Grier v. State ( 2022 )

In the Supreme Court of Georgia
Decided: February 15, 2022
S21A1249. GRIER v. THE STATE.
BOGGS, Presiding Justice.
Appellant Deunta Grier challenges his 2016 convictions for
malice murder and other crimes in connection with the shooting
death of his girlfriend, Tiffany Bailey. Appellant contends that the
evidence presented at his trial was insufficient to support his
convictions, that the trial court committed plain error in admitting
hearsay statements allegedly made by Bailey’s five-year-old
daughter, J.F., and the couple’s three-year-old daughter, A.G., under
the Child Hearsay Statute and in violation of Appellant’s
constitutional right of confrontation, and that he was denied the
effective assistance of counsel. We affirm. 1
1 The crimes occurred on November 7, 2015. On February 16, 2016, a
Fulton County grand jury indicted Appellant for malice murder, three counts
1. The evidence at trial showed the following. In November
2015, Appellant lived in Bailey’s apartment with J.F., A.G., and the
couple’s baby. Appellant and Bailey had been in a romantic
relationship for several years, and J.F. often referred to Appellant
as “Daddy.” Appellant and Bailey had a tumultuous relationship
that included hair-pulling and physical fights that left bruises on
Bailey. Appellant’s name was not on the lease, and the complex’s
property manager, Regina Brettnacher, told Bailey about a week
before Bailey’s murder that Appellant had to leave or Bailey would
of felony murder, aggravated assault with a deadly weapon, two counts of
cruelty to children in the third degree, possession of a firearm during the
commission of a felony, possession of a firearm by a convicted felon, and
possession of a firearm during the commission of a felony against the person of
another by a person previously convicted of a felony involving the use or
possession of a firearm. At a trial from June 27 to 30, 2016, the jury found
Appellant guilty of all charges. The trial court sentenced Appellant to serve life
in prison for malice murder, concurrent terms of 12 months each for the child
cruelty counts, and 15 consecutive years for possession of a firearm during the
commission of a felony against the person of another by a person previously
convicted of a gun crime. The court vacated the felony murder counts and
merged the remaining charges. On July 22, 2016, Appellant filed a motion for
new trial, which he amended with new counsel on November 28, 2017. The
court held an evidentiary hearing on April 10, 2018, and denied the motion on
May 12, 2021. Appellant filed a timely notice of appeal. The case was docketed
in this Court to the August 2021 term and was orally argued on November 10,
2021.
2
be evicted. Three days before the shooting, Bailey told her aunt that
she planned to break up with Appellant. On November 7, Appellant
called 911 to report that Bailey had been shot. When officers and
paramedics arrived, Appellant and the children were in the unit,
and Bailey was unconscious on the floor of the kitchen with a
gunshot wound through her eye. Bailey’s earrings and clumps of her
hair were scattered around the living room, and there was a suitcase
packed with men’s clothing in the kitchen. Bailey was transported
to the hospital within 45 minutes of the 911 call and later
pronounced dead.
Appellant agreed to go to the police precinct, where he was
interviewed by Scott Berhalter, the lead detective on the case. In a
video-recorded interview, which was played for the jury at trial,
Appellant admitted that he sold drugs out of the apartment.
According to Appellant, someone came to the apartment to buy
marijuana, pointed a gun at Appellant, demanded marijuana, and
then pulled the trigger, shooting Bailey when Appellant tried to
disarm the shooter. Appellant claimed that the shooter was friends
3
with 17-year-old Q.W., and that Q.W. and the shooter had purchased
marijuana together from him a few days prior. Appellant’s
description of the shooter led Detective Berhalter to 13-year-old
A.N., but A.N. provided an alibi for the night of the shooting. 2
Appellant did not identify A.N. as the shooter when presented with
a photographic lineup, instead identifying A.N. as someone who
“should know who did this.” Appellant admitted to recently firing a
gun but claimed that he had only fired at a car hours before Bailey
was shot. Appellant also admitted to owning .22-caliber
ammunition, the type of bullet that killed Bailey.
Two days after the shooting, Appellant told an acquaintance,
Isaac Turner, that he and Bailey were arguing, he pulled his gun in
an attempt to get her off him, “the gun went off when she went
towards him,” and the bullet hit her in the head. Appellant added
2 A.N. told Detective Berhalter that he was with his sister at the time of
the shooting. At that time, A.N. and his sister were both under surveillance
using GPS ankle monitors, and GPS information showed that A.N.’s sister was
on a different side of town at the time of the shooting. A.N.’s ankle monitor was
not charged and thus was not active the night of the shooting, but he was
seemingly unaware of this fact, as A.N.’s probation officer stated that “as far
as [A.N.] knew[,] he was being monitored 24/7.”
4
that he lied to the police about a robbery, staged the scene, and
threw the gun over the fence of the apartment complex. Later that
day, Brettnacher saw Appellant searching for something along the
fence line. The police returned to the complex, and a canine searched
along the fence line but did not find a gun. The police could tell that
the area had been recently searched.
At trial, the State did not call A.G. as a witness. J.F., who was
six at the time of the trial, testified by closed-circuit television from
elsewhere in the courthouse. 3 J.F. was asked if she “said that [her]
daddy killed [her mom],” and J.F. nodded her head up and down.
J.F. was asked if she was there when that happened, and she again
nodded her head up and down. When J.F. was asked if she saw it
happen, she shook her head from side to side. J.F.’s answers to many
of the State’s questions were nonverbal gestures or verbal responses
that were not audible in the courtroom. On cross-examination, J.F.
3 Appellant does not present any challenge to the use of closed-circuit
television to present this testimony.
5
answered only two questions audibly 4 before providing only non-
verbal responses to questions from Appellant’s trial counsel.
Appellant’s counsel then said that he was not going to ask her any
more questions about her “mommy and daddy.” Appellant’s counsel
proceeded to ask J.F. several questions about her favorite dessert,
school, and watching television, which she answered by nodding or
shaking her head.
Susan Paa, the Director of Forensic Services for the Fulton
County District Attorney’s Office, testified that she interviewed J.F.
and A.G. the week before trial. According to Paa, J.F. said that “her
dad had shot her mom,” and A.G. said that “her dad had killed her
mom.” J.F. said that she was asleep in her mom’s bedroom with her
sisters; that her mom and Appellant were arguing in the living room;
that she went into the living room; that her mom pushed Appellant
out of a chair; and that Appellant got his gun off the couch and shot
4 She was asked, “[H]ow you doing?” and responded, “Good.” She was
then asked, “You okay? My name is Mr. Marks, okay?” and responded, “Okay.”
6
her mom in the eye. 5 Veronica Delmar, Bailey’s cousin, testified that
“probably the night” of the shooting, J.F. said that “she saw them
arguing and stuff and saw her daddy . . . pull out a gun and shoot
mommy and put them in a room, stuff like that.” Brettnacher
testified that assistant property manager Charlsella Jackson called
her from Bailey’s apartment immediately after the shooting while
the paramedics were still working on Bailey. According to
Brettnacher, Jackson said, in an excited state, that Bailey had been
shot, that Appellant was sitting in a police car, and that “the little
girl [J.F.] just came up to me and said daddy shot mommy.” 6
Detective Berhalter did not testify to any out-of-court statements by
J.F. or A.G. However, the jury saw the recording of his interview of
Appellant, in which Detective Berhalter said, “from what I am being
told, okay, is that your five-year-old and two-year-old [sic] are saying
5 On cross-examination, Paa testified that Tamara Glover, a forensic
interviewer, interviewed J.F. on the day of the shooting; that J.F. initially told
Glover that her daddy did not shoot her mom; and that Paa’s recollection was
that J.F. later said otherwise to Glover.
6 Appellant made a Confrontation Clause objection to Brettnacher’s
testimony. The State responded, “It’s non-testimonial, excited utterance,” and
the trial court overruled the objection.
7
that you and [Bailey] were fighting, okay, and during that fight you
shot her.” The detective also questioned Appellant as to why the
girls were “saying that Daddy is responsible for this?”
The parties entered into several stipulations that were read to
the jury. Among other things, the parties stipulated that Appellant
was a convicted felon on the date of the shooting, that he was in
possession of a .22-caliber revolver during an arrest in 2007, and
that he was arrested on March 6, 2015, for possession of a firearm
by a convicted felon.
Appellant did not testify at trial. He called one witness, Ameer
Davis, who lived at the apartment complex and worked there as a
security guard. Davis testified that on the day of the shooting, he
heard what he believed to be a gunshot, and a minute or two later
he saw a young black male walk out of Bailey’s building. Davis also
testified that he chased after the young man but lost him, and that
Appellant was in Bailey’s unit when Davis went back to the building.
According to Davis, Appellant said, “they just tried to rob me.” Davis
further testified that he was familiar with Appellant and Bailey
8
from many interactions prior to the date of the shooting, that he
never saw Appellant and Bailey arguing or fighting, and that he
never had to respond to Bailey’s unit for any type of complaint. The
defense’s theory was that a young man came to Bailey’s apartment
under the pretense of buying marijuana and shot Bailey during an
attempted robbery.
2. Appellant contends that without the child hearsay
testimony, which he argues was erroneously admitted, the evidence
was legally insufficient to support his convictions. However, in
determining the sufficiency of the evidence, we consider all of the
evidence that was admitted at trial, even if evidence should have
been excluded. See McGarity v. State, 311 Ga. 158, 161 (1) (856 SE2d
241) (2021). See also Davenport v. State, 309 Ga. 385, 397 (4) (b) (846
SE2d 83) (2020) (“[W]e consider all the evidence admitted at trial,
regardless of whether the trial court erred in admitting some of that
evidence.” (emphasis in original)). After reviewing the evidence
admitted at trial in the light most favorable to the verdict, we
conclude that the evidence was more than sufficient to support the
9
charges upon which Appellant was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979). Accordingly, this enumeration of error lacks merit.
3. Appellant contends that the trial court erred in admitting
hearsay statements by J.F. and A.G. under the Child Hearsay
Statute and, as to Paa’s testimony about A.G.’s statement, in
violation of his right of confrontation protected by the Georgia and
United States Constitutions. Appellant did not object to this
testimony on these grounds at trial, so we review his claims only for
plain error. See OCGA § 24-1-103 (d); Kemp v. State, 303 Ga. 385,
397-398 (3) (810 SE2d 515) (2018) (applying plain error review to
Confrontation Clause claim raised for first time on appeal); Lupoe v.
State, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016) (applying plain error
review to hearsay claim raised for first time on appeal). To establish
plain error, Appellant
must point to an error that was not affirmatively waived,
the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial
rights, and the error must have seriously affected the
fairness, integrity, or public reputation of judicial
10
proceedings.
Lupoe, 300 Ga. at 243 (4) (citation and punctuation omitted).
Appellant did not affirmatively waive any of the claimed errors, and
it was clear error to admit one bit of the testimony. Appellant has
not established plain error, however, because he has not shown that
the single clear error in admitting child hearsay testimony affected
his substantial rights.
(a) Paa’s testimony about A.G.’s statement. It was clear error to
admit Paa’s testimony that A.G. said that “her dad had killed her
mom.” “The Confrontation Clause ‘imposes an absolute bar to
admitting out-of-court statements in evidence when they are
testimonial in nature, and when the defendant does not have an
opportunity to cross-examine the declarant.’” McCord v. State, 305
Ga. 318, 321 (1) (825 SE2d 122) (2019) (footnote and citation
omitted). See also Crawford v. Washington, 541 U.S. 36, 68 (V) (B)
(124 SCt 1354, 158 LE2d 177) (2004). A.G.’s statement to Paa was
testimonial, as Paa worked for the Fulton County District Attorney’s
Office and the statement was made in an interview of A.G.
11
conducted by Paa a week before trial for the purpose of gathering
evidence for use at trial. See Lindsey v. State, 282 Ga. 447, 452 (4)
(651 SE2d 66) (2007) (citing Jenkins v. State, 278 Ga. 598, 605 (2)
(604 SE2d 789) (2004), and holding that testimonial statements
under Crawford include statements made by witnesses to
government officers investigating a crime). A.G. did not testify at
trial, and Appellant had no prior opportunity to cross-examine A.G.
about her statement. Thus, Paa’s testimony about A.G.’s statement
clearly should have been excluded under the Confrontation Clause.
See Crawford, 541 U.S. at 53-54 (“[T]he Framers would not have
allowed admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”).
(b) Paa’s testimony about J.F.’s statement. It was not clear and
obvious error to admit Paa’s testimony that J.F. said that Appellant
shot Bailey during an argument, as this testimony satisfied the
requirements of the Child Hearsay Statute. At the time of
Appellant’s trial, the Child Hearsay Statute provided:
12
A statement made by a child younger than 16 years of age
describing any act of sexual contact or physical abuse
performed with or on such child by another or with or on
another in the presence of such child shall be admissible
in evidence by the testimony of the person to whom made
if the proponent of such statement provides notice to the
adverse party prior to the trial of the intention to use such
out-of-court statement and such child testifies at the trial,
unless the adverse party forfeits or waives such child’s
testimony as provided in this title, and, at the time of the
testimony regarding the out-of-court statements, the
person to whom the child made such statement is subject
to cross examination regarding the out-of-court
statements.
OCGA § 24-8-820 (2011).7 Appellant argues that Paa’s testimony
about J.F.’s statement was inadmissible for three unconvincing
reasons.
First, Appellant argues that the Child Hearsay Statute does
not apply because a shooting does not constitute “physical abuse”
within the meaning of the statute. “For an error to be obvious for the
purposes of plain error review, it must be plain under controlling
precedent or in view of the unequivocally clear words of a statute or
rule.” Cheddersingh v. State, 290 Ga. 680, 685 n.5 (2) (724 SE2d 366)
7The Child Hearsay Statute was amended in 2019. This same language
now appears in OCGA § 24-8-820 (a).
13
(2012) (punctuation omitted and cleaned up). Further, whether an
error is considered “clear and obvious” is evaluated “based on the
state of the law as it exists at the time of [appellate] review.” Lyman
v. State, 301 Ga. 312, 317 (2) (800 SE2d 333) (2017). Appellant
cannot point to any precedent from this Court that holds that a
shooting that causes injury does not constitute “physical abuse”
under the statute, and it is not unequivocally clear from the words
of the Child Hearsay Statute that such a shooting does not qualify
as physical abuse. Thus, Appellant’s first argument fails.
Second, Appellant argues that the State failed to provide
sufficient notice of Paa’s testimony about J.F.’s statement. The Child
Hearsay Statute requires the proponent of child hearsay testimony
to “provide notice to the adverse party prior to the trial of the
intention to use such out-of-court statement.” OCGA § 24-8-820
(emphasis added). The State did not provide any notice of its intent
to present child hearsay from Paa. However, absent a showing of
prejudice to the defendant and bad faith by the State, the ordinary
remedy for failure to comply with a requirement that a witness must
14
be identified prior to trial is simply a continuance to allow for an
interview of the witness, and we assume that the trial court would
have followed the law if an objection to notice had been made. See
Massey v. State, 272 Ga. 50, 51 (4) (525 SE2d 694) (2000). Because
the exclusion of Paa’s testimony about J.F.’s statement would not
have been required had Appellant’s counsel objected to the lack of
proper notice, Appellant has not satisfied his burden in showing
clear error. Cf. Lee v. Smith, 307 Ga. 815, 821-822 (2) (838 SE2d 870)
(2020) (holding that trial court abused its discretion by excluding a
witness solely due to late identification). Accordingly, Appellant’s
second argument fails.
Finally, Appellant argues that J.F. did not actually “testify” at
trial as required by the Child Hearsay Statute, because most of her
responses were non-verbal, so Paa’s testimony about J.F.’s
statement was inadmissible. But J.F. did testify at trial, was cross-
examined, and provided responses to many of the questions asked to
her. That defense counsel willingly abandoned his case-related
questioning of J.F. after she provided non-verbal responses to some
15
of the State’s questions does not mean she did not “testify” as
required by the Child Hearsay Statute. Compare Soto v. State, 285
Ga. 367, 368-369 (2) (677 SE2d 95) (2009) (holding that the
defendant did not have an opportunity to cross-examine a witness
when the witness refused to answer questions altogether).
Accordingly, Appellant’s final argument fails.
(c) Delmar’s testimony. It was not clear error to admit Delmar’s
testimony that J.F. said that she saw Appellant pull out a gun and
shoot Bailey during an argument. Appellant again argues that the
testimony should have been excluded because a shooting does not
constitute “physical abuse,” J.F. did not actually “testify,” and
proper notice was not provided, but these arguments fail for the
reasons discussed above. Moreover, a report of J.F.’s statement to
Delmar was included in discovery provided to Appellant, so there is
no indication that he was surprised by the testimony.
Appellant also argues that Delmar’s testimony about J.F.’s
statement should have been excluded because there was no evidence
that J.F. made the statement directly to Delmar. But Delmar
16
testified that the statement was made to her alongside other family
members, and nothing in the Child Hearsay Statute precludes the
admission of a statement simply because it was made to multiple
people simultaneously. The evidence shows that Delmar was an
original recipient of J.F.’s statement, so this argument also fails.
(d) Brettnacher’s testimony. The trial court did not err, much
less commit plain error, in admitting Brettnacher’s testimony that
J.F. told Jackson that “daddy shot mommy,” because both Jackson’s
statement to Brettnacher and J.F.’s statement to Jackson were
admissible as excited utterances. See OCGA § 24-8-805 (“Hearsay
included within hearsay shall not be excluded under the hearsay
rule if each part of the combined statements conforms with an
exception to the hearsay rule.”).
Under OCGA § 24-8-803 (2), regardless of whether the
declarant is available as a witness, otherwise inadmissible hearsay
can be admissible as an excited utterance when the “statement [is
related] to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.”
17
(Emphasis added.) Brettnacher testified that Jackson was in an
“excited” state when she called from Appellant and Bailey’s
apartment shortly after the shooting and told Brettnacher that J.F.
said that “daddy shot mommy.” And while there was no direct
testimony that J.F. was under the stress of excitement caused by the
shooting when she told Jackson that “daddy shot mommy,” the trial
court could have reasonably concluded from the circumstances that
J.F. was in such a state when she made the statement to Jackson.
See Robbins v. State, 300 Ga. 387, 390 (2) (793 SE2d 62) (2016)
(holding that whether a hearsay statement was an excited utterance
is determined not by one single factor, but the “totality of the
circumstances”). J.F.’s testimony indicated that she was in the
apartment when the shooting occurred and, according to
Brettnacher, the paramedics were still trying to resuscitate J.F.’s
mother Bailey when Jackson called Brettnacher from the apartment
and relayed what J.F. said to Jackson. Thus, the circumstances
indicate that this statement was made close in time to the shooting.
Accordingly, J.F.’s statement to Jackson, which Jackson relayed to
18
Brettnacher, was admissible. See Jackson v. State, 311 Ga. 626, 631-
632 (3) (859 SE2d 46) (2021) (holding that trial court did not abuse
its discretion when it allowed hearsay testimony as an excited
utterance from a witness who was inside a house at the time of a
shooting and heard, but did not physically see, the shooting).
(e) Detective Berhalter’s interview of Appellant. Finally, it was
not clear legal error to admit the part of the recording of Detective
Berhalter’s interview with Appellant where Detective Berhalter
referenced statements by J.F. and A.G. that Appellant shot Bailey
during a fight and that he was responsible for the shooting, as the
statements were not hearsay. See OCGA § 24-8-801 (c) (defining
“hearsay” as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted”). “The detective’s statements were
clearly not meant to establish as true that the others had implicated
Appellant, but were simply a part of an interrogation technique.”
Myrick v. State, 306 Ga. 894, 901 (3) (b) (834 SE2d 542) (2019)
(citation and punctuation omitted). “What [Detective Berhalter]
19
asked of or said to [Appellant] during interrogation was not offered
for its truth, but rather to establish what questions or statements
[Appellant] was responding to and the effect the former had on
[Appellant] as the listener.” Id. (citation and punctuation omitted).
Because Detective Berhalter’s recorded statements were not
hearsay, the trial court did not clearly err in admitting them.
(f) Substantial rights. The trial court’s single error did not
affect Appellant’s substantial rights. The erroneous admission of
Paa’s testimony recounting A.G.’s brief statement did not give rise
to a reasonable probability that the outcome of the trial would have
been different. See Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d
707) (2013) (holding that under plain error analysis, the defendant
must show that the trial court’s errors “probably affected the
verdict”). While Appellant claims that Bailey was shot by an
unidentified person attempting to rob Appellant of his marijuana,
his description of the shooter led the police to a 13-year-old with an
alibi whom Appellant himself identified as not being the shooter
during a photographic lineup. Further, the other evidence of
20
Appellant’s guilt was strong. J.F. indicated at trial that she was
present when the shooting happened and that Appellant shot
Bailey. Moreover, there was evidence of motive; Appellant admitted
to Turner that he shot Bailey; and Brettnacher, Delmar, and Paa
testified that J.F. said that Appellant shot Bailey during an
argument. Appellant has not met his burden under the plain error
standard to show a reasonable probability that the outcome would
have been different, as the improperly admitted hearsay was merely
duplicative of other properly admitted evidence. See Allen v. State,
310 Ga. 411, 417 (3) (851 SE2d 541) (2020) (holding that defendant
failed to demonstrate plain error from improperly admitted hearsay
where properly admitted evidence of defendant’s guilt was strong);
see also Anglin v. State, 302 Ga. 333, 336 (2) (806 SE2d 573) (2017)
(“[T]he erroneous admission of hearsay is harmless where
substantial, cumulative, legally admissible evidence of the same fact
is introduced.” (citation and punctuation omitted)).
4. Appellant contends that trial counsel was ineffective in
failing to object to each of the aforementioned hearsay issues. To
21
prevail on this claim, Appellant must prove both deficient
performance by his counsel and resulting prejudice. See Strickland
v. Washington, 466 U.S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674)
(1984). To prove deficient performance, he must show that his
attorney “performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d
637) (2013) (citation omitted). This requires Appellant to “overcome
the strong presumption that counsel’s performance fell within a
wide range of reasonable professional conduct, and that counsel’s
decisions were made in the exercise of reasonable professional
judgment.” Marshall v. State, 297 Ga. 445, 448 (2) (774 SE2d 675)
(2015) (citation and punctuation omitted). And to establish
prejudice, Appellant must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466
U. S. at 694 (III) (B). We need not address both components of the
22
inquiry if a defendant makes an insufficient showing on one. See id.
at 697 (IV).
First, Appellant has not shown that trial counsel was deficient
in failing to object to Detective Berhalter’s and Brettnacher’s
testimony. Detective Berhalter’s testimony was admissible
nonhearsay, and Brettnacher’s testimony was admissible under the
hearsay exception for excited utterances. See Harris v. State, 304
Ga. 652, 658 (2) (821 SE2d 346) (2018) (“[F]ailure to make a
meritless objection cannot support a claim of ineffective assistance.”
(citation and punctuation omitted)).
Further, while an objection to Delmar’s and Paa’s testimony
about J.F.’s statements for lack of notice might have been sustained,
the trial court would not have excluded Delmar or Paa from
testifying on that basis. See Massey, 272 Ga. at 51 (4). Such an
objection would thus have had no effect on the trial’s outcome. And
even if we assume that trial counsel performed deficiently by failing
to object to Paa’s testimony about A.G.’s statement, “the test for
prejudice in the ineffective assistance analysis is equivalent to the
23
test for harm in plain error review.” Griffin v. State, 311 Ga. 579,
584-585 (3) (858 SE2d 688) (2021) (citation and punctuation
omitted). As set forth in Division 3 (f), Appellant has not made a
sufficient showing of prejudice from the admission of this one piece
of hearsay. Accordingly, Appellant’s ineffective assistance of counsel
claim fails.
Judgment affirmed. All the Justices concur.
24