Grier v. State
Decision Date | 15 February 2022 |
Docket Number | S21A1249 |
Citation | 313 Ga. 236,869 S.E.2d 423 |
Parties | GRIER v. The STATE. |
Court | Georgia Supreme Court |
Edward H. Wasmuth, Jr., Smith, Gambrell & Russell, LLP, 1105 W. Peachtree Street, N.E., Suite 1000, Atlanta, Georgia 30309-3608, for Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, William C. Enfinger, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, David K. Getachew-Smith, Sr., Chief A.D.A., Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, F. McDonald Wakeford, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, SW, Third Floor, Atlanta, Georgia 30318, for Appellee.
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 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 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 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 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. answered only two questions audibly4 before providing only nonverbal 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 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 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 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 S.E.2d 241 (2021). See also Davenport v. State , 309 Ga. 385, 397 (4) (b), 846 S.E.2d 83 (2020) . 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 charges upon which Appellant was convicted. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, this enumeration of error lacks merit.
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... ... 8 Although we conclude in Division 2 below that Downer's statements were properly admitted at trial, in determining the sufficiency of the evidence, we consider all of the evidence that was admitted at trial, even if it is argued that certain evidence should have been excluded. Cf. Grier v. State , 313 Ga. 236, 240 (2), 869 S.E.2d 423 (2022). 9 See Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). 10 The final portion of this interview was only audio-recorded and was played for the trial court. The trial court also heard testimony from Agent Goza and the ... ...
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