297 Ga. 401
FINAL COPY


                       S15A0182. SIMS v. THE STATE.

      HUNSTEIN, Justice.

      Appellant James Revera Sims II was convicted of malice murder and

related offenses in connection with the April 11, 2011 death of Cayden Allen,

a nearly three-year-old child. He appeals, asserting, inter alia, that the trial court

erred in admitting a video recording made by police in appellant’s apartment.

For the reasons set forth below, we affirm.1

      Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established as follows. Cayden’s mother left for work on the

afternoon of April 8, 2011. She left Cayden in the care of appellant, her

boyfriend. At 6:10 p.m., appellant called 911 and requested an ambulance. A

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        The grand jury indicted appellant on July 12, 2011, and charged him with
malice murder, two counts of felony murder, aggravated battery, and two counts of
cruelty to children in the first degree. Trial commenced on September 24, 2012, and
the jury returned its verdict three days later, finding appellant guilty on all counts.
The trial court sentenced appellant on December 12, 2012, to life for malice murder
and a consecutive term of ten years for one count of first degree cruelty to children.
The remaining counts were merged and vacated. See Malcolm v. State, 263 Ga. 369
(434 SE2d 479) (1993). Appellant filed a motion for new trial on December 21,
2012. The motion was amended on March 17, 2014, and denied on August 13, 2014.
Appellant filed a notice of appeal on August 18, 2014. The case was docketed in this
Court to the January 2015 term and submitted for decision on the briefs.
police officer arrived at appellant’s apartment ahead of emergency personnel.

He found Cayden lying on his back on the living room couch and observed a

lump on Cayden’s forehead. Appellant was standing nearby. Cayden was

unconscious; he never moved.       His breathing was shallow and agonal.

Appellant told the officer that Cayden had been playing in his room with his

toys when he went to check on him; Cayden had soiled himself and indicated he

wanted to go to the bathroom; as appellant began to take Cayden to the

bathroom, Cayden stood up, fell down, struck the back of his head, and lost

consciousness; he brought Cayden to the bathroom where he tried to rouse him

with water to no avail; and he then placed Cayden on the couch and called

emergency personnel.

      Police Lieutenant Dunn and Detective Jones arrived at the apartment at

6:45 p.m. Lt. Dunn asked appellant if he would show the officers what

happened to Cayden. Appellant responded affirmatively and invited the officers

upstairs to Cayden’s bedroom. Using his smartphone, Lt. Dunn made a video

recording of appellant’s account at that time. Appellant said that as he was

taking Cayden to the bathroom, he took Cayden’s hand; Cayden slipped out of

his grip and fell backwards; and he saw Cayden lying on his back, choking.

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Then, at Lt. Dunn’s request, appellant demonstrated Cayden’s position on the

floor following his fall. Lt. Dunn observed that Cayden’s bedroom floor was

carpeted, padded, and covered, in part, by a play mat.

      In the meantime, emergency personnel arrived on the scene and

transported Cayden to the hospital. The emergency room physician determined

that Cayden suffered severe brain injuries and was almost dead. He was put on

a ventilator and airlifted to a pediatric trauma center within an hour. Cayden

never regained consciousness and died on April 11, 2011.

      A pediatrician at the trauma center observed multiple bruises to Cayden’s

head, torso, legs and genitalia. She opined that Cayden’s brain injuries resulted

from severe, multiple impacts to his head. The medical examiner reached the

same conclusion — blunt force head trauma caused Cayden’s death, not an

accidental fall.

      1. The evidence is sufficient to enable any rational trier of fact to find

appellant guilty beyond a reasonable doubt of the crimes for which he was

convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979); see Loren v. State, 268 Ga. 792 (1) (493 SE2d 175) (1997).

      2. Relying upon OCGA § 16-11-62 (2), which makes it unlawful for

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“[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,” appellant argues the trial court

erred in refusing to grant his motion to suppress the video recording made by Lt.

Dunn in appellant’s apartment.         Appellant asserts that before he began

recording, Lt. Dunn did not obtain a warrant permitting the use of a surveillance

device inside appellant’s apartment. See OCGA § 16-11-64 (c). Even assuming

arguendo that admitting the video recording was in error, it was harmless

because it is highly probable that the recording did not contribute to the jury’s

verdict in light of the overwhelming evidence of guilt. See Thompson v. State,

283 Ga. 581 (2) (662 SE2d 124) (2008).2 Moreover, the video recording was

cumulative of the videotaped statement appellant gave at the police department,

his own testimony at trial, and crime scene photographs depicting the victim’s

room. See Cane v. State, 285 Ga. 19 (2) (a) (673 SE2d 218) (2009) (improper

admission of statement harmless when cumulative of other testimony presented

      2
       We also note that the audio portion of the recording of appellant’s account
was admissible even if the video portion was not. See Fetty v. State, 268 Ga. 365 (3)
(489 SE2d 813) (1997) (OCGA § 16-11-62 does not apply to audio recording of
conversation by one who is a party to it); Durham v. State, 309 Ga. App. 444 (3) (710
SE2d 644) (2011).
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to the jury).

      3. Next, appellant contends that a statement he made at the police station

should have been excluded because he was not informed of his Miranda3 rights.

We disagree. Miranda warnings are not required unless the accused is formally

arrested or restrained to an extent associated with such an arrest. Leslie v. State,

292 Ga. 368 (4) (738 SE2d 42) (2013). Following a Jackson-Denno4 hearing,

the trial court concluded that appellant was not under arrest when appellant

made his statement. The trial court’s findings and conclusion are supported by

the record: Lt. Dunn asked appellant to accompany him to the station house

because it was not yet clear what had happened and he wanted to speak with

appellant in a quieter setting. Lt. Dunn made it clear to appellant that he was not

under arrest. Appellant agreed to go with the lieutenant. Because he was not

licensed to drive, appellant rode in the front passenger seat of Lt. Dunn’s

unmarked car. He was not handcuffed or restrained in any way. At the station,

Lt. Dunn led appellant to an interview room and sat him down. Appellant

remained in the interview room with the door open for about twenty minutes.

      3
          Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
      4
          Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
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He was by himself and unguarded until the interview commenced.

      Applying an objective standard, a reasonable person in appellant’s

circumstances would not have believed he was deprived of his freedom of action

in a meaningful way. Bell v. State, 280 Ga. 562 (2) (a) (629 SE2d 213) (2006);

see Sosniak v. State, 287 Ga. 279 (1) (A) (1) (695 SE2d 604) (2010) (relevant

inquiry is how a reasonable person in the accused’s position would perceive his

situation). It follows that appellant was not under arrest when he made his

statement at the police station and he was not entitled to Miranda warnings. See

also Leslie, 292 Ga. at 372 (police officer’s undisclosed suspicions about

suspect do not factor into determination as to whether suspect is in custody).

      4. During the prosecution’s re-direct examination of Lt. Dunn, the

assistant district attorney handed the lieutenant a photograph of appellant’s den

and asked if he observed anything “suspicious.” Lt. Dunn responded there was

“a broken rifle butt that was on the floor.” Appellant contends trial counsel

rendered ineffective assistance by failing to object to this colloquy because it

allowed the jury to infer the broken rifle was used to strike and kill Cayden.

Trial counsel’s failure to object was especially egregious, appellant argues,

because the trial court had granted appellant’s motion in limine to exclude

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photographs of appellant’s rifles — an AK-47 and a shotgun without its stock

— on the ground that they were prejudicial. But see Williams v. State, 277 Ga.

853 (6) (a) (596 SE2d 597) (2004) (gun ownership alone does not impute bad

character).

      In order to establish ineffective assistance of counsel under the Sixth

Amendment, a defendant must show both that counsel’s performance was

deficient and that counsel’s deficient performance prejudiced his defense.

Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674)

(1984). Because a defendant must show both deficient performance and actual

prejudice stemming from the deficiency, an insufficient showing on either one

of these prongs exempts an appellate court from the need to address the other

prong. Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004).

      To meet the prejudice prong, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U. S. at 694. See also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009).

We find that appellant failed to make such a showing in this case because on

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cross-examination, appellant’s counsel established that the rifle butt was never

sent off to a crime lab for DNA analysis or any type of testing which would have

shown that it was used to hit Cayden.

      Judgment affirmed. All the Justices concur.



                           Decided June 29, 2015.

      Murder. Rockdale Superior Court. Before Judge Irwin.

      Coxen & Worthington, Beau A. Worthington, for appellant.

      Richard R. Read, District Attorney, Roberta A. Earnhardt, Dabney Y.

Kentner, Assistant District Attorneys; Samuel S. Olens, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Jason M. Rea, Assistant Attorney General, for

appellee.




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