                              SECOND DIVISION
                               ANDREWS, P. J.,
                           MILLER and BRANCH, 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/


                                                                       July 2, 2015




In the Court of Appeals of Georgia
 A15A0205. PINKNEY v. THE STATE.

      MILLER, Judge.

      A jury convicted Jamaal Pinkney of two counts of attempted armed robbery

(OCGA § 16-4-1), two counts of false imprisonment (OCGA § 16-5-41 (a)), and one

count each of burglary (OCGA § 16-7-1 (b)), interfering with an emergency

telephone call (OCGA § 16-10-24.3), and attempted burglary (OCGA § 16-4-1).1

Pinkney appeals from the denial of his motion for new trial, contending that the trial

court erred in (1) denying his motion for a mistrial after defense counsel misstated

certain evidence during his opening statement, and (2) admitting into evidence




      1
       The jury also found Pinkney guilty of two counts of aggravated assault
(OCGA § 16-5-21 (b)) and the trial court merged those offenses with the attempted
armed robbery convictions.
Pinkney’s cell phone number and the records of his cell phone calls and text

messages. For the reasons that follow, we affirm.

      Viewed in the light most favorable to Pinkney’s conviction,2 the record shows

that on the evening of December 31, 2011, an elderly woman and her live-in caregiver

were watching television at the woman’s home in Lithia Springs. Pinkney had

occasionally performed odd jobs for the elderly woman and, earlier that month,

Pinkney had stopped by the woman’s house.

      Just after 11:00 p.m. on December 31, the woman and her caregiver heard what

sounded like an explosion, and Pinkney, armed with a square, silver gun, burst

through the kitchen door, breaking the door and the doorframe. Pinkney was dressed

all in black, with a hooded shirt pulled down over his face and a turtleneck pulled up

to his mouth, so that only his eyes were uncovered. Although the women could not

see Pinkney’s face, the elderly woman asked Pinkney if she knew him from

somewhere and recognized Pinkney by his voice and the way he moved. Once the

elderly woman discovered that Pinkney was the intruder, she recognized his facial

features as well.



      2
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

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       After coming into the living room, Pinkney told the elderly woman and her

caregiver to sit down, cursed at them, and pointed his gun at them. Pinkney forced the

caregiver to sit down on the sofa by pointing his gun directly in her face. Pinkney

asked the women where they kept their money and credit cards and dumped out the

contents of the women’s purses and bags onto the floor. The caregiver tried to dial

911 on her cell phone, but Pinkney took her phone and threw it across the room. At

one point, Pinkney told the caregiver to pull up her nightgown and threatened to rape

her.

       The elderly woman then started holding her chest and saying that she could not

breathe. She became pale and sweaty and started shaking, and the caregiver could not

feel the woman’s pulse. Pinkney then made a phone call, said that the victims did not

have anything, and asked to be picked up. Pinkney kicked at the contents of the bags

that he had dumped on the floor, unlocked the front door, and walked out of the

house. Ultimately, nothing was taken from the house.

       After Pinkney left, the caregiver called 911. A police officer responded just

before midnight. Police officers observed that a window going into the basement of

the woman’s home had been broken, a lawn chair had been placed under the window

and the door from the basement into the house had been forced open. Based on the

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victims’ statements that the intruder made a phone call, the police officers obtained

a court order for records from all the major cell phone carriers showing all calls that

went through the cell tower nearest to the woman’s home at the time of the break in.

      Police officers also spoke to the victims’ neighbors to see if they had seen or

heard anything suspicious and someone mentioned Pinkney. A police officer then

searched for and found Pinkney’s cell phone number through a paid online database.

Police officers confirmed that phone calls made from Pinkney’s cell phone had gone

through the cell tower nearest to the victims’ home.

      Records showed that on December 29, Pinkney sent a text message to his

girlfriend that he was going to “hit that jug,” or go get some money, and he needed

his girlfriend to find someone to watch their kids. On the early morning of December

30, Pinkney’s girlfriend sent a text message to him asking, “Did [you] go in?”

Pinkney responded that he had not gone in because he made too much noise breaking

a window, but that he would go back the next night.

      On the night of December 31, Pinkney sent a text message to his girlfriend just

after 10:00 p.m. Eastern Standard Time stating that he was presently going through

the window, and, shortly thereafter, at approximately 10:45 p.m., he sent a text

message to her that he was in the house. Pinkney’s girlfriend replied immediately by

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asking Pinkney what was going on, and Pinkney responded, “[I’m] good, just let me

handle this as fast as I can[, I’ll text you when I’m done].” Pinkney then sent a text

message to his girlfriend at approximately 11:30 p.m. and said that the victims did not

have anything and he was upset.

      When police later advised the elderly woman that Pinkney had been arrested,

she said that she knew it was him who had broken into her home. At trial, the woman

identified Pinkney as the man who broke into her house.

      1. Pinkney contends that the trial court erred in denying his motion for a

mistrial on the ground that during his opening statement, his trial counsel misstated

evidence to the jury. Specifically, he argues that the State misled his trial counsel with

regard to the timing of Pinkney’s and his girlfriend’s text messages, causing trial

counsel to make an argument to the jury that was based on a misstatement of the

evidence. We discern no error.

      “Whether to declare a mistrial is in the discretion of the trial court and will not

be disturbed on appeal unless it is apparent that a mistrial is essential to the

preservation of the right to a fair trial.” (Citations and punctuation omitted.) Rafi v.

State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011).



                                            5
      During his opening argument, trial counsel had argued that the phone records

were inaccurate and inconsistent with the other evidence, such as the 911 cal1, which

showed that the perpetrator was inside the house about an hour later. On the evening

of the first day of trial, the prosecutor alerted Pinkney’s trial counsel that the records

of Pinkney’s text messages, which had previously been disclosed by the State, were

in Central Standard Time, not in Eastern Standard Time, as trial counsel had

originally assumed. Pinkney moved to prohibit the State from relying on the correct

time of the calls or, in the alternative, for a mistrial. The trial court denied both

motions.

      At trial, an investigator with Pinkney’s cell phone carrier testified regarding

both Pinkney’s and his girlfriend’s cell phone records, including their text messages.

The cell phone records confirmed that on December 31, 2011 between 10:00 p.m. and

11:30 p.m. Eastern Standard Time, calls made from Pinkney’s cell phone had gone

through the cell tower nearest the victims’ home. The investigator also explained that

Pinkney’s carrier stored its customers’ text messages in Texas and, accordingly, the

text message records were kept in Central Standard Time. The records of the phone

calls, however, were in Eastern Standard Time.



                                            6
      We cannot determine from the record what, exactly, defense counsel argued to

the jury since the opening statements were not transcribed. Nonetheless, a mistrial

was not essential to the preservation of Pinkney’s right to a fair trial since the

investigator’s testimony corrected trial counsel’s misstatement during opening

argument, and the trial court instructed the jury that counsels’ opening and closing

arguments were not evidence. Cf. Williams v. State, 292 Ga. 844, 848-849 (3) (b)

(742 SE2d 445) (2013) (trial counsel’s misstatement to the jury regarding time of 911

call was not ineffective assistance because the misstatement was corrected by a

detective’s testimony and the trial court charged the jury that counsels’ arguments

were not evidence). Accordingly, the trial court did not err in denying Pinkney’s

request for a mistrial.

      2. Pinkney contends that the trial court erred in admitting into evidence his cell

phone number and the records obtained from his cell phone carrier because his phone

number was obtained in violation of Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602,

16 LEd2d 694) (1966). We disagree.

      “The Fifth Amendment requires the exclusion of any statement made by an

accused during custodial interrogation, unless he has been advised of his rights and

has voluntarily waived those rights.” (Citation omitted.) Franks v. State, 268 Ga. 238,

                                          7
239 (486 SE2d 594) (1997). Georgia law, however, provides for a limited booking

exception to the Miranda rule for questions attendant to arrest, such as the suspect’s

name, age, address, educational background and marital status. See id.

      After Pinkney was arrested, a detective sought to interview him. Before reading

Pinkney his Miranda rights, the detective stated that he had a few housekeeping

issues. The detective asked Pinkney his full name, date of birth, age, and level of

education. The detective then noted the date and time, asked Pinkney if he was under

the influence of anything that could affect his decision making, whether he spoke and

wrote English, and whether he spoke any other languages. The detective also asked

Pinkney for a “contact number” and Pinkney responded with his cell phone number.

      Immediately thereafter, the detective read Pinkney his Miranda rights. Pinkney

indicated that he understood his Miranda rights and he invoked his right to counsel.

The detective told Pinkney the charges against him, the interview ended, and Pinkney

was taken back to jail. At trial, a video of Pinkney’s conversation with the detective

was played for the jury.

      Whether a police officer may ask a suspect for his contact number under the

booking exception to Miranda is not an issue that has been decided by this Court or

the Supreme Court of Georgia. We need not decide this issue here because the police

                                          8
officers obtained Pinkney’s phone number from their own investigation before

placing Pinkney under arrest. Since the police were able to obtain Pinkney’s phone

number and records independently of any alleged Miranda violation, this evidence

was properly admitted. See Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007)

(“The independent source doctrine allows admission of evidence that was discovered

by means wholly independent of any constitutional violation[.]”) (citation omitted);

see also Merritt v. State, 288 Ga. App. 89, 98 (2) (653 SE2d 368) (2007) (any error

in admitting defendant’s statement during booking that he drank alcohol on the day

of the accident was harmless given other evidence that defendant had been drinking).

Accordingly, we affirm.

      Judgment affirmed. Andrews, P. J., concurs. Branch, J., concurs in judgment

only in Division 1 and fully in Division 2.




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