                              THIRD DIVISION
                             ELLINGTON, P. J.,
                        DILLARD and MCFADDEN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 September 25, 2015




In the Court of Appeals of Georgia
 A15A1219. HOWARD v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Garrett Delmar Howard III was convicted of aggravated

assault (OCGA § 16-5-21 (c)) and possession of a firearm during the commission of

a crime (OCGA § 16-11-106). Howard argues that the trial court erred in denying his

motion for directed verdict, but evidence authorized the jury’s verdict of guilty.

Howard argues that the trial court erred in admitting evidence of inculpatory

statements he made when he was 15 years old, but the statements were spontaneous

utterances that did not implicate Howard’s Fifth Amendment rights. Finally, Howard

argues that the trial court erred in failing to give one of his requested jury charges

regarding the inculpatory statements, but the record shows that the requested charge

was not adjusted to the evidence. Accordingly, we affirm.
      1. Directed verdict.

      On appeal, we review the denial of a directed verdict of acquittal in a criminal

case under the standard of review set forth in Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979). See Rivers v. State, 296 Ga. 396, 404 (10) (768 SE2d

486) (2015); Stansell v. State, 270 Ga. 147, 148 (1) (510 SE2d 292) (1998).

Accordingly, “the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U. S. at 319

(III) (B) (citation omitted; emphasis in original).

      So viewed, the evidence showed that in the early afternoon of December 3,

2011, a convenience store employee called 911 after seeing 15-year-old Howard,

whom he recognized as an occasional store customer, waving a gun and arguing with

someone outside the store. Corporal Donald Chad Cheek, a uniformed law

enforcement officer driving to a special assignment, heard a dispatch call about

“trouble with a subject with a gun,” and shortly thereafter saw someone, whom he

later identified as Howard, standing outside, jumping up and down, waving a

handgun, and screaming. Officer Cheek pulled his vehicle near Howard and turned



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on his emergency lights and siren. Howard turned toward the officer, pointed the gun

directly at Officer Cheek’s face and shot at him.

      Howard fled, and Officer Cheek chased him on foot. The two exchanged

gunfire during the chase. Ultimately Howard escaped but was arrested several days

later. As a law enforcement officer at the sheriff’s office walked Howard down a

hallway to the booking desk, Howard spontaneously “apologiz[ed] for what had

happened.” He stated “that he was angry at the time and wanted to write Mr. Officer

Chad Cheek a letter of apology.” He also asked repeatedly “how much time he was

going to get over this.”

      Howard argues that the trial court should have granted his motion for directed

verdict because the state did not present sufficient evidence that he was the

perpetrator, especially given some discrepancies in witness descriptions of his

apparent age and height. But Officer Cheek affirmatively identified Howard as the

perpetrator, both from a photographic lineup conducted a few hours after the shooting

and in court during trial. It was for the jury to gauge the credibility of the officer’s

identification. Colzie v. State, 289 Ga. 120, 121 (1) (710 SE2d 115) (2011). The trial

court did not err in denying the motion for directed verdict of acquittal. See id. at 121-

122 (1).

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      2. Suppression of evidence of Howard’s statements.

      Howard argues that the trial court erred in admitting evidence of the statements

of apology he made as a law enforcement officer walked him to the booking desk at

the sheriff’s office. He argues that the statements should have been suppressed

because some of the statutory booking procedures for juveniles then in effect, see

former OCGA §§ 15-11-47 (setting forth procedures for taking child into custody)

and 15-11-48 (setting forth procedures for detaining child alleged to have committed

violent offense),1 were not followed, noting that the record was silent as to whether

he had been allowed to speak with either a family member or attorney before he made

the statements. He also argues that his Fifth Amendment right against self-

incrimination was violated. We disagree.

      Our Supreme Court has held that a “violation of the Juvenile Code does not

render [a juvenile’s] incriminating statement per se inadmissible.” Hanifa v. State,

269 Ga. 797, 805 (3) (505 SE2d 731) (1998); see also Johnson v. State, 261 Ga. App.

98, 101 (3) (581 SE2d 715) (2003). “The relevant inquiry is not whether the

[booking] procedures were followed to the letter before [a juvenile made a] statement


      1
        Current Code provisions setting forth the procedures for detaining and taking
a child into custody are at OCGA §§ 15-11-500 et seq.

                                          4
. . . , but whether [the juvenile] made a knowing and intelligent waiver of his

constitutional rights when he gave the incriminating statement.” Williams v. State,

273 Ga. App. 42, 45 (4) (614 SE2d 146) (2005); see also Johnson, 261 Ga. App. at

101 (3). Howard argues that he made the statements in violation of his Fifth

Amendment right against self-incrimination, and he cites the lack of evidence in the

record addressing factors relevant to a juvenile’s waiver of rights. See generally

Johnson, 261 Ga. App. at 101 (3). The Fifth Amendment, however, concerns

statements made by an accused during custodial interrogation. See Franks v. State,

268 Ga. 238, 239 (486 SE2d 594) (1997). A person’s Fifth Amendment rights are not

implicated when that person makes a spontaneous, unprompted utterance while in

custody. See Haggins v. State, 277 Ga. App. 742, 745 (2) (a) (627 SE2d 448) (2006).

Because the undisputed evidence in this case showed that Howard made the

statements at issue to a law enforcement officer spontaneously, and not in response

to any police interrogation, the trial court did not err in allowing the jury to hear

evidence of those statements. See id.

      3. Jury charge.

      Howard argues that the trial court erred in declining to give his requested jury

charge regarding the factors relevant to a determination of whether a statement by a

                                          5
juvenile was made with a knowing and intelligent waiver of his or her constitutional

rights. But as discussed above, because Howard made a spontaneous utterance, his

constitutional rights were not implicated. Consequently, Howard’s requested jury

charge was not adjusted to the facts of this case and the trial court did not err in

declining to give the charge. See Gardner v. State, 273 Ga. 809, 813 (6) (546 SE2d

490) (2001) (a “requested charge must be legal, apt and precisely adjusted to some

principle involved in the case and be authorized by the evidence” and a trial court

does not err in not giving a requested charge that fails to meet these requirements)

(citations and punctuation omitted).

      Judgment affirmed. Ellington, P. J., and Dillard, J., concur.




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