was frustrated with Ward during the internal affairs interview because Ward was not providing much information. Based on Ward's behavior during the interview, Saulters formed a strong opinion that Ward was not a truthful person. Saulters explained that he met with prosecutors prior to Ward's trial and was instructed not to testify to any statements that Ward made during the interview. However, at trial, he was asked about his opinion of Ward's truthfulness and he responded accordingly. Saulters stated that the prosecutors knew that his opinion of Ward's truthfulness was based in significant part on Ward's conduct during the internal affairs investigation.

After the hearing, the trial court issued its order granting Ward a new trial. Specifically, the trial court found that Saulters testified at trial that he believed that Ward was not a truthful person; an opinion Saulters formed based on statements made by Ward during his compelled internal affairs interview. And, because Ward's truthfulness was central to his defense at trial, the trial court concluded that the influence of the compelled statements on the trial was not harmless. Additionally, the trial court found that the prosecutors admitted to having viewed protected information in the investigative file and "did not take the requisite precautions to ensure" that the Garrity -protected statements did not influence the case presented by the State at trial. Finally, the court found that Ward's trial counsel was ineffective for failing to request a Kastigar hearing before or during the trial.

Where a trial court grants a motion for new trial on special grounds involving a question of law, we review de novo. O'Neal v. State , 285 Ga. 361, 363, 677 S.E.2d 90 (2...