Grissom v. State

• Citation: 300 Ga. App. 593,685 S.E.2d 492
• Decision Date: 26 October 2009
• Docket Number: No. A09A1503.,A09A1503.
• Parties: GRISSOM v. The STATE.
• Court: United States Court of Appeals (Georgia)

685 S.E.2d 492

300 Ga. App. 593

GRISSOM v. The STATE.

No. A09A1503.

Court of Appeals of Georgia.

October 26, 2009.

Nathanael A. Horsley, for appellant.

Lee Darragh, Dist. Atty., Lindsay H. Burton, Asst. Dist. Atty., for appellee.

DOYLE, Judge.

Following a jury trial, Jerry Grissom appeals his conviction of three counts of possessing a controlled substance¹ (methamphetamine, alprazolam, and hydrocodone) and contends that the trial court erred in denying his motion for new trial based on the State's improper comments about his pre-and post-arrest silence. Because the Supreme Court of Georgia, has held that such comments violate a criminal defendant's right to remain silent, and because the evidence of Grissom's guilt was not overwhelming, we reverse.²

The trial transcript shows that, during a narcotics investigation, police searched a residence pursuant to a Fourth Amendment waiver in the occupant's bond order. They found the occupant (who was Grissom's co-defendant) on a bed along with Grissom and asked Grissom if he had any drugs or weapons on his person. He replied that he had a knife, and after realizing it was not on his person, he indicated it was in a black bag. The officer requested Grissom's permission to search a bag that happened to be near the bed and Grissom consented. There was some confusion on the testifying officer's part as to whether Grissom said that particular bag was "his" bag. Instead of finding Grissom's knife in the bag near the bed, the officer found marijuana, prescription pills, and methamphetamine concealed therein. At trial, Grissom took the stand and disputed that the bag in the bedroom was in fact his, pointing out that, instead, his knife was in a black bag later found in his truck outside the residence.

Meanwhile, before fully searching the bag by the bed, the officer had noticed a bulge in Grissom's pocket and asked him to remove the object, which Grissom did, revealing it to be a "hide-a-key" container. Grissom declined the officer's request for consent to search the container and stated that it was not his and he had never seen it before. He testified at trial that his co-defendant, the occupant of the residence, had "crammed" it to him when police arrived. After a drug dog alerted on the container, police opened it and discovered methamphetamine and pills.

Based on the evidence found in the black bag and hide-a-key container, Grissom was charged with possession with intent to distribute marijuana, methamphetamine, alprazolam, and hydrocodone. A jury acquitted him of possessing the marijuana and found him guilty of the lesser included offenses of possession of the methamphetamine, alprazolam, and hydrocodone. Grissom unsuccessfully moved for a new trial, giving rise to this appeal.

Grissom contends that the trial court erred in not granting him a new trial based on his argument that the State, over his continued objections, repeatedly and improperly commented on Grissom's pre-arrest and post-arrest silence regarding his disclaimer of the hide-a-key container and the black bag in the bedroom. We agree.

With respect to the hide-a-key container, Grissom took the stand and denied knowing what was in the container and testified that his co-defendant had shoved it to him, telling him to "do something with this" just as the police arrived. There was corroborating testimony from an officer that police specifically knew the co-defendant had a practice of hiding narcotics in a hide-a-key container. With respect to the black bag in the bedroom, Grissom testified that he did not know which of several bags in the room police had asked permission to search, that his bag was actually in his truck, and that he did not know who owned the bag that the police searched or what was in it. The testifying officer was unsure whether Grissom actually claimed ownership of the bag containing the controlled substances.

Challenging Grissom's defense, the State attacked Grissom's credibility on cross-examination:

State: Well, do you remember when you pulled [the hide-a-key] out of your pocket you didn't say to law enforcement, hey, [co-defendant] just gave me that, did you?

Grissom: No, I didn't say nothing. I didn't say nothing.... I didn't say nothing. I don't want, you know—I don't know what to say—

Grissom's attorney immediately objected and moved for a mistrial on the ground that the State had commented on Grissom's silence. The trial court overruled the objection and denied the motion, and the State continued:

State: Mr. Grissom, you never told anybody before today that [co-defendant] gave you that box, have you?

Grissom: I've never discussed this case with anybody.

Grissom's counsel immediately renewed the objection, which was overruled again. Over Grissom's repeated objections, the State continued to question Grissom as to why he "never went back to tell law enforcement, hey, I've got some additional information for you...." Grissom continued to testify that the black bag in the bedroom was not his, that the key container was forced upon him by his co-defendant, and that he did not know what was in either the bag or the key container. During closing argument, the State re-emphasized, over Grissom's objection, Grissom's failure to provide his defense to police at the scene or thereafter.

The Supreme Court of Georgia has made it clear that in criminal cases, commenting on a defendant's silence or failure to come forward "is far more prejudicial than probative. [Therefore,] such a comment is not to be permitted even in situations in which the defendant has not received Miranda warnings or takes the stand in his own defense."³ It is "fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes."⁴ Therefore, allowing the State to repeatedly question Grissom about his silence and to emphasize the point in closing argument was an "error of constitutional dimension."⁵

The remaining question is whether the error was harmless.

The true focus of this court's inquiry must be whether the testimony produced a trial which was so fundamentally unfair as to deny defendant due process. To reverse a conviction, the evidence of the defendant's election to remain silent must point directly at the substance of the defendant's defense or otherwise substantially prejudice ...