Merritt v. State ( 2021 )


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  • In the Supreme Court of Georgia
    Decided: June 21, 2021
    S21A0288. MERRITT v. THE STATE.
    MELTON, Chief Justice.
    Following a jury trial, Shay Alexander Merritt was convicted
    of malice murder and related offenses in connection with the
    shooting death of his wife, Rita Ann Merritt. 1 On appeal, Merritt
    1 On March 20, 2012, a Polk County grand jury indicted Merritt for
    malice murder, felony murder predicated on aggravated assault, aggravated
    assault family violence, possession of a firearm during the commission of a
    felony, and cruelty to children in the first degree. At a July 28 through August
    19, 2014, jury trial, Merritt was found guilty of all charges. He was sentenced
    to life in prison without the possibility of parole for malice murder, 20
    consecutive years for cruelty to children, and 5 consecutive years for the
    firearm charge. The remaining counts were either merged for sentencing
    purposes or vacated by operation of law.
    Merritt, through new counsel, filed a motion for new trial on September
    2, 2014. However, counsel withdrew from representation on November 24,
    2014, and another attorney filed an entry of appearance on March 21, 2016.
    That new counsel amended Merritt’s motion for new trial on June 28, 2019.
    After a hearing, the trial court denied the motion as amended on February 10,
    2020. Merritt timely filed a notice of appeal to this Court. The appeal was
    docketed to the term of this Court beginning in December 2020 and was
    submitted for a decision on the briefs.
    raises six claims of trial court error and further argues that the
    evidence was insufficient to support his convictions and that he was
    denied constitutionally effective assistance of counsel.    For the
    reasons set forth below, we affirm.
    1.   Merritt contends that the evidence presented at trial was
    constitutionally insufficient to sustain his convictions.      When
    evaluating the sufficiency of evidence as a matter of constitutional
    due process, “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.” (Citation and emphasis omitted.)
    Jackson v. Virginia, 
    443 U. S. 307
    , 319 (III) (B) (99 SCt 2781, 61
    LE2d 560) (1979). “This Court does not reweigh evidence or resolve
    conflicts in testimony; instead, evidence is reviewed in a light most
    favorable to the verdict, with deference to the [fact finder’s]
    assessment of the weight and credibility of the evidence.” (Citation
    and punctuation omitted.) Hayes v. State, 
    292 Ga. 506
    , 506 (739
    SE2d 313) (2013).
    2
    Viewed in this light, the evidence presented at trial showed
    that Merritt and Rita were married and had three children at the
    time of her death. Their relationship was tumultuous and included
    numerous incidents of Merritt’s physical and verbal abuse of Rita.
    During the evening hours of September 17, 2011, Merritt shot Rita
    in the back of her head in front of the couple’s then three-year-old
    daughter. After the shooting, Merritt called 911 and reported that
    Rita had committed suicide. When local law enforcement officers
    arrived at the scene, they found Rita leaning against a wall covered
    in blood. A KFS 7.62 x 39 semi-automatic rifle was laying on the
    floor behind her, a single shell casing was on the floor in front of her,
    and a bullet fragment was located along the wall behind the
    television cabinet on Rita’s right side. Sometime thereafter, the
    Polk County coroner arrived.       Upon observing the scene, blood
    spatter patterns, and Rita’s gunshot wound, the coroner opined that
    “[t]here[ was] no physical way [Rita] could have shot herself behind
    the ear with that rifle,” and advised that the GBI be contacted to
    assist with the investigation. While he was at the residence, the
    3
    coroner overheard Merritt state, “I f**ked up,” and admit that “he
    had done this and they might as well put the handcuffs on him.”
    When the GBI crime scene investigator arrived on the scene,
    she noted large amounts of blood spatter on the wall, television and
    cabinet, and a video game console near Rita’s body, as well as brain
    matter and a piece of Rita’s jaw on the floor. The crime scene
    investigator testified that there was no evidence to suggest that any
    kind of fight or altercation had occurred at the residence and further
    opined that the physical evidence did not support a conclusion that
    Rita had committed suicide. The crime scene investigator collected
    the rifle, bullet fragment, and shell casing, and sent them for further
    testing.
    A GBI firearms examiner testified that the rifle was
    operational, functioned properly, and did not accidentally misfire or
    discharge. The firearms examiner opined that the rifle required four
    and three-quarter pounds of pressure to pull the trigger, and further
    concluded that the rifle fired the shell casing and bullet fragment
    that were found at the scene.
    4
    After the shooting, Merritt’s then three-year-old daughter told
    her aunt that Merritt shot Rita and that she saw her mother’s
    “brains and blood splattered all over the walls.” The child was taken
    to a child advocacy center, and, during her forensic interview, she
    stated that Merritt was yelling “bad words” at Rita prior to the
    shooting, that Merritt was standing in the kitchen when he picked
    up a gun and shot Rita, and that Rita was turned away from the gun
    when she was shot.
    During a custodial interview, Merritt told officers the following
    story. On the night of Rita’s death, he and Rita got into an argument
    after she came home from a restaurant drunk.         Rita physically
    attacked him as he was trying to leave the house and, at one point,
    lunged for a nearby gun that Merritt had not put away after target
    practice earlier in the day. He grabbed the gun, not because he
    believed Rita was going to shoot him, but because he was afraid Rita
    would harm herself. Rita sat down on the floor but continued to grab
    for the gun and, during one of her attempts, the gun accidentally
    fired.
    5
    The medical examiner who conducted Rita’s autopsy opined at
    trial that her death was a homicide and that she died as a result of
    the gunshot wound to her head. The medical examiner concluded
    that the bullet that caused Rita’s death traveled from behind her left
    ear, through her brain stem, and exited out of the front of her head
    at her right jaw near her right ear. The autopsy revealed no other
    wounds or injuries that were consistent with a physical struggle.
    The medical examiner opined that the gunshot wound was
    consistent with Rita sitting on the floor with her head turned so that
    she was facing away from the gun when it was fired.
    The State also presented the testimony of a GBI expert in blood
    spatter and crime scene reconstruction. The expert opined that,
    based upon the blood spatter patterns, the location of Rita’s gunshot
    wound, and the physical evidence found at the scene, Rita was
    sitting on the floor next to the television cabinet, in an upright
    position with her legs crossed, and that her head was turned away
    from the gun when she was shot. The expert testified that Merritt’s
    statement to officers recounting how the shooting occurred was not
    6
    consistent with the physical and forensic evidence found at the
    scene.
    The State also presented evidence that Rita told her friends
    and family about instances of physical abuse she suffered at
    Merritt’s hands. In addition, witnesses testified about numerous
    occasions when they either directly witnessed instances of physical
    and verbal abuse or saw Rita bleeding or with fresh bruises that Rita
    said Merritt inflicted from incidents of domestic violence. Prior to
    her death, Rita told a friend and her family members that she feared
    that if she left Merritt, he would kill her. The State also introduced
    a certified copy of Merritt’s September 2008 conviction for simple
    battery for “grabbing, pushing, and choking” Rita’s sister, Felicia
    Mercer.
    Merritt did not testify at trial. His defense was based on the
    theory that the shooting was an accident. Based on the evidence
    presented at trial, the jury was authorized to reject Merritt’s
    accident theory and find him guilty of the crimes of which he was
    convicted beyond a reasonable doubt. See Jackson, 
    supra,
     
    443 U. S.
                                     7
    at 319 (III) (B). See also Jones v. State, 
    292 Ga. 656
     (1) (a) (740 SE2d
    590) (2013) (criminal intent is a question for the fact finder, and can
    be inferred from the defendant’s conduct before, during, and after
    the commission of the crimes).         Accordingly, the evidence was
    sufficient to support Merritt’s convictions.
    2.    Merritt   claims    that    he   received   constitutionally
    ineffective assistance of counsel because his trial counsel failed to
    object to the introduction of Merritt’s 2008 simple battery conviction
    as improper character evidence pursuant to OCGA § 24-4-404 (b)
    (“Rule 404 (b)”). However, at the hearing on Merritt’s motion for
    new trial, defense counsel informed the trial court that he was
    abandoning this claim of ineffective assistance. In its order denying
    the motion for new trial, the trial court noted that counsel had
    waived this claim of ineffective assistance and did not issue a ruling
    on the allegation of error. Accordingly, this claim is not preserved
    for appellate review. See Prince v. State, 
    295 Ga. 788
     (2) (b) (764
    SE2d 362) (2014) (claim of ineffective assistance not preserved
    where defendant failed to raise the issue in his amended motion for
    8
    new trial, failed to raise the claim at the hearing on that motion, and
    failed to obtain a ruling on it from the trial court).
    3.    Merritt raises two allegations of error regarding the trial
    court’s evidentiary rulings pursuant to OCGA § 24-6-622 (“Rule
    622”) (“The state of a witness’s feelings towards the parties and the
    witness’s relationship to the parties may always be proved for the
    consideration of the jury.”). Specifically, Merritt alleges that the
    trial court erred by (a) allowing the State to cross-examine a defense
    witness, Dr. Mehemmed Abbasi, about the witness’s prior arrest,
    and (b) excluding evidence that Rita and her family were
    Romanichal gypsies.     We review the trial court’s rulings on the
    admissibility of evidence for a clear abuse of discretion. See Davis
    v. State, 
    301 Ga. 397
    , 399 (2) (801 SE2d 897) (2017). However,
    even where an abuse of discretion is shown, there are no
    grounds for reversal if the error did not affect a
    “substantial right,” and thus harm, the defendant. See
    OCGA § 24-1-103 (a) (“Error shall not be predicated upon
    a ruling which admits or excludes evidence unless a
    substantial right of the party is affected. . . . ”); see also
    Smith v. State, 
    299 Ga. 424
    , 431 (788 SE2d 433) (2016)
    (OCGA § 24-1-103 (a) “continues Georgia’s existing
    harmless error doctrine for erroneous evidentiary
    9
    rulings”). “‘In determining whether the error was
    harmless, we review the record de novo and weigh the
    evidence as we would expect reasonable jurors to have
    done so,’” and we assess “‘whether it is highly probable
    that the error did not contribute to the verdict.’” Smith,
    299 Ga. at 432 (quoting Rivera v. State, 
    295 Ga. 380
    , 382
    (761 SE2d 30) (2014)).
    Venturino v. State, 
    306 Ga. 391
    , 393 (2) (830 SE2d 110) (2019). With
    these principles in mind, we address Merritt’s claims of evidentiary
    error in turn.
    (a) At trial, Merritt called Dr. Abbasi, a psychiatrist, as a
    defense witness to testify about Rita’s diagnosis with and treatment
    for bi-polar disorder.       During direct examination, Dr. Abassi
    explained bi-polar disorder to the jury, testified about the
    medications he prescribed for Rita and how those medications
    worked    to     treat   bi-polar   disorder,   testified   regarding   the
    consequences of a person’s failure to take his or her prescribed
    medications, and testified that it is common for a person diagnosed
    with bi-polar disorder, such as Rita, to threaten to commit suicide.
    On cross-examination, the prosecutor asked Dr. Abbasi
    whether he was biased against the State, to which Dr. Abbasi said
    10
    he was not. The prosecutor asked to approach the bench and, during
    a bench conference, informed the trial court of his intention to ask
    Dr. Abbasi about whether he had been arrested in 2008 for sexual
    battery against his patients. Defense counsel objected, arguing that
    this constituted inadmissible impeachment evidence because there
    was no conviction, pending charge, or indictment. The prosecutor
    requested to make a proffer outside the presence of the jury, during
    which the prosecutor asked Dr. Abassi, “Are you the same Dr.
    Mehmmed Abassi of Covington Alliance Family Practice [in
    Covington, Georgia] that was arrested for sexual battery back in
    2008?” to which Dr. Abassi responded, “That’s right.” After making
    this brief proffer, the State argued that the testimony was relevant
    to test the doctor’s bias pursuant to Rule 622. The trial court agreed,
    overruled Merritt’s objection, and allowed the prosecutor to pursue
    that line of questioning.
    The prosecutor continued his cross-examination of Dr. Abbasi,
    during which the following transpired:
    Q:   Dr. Abbasi, my last question to you was whether or
    11
    not you had any bias – whether you harbored any
    bias against the state prosecution. I believe you
    indicated no. That was your answer?
    A:   That’s right.
    Q:   My question to you then is, are you the same doctor
    who was – who has been accused of sexually
    inappropriately touching some of your patients at
    your facility?
    A:   You said patients?
    Q:   Yes.
    A:   Not true.
    The prosecutor moved on to a new line of questioning, and the jury
    was not given an instruction concerning the limited purpose of this
    testimony.
    (i) Abuse of Discretion
    Merritt argues that the trial court abused its discretion by
    allowing the State to question Dr. Abassi concerning the accusation
    of sexual battery.   As an initial matter, because Rule 622 is a
    “holdover” from Georgia’s old Evidence Code with no federal
    counterpart, this Court “look[s] to Georgia cases decided under the
    former version of that rule – OCGA § 24-9-68 – for guidance.”
    Chrysler Grp., LLC v. Walden, 
    303 Ga. 358
    , 363 (II) (A) (812 SE2d
    244) (2018). In Chrysler, this Court looked to cases decided under
    12
    former OCGA § 24-9-68 and determined that proper applications of
    this rule of evidence
    included the ability to question an opposing party’s expert
    witness about how often he had been hired by the counsel
    in the case and how much he had been paid, to question
    witnesses about reduction in prison time in exchange for
    cooperating with the State, and to elicit evidence that an
    employee witness received a promotion and pay increase
    as a reward for favorable testimony to defendant.
    (Citations omitted.) Id. at 364 (II) (A). We also explained that, while
    Rule 622 “establishes that a witness’s bias is always a legitimate
    issue to be proved,” it does not provide “that any evidence offered to
    show bias is always admissible no matter how prejudicial or
    irrelevant to the issue being tried.” Id. Instead, evidence admitted
    pursuant to Rule 622 is subject to the familiar balancing test laid
    out in OCGA § 24-4-403 (“Rule 403”) (“Relevant evidence may be
    excluded if its probative value is substantially outweighed by the
    danger of unfair prejudice, confusion of the issues, or misleading the
    jury or by considerations of undue delay, waste of time, or needless
    presentation of cumulative evidence.”).
    Reviewing the testimony at issue in this light, we agree with
    13
    Merritt that the trial court abused its discretion by allowing the
    State to question Dr. Abassi about the prior allegation of sexual
    battery. Assuming that this testimony could conceivably be viewed
    as relevant to show bias, the trial court abused its discretion by
    allowing this testimony because the probative value of the evidence
    was substantially outweighed by its unfair prejudicial effect under
    Rule 403. This was not a case where the witness was facing a
    pending criminal charge and the jury was instructed on the limited
    purpose of such evidence to show bias. See Lee v. State, 
    306 Ga. 663
    (4) (832 SE2d 851) (2019) (no abuse of discretion where the trial
    court allowed the State to cross-examine a defense witness about a
    pending criminal indictment brought by the same prosecuting office
    and instructed the jury that the limited purpose of the evidence was
    to show bias against the State); Smith v. State, 
    276 Ga. 263
     (2) (577
    SE2d 548) (2003) (a defendant has the right to show possible bias of
    a witness in favor of the State by cross-examining that witness about
    pending criminal charges or a pending probation revocation).
    Instead, the State’s single question about an unconfirmed allegation
    14
    of sexual battery that had occurred on an unidentified date did very
    little to show how Dr. Abassi may have been biased against the
    State, and a claim that a doctor had committed sexual battery
    against his patients is clearly prejudicial. Accordingly, the minimal
    probative value of the evidence was substantially outweighed by its
    unfair prejudicial effect; therefore, the trial court abused its
    discretion in allowing this testimony.
    (ii) Harmless Error
    However, in light of the strong evidence of guilt in this case,
    because Dr. Abassi’s testimony did not directly relate to Merritt’s
    defense of accident, and because Dr. Abassi’s answer indicated that
    the allegations were not true, we conclude that the error was
    harmless, as it is highly probable that the State’s brief questioning
    of Dr. Abassi regarding the prior allegation of sexual battery did not
    contribute to the jury’s verdict.
    (b) Merritt argues that the trial court erred in excluding
    evidence under Rule 622 that Rita and her family were Romanichal
    gypsies. We see no error.
    15
    Prior to trial, the defense filed a motion seeking to elicit
    testimony at trial from Rita’s family concerning their Romanichal
    culture and its alleged dislike of outsiders, such as Merritt. Defense
    counsel argued that this line of questioning was permissible in order
    to show the family’s bias against Merritt. After hearing arguments,
    the trial court ruled as follows:
    I’m going to allow you to do that, but the issue is not with
    the family. The issue is with Rita and what kind of
    relationship she had with [Merritt] in the way of prior
    conflicts, what generated that, whether it be family or
    whatever the case is. I’ll allow you to cross-examine any
    witness put up with regard to bias.
    At trial, during the defense’s cross-examination of Rita’s sister,
    Felicia Mercer, defense counsel questioned Mercer extensively about
    her family background.      When counsel began asking about the
    women’s cultural upbringing, however, the State objected. Defense
    counsel stated that she was entitled to ask questions “to show the
    bias of the witnesses against [Merritt] and why [the witnesses are]
    saying the things that they’re saying about him.” The trial court
    ruled that it would
    16
    allow [defense counsel] to ask questions pertaining to the
    family’s bias or prejudice against [Merritt], but I’m going
    to instruct you not to go into ethnic background or
    anything of that nature as cultural bias of some kind. But
    I will – I will allow you to ask all of the questions that you
    indicated that you were trying to probe into with regard
    to prejudice or bias, and then I’ll allow you to ask her why.
    But I’m not going to turn this into a case against Gypsies
    or whatever culture we’re talking about. . . . I’m going to
    allow you to go into prejudice or bias, but I’m not going to
    allow you to do it based on cultural background. And if
    you get into that, I’ll simply stop it and let you make your
    proffer and that will end it. . . . Because I’m inclined to
    agree with [the State] that the purpose of those kind of
    questions has nothing to do with the legitimate effort to
    show bias or prejudice. It’s simply for the purpose of the
    [sic] prejudicing this jury with regard to the victim’s
    cultural background, if it is.
    Defense counsel then continued to cross-examine Mercer about her
    family’s background and Rita’s upbringing, but counsel did not
    attempt to ask any additional questions about the family’s
    Romanichal background, nor did counsel make a proffer as to this
    witness on the same.
    Later, during counsel’s cross-examination of Rita’s sister-in-
    law, Louann Jeffrey, counsel made a proffer outside the presence of
    the jury concerning the family’s Romanichal culture and their
    17
    alleged cultural bias against outsiders like Merritt. During this
    proffer, Jeffrey testified that she and her family were Romanichal
    gypsies, that Rita was raised as such, and that a person outside the
    Romanichal culture is called a “gorgia.” The proffer ended with the
    following exchange:
    The Court:   If you married someone like me who, to my
    knowledge, has no gypsy culture in my
    background, have you sinned in some kind of
    way or –
    Jeffrey:     No.
    The Court:   Is your family going to be prejudiced against
    mine?
    Jeffrey:     I’m not shunned against or nothing, no.
    Maybe in 1905. . . . But today, no.
    Defense:     Is it expected in the gypsy culture that the
    gypsies will marry other gypsies?
    Jeffrey:     It’s like, you know, we try to keep our
    bloodline, and our race is fading, as with any
    other race. You want to try to keep your
    bloodline strong. But I feel like if you fall in
    love with somebody, love is no boundary.
    Defense:     And you would say that gypsies see everyone
    who’s not a gypsy as an outsider?
    Jeffrey:     Not so much a[n] outsider, just not a gypsy.
    After hearing this testimony, the trial court concluded that
    questions about the family’s cultural background were not relevant
    to the case, and “any relevance it may have is far outweighed by . . .
    18
    the prejudice that will be created just because you’re referring to
    someone as a [Romanichal gypsy].” Merritt contends that the trial
    court’s rulings limiting the cross-examinations of Mercer and Jeffrey
    on this topic amounted to an abuse of discretion. We disagree.
    Even if we were to assume that Merritt was trying to establish
    Mercer’s and Jeffrey’s personal biases under Rule 622, defense
    counsel did not lay a proper foundation to do so. “Before a witness
    may be impeached for bias or hostility toward a party, the proper
    foundation must be laid by cross-examining the witness regarding
    his ill-feelings toward that party.” (Citations omitted.) Simmons v.
    State, 
    266 Ga. 223
    , 226-227 (4) (466 SE2d 205) (1996). See also
    Farley v. State, 
    225 Ga. App. 687
    , 694 (484 SE2d 711) (1997)
    (“Unless there is evidence produced outside the hearing of the jury
    from a witness examined under oath with regard to feelings
    concerning the accused and any occurrence giving rise to such
    feelings, to create a factual basis that racial bias or prejudice exists
    and, in fact, influenced the witness’ testimony or could be reasonably
    inferred to do so, such issue of racial bias or prejudice should not be
    19
    injected into the proceedings, as such issue could tend to destroy the
    impartiality of the jury and because it would not be relevant.”).
    Here, defense counsel did not question Mercer about potential
    cultural biases she held against Merritt, Jeffrey denied the existence
    of such bias during her proffered testimony, and defense counsel
    proffered no other evidence on the point. Based on the foregoing, we
    conclude that the trial court did not abuse its discretion under Rule
    622 by excluding this evidence.
    4.   Merritt contends that the trial court erred by granting the
    State’s motion in limine to exclude the testimony of one of the
    defense’s expert witnesses. The record shows that the trial court
    specially set Merritt’s jury trial to begin on June 16, 2014. One week
    before trial, Merritt filed a motion to continue the case because his
    expert in forensic and clinical psychology was unavailable.
    Specifically, the defense planned to call this expert to testify about
    Merritt’s prior diagnosis of post-traumatic stress disorder (“PTSD”)
    and how it affected his interactions with law enforcement officers
    during his custodial interview.    After holding a hearing on the
    20
    motion at which the parties presented arguments, the trial court
    granted a continuance and re-set Merritt’s trial to begin on July 28,
    2014.
    Thereafter, the State moved in limine to exclude the defense
    expert’s    testimony,      arguing     that    it   was    immaterial       and
    inadmissible. The record contains no written or oral ruling on the
    State’s motion. However, in later motions contained in the record,
    defense counsel referenced a July 10, 2014 hearing in which the trial
    court allegedly granted the State’s motion in limine. 2                There is
    nothing in the record indicating that Merritt ever objected to the
    State’s motion in limine or took exception to the trial court’s alleged
    2 Specifically, in a motion filed on July 14, 2014, defense counsel asserted
    that, at the July 10, 2014 hearing, the trial court
    granted the motion and ordered that Defendant will be prohibited
    from offering expert testimony as to his diagnosis of PTSD and its
    effects on his conduct, intent, demeanor, communication and
    mental state. The basis for the Court’s ruling was that Defendant
    has not filed a notice of intent to raise a defense of insanity, the
    Defendant’s mental state, including his diagnosis of PTSD, is not
    at issue and is not relevant to the case.
    However, there is no transcript of the July 10, 2014 hearing in the record before
    this Court.
    21
    pre-trial ruling. Consequently, this claim can be reviewed only for
    plain error.
    As this Court has previously explained,
    [w]e may remedy an error under plain error review if (1)
    the error was not affirmatively waived by the appellant;
    (2) the error is “clear or obvious, rather than subject to
    reasonable dispute”; (3) the error “affected the appellant’s
    substantial rights”; and (4) “the error seriously affects the
    fairness, integrity or public reputation of judicial
    proceedings.”
    (Citation omitted.) Williams v. State, 
    302 Ga. 147
    , 151-152 (2) (805
    SE2d 873) (2017). Assuming without deciding that Merritt did not
    affirmatively waive this claim and that the trial court committed a
    clear legal error by excluding the expert’s testimony, Merritt still
    cannot obtain reversal on this basis because he cannot show that the
    error affected his substantial rights – i.e., that there is a reasonable
    probability that the outcome of trial would have been different had
    this evidence been admitted. See Martin v. State, 
    298 Ga. 259
    , 278
    (6) (c) (779 SE2d 342) (2015), disapproved of in part on other grounds
    by Willis v. State, 
    304 Ga. 686
    , 706 n.3 (820 SE2d 640) (2018)
    (explaining that the test for harm under plain error review “requires
    22
    a showing of a reasonable probability that the result of the
    proceeding would have been different, which is a probability
    sufficient to undermine confidence in the outcome” (citation and
    punctuation omitted.)). Here, the only evidence presented at trial
    regarding Merritt’s behavior during his custodial interview
    concerned whether he appeared to understand his Miranda 3 rights
    and his subsequent waiver of the same. And, while the prosecutor
    made statements during closing argument regarding Merritt’s
    apparent lack of remorse during his interview with the police, these
    arguments were made in direct response to defense counsel’s closing
    argument that Merritt was remorseful for shooting Rita.
    Based on the foregoing, Merritt has failed to show that the trial
    court committed plain error because he cannot demonstrate that the
    outcome of his trial probably would have been different had his
    expert witness been allowed to testify at trial.
    5.      Prior to trial, the State filed a notice of intent to present
    3   Miranda v. Arizona, 
    384 U.S. 436
     (86 SCt 1602, 16 LE2d 694) (1966).
    23
    testimony pursuant to the residual hearsay exception, see OCGA §
    24-8-807,4 through lay witnesses Andrea Lyle, Mercer, and Jeffrey
    concerning Rita’s descriptions of verbal and physical abuse that
    occurred in her marriage prior to her death. At trial, Lyle testified
    that she knew Rita through work, that they would socialize outside
    of work, and that Rita was her “best friend.” She further testified
    that she and Rita would confide in each other about things going on
    in their lives, including things going on in Rita’s marriage to Merritt.
    Specifically, Lyle testified that Rita reported being physically and
    mentally abused by Merritt, showed Lyle bruising from the
    beatings, and stated that Merritt would kill her if she ever tried to
    leave. Mercer, Rita’s sister, testified that she and Rita were very
    4   OCGA § 24-8-807 states in pertinent part:
    A statement not specifically covered by any law but having
    equivalent circumstantial guarantees of trustworthiness shall not
    be excluded by the hearsay rule, if the court determines that: (1)
    The statement is offered as evidence of a material fact; (2) The
    statement is more probative on the point for which it is offered
    than any other evidence which the proponent can procure through
    reasonable efforts; and (3) The general purposes of the rules of
    evidence and the interests of justice will best be served by
    admission of the statement into evidence.
    24
    close and they were like best friends. They worked together, saw
    each other every day, and discussed intimate and personal matters
    with each other. Regarding her marriage, Rita told Mercer that
    Merritt had “threatened to kill her if she ever left him.” Finally,
    Jeffrey, Rita’s sister-in-law, testified that she had a good
    relationship with Rita, that they spoke on a regular basis, and that
    Rita shared personal information with her, including information
    about Rita’s marriage. Jeffrey testified that Rita would call her
    crying because Merritt called her a “sorry mother” and a “b**ch,”
    that Rita expressed concerns about Merritt’s potential infidelity,
    that Rita told Jeffrey that Merritt had kicked her down the stairs
    while she was pregnant with their youngest child, and that Rita told
    Jeffrey she could not leave Merritt because he would kill her. 5
    Merritt did not object to the admission of this testimony at
    trial. Now, on appeal, he claims that the trial court committed plain
    error by admitting the hearsay testimony of Lyle, Mercer, and
    5 In addition to this testimony, all three witnesses testified about
    numerous acts of physical violence and verbal abuse that Merritt had
    committed against Rita that these women had directly witnessed.
    25
    Jeffrey pursuant to OCGA § 24-8-807. Specifically, Merritt argues
    that these hearsay statements did not have sufficient guarantees of
    trustworthiness. Merritt, however, has failed to show that the trial
    court committed clear or obvious error by admitting Rita’s
    statements through these witnesses. See Williams, 
    supra,
     
    302 Ga. at 151-152
    .
    OCGA § 24-8-807 applies “only when certain exceptional
    guarantees of trustworthiness exist and when high degrees of
    probativeness and necessity are present.” (Citation and punctuation
    omitted.) Smart v. State, 
    299 Ga. 414
    , 421 (3) (788 SE2d 442) (2016).
    These guarantees of trustworthiness “must be equivalent to cross-
    examined former testimony, statements under a belief of impending
    death, statements against interest, and statements of personal or
    family history.” (Citation and punctuation omitted.) 
    Id.
     This is so
    because   “[s]uch   categories   of   hearsay   have   attributes   of
    trustworthiness over and above that possessed by the general run of
    hearsay statements, and the hearsay is considered sufficiently
    trustworthy because of the circumstances under which the hearsay
    26
    statements were originally made.” Tanner v. State, 
    301 Ga. 852
    , 856
    (1) (804 SE2d 377) (2017). However, this Court has previously held
    that a victim’s description of prior acts of domestic violence against
    her to her family and friends carries an increased level of
    trustworthiness. See Jacobs v. State, 
    303 Ga. 245
    , 251 (2) (811 SE2d
    372) (2018) (no abuse of discretion where the trial court
    “determin[ed] that the statements from [the victim] to her friends .
    . . describing the nature of her abusive relationship with [the
    defendant] prior to her death had the requisite ‘exceptional
    guarantees of trustworthiness’ to be admissible at trial pursuant to
    Rule 807”); Smart, supra, 299 Ga. at 422 (3) (trial court’s admission
    of statements from murder victim to her friends and family
    describing acts of domestic violence committed by defendant was
    neither clear nor obvious error as the hearsay statements had
    sufficient guarantees of trustworthiness).
    Here, Rita consistently described acts of domestic abuse to her
    close friend and family members, and these same people directly
    witnessed acts of domestic violence against Rita. Accordingly, we
    27
    cannot say that the trial court committed clear or obvious error by
    determining that the statements had sufficient guarantees of
    trustworthiness and admitting these hearsay statements at trial
    through Lyle, Mercer, and Jeffrey.
    6.   Merritt contends that the trial court erred by admitting
    at trial evidence relating to his 2008 simple battery conviction
    pursuant to Rule 404 (b) (evidence of other acts may be admissible
    to show “motive, opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident.”). During the State’s
    case-in-chief, the prosecutor asked Mercer to describe an incident
    that occurred at the hospital after Rita had given birth to one of her
    and Merritt’s children. Mercer testified that, while visiting the new
    baby, Rita’s mother remarked that Merritt was being too rough with
    another of the couple’s children. Merritt then struck his mother-in-
    law, which led to a physical fight between Merritt, Rita’s mother,
    and Mercer. Rita, who was recovering from giving birth, pleaded for
    Merritt to stop. Mercer testified that, as the fight broke up, Merritt
    shouted that he would kill them all. The State then tendered its
    28
    Exhibit 36, a certified copy of Merritt’s 2008 misdemeanor conviction
    for simple battery stemming from this fight. 6 Thereafter, the trial
    court instructed the jury as follows:
    Ladies and gentlemen, sometimes evidence is tendered
    for a limited purpose and that’s the case with regard to
    Exhibit Number 36. In this case, the State has offered
    evidence in the form of Exhibit 36, which is a certified
    copy of the defendant’s conviction for simple [battery] in
    Carroll County.
    It is tendered for the limited purpose of proving the
    defendant’s intent and against a claim or affirmative
    defense of accident about which I will charge you more
    fully at the conclusion of this case. And again, it is not to
    be considered for any other purpose other than the limited
    purpose for which it has been tendered, which is proving
    the defendant’s intent, if you so decide, and against any
    claim of accident, if you so decide.
    But that’s all it’s offered for and you can – it has nothing
    to do with the issue of guilt or innocence of his conviction
    of this case, okay?
    Merritt now contends that the trial court erred by admitting
    this evidence for the purpose of showing intent.             Because this
    6  The documents admitted at trial show that Merritt was accused of two
    counts of simple battery, Count 1 for “grabbing, pushing and choking” Felicia
    Mercer, and Count 2 for “grabbing and pushing” Rita’s mother. Merritt pled
    guilty to Count 1, and the trial court nolle prossed Count 2.
    29
    evidence was admitted at trial without objection, we can review this
    claim only for plain error. See Williams, 
    supra,
     
    302 Ga. at 151-152
    .
    Assuming without deciding that the trial court committed a clear
    legal error by admitting this evidence for the purpose of showing
    intent under Rule 404 (b), Merritt cannot obtain reversal on this
    basis because he cannot show that the error affected his substantial
    rights. See Martin, supra, 298 Ga. at 278.
    Here, in addition to the significant physical and forensic
    evidence establishing Merritt’s guilt, the State presented the
    statements of the three-year-old witness to the shooting and
    testimony from other witnesses describing numerous instances of
    Merritt’s prior acts of domestic violence against Rita, all of which
    contradicted his accident defense. Based on the foregoing, Merritt
    has failed to show that the trial court committed plain error, because
    he cannot demonstrate that the outcome of his trial would have been
    different absent the introduction of evidence regarding the prior
    simple battery.
    7.   Merritt argues that the trial court erred by failing to
    30
    instruct the jury on self-defense and defense of others. “To authorize
    a requested jury instruction, there need only be slight evidence to
    support the theory of the charge, and the necessary evidence may be
    presented by the State, the defendant, or both.” (Citation and
    punctuation omitted.) Collins v. State, 
    308 Ga. 515
    , 519 (2) (842
    SE2d 275) (2020). “Whether the evidence presented is sufficient to
    authorize the giving of a charge is a question of law.” (Citation,
    footnote, and punctuation omitted.) McClure v. State, 
    306 Ga. 856
    ,
    863 (1) (834 SE2d 96) (2019).
    Merritt’s requested charge read as follows:
    A person is justified in threatening or using force against
    another person when, and to the extent that, he
    reasonably believes that such threat or force is necessary
    to defend himself or a third person against the other’s
    imminent use of unlawful force. A person is justified in
    using force that is intended or likely to cause death or
    great bodily harm only if that person reasonably believes
    that such force is necessary to prevent death or great
    bodily injury to himself or a third person or to prevent the
    commission of a forcible felony. The State has the burden
    of proving beyond a reasonable doubt that the defendant
    was not justified.
    Ga. Suggested Pattern Instructions, Vol. II: Criminal Cases §
    31
    3.10.10 (4th ed. 2007) (Justification; Use of Force in Defense of Self
    or Others).7 In support of the charge, defense counsel argued that
    during Merritt’s custodial interview, officers “asked him if he
    thought that Rita was going for the gun to shoot him with it and his
    answer was, no, I don’t think so, but maybe she was. I hope she was,
    or something like that. It would make me feel better to think that
    she was.” Counsel argued that Merritt’s statement of “maybe she
    was” going to shoot him, in combination with Merritt’s explanation
    that he took the gun in order to protect Rita from herself, was
    sufficient to support a charge on justification.           The trial court
    refused to give the requested charge, explaining, “I don’t recall any
    line of testimony in this case, including his recorded statement,
    where he ever indicated he was afraid of Rita. He always said, I
    wasn’t afraid of her, you know, I just didn’t want her to hurt herself.”
    7 Merritt also requested the trial court give additional pattern charges
    concerning self-defense. See Ga. Suggested Pattern Instructions, Vol. II:
    Criminal Cases §§ 3.01.10 (Justification; Generally), 3.10.12 (Reasonable
    Beliefs; Doctrine of), and 3.16.10 (Justification; Threats, Menaces Causing
    Reasonable Belief of Danger). The trial court refused to give any instruction
    on justification, ruling that the evidence did not support the requested jury
    charges.
    32
    Counsel objected to the trial court’s ruling.
    We conclude that the trial court did not err by refusing to give
    the requested charge because there was not slight evidence in this
    case to support a charge on justification. “A person is justified in
    threatening or using force against another when and to the extent
    that he or she reasonably believes that such threat or force is
    necessary to defend himself or herself or a third person against such
    other’s imminent use of unlawful force. . . .” OCGA § 16-3-21 (a).
    Merritt has pointed to no evidence that shooting Rita was necessary
    to defend himself or any third person from any imminent use of
    unlawful force. Indeed, Merritt told officers that he did not believe
    Rita was trying to shoot him but, instead, believed she was
    attempting to harm herself.      And, even assuming that Merritt
    picked up the gun with the purpose of saving Rita from herself (as
    Merritt suggested to officers) it is illogical that this was also the
    reason he used deadly force. Finally, the evidence presented at trial
    established that Rita was sitting down and looking away from the
    gun when she was shot in the back of the head.          “Because no
    33
    construction of the evidence would support a finding that [Merritt]
    shot in self-defense, the trial court properly refused to charge on that
    issue.” (Citation omitted.) Broussard v. State, 
    276 Ga. 216
    , 217 (2)
    (576 SE2d 883) (2003). 8
    Judgment affirmed. All the Justices concur.
    8 Merritt does not argue that all the errors we assume today, though
    individually harmless, nevertheless harmed him when aggregated. And no
    such cumulative prejudice is apparent to us on this record. See State v. Lane,
    
    308 Ga. 10
    , 18 (1) (838 SE2d 808) (2020) (“[A] defendant who wishes to take
    advantage of the [cumulative error rule] should explain to the reviewing court
    just how he was prejudiced by the cumulative effect of multiple errors.”);
    Armstrong v. State, 
    310 Ga. 598
    , 607 (5) n.13 (852 SE2d 824) (2020).
    34