Grant v. State

• Decision Date: 18 February 2019
• Docket Number: S18A1060
• Citation: 305 Ga. 170,824 S.E.2d 255
• Parties: GRANT v. The STATE.
• Court: Georgia Supreme Court

305 Ga. 170

824 S.E.2d 255

GRANT

v.The STATE.

S18A1060

Supreme Court of Georgia.

Decided: February 18, 2019

Derek M. Wright, DEREK M. WRIGHT, LLC, Atlanta, for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, DEPARTMENT OF LAW, Atlanta, Kevin Eugene Hutto, A.D.A., OFFICE OF THE DISTRICT ATTORNEY, Bradford Lee Rigby, District Attorney, CORDELE JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, Cordele, for the Appellee.

Peterson, Justice.

Varocus Grant appeals his convictions for malice murder and firearm possession during the commission of a felony in relation to the shooting death of Travis Shivers.¹ Grant argues that he was denied a fair trial because the jury array was selected in a manner inconsistent with the Sixth and Fourteenth Amendments of the U. S. Constitution and Georgia statutory law, that the trial court erred by denying a motion in limine to exclude an incriminating statement by Grant, that the trial court erred by admitting testimony about fingerprint evidence, and that his trial counsel was ineffective for numerous reasons. We affirm.

The trial evidence viewed in the light most favorable to the verdicts showed that on the evening of October 1, 2011, Grant, along with an unknown man, attacked, shot, and killed Travis Shivers. A week prior to the shooting, Grant was witnessed speaking angrily to some male friends and was overheard saying, "I see that n****r, I’m going to do that n****r, I’m going to kill that n****r." On the night of the murder, various witnesses placed Grant and an unknown man near the Holsey Cobb Village apartments ("the Village"), where the shooting occurred.

Grant was wearing a hat and a dark hooded sweatshirt, and appeared angry.

That night, Jasmine Paul (Shivers’s cousin) and Kaleesha Ross heard gunshots coming from the Village. Ross fled towards the nearest store while Paul ran towards the Village. As Paul approached the scene of the crime, she recognized Shivers’s voice calling out that he had been shot. Paul then saw Grant shoot Shivers several times while an unknown man continually pushed and kicked Shivers to the ground. Grant and the unidentified man fled the scene, and Paul called for help.

The next morning, Grant voluntarily appeared at the police station, was informed of his rights, waived them, and agreed to talk to the police. During the interview, Grant’s statements placed him at the scene of the crime. The night before, investigators recovered a can of Mountain Dew and a blue Dallas Cowboys hat near the victim. Grant acknowledged that he both lost a hat and dropped a can of Mountain Dew near the scene.

1. Although Grant does not expressly challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the trial evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Grant argues that he was denied a fair trial because the jury array was selected in a manner that deprived him of a fair cross-section of the community as required by the Sixth Amendment, Fourteenth Amendment² , and OCGA § 15-12-40.1.³ We disagree.

To challenge the composition of a randomly selected jury array, a defendant must prove that "persons [were] ... systematically excluded on the basis of race or other cognizable grouping[.]" Jackson v. State, 294 Ga. 431, 434 (3), 754 S.E.2d 322 (2014) ("While traverse jury lists must consist of a representative and fair cross-section of the community to the fullest extent possible, the same is not true of an array ." (emphasis in original)).

Here, Grant has failed to meet this burden because he fails to present any evidence of systematic or purposeful discrimination. To support his claim, Grant relies solely on the fact that the race of 111 of the 162 jurors of the array was marked as undetermined. Grant argues that this lack of information shows that the composition of the array amounted to "discrimination by random process," and that the State failed to show a fair cross-section. Grant misunderstands the burden of proof — he, not the State, bears the burden of proof on this issue. Id. at 433, 754 S.E.2d 322. The lack of information upon which Grant relies proves nothing, and Grant cannot prevail.

3. Grant argues that the trial court erred in denying his motion in limine to exclude his statement, "I see that n****r, I’m going to do that n****r, I’m going to kill that n****r," because it was irrelevant and highly prejudicial. We disagree.

A motion in limine is a pretrial method of determining the admissibility of evidence and should be granted only if "there is no circumstance under which the evidence ... is likely to be admissible at trial." Forsyth County v. Martin, 279 Ga. 215, 221 (3), 610 S.E.2d 512 (2005) ; see also United States v. Mitchell, 954 F.2d 663, 665 (11th Cir. 1992). We review the denial of a motion in limine for abuse of discretion. State v. Wilkins, 302 Ga. 156, 160, 805 S.E.2d 868 (2017).

Grant argues that the statement was introduced solely to put his character at issue and lacked relevance. Below, the parties litigated the issue as a matter of motive. While it may be more properly introduced as evidence of intent, our old Evidence Code cases did not always delineate between motive and intent. See e.g., Davis v. State, 249 Ga. 309, 310-311 (1), 290 S.E.2d 273 (1982) (finding the same evidence as proof of motive and intent); Brock v. State, 254 Ga. 682, 683 (1), 333 S.E.2d 593 (1985) (same). Regardless, evidence of a defendant’s motive or intent for a homicide is relevant. Lindsey v. State, 282 Ga. 447, 451 (3), 651 S.E.2d 66 (2007) ; see also, e.g., Davis, 249 Ga. at 311 (1), 290 S.E.2d 273 ; Brock, 254 Ga. at 683 (1), 333 S.E.2d 593. This is true even if it may "incidentally place the defendant’s character in evidence[.]" Goodman v. State, 293 Ga. 80, 84 (3), 742 S.E.2d 719 (2013) (citing Fulton v. State, 278 Ga. 58, 60 (3), 597 S.E.2d 396 (2004) ). Even if the statement put Grant’s character at issue, the statement was clearly relevant.

Grant also argues that the statement was highly prejudicial because it was not temporally proximate to the shooting, its target was unclear, and there is no evidence it was relevant to the murder. Under the old Evidence Code, which applied to Grant’s November 2012 trial, relevant evidence could be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice[.]" Hicks v. State, 256 Ga. 715, 720, 352 S.E.2d 762 (1987). Grant’s statement is relevant, and it was particularly probative given that it was made scarcely a week before the shooting. The decision to admit evidence is within the sound discretion of the trial court, and we find no abuse of discretion here.

4. Grant argues that the trial court erred in denying his motion for a mistrial when the State elicited Agent Bryan Smith’s explanation of the Automated Fingerprint Identification System (AFIS) at trial. We disagree.

At trial, the State asked Agent Smith what happens in the course of an investigation when a fingerprint is found. He explained:

[Y]ou can just take that fingerprint and enter it in the database against known people who have been arrested, it’s called AFIS, which is the Automated Fingerprint Identification System. It’s basically a database. There’s one in Georgia and there’s one that – there is one at the state level and one at the federal level. And it searches against that database. And if it matches someone, then the examiner will actually do a one-to-one comparison to confirm what the computer has matched. And then they say this print has been individualized.

This statement was just a general explanation of what an officer would do in the course of his investigation when a fingerprint was found at the scene. Nothing in any of his testimony indicated to the jury that Grant had ever been convicted of a crime or was in the AFIS system.

Nonetheless, Grant objected to this testimony and moved for a mistrial, claiming that this improperly put his character at issue. He claimed the only "logical inference" from the testimony was that he was included in that database and had a prior criminal history. The trial court disagreed with this characterization and denied the motion.

The decision of whether to grant a mistrial is within "the sound discretion of the trial court, and this Court will not disturb the ruling on appeal unless it resulted from a manifest abuse of that discretion." Dulcio v. State, 292 Ga. 645, 648 (2), 740 S.E.2d 574 (2013). Again, Agent Smith’s testimony was merely a simple explanation of investigative procedure regarding fingerprints and never connected Grant to the AFIS system or a prior conviction. See, e.g., Lewis v. State, 287 Ga. 210, 212 (3), 695 S.E.2d 224 (2010) (asking witness, who the jury knew was in custody, whether he had spoken to defendant the previous day, did not necessarily imply that defendant was in custody); Carr v. State, 282 Ga. 698, 701-702 (3), 653 S.E.2d 472 (2007) (investigator’s characterization of interview of defendant as "talking to someone who has been around a little while, so to speak, meaning educated or familiar with the system" did not indicate to jury that defendant had a criminal history). And no subsequent testimony connected Grant to the AFIS system. The trial court did not abuse its discretion in denying Grant’s motion for a mistrial.

5. Grant asserts his trial counsel rendered constitutionally ineffective assistance for several reasons. We disagree.

To prevail on a claim of ineffective assistance of counsel, Grant must show both that his trial counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80...