DECISION AND ORDER
William R. Stokes, Justice
before the court for resolution is the Defendant's Motion
to Suppress recorded statements he made to Detective Tori
Tracy of the Augusta Police Department on May 17, 2016. A
testimonial hearing was held on June 4, 2018 at which the
court received the testimony of the following witnesses:
Detective Tracy; Toni Cunningham; Bunvandy Say, and; Dr.
Ribert Riley, Psy.D. State's Exhibit 1, being the audio
recording of Detective Tracy's interview of the
Defendant, was admitted into evidence without objection. Also
admitted without objection were two reports authored by Dr.
Riley, the first being dated April 20, 2017 which was a
standard competency evaluation, and the second dated June 14,
2017 which was a more comprehensive neuropsychological
evaluation. The court has received and reviewed the
post-hearing memoranda submitted by the parties.
court has listened to the recorded interview of the Defendant
multiple times and has reviewed, for a second time, Dr.
Riley's reports. The court has also reviewed its notes of
the testimony of all of the witnesses presented at the
hearing. Based upon the evidence presented, and after
consideration of the parties' written arguments, the
court makes the following findings of fact.
November 2015, Detective Tracy received information from the
State of Florida relating to an interview that had been
conducted with the alleged victim (the Defendant's niece)
named in the Indictment in this case. As a result of that
information, Det. Tracy made several attempts to contact the
Defendant, but was unsuccessful until May 17, 2016 when she
went to his residence and he came to the door in response to
her knock. Det. Tracy had activated her audio recorder prior
to approaching the house. The total length of the recording
is 16 minutes, 51 seconds.
confirming that the person who came to the door was Eric Say,
Det. Tracy asked him if he had a few minutes to talk with
her. He agreed and the two of them spoke on the porch. The
detective asked the Defendant if he knew why she wanted to
speak with him - he said he did not. The officer then
explained that the Defendant's niece had come forward
with information about something that had happened between
them some time ago. The Defendant volunteered: "I did
something wrong." The detective immediately told the
Defendant that no matter what he said to her she would be
leaving by herself and he would not be taken into custody.
Defendant said that "it was a long story," that his
whole family had talked about it, that he "had done a
really bad thing" to his niece, that he does not do that
anymore, and that after talking with his family, including
his sister (the mother of his niece), "everything is
fine." The Defendant repeated that his whole family had
talked about it. At that point (at 2:49 of the recording)
Det. Tracy said: "But you need to talk about it with
detective asked the Defendant to tell his side of the story.
The Defendant expressed a lack of memory about the incident
because it happened a long time ago but agreed that he would
have been 19 and his niece was 7 at the time. He described
how he would babysit his niece and they would play video
games in his bedroom. As Det. Tracy asked for specifics, the
Defendant was reluctant to discuss it, stating: "I
don't know." Det. Tracy said (at 4:34 of the
recording): "Well, you do know, and you know it was
wrong, and you're kind of uncomfortable talking about it,
but we have to talk about it Eric." The Defendant
responded: "It was a mistake."
of the Defendant's discomfort with discussing the details
of what had happened with his niece, Det. Tracy told him what
she knew based on what his niece had said and asked the
Defendant to correct anything that was not accurate. In
particular, Det. Tracy reported that the Defendant's
niece had said that the Defendant and she had sexual
intercourse when they were younger. Before the detective
could finish her sentence, the Defendant said: "Yes,
I'm not going to lie." He further acknowledged that
he put his penis inside his niece's vagina only once. The
Defendant explained that when his older sister found out what
had happened, she was "pissed," and "I was
too, because I was wrong." And the whole family had
talked it over.
Defendant denied otherwise touching his niece and maintained
that the intercourse happened one time. He could not explain
how he let himself do what he did, but he returned to the
theme that he had apologized to his sister (and wanted to
apologize to his niece), they had talked
"one-to-one," and "everything is alright
now" because "we talked about it."
Tracy emphasized to the Defendant at that point (6:46 of the
recording) that what had been done was illegal, even though
the family may have talked about and "dealt" with
it within the family. Throughout the interview, the Defendant
repeatedly expressed his awareness that what he had done was
"wrong," that it had happened once and that it
would never happen again. Det. Tracy explained to the
Defendant that she would be writing her report and submitting
it to the District Attorney's Office for review and a
decision on prosecution. She made no promises of any kind to
the Defendant and told him that even though the family may
have dealt with it internally, he may have to face further
consequences because what he had done was illegal.
Defendant immediately asked: "What consequences?"
Det. Tracy told the Defendant that the offense was called
"gross sexual assault" and that it was a Class A
felony. The Defendant can be heard saying: "Man."
Det. Tracy did say that given his cooperation and remorse,
perhaps "they (the D.A.'s Office) may give you a
plea - plead it down," although she emphasized that she
had no knowledge whatsoever as to whether that would happen.
Once again, the Defendant returned to the theme: "what
if my parents knew about it and the family had talked about
it?" Det. Tracy firmly pointed out that whether his
family, including his parents, had talked about the matter
was irrelevant to its illegality and the involvement of law
enforcement. By this point in the interview, the seriousness
of the situation appears to be settling in upon the Defendant
interview wrapped up with the detective telling the Defendant
that if the case is prosecuted she will personally
communicate directly with the Defendant. She also encouraged
the Defendant to stay in touch with her if he had any
questions or if he left the area. At no point during ...