CourtListener 10680121

Testo completo

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: May 2, 2023

S23A0171. BOLES v. THE STATE.

MCMILLIAN, Justice.

Torres Boles appeals his convictions for felony murder and

other charges in connection with the death of his three-year-old

daughter, Andraia Boles.1 He argues on appeal that the evidence

Andraia was found dead on February 27, 2013, and on May 23, 2013, a
1

Liberty County grand jury indicted Boles and his wife, Candice Boles, who was
Andraia’s mother, in connection with the child’s death, charging them both
with malice murder (Count 1); felony murder based on cruelty to children in
the first degree (Count 2); cruelty to children in the first degree (Count 3);
cruelty to children in the second degree (Count 4); and contributing to the
deprivation of a minor, a misdemeanor (Count 6). Boles also was indicted
individually on a second count of cruelty to children in the first degree in
connection with an earlier incident involving Andraia (Count 5). He was tried
separately before a jury in September 2014 and found guilty of all counts
except malice murder (Count 1). Boles was sentenced as follows: Count 2 – life
in prison without the possibility of parole; Count 4 – ten years to run
consecutively to Count 2; Count 5 – twenty years to run consecutively to Counts
2 and 4; and Count 6 – twelve months to run concurrently with the other
sentences. The charge of cruelty to children in the first degree under Count 3
was merged into Count 2 for sentencing purposes. The charges against Candice
Boles are not a part of this appeal.
Boles filed a timely motion for new trial on October 8, 2014, which was
was insufficient to support his convictions and that the trial court

erred in admitting into evidence statements he made to “Ms.

Middleton,”2 a protective services investigator and case manager

with the Georgia Department of Family and Children Services

(“DFCS”) and to Renee Sylvester, a private-sector counselor hired by

DFCS in connection with the agency’s investigation into placing

Boles’s other daughter into foster care. 3 Boles asserts that the two

DFCS investigators were acting as agents of law enforcement when

they interviewed him and their failure to give him warnings under

Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966),

renders his statements inadmissible. We conclude that the evidence

was sufficient to support Boles’s convictions, there was no error in

the admission of Boles’s statement to Middleton, and any error in

amended on June 24, 2020. Boles waived a hearing on the motion, and the trial
court issued an order denying the motion on June 17, 2022. Boles appealed
that order on July 1, 2022, and the matter was docketed to the term of this
Court beginning in December 2022 and submitted for a decision on the briefs.
2 This witness introduced herself on the stand as “Ms. Middleton,” and

that is how she is listed and referred to by the trial judge and counsel in the
trial transcript.
3 Middleton and Sylvester are collectively referred to herein as the

“DFCS investigators.”

2
the admission of his statement to Sylvester was harmless, as such

evidence was cumulative of other, properly admitted evidence. We

therefore affirm.

1. The evidence at trial showed the following. 4 In February

2013, Boles and his wife, Candice Boles, lived in Hinesville with

their two daughters: D. B., who was four years old, and Andraia,

who was three. At 7:56 a.m. on the morning of February 27, 2013,

Boles placed a call to 911 to report that Andraia was not breathing

and had no pulse.

A first responder, who arrived on the scene a short time later,

testified that when she entered the house, she saw Andraia lying on

a blanket in the hallway just outside a bathroom. The carpet

underneath the blanket was “soaking wet.” The child had visible

bruising to her face, and her head and eyes were swollen. Andraia

was not breathing, had no pulse, and was cold to the touch. The first

4 Because we undertake a harmless-error analysis in Division 3 of this
opinion, we review the record in this case “de novo, and we weigh the evidence
as we would expect reasonable jurors to have done so as opposed to viewing it
all in the light most favorable to the jury’s verdict.” Fletcher v. State, 303 Ga.
43, 47 (II) (810 SE2d 101) (2018) (citation and punctuation omitted).
3
responder and her partner began CPR, while they waited for an

ambulance to transport Andraia to the hospital. A paramedic who

arrived with the ambulance testified that he observed “one big

bruise” from Andraia’s cheekbones to the top of her head and said

that he was never able to detect any cardiac activity despite his

efforts to revive the child.

The emergency room physician who treated Andraia at the

hospital said that when the child arrived, she had obvious trauma,

with a lot of swelling and discoloration of the head and face, and no

vital signs. She was not moving, appeared lifeless, and had no

spontaneous respiration or heart tones. During the physician’s

examination of the child, he discovered other injuries to her body,

including to her buttocks. Andraia’s body temperature was 84º,

which the physician testified was “incompatible with life,” and the

child was pronounced dead at 8:30 a.m.

Meanwhile, Boles told Hinesville Police Department officers

who had responded to his 911 call that, after he woke up that

morning, he put Andraia on the toilet and then got ready for work.

4
He said Andraia was fine when he left the house, but his wife later

called him to say that Andraia was not breathing and that he should

come home. Boles said that he found his wife with Andraia when he

arrived home, and he could not understand what had happened.

At the house, police observed that the carpet was wet from the

bathroom into the living room. When an officer asked Boles about

the wet carpet, Boles replied that he had cleaned the carpet the

night before. The officer said that Boles kept repeating, “[M]y life is

over, my life is over.” Inside the bathroom, police located blood

splatter in the bathtub, and water and blood on the floor. There was

a bowl containing crackers and cereal on the back of the toilet and a

sippy cup. Blood samples taken from the bathtub, toilet, and

bathroom door, and from a man’s shoe found at the house were all

later determined to be a match for Andraia’s blood.

After receiving news that Andraia had died, the lead detective

relayed that information to Boles and told him that hospital staff

had discovered signs that the child had been abused. Boles admitted

that he sometimes gave his children spankings but said that no one

5
had given Andraia a spanking that morning. Boles agreed to a

request from the lead detective to go to the police station, and on the

way there, Boles told the lead detective that any scratch marks on

Andraia’s neck were self-inflicted,5 and the scab on her bottom was

from when they put Vaseline on her skin, along with a diaper, and

the skin came off. He said he did not recall what initially caused the

scab. The lead detective made audio recordings of his conversations

with Boles at the house and in the car, and those recordings were

played for the jury. 6

While the lead detective obtained information from other

officers, a different detective stayed with Boles in accordance with

Hinesville Police Department policy not to leave visitors alone in the

police station. The second detective did not ask Boles any questions,

but he testified that Boles was “rambling a little bit” and said that

5 Boles later explained that when Andraia would become upset, she
would scratch herself.
6 Boles challenged the admission of all of his statements to law

enforcement at a pre-trial hearing held pursuant to Jackson v. Denno, 378 U.S.
368 (84 SCt 1774, 12 LE2d 908) (1964). The trial court ruled that the
statements were admissible, and Boles does not raise an issue on appeal
regarding the admission of these statements.

6
he had made a mistake, but quickly changed it to “my life is a

mistake.”

After the lead detective returned, Boles was given a Miranda

warning and formally interviewed. The audio recording of this

interview was played for the jury. Boles told the lead detective that

while D. B. attended pre-school and stayed with a neighbor after

school until her parents got home from work, three-year-old Andraia

was left at home alone during the day with cartoons playing on the

television and with crackers, dry cereal, and a sippy cup with Kool-

Aid or water. Boles said that he knew it was wrong to leave a child

at home alone, but he explained that they could not afford day care

for Andraia. Boles would come home at lunch to check on Andraia

and clean up any messes she had made, but he did not stay home

long or eat while he was there. He then returned in the evening

about 5:30 p.m. in time to pick up D. B.

Boles said that on February 26, 2013, the day before he placed

the 911 call, he followed his usual routine of waking up at 5:30 a.m.

and putting Andraia on the toilet while he got ready for work. After

7
checking on Andraia and waking his wife to tell her where Andraia

was, he left for work, where he was required to arrive by 6:15 a.m.

Boles came home at around 11:47 a.m. that day to check on Andraia

and left again at around 12:15 p.m. to return to work. He did not

notice any injuries to Andraia at that time, other than the scratches

on her neck.

Boles again left work at 5:00 p.m. that day and returned home

in time to pick up D. B. from the neighbor’s house. When they

entered their house, Boles discovered that Andraia had put extra

toilet paper in the toilet, causing it to overflow and flood the

bathroom and the carpet just outside the bathroom. He was “ticked”

and put Andraia in the bathtub where she could watch him clean up

the water. He began to scoop up the water on the bathroom floor and

mop up the wet carpet with towels, discarding the scooped water and

wringing the towels in the bathtub. He then decided to shampoo the

carpet, but the shampooer apparently leaked, soaking the carpet

into the living room. Boles initially told the lead detective that he

did not physically discipline Andraia that night, but he made her

8
stay awake until he finished cleaning, sending her to bed at 11:00

p.m. Boles said that the next morning, February 27, he woke up and

put Andraia on the toilet before he went to work. His wife called

later that day to say Andraia was not breathing, and he returned

home. Boles said that he did not know what had happened, but he

blamed himself because he guessed that she had slipped and hit her

head on the wet floor.

However, Boles changed his story after the lead detective told

him that Andraia’s injuries were “severe,” resulting from multiple

impacts to her head and showed him pictures taken at the hospital

of the child’s body. Although Boles denied striking Andraia, he

admitted that he was angry when he saw that she had caused the

toilet to overflow. Boles said that he put Andraia in the bathtub and

threw the water he scooped up from the floor on her. He also wrung

the towels out near her “where she would feel the water.” Boles

would not let Andraia get out of the bathtub because he wanted her

to see how much work it was to clean up the mess. When Andraia

tried to get out, he would “smack” her hands away from the edge of

9
the bathtub. He said that “a lot of times,” she would slip and fall in

the tub, “I guess, because I slapped her hands away.” Boles said that

when Andraia hit her head on the bathtub, he “didn’t care” and

“didn’t think about how hard she hit the tub or whether she was

hurt.” He noticed that Andraia’s face was swollen, but not as much

as in the pictures, and she was slumped against the side of the

bathtub, where he left her to spend the night when he went to bed.

He also noticed red areas in the bathtub, but assumed the red color

came from the dye in Andraia’s pajamas.

The next morning, Boles found Andraia still in the bathtub,

and she looked “alright” to him. He said her face was swollen “a lot,”

but she was able to open one eye, and she took a sippy cup from him.

Boles said he “felt really bad about the whole thing,” and he took off

her wet clothes and put dry things on her. He then got ready and

told his wife that Andraia was okay and added, “If you see red, it’s

from the clothes; it’s not blood.” The last time he saw Andraia before

he left for work, she was slumped in the bathtub.

Boles also told the lead detective that the scab on Andraia’s

10
bottom was from a spanking he gave her with a belt months ago,

although he said that the spanking did not break the skin. He

explained that the scab was still there because he and Candice used

petroleum jelly to treat the “sore” resulting from the spanking. They

then put her diaper on, and the sore never had the chance to “get

air” to help it heal in the intervening months. Boles and his wife did

not take Andraia to the doctor for the sore, and, in fact, Andraia had

not seen a doctor since August 2011.

Based on this interview and a separate interview with Candice

by another detective, the police decided to charge both Boles and

Candice at that time with cruelty to children. The police afforded

Boles and Candice an opportunity to speak to one another in the

detectives’ presence before they were transported to jail. That

meeting was recorded and played for the jury, but some of the audio

was difficult to hear. The lead detective testified that at one point

during the meeting, Boles told Candice, “I f***ed up. I did this s**t.

I left her in the bathtub.”

Boles later gave similar accounts in separate interviews with

11
Sylvester and Middleton at the jail. Boles told Sylvester that he and

his wife left Andraia home alone all day, and because she was not

potty-trained, the parents agreed to keep her in the bathroom until

she was. Boles admitted to each of the DFCS investigators that he

became upset and angry when he saw that Andraia had caused the

toilet to overflow on February 26, 2013. Boles told them that he put

Andraia in the bathtub as he began to mop up the water with towels.

When the towels became “sopping” wet, he would wring them out in

the bathtub, and Boles told Sylvester that he wrung the towels over

Andraia’s head.

During this process, Andraia kept trying to get out of the

bathtub, but Boles would not let her. When Andraia put her hands

on the edge of the bathtub to climb out, Boles knocked her hands out

from under her, and she continued to fall and hit her head. He told

Sylvester that at one point, he stopped cleaning to make dinner for

the children, and he brought a bag of frozen french fries to put on

Andraia’s face because it was swollen. Boles told Middleton that he

put Andraia on the toilet that night before going outside to smoke a

12
cigarette and did not return to the bathroom before he went to bed.

Boles told Sylvester that no one sought medical help for Andraia,

and she spent the night in the bathtub. Boles said he checked on

Andraia in the morning and then went to work.

Additionally, in his interview with Sylvester, Boles stated that

he used corporal punishment on both girls and that the injuries to

Andraia’s buttocks occurred approximately six months earlier when

he used a belt on her, and then applied Vaseline because the area

had turned red, which caused the skin to peel off. Boles conceded

that the resulting scab had never healed.

The medical examiner who performed Andraia’s autopsy

testified that he found “56 evidences of recent external injury,” some

of which had begun to heal, including injuries to the head, face, and

buttocks, and 64 healed injuries. The medical examiner also

discovered a number of internal injuries, including a hemorrhage

over the entire surface of the child’s skull, a skull fracture at the

back of the head, and a brain bruise on the front of the head. The

medical examiner concluded that the cause of death was cranial

13
cerebral injuries to the skull and brain, due to blunt-force trauma.

The medical examiner further testified that Andraia would have

been dead at least six to ten hours before her temperature was

recorded as 84º at the hospital.

The defense presented evidence from Boles’s mother and a

family friend that they had not seen anything abnormal or any

injuries to Andraia when they had seen the family several months

before Andraia’s death. 7 A forensic pathologist, who testified as an

expert for the defense, said that she agreed with the medical

examiner’s conclusion as to cause of death and said that the manner

of death was homicide. But she disagreed with the time of death.

Relying on the body’s blood chemistry, she believed that Andraia

was “recently dead” and had not been dead “for a prolonged period

of time,” because the potassium, chloride, and sodium levels in her

blood would have been different if she had been dead as long as six

to eight hours.

7 However, Candice’s mother testified for the State that she had seen
bruising on Andraia’s face when she visited the family in December 2012.
14
The State called another expert in forensic pathology in

rebuttal. That expert questioned the methodology employed by the

defense expert and stated that the body temperature was consistent

with a death that had occurred seven hours before Andraia’s

temperature was taken at the hospital.

Boles argued at trial that his wife, Candice, had inflicted the

fatal injuries to Andraia.

2. Boles asserts that the evidence at trial was insufficient to

support his convictions under the standard set out in Jackson v.

Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979). That standard requires that

[w]hen we consider the sufficiency of the evidence as a
matter of federal due process, our review is limited to
whether the trial evidence, when viewed in the light most
favorable to the verdicts, is sufficient to authorize a
rational trier of fact to find the defendant guilty beyond a
reasonable doubt of the crimes of which he was convicted.

Moore v. State, 311 Ga. 506, 508 (2) (858 SE2d 676) (2021). And

although Boles is questioning whether some of the evidence at trial

was properly admitted, when this Court reviews the sufficiency of

15
the evidence, “we consider all the evidence admitted at trial,

regardless of whether the trial court erred in admitting some of that

evidence.” Davenport v. State, 309 Ga. 385, 397 (4) (b) (846 SE2d 83)

(2020) (emphasis in original). 8

The charge of felony murder in Count 2 of the indictment was

based on the crime alleged in Count 3, which charged Boles with

cruelty to children in the first degree in that he “did maliciously

cause Andraia Boles . . . cruel and excessive physical pain by

inflicting blunt force trauma to her head.” See OCGA §§ 16-5-1 (c),

16-5-70 (b).9

8 Boles further asserts that the trial court “could have (and should have)
exercised its discretion as the thirteenth juror” to grant Boles’s motion for new
trial. See generally OCGA §§ 5-5-20; 5-5-21. It is well settled that a “thirteenth
juror” argument is “not properly addressed to this Court as such a decision is
one that is solely within the discretion of the trial court.” Smith v. State, 300
Ga. 532, 534 (1) (796 SE2d 671) (2017). “Therefore, when a defendant appeals
the trial court’s denial of a motion for new trial, an appellate court does not
review the merits of the general grounds.” Myers v. State, 313 Ga. 10, 13 (1)
(867 SE2d 134) (2021) (citation and punctuation omitted; emphasis in original).
Moreover, the record supports that the trial court exercised its discretion in
denying Boles a new trial on the general grounds, so this assertion presents
nothing for us to review.
9 “A person commits the offense of [felony] murder when, in the

commission of a felony, he or she causes the death of another human being
irrespective of malice.” OCGA § 16-5-1 (c). “Any person commits the offense of
cruelty to children in the first degree when such person maliciously causes a

16
For purposes of the crime of cruelty to children in the first

degree,

malice in the legal sense, imports the absence of all
elements of justification or excuse and the presence of an
actual intent to cause the particular harm produced, or
the wanton and willful doing of an act with an awareness
of a plain and strong likelihood that such harm may
result. Intention may be manifest by the circumstances
connected with the perpetration of the offense. Intent is a
question of fact to be determined upon consideration of
words, conduct, demeanor, motive, and all other
circumstances connected with the act for which the
accused is prosecuted.

Vasquez v. State, 306 Ga. 216, 222 (1) (a) (830 SE2d 143) (2019)

(punctuation and citation omitted). See also Brewton v. State, 266

Ga. 160, 161 (2) (465 SE2d 668) (1996).

Boles admitted that he was angry when he discovered that

Andraia had caused the toilet to overflow and that he knocked

Andraia’s arms out from under her when she tried to climb out of

the bathtub, causing her to hit her head multiple times and leaving

her head swollen and bruised. Boles further admitted that as he took

child under the age of 18 cruel or excessive physical or mental pain.” OCGA §
16-5-70 (b).

17
these actions, he had no concern as to whether Andraia was injured

in the process. The medical examiner testified that the injuries to

Andraia’s head resulted in her death and that Andraia could have

been dead at least six to ten hours before her temperature was

recorded at the hospital the next day. Boles also admitted that he

left the injured child overnight in the bathtub.

This and other evidence at trial was more than sufficient to

support Boles’s conviction under Count 2. See Williams v. State, 312

Ga. 386, 391 (1) (b) (863 SE2d 44) (2021) (evidence sufficient to

support conviction for cruelty to children in the first degree by

drowning where defendant admitted that he was angry at his son’s

misbehavior and that he held the child beneath the water in bathtub

twice for prolonged periods); Mann v. State, 307 Ga. 696, 699 (1) (838

SE2d 305) (2020) (defendant’s admissions to causing child’s injuries

along with medical evidence regarding the cause of death and the

severity and timing of the child’s injuries were sufficient to support

defendant’s convictions for murder and child cruelty); Delacruz v.

State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006) (“Malice, as an

18
element of the crime of cruelty to children, can be shown by

intentionally and unjustifiably delaying necessary medical attention

for a child, as that delay may cause the child to suffer from cruel and

excessive physical pain.” (citation and punctuation omitted)).

Count 4 of the indictment charged Boles with cruelty to

children in the second degree in that he and Candice “did with

criminal negligence, cause Andraia Boles . . . cruel and excessive

mental pain by locking her in a bathroom while they were at work.”

See OCGA § 16-5-70 (c).10 Boles admitted to police and Sylvester that

he and his wife left Andraia home alone while they were at work,

with only the television and cereal, crackers, and liquid in a sippy

cup to sustain her. In addition, police found a sippy cup in the

bathroom, a bowl with crackers and cereal on the back of the

bathroom toilet, and a key to the home’s interior doors in the

10 “Any person commits the offense of cruelty to children in the second
degree when such person with criminal negligence causes a child under the age
of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (c). “Criminal
negligence is an act or failure to act which demonstrates a willful, wanton, or
reckless disregard for the safety of others who might reasonably be expected to
be injured thereby.” OCGA § 16-2-1 (b).

19
bathroom sink, supporting an inference that Andraia was kept

locked in the bathroom during the day. 11 This and other evidence at

trial was sufficient to support Boles’s conviction under Count 4. See

Kain v. State, 287 Ga. App. 45, 47-48 (1) (650 SE2d 749) (2007)

(evidence sufficient to show criminal negligence constituting cruelty

to children in the second degree where woman regularly allowed her

small children to roam outside alone and left them home alone, and

where the children drowned one day while outside unattended).

Count 5 of the indictment charged Boles with cruelty to

children in the first degree in that he “did maliciously cause Andraia

Boles . . . cruel and excessive physical pain by spanking her with a

belt to the extent that her skin split open.” Boles admitted to the

lead detective that the injuries to Andraia’s buttocks were caused by

his spanking her with a belt months before her death, leaving a

11Although Count 4 specifically alleged that Andraia was confined in the
bathroom, some members of this Court question whether that allegation was
a material element of the offense charged or mere surplusage. See Fair v. State,
284 Ga. 165, 167 (2) (a) (664 SE2d 227) (2008) (“[a]n allegation in an indictment
that is wholly unnecessary to constitute the offense[s] charged is mere
surplusage.”). However, we need not resolve that issue because in this case
there was sufficient evidence to support that allegation.
20
visible sore that he and Candice attempted to treat with Vaseline

and that had not healed in the intervening months. This and other

evidence at trial was sufficient to support Boles’s conviction on

Count 5. See Gibson v. State, 277 Ga. 486, 487 (1) (591 SE2d 800)

(2004) (upholding conviction for cruelty to children where evidence

supported a finding that defendant struck his son with a belt with

“enough force to possibly leave bruises”).

Count 6 charged Boles and Candice with contributing to the

deprivation of a minor, a misdemeanor, in that they “did willfully

fail to act such that said omission and failure to act resulted in

Andraia Boles . . . being a deprived child . . . by leaving the child at

home, unsupervised, while they were at work.” Boles’s conviction on

this charge was supported by the same evidence supporting his

21
conviction on Count 4.12 See former OCGA § 16-12-1 (b) (3) (2011). 13

Accordingly, Boles’s claim that the evidence at trial was

insufficient as a matter of constitutional due process to support his

convictions is without merit.

3. Boles further appeals the denial of his motion to suppress

the statements he made to the DFCS investigators while he was in

custody, asserting that because the DFCS investigators were acting

12 Although Counts 4 and 5 were based on the same evidence, the crimes
do not merge as each crime has at least one distinct element. See Gomez v.
State, 301 Ga. 445, 468 n.21 (801 SE2d 847) (2017) (second degree cruelty to
children and contributing to the deprivation of a minor do not merge because
contributing to the deprivation of a minor required proof that the defendant
caused a child to be deprived of parental care and child cruelty required proof
that the defendant caused a child cruel or excessive physical or mental pain).
13 When the crime at issue was committed, former OCGA § 16-12-1 (b)

(3) provided that the crime of contributing to the delinquency, unruliness, or
deprivation of a minor occurred when a person “[w]illfully commits an act or
acts or willfully fails to act when such act or omission would cause a minor to
be found to be a deprived child as such is defined in Code Section 15-11-2.” See
2011 Ga. L. p. 470 § 3, eff. July 1, 2011. The version of OCGA § 15-11-2 (8) (A)
in effect at the time of the crime defined a “deprived child” to include a child
who “[i]s without proper parental care or control, subsistence, education as
required by law, or other care or control necessary for the child’s physical,
mental, or emotional health or morals.” In the Interest of M. F., 298 Ga. 138,
139 n.1 (780 SE2d 291) (2015) (noting that the Juvenile Code “was
substantially revised in 2013,” see 2013 Ga. Laws, p. 294, § 1-1, eff. Jan. 1,
2014, and current law “no longer speaks of a ‘deprived child,’ but instead refers
to a ‘dependent child’”).

22
as agents of law enforcement when they questioned him, Miranda

warnings should have been given and that the lack of warnings

means that his statements should have been excluded. However, in

denying Boles’s motion to suppress, the trial court found that the

DFCS investigators were not acting as agents of law enforcement

and, in any event, the statements Boles gave to them largely

provided cumulative evidence of matters already known to law

enforcement.

Because the parties do not dispute the circumstances

surrounding Boles’s statements to the DFCS investigators, our

review of the trial court’s application of the law to such undisputed

facts is de novo. See Hinkson v. State, 310 Ga. 388, 399 (5) (a) (850

SE2d 41) (2020). Moreover, we bear in mind that “[t]he State has the

burden of proving that evidence challenged in a motion to suppress

is admissible.” Awad v. State, 313 Ga. 99, 102 (2) (868 SE2d 219)

(2022).

(a) We start our analysis by setting out first principles. Under

the Fifth Amendment of the United States Constitution, no person

23
“shall be compelled in any criminal case to be a witness against

himself.” U. S. Const. Amend. V. To protect the right against self-

incrimination, the United States Supreme Court in Miranda

formulated procedural safeguards to ensure that the
inherently compelling nature of an in-custody
interrogation by the police will not undermine the
suspect’s will to resist and force him to speak “where he
would not otherwise do so freely.”

Cook v. State, 270 Ga. 820, 825 (2) (514 SE2d 657) (1999), quoting

Miranda, 384 U.S. at 467 (III). Thus, “[t]he coercion proscribed by

Miranda must be caused by the police.” Id. at 826 (2). See also

Miranda, 384 U.S. at 444 (“By custodial interrogation, we mean

questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of

action in any significant way.”); Outlaw v. State, 311 Ga. 396, 403

(3) (b) (858 SE2d 63) (2021) (“It is the premise of Miranda that the

danger of coercion results from the interaction of custody and official

interrogation.” (punctuation omitted), quoting Illinois v. Perkins,

24
496 U.S. 292, 297 (II) (110 SCt 2394, 110 LE2d 243) (1990)).14

Accordingly, “Miranda warnings are not a prerequisite to the

admission of statements made by a defendant to persons other than

law enforcement officers or their agents.” Bethea v. State, 251 Ga.

328, 330-31 (7) (304 SE2d 713) (1983) (statements made to

defendant’s commanding officer admissible in absence of a Miranda

warning). See also Daddario v. State, 307 Ga. 179, 189 (3) (835 SE2d

181) (2019) (Miranda not applicable to defendant’s statements to a

CASA volunteer); Williams v. State, 302 Ga. 474, 484 (IV) (c) (807

SE2d 350) (2017) (statements made by defendant in response to

questioning by an emergency room nurse not subject to Miranda);

Rucker v. State, 203 Ga. App. 358, 358 (2) (416 SE2d 871) (1992) (“It

14 Because the parties do not dispute the issue, for purposes of analysis,
we will assume, without deciding, that Boles was in custody for purposes of
Miranda at the time of the interviews, and we confine our analysis in this case
to the issue of whether the DFCS investigators were acting as agents of law
enforcement in interviewing Boles. But see Outlaw, 311 Ga. at 403-04 (3) (b)
(“‘Imprisonment alone is not enough to create a custodial situation within the
meaning of Miranda.’ Rather, in determining whether a person is in custody,
‘the initial step is to ascertain whether, in light of the objective circumstances
of the interrogation, a reasonable person would have felt he or she was not at
liberty to terminate the interrogation and leave.’”), quoting Howes v. Fields,
565 U.S. 499, 509-11 (III) (A) (132 SCt 1181, 182 LE2d 17) (2012)).
25
was not incumbent upon the [DFCS] caseworker to advise defendant

of his Miranda rights because she was not a law enforcement

officer.”).

(b) In considering whether the DFCS investigators were acting

as agents of law enforcement in this case, and thus whether Boles

was entitled to warnings under Miranda before speaking with them,

both the trial court and this Court are required to consider the

totality of the circumstances surrounding the interviews. See Cook,

270 Ga. at 827 (2) (concluding that the issue of whether a law

enforcement parent was acting as a parent or an agent of the state

in questioning his or her arrested child “must be resolved on a case-

by-case basis, by viewing the totality of the circumstances”); Ortiz v.

State, 306 Ga. App. 598, 599-600 (703 SE2d 59) (2010) (applying the

totality-of-the-circumstances test to determine whether a school

administrator acted as an agent of law enforcement). Cf. Clark v.

State, 315 Ga. 423, 434 (3) (b) (883 SE2d 317) (2023) (applying

totality-of-the-circumstances test to juvenile’s waiver of Miranda

rights). And “proper application of a totality-of-the-circumstances

26
test mandates inquiry into all the circumstances surrounding the

interrogation.” Clark, 315 Ga. at 434 (3) (b) (citation and

punctuation omitted; emphasis in original). In determining whether

a trial court properly denied a motion to suppress, “this Court can

consider all evidence of record, including that found in pretrial, trial

and post-trial proceedings.” George v. State, 312 Ga. 801, 803 (865

SE2d 127) (2021) (citation and punctuation omitted). See also

Wright v. State, 294 Ga. 798, 802 (2) (756 SE2d 513) (2014).

investigators were acting as agents for law enforcement in

conducting their interviews with him, based on allegations of

meetings and communications they had with law enforcement, both

before and after the interviews. 15 Although the parties briefly

discussed the motion at a pretrial hearing and submitted post-

15The motion also contended that Boles’s statement to Sylvester was not
voluntary because one of the documents he signed before speaking with her
stated that the information gathered in the interview was to aid in the
reunification process with his daughter. Boles argued that this statement
improperly held out a hope of benefit, which rendered his statement
involuntary. However, the trial court also expressly denied the motion on this
ground at trial, and Boles does not raise the issue on appeal.
27
hearing briefing, no evidence was presented on the issue before trial.

Before testimony began on the first day of trial and after

hearing argument from counsel, the trial court denied the motion to

suppress. In explaining that ruling, the trial court stated that,

although there was cooperation between the police and DFCS, the

DFCS investigators were not acting “at the behest or the request of

law enforcement” when they interviewed Boles, because law

enforcement “had nothing to do with the questions that are asked or

the type information that’s gathered.”16 The trial court also noted

that by the time the DFCS investigators conducted their interviews,

“[l]aw enforcement had already interviewed the defendants, gotten

their statements, [and] advised them of their rights.” And the trial

court concluded that the information provided to DFCS was “almost

cumulative” of what law enforcement officers had already discerned

and what Boles had already told them. Therefore, the trial court

determined that the statements could not be excluded on the ground

16It is unclear from the record on what basis the trial court made these
findings in the absence of a pre-trial evidentiary hearing on the circumstances
under which the DFCS investigators interviewed Boles.
28
that the DFCS investigators were acting as law enforcement agents.

In its written order denying Boles’s motion for new trial on this

ground, the trial court reaffirmed its finding that the DFCS

investigators were not acting as agents for law enforcement based

on the evidence presented at trial, noting that both investigators

testified that they were not performing any investigation on behalf

of law enforcement; there was no evidence law enforcement

controlled the DFCS interviews in any manner, such as providing

specific questions; and law enforcement was not present at either

interview. The trial court further noted that Boles signed consent

forms before speaking with Sylvester in which he acknowledged that

his interview was voluntary and that confidentiality did not apply

to any matter that was the subject of a court action. The trial court

additionally determined that the statements made to the DFCS

investigators were cumulative of other statements Boles made,

noting that he told “multiple individuals, including law

enforcement, that he was the one who placed Andraia in the bathtub

and repeatedly pushed her down into the tub.”

29
(d) We turn now to the question of whether each of the DFCS

investigators was acting as an agent of law enforcement when they

interviewed Boles.

(i) Middleton’s Interview: The evidence at trial showed that

DFCS took custody of D. B. after Andraia’s death and opened an

investigation to determine the proper placement for the child. In

connection with that investigation, Middleton interviewed Boles on

March 7 at the Liberty County Jail where he was being held

following his arrest in a waiting area close to the facility’s control

room, with no law enforcement present. Middleton was not asked by

law enforcement to conduct the interview; rather, it was part of

DFCS’s own investigation. She testified that the purpose of her

conversation with Boles was two-fold: (1) to find out his assessment

of what had happened and (2) to determine if he had any relatives

with whom he wished the child to be placed. No evidence was

presented as to any communications between Middleton and law

enforcement before or after this interview. Although the State

represented in its briefing that Middleton contacted the lead

30
investigator to ask him if it would be “okay” to talk to Boles, no

evidence was presented regarding the content of any further

conversation between them. In addition, although the State’s

briefing represented that both DFCS investigators provided the lead

detective with copies of their interview summaries and that the

detective placed them in his case file “as he believed them to have

some evidentiary value,” no evidence was presented regarding when

or under what circumstances Middleton provided a copy of her

interview to law enforcement.

We conclude, based on the totality of the circumstances

surrounding Middleton’s interview as reflected in the evidence,

including any possible admissions to be gleaned from the State’s

briefing, that no basis exists for determining that Middleton was

acting as an agent for law enforcement in interviewing Boles. To the

contrary, the uncontradicted evidence shows that Middleton was

acting independently in the course of her work for DFCS and that

she communicated with the police before the interview only to get

permission to conduct that interview. There was no evidence

31
demonstrating that she spoke with any police officer about what had

happened to Andraia before interviewing Boles and no evidence

showing why or when she provided a copy of her interview summary

to the lead detective. Therefore, we see no error in the trial court’s

decision to admit Boles’s statement to Middleton. See Daddario, 307

Ga. at 189 (3) (“[W]here the official has not been given police powers,

Miranda has been held inapplicable to questioning by school

officials, welfare investigators, medical personnel, judges, prison

counselors, and parole or probation officers.” (punctuation omitted)),

quoting 2 Wayne R. LaFave et al., Criminal Procedure § 6.10 (c) (4th

ed. Nov. 2018 update)); In re Paul, 270 Ga. 680, 684 (513 SE2d 219)

(1999) (news reporter did not become a state agent simply by

questioning a defendant in the jail); Rucker, 203 Ga. App. at 358 (2).

(ii) Sylvester’s interview: The evidence at trial showed that, in

connection with its investigation into D. B.’s placement, DFCS hired

Sylvester to perform a comprehensive child and family assessment

of the Boles family to determine placement options. Sylvester

testified that, on March 1, 2013, two days after Boles’s interrogation

32
by law enforcement, she met with the lead detective as a part of that

assessment to get permission to interview Boles and to get

information from him about what had happened at the Boles home. 17

Sylvester then interviewed Boles at the jail. Sylvester testified that

the sole purpose of her assessment was to determine D. B.’s history,

which required consideration of how the child had been treated and

what safety factors would need to be considered in finding her a

placement.

Sylvester’s interview with Boles took place in a visiting room

at the jail, with no law enforcement present. Boles signed a form

indicating that his participation in the meeting was voluntary, and

he was told that information from the interview could be used in

court proceedings and that Sylvester could be required to testify.

Boles also signed a Confidentiality Statement, in which he

17 Sylvester also testified that she went to the DFCS office on February
27 to begin her assignment, and a different detective was present when she
arrived, but no evidence was presented as to whether she discussed Andraia’s
case with that detective. Although the motion alleged that she met with the
second detective, a DFCS attorney, and Middleton that day, no evidence in the
record supports that any such meeting or meetings occurred.
33
acknowledged that he understood that “[t]he general requirement

that counselors keep information confidential does not apply when .

. . [i]nformation is made an issue in a court action.” Sylvester and

Boles then spoke for over three hours.

Sylvester testified that she did not coordinate her investigation

with the police but just collected information from them. Moreover,

she stated that the purpose of her assessment was not to do a

criminal investigation; rather, her purpose “was solely to examine

the circumstances related to the child.” Nevertheless, Sylvester

contacted the lead detective after her interview with Boles because

the detective “had asked that if anything relevant to the criminal

portion was revealed that I call him.” And the State represented in

its briefing that Sylvester supplied the lead detective with a copy of

her interview summary, which the lead detective considered to have

evidentiary value.

The trial court concluded that Sylvester did not act at the

request or behest of law enforcement because law enforcement did

not control the interview by “providing specific questions to be

34
asked,” law enforcement was not present at the interview, and Boles

signed forms acknowledging that the interviews were voluntary.

However, the trial court did not acknowledge that Sylvester had

requested information about the investigation prior to her interview

and that in that conversation, the lead detective requested that she

provide him any relevant information (presumably based on what

the lead detective had just relayed to Sylvester), and Sylvester did

just that.18 Proper application of the totality-of-the-circumstances

test requires consideration of all these circumstances in addressing

Sylvester’s interview, see Clark, 315 Ga. at 434 (3) (b), and the trial

court’s failure to consider Sylvester’s pre-interview agreement to

provide information helpful to law enforcement in conducting her

interview and in only considering factors that supported its ruling

is troubling.

However, even assuming that the trial court erred in denying

Boles’s motion to suppress the statements to Sylvester, we conclude

18The trial court was permitted to find Sylvester’s testimony on this
point not credible, but nothing in the record indicates that the trial court made
any such finding in reaching its conclusion.
35
that the admission of that evidence was harmless because the

information provided in Boles’s statements to Sylvester was largely

cumulative of evidence he had already provided in his statements to

police and Middleton and evidence gathered from the crime scene

that was properly admitted at trial.

“A constitutional error is harmless when the State proves

beyond a reasonable doubt that the error did not contribute to the

verdict, such as when the evidence at issue is cumulative of other

properly-admitted evidence or when the evidence against the

defendant is overwhelming.” Jones v. State, 314 Ga. 605, 616 (4) (878

SE2d 505) (2022) (citation and punctuation omitted). The evidence

shows that the statement Boles gave to Sylvester, including his

admissions regarding the injuries he caused to Andraia and his

practice of leaving Andraia home alone all day, was similar to

statements Boles made to law enforcement and Middleton, which

were admitted at trial. Moreover, the evidence against Boles was

strong and did not support his defense that Candice alone caused

Andraia’s death. In addition to Boles’s own admissions of repeatedly

36
knocking Andraia down, the medical examiner testified that

Andraia’s body temperature at the hospital supported that she could

have been dead at least six to ten hours before her temperature was

taken, which was consistent with her death having been caused by

Boles’s conduct and well before the time when Candice was supposed

to have found Andraia unresponsive.

Accordingly, even assuming arguendo, that Sylvester could be

considered to have acted as an agent for law enforcement in

interviewing Boles, the admission of evidence regarding Boles’s

statement to Sylvester was harmless beyond a reasonable doubt. See

Haufler v. State, 315 Ga. 712, 721 (2) (884 SE2d 310) (2023)

(admission of defendant’s non-Mirandized statements to deputy

coroner in presence of deputy sheriff was harmless beyond a

reasonable doubt where defendant made similar statements

multiple times, both before and after speaking with the deputy

coroner and the other statements were properly admitted at trial);

Renfro v. State, 313 Ga. 608, 613-14 (2) (872 SE2d 283) (2022) (even

if the trial court erred in admitting the appellant’s statements, any

37
error was harmless beyond a reasonable doubt because it was

cumulative of other properly admitted evidence).

Judgment affirmed. All the Justices concur.

316 Ga. 209
FINAL COPY

S23A0171. BOLES v. THE STATE.

MCMILLIAN, Justice.

Torres Boles appeals his convictions for felony murder and

other charges in connection with the death of his three-year-old

daughter, Andraia Boles.1 He argues on appeal that the evidence

1 Andraia was found dead on February 27, 2013, and on May 23, 2013, a

Liberty County grand jury indicted Boles and his wife, Candice Boles, who was
Andraia’s mother, in connection with the child’s death, charging them both
with malice murder (Count 1); felony murder based on cruelty to children in
the first degree (Count 2); cruelty to children in the first degree (Count 3);
cruelty to children in the second degree (Count 4); and contributing to the
deprivation of a minor, a misdemeanor (Count 6). Boles also was indicted
individually on a second count of cruelty to children in the first degree in
connection with an earlier incident involving Andraia (Count 5). He was tried
separately before a jury in September 2014 and found guilty of all counts
except malice murder (Count 1). Boles was sentenced as follows: Count 2 – life
in prison without the possibility of parole; Count 4 — ten years to run
consecutively to Count 2; Count 5 — twenty years to run consecutively to
Counts 2 and 4; and Count 6 — twelve months to run concurrently with the
other sentences. The charge of cruelty to children in the first degree under
Count 3 was merged into Count 2 for sentencing purposes. The charges against
Candice Boles are not a part of this appeal.
Boles filed a timely motion for new trial on October 8, 2014, which was
amended on June 24, 2020. Boles waived a hearing on the motion, and the trial
court issued an order denying the motion on June 17, 2022. Boles appealed
that order on July 1, 2022, and the matter was docketed to the term of this
was insufficient to support his convictions and that the trial court

erred in admitting into evidence statements he made to “Ms.

Middleton,”2 a protective services investigator and case manager

with the Georgia Department of Family and Children Services

(“DFCS”) and to Renee Sylvester, a private-sector counselor hired by

DFCS in connection with the agency’s investigation into placing

Boles’s other daughter into foster care.3 Boles asserts that the two

DFCS investigators were acting as agents of law enforcement when

they interviewed him and their failure to give him warnings under

Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966),

renders his statements inadmissible. We conclude that the evidence

was sufficient to support Boles’s convictions, there was no error in

the admission of Boles’s statement to Middleton, and any error in

the admission of his statement to Sylvester was harmless, as such

Court beginning in December 2022 and submitted for a decision on the briefs.
2 This witness introduced herself on the stand as “Ms. Middleton,” and

that is how she is listed and referred to by the trial judge and counsel in the
trial transcript.
3 Middleton and Sylvester are collectively referred to herein as the

“DFCS investigators.”

2
evidence was cumulative of other, properly admitted evidence. We

therefore affirm.

1. The evidence at trial showed the following.4 In February

2013, Boles and his wife, Candice Boles, lived in Hinesville with

their two daughters: D. B., who was four years old, and Andraia,

who was three. At 7:56 a.m. on the morning of February 27, 2013,

Boles placed a call to 911 to report that Andraia was not breathing

and had no pulse.

A first responder, who arrived on the scene a short time later,

testified that when she entered the house, she saw Andraia lying on

a blanket in the hallway just outside a bathroom. The carpet

underneath the blanket was “soaking wet.” The child had visible

bruising to her face, and her head and eyes were swollen. Andraia

was not breathing, had no pulse, and was cold to the touch. The first

responder and her partner began CPR, while they waited for an

4 Because we undertake a harmless-error analysis in Division 3 of this

opinion, we review the record in this case “de novo, and we weigh the evidence
as we would expect reasonable jurors to have done so as opposed to viewing it
all in the light most favorable to the jury’s verdict.” Fletcher v. State, 303 Ga.
43, 47 (II) (810 SE2d 101) (2018) (citation and punctuation omitted).
3
ambulance to transport Andraia to the hospital. A paramedic who

arrived with the ambulance testified that he observed “one big

bruise” from Andraia’s cheekbones to the top of her head and said

that he was never able to detect any cardiac activity despite his

efforts to revive the child.

The emergency room physician who treated Andraia at the

hospital said that when the child arrived, she had obvious trauma,

with a lot of swelling and discoloration of the head and face, and no

vital signs. She was not moving, appeared lifeless, and had no

spontaneous respiration or heart tones. During the physician’s

examination of the child, he discovered other injuries to her body,

including to her buttocks. Andraia’s body temperature was 84

degrees, which the physician testified was “incompatible with life,”

and the child was pronounced dead at 8:30 a.m.

Meanwhile, Boles told Hinesville Police Department officers

who had responded to his 911 call that, after he woke up that

morning, he put Andraia on the toilet and then got ready for work.

He said Andraia was fine when he left the house, but his wife later

4
called him to say that Andraia was not breathing and that he should