Houston County convicted molester appealing to GA Supreme Court

A convicted child molester from Houston County is appealing his conviction to the Georgia State Supreme Court next week.
 
 
Pierce's lawyers argue that the trial judge made several errors, including allowing the jury to see a videotaped interview with a witness.
 
According to the state Supreme Court summary of the case, a Houston County Sheriff's Office investigators interviewed the boy for an hour and a half, and he described being molested by Pierce.
 
At the trial three years later, the boy testified that he didn't remembering talking to police and didn't remember being molested.
 
After lunch recess, prosecutors questioned the boy again, and he testified that he remembered giving the statement and that it was true.
 
Pierce was convicted of multiple counts of child molestation and aggravated child molestation. He was sentenced to 30 years in prison, without parole, followed by probation for the rest of his life.
 
His lawyers asked for a mistrial in the case based on the use of the victim's statement. He is now appealing both his sentence and the conviction.
 
The Georgia Supreme Court is scheduled to hear Pierce's case Monday morning in Atlanta.
 
Pierce owned a Centerville hair salon.
 
Here is the court summary of the case:
 
 
PIERCE V. THE STATE (S17A0828)
 
A man convicted of sexually molesting three boys when they were 13 and 14 years old is appealing his convictions and 30-year prison sentence.
 
FACTS: Matthew Caleb Pierce was indicted by a Houston County grand jury for six counts of aggravated child molestation, three counts of child molestation, two counts of sexual battery, one count of sexual exploitation of a child (“production”), one count of sexual exploitation of a child (possession), one count of distribution of Hydromorphone (an opioid pain medication), and one count of distribution of Alprazolam (an anti-anxiety medication available under the trade name, Xanax). The indictment alleged Pierce committed the offenses in the summer of 2011 against three boys, identified as B.M., M.T., and D.D. At the time, Pierce was 31; the boys were 13 and 14. According to testimony, B.M., who was 18 at the time of the trial, lived in the same apartment building as Pierce. During that summer, he, D.D. and M.T. “hung out” all the time and spent the night at B.M.’s apartment several times. The boys also hung out with “Caleb Pierce” at Pierce’s apartment where they would sit on the porch and drink beer together. Once, B.M. testified, D.D. became so intoxicated that B.M. had to carry him back to his apartment. B.M. testified he too felt poorly that night and passed out on a couch at Pierce’s apartment. According to the State, Pierce committed various sexual offenses against the boys which included performing anal and oral sex on B.M., and having B.M. perform anal and oral sex on him; having oral sex with M.T., and having M.T. perform oral sex on him; and offering drugs to D.D. in exchange for a picture of D.D.’s penis. Following a November 2014 trial, the jury found Pierce guilty of 14 of the 15 counts against him and acquitted him of one count of child molestation involving D.D. Pierce was sentenced to 30 years in prison with no chance of parole followed by probation for the remainder of his life.
 
A key issue in the case is a videotaped interview of B.M. that was played at Pierce’s trial. On July 9, 2011, the day the allegations against Pierce first arose, Investigator Keel Broom of the Houston County Sheriff’s Office interviewed B.M. for an hour and a half. His mother was present for a portion of the interview. At the trial three years later, B.M. testified he did not remember talking to police or Investigator Broom. And after watching the video outside the presence of the jury, he said the video did not refresh his memory and he did not remember anything concerning acts of molestation. The court then called a recess for lunch. When court reconvened, the State submitted a motion to introduce the video under the state’s statute on hearsay evidence (Georgia Code § 24-8-803 (5)) as a “past recollection recorded.” Under the statute, among those things that may not be excluded by the hearsay rule, even when the alleged victim is available as a witness, are a “record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately….” After the lunch recess, State prosecutors put B.M. back on the stand and asked him a number of questions, including whether he remembered giving the video statement to Broom, and whether at the time, he knew what he was talking about, spoke truthfully, and talked about things that were fresh in his memory. B.M. answered “yes” to each question. The State then offered the video as evidence, and over the defense attorney’s objection, the court admitted it. In the video, B.M. recounted the incident where D.D. got “messed up” from taking a pill Pierce had given him and drinking too much alcohol. He said Pierce had also given him a bunch of pills. Initially, B.M. stated that Pierce had never touched him but he had tried to watch B.M. urinate. At this point in the interview, Investigator Broom accused B.M. of being dishonest and mentioned obstruction and perjury. Broom then asked B.M.’s mother if he could interview B.M. alone and she left the room. Following her departure, B.M. tearfully told Broom he had spent the night at Pierce’s apartment and, in between sobbing, had had oral and anal sex with Pierce. The defense attorney then moved for a mistrial based upon admission of the video. The trial court denied the motion, and the jury subsequently convicted Pierce. Pierce now appeals to the state Supreme Court. 
 
ARGUMENTS: Pierce’s attorneys argue the trial court made several errors, including admitting the videotaped interview of B.M. into evidence after B.M. refused to testify to the details of the alleged sexual offenses. The trial court improperly admitted the video under the “past recollection recorded” exception to the hearsay rule because “the State failed to prove all of the requisite elements for admissibility by a preponderance of the evidence.” “This was a case of selective memory by a reluctant witness who did not want to testify to the things that the State needed him to testify to at trial,” Pierce’s attorneys argue in briefs. Georgia Code § 24-8-803 (5) “is not intended for use with a reluctant witness. Its purpose is to assist witnesses who genuinely cannot remember events that they recorded previously….” B.M. also failed to prove the prong of the test for admissibility under the statute that the statements he made in the recorded interview were true and accurately represented his knowledge at the time. “B.M. initially testified at trial that he did not even remember talking to the police or being interviewed by Detective Broom for an hour and a half and that he had no independent memory of any abuse,” the attorneys argue. Pierce’s defense against all the charges “was irreparably harmed by the erroneous introduction of the videotaped interview. The State presented no other evidence at trial to prove the crimes allegedly committed against B.M. other than the disturbing video of the crying teenager that brought some of the jurors to tears. Mr. Pierce was denied his constitutional right to cross-examine B.M. about the sexual offenses.” “The evidence tainted the entire trial and its improper admission by the court warrants a reversal as to all counts of conviction.” Among other arguments, Pierce’s attorneys contend the trial court erred by admitting into evidence photographs of screen shots taken from D.D.’s phone the State alleged were between D.D. and Pierce. Georgia law requires “authentication or identification as a condition precedent to admissibility…” “In the instant case, the State failed sufficiently to link the text messages contained on the screen shots from D.D.’s phone to Caleb Pierce,” Pierce’s attorneys contend. Finally, Georgia’s sentencing for aggravated child molestation is unconstitutional because it violates Pierce’s due process rights, equal protection rights and rights against cruel and unusual punishment. The severity of Pierce’s sentence “is grossly out of proportion to the severity of the conduct,” his attorneys argue. “There is a shocking disparity between Georgia’s sentencing scheme for aggravated child molestation and the sentencing schemes of sister states in effect at the time of Mr. Pierce’s sentencing for similarly proscribed conduct….” 
 
The District Attorney’s office, representing the State, argues the trial court did not err in admitting the videotaped interview of B.M. “Here, the State laid the foundation meticulously in admitting B.M.’s recorded interview with police under the past recollection recorded statute.” “Whether or not B.M. genuinely could not remember or was just reluctant to testify goes to credibility of the witness and weight of the evidence, which is a decision-making power that lies solely with the jury.” Pierce also argues that if B.M. could not remember details of the sexual offenses while on the stand at trial, then he could not verify that the things he said during the interview were true and accurate. “Here, there is ample evidence that B.M. was able to verify sufficiently the accuracy and truthfulness of the video and his statements made therein,” the attorneys argue. The interview took place about a week after the sexual offenses occurred, “when they would have been fresh in his mind.” Only after his mother left the interview room was B.M. comfortable enough to tell the detective details of the sexual acts with Pierce. And although B.M. initially testified that he could not remember giving a statement to police, he testified later that same day that he did remember giving a statement to police. The trial court did not err in admitting into evidence the screen shot photographs of the text messages found on D.D.’s cell phone. “There are no special rules under Georgia law governing the authentication of electronic documents or communications, such as text messages,” the State argues. “Instead, electronic records and communications are to be treated the same as ordinary writings for purposes of authentication and admission.” Finally, the trial court did not err in denying Pierce a new trial because his sentence “does not rise to the level of cruel and unusual punishment and was imposed within the range provided by statute,” the State argues. “Traditionally, it is the task of the legislature, not the courts, to define crimes and set the range of sentences.” 
 
Attorneys for Appellant (Pierce): Laura Hogue, Susan Raymond
 
Attorneys for Appellee (State): George Hartwig, III, District Attorney, T. Clifton Woody, II, Alicia Gassett
 
 

 

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