State v. Gilmore
Decision Date | 24 August 2021 |
Docket Number | S20G1430 |
Citation | 862 S.E.2d 499 |
Parties | The STATE v. GILMORE. |
Court | Georgia Supreme Court |
Luke Anthony Martin, A.D.A., Leigh Ellen Patterson, District Attorney, Morgan Birdsong Bottger, Floyd County District Attorney's Office, 3 Government Plaza, Suite 108, Rome, Georgia 30161, for Appellant.
Jonathan Ross Hamrick, Sean Justin Lowe, Lookout Mountain Judicial Circuit Public Defender, 12F 4th Avenue, Suite #10, Rome, Georgia 30161, for Appellee.
The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the "admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination." Hester v. State , 283 Ga. 367, 370, 659 S.E.2d 600 (2008) (citation and punctuation omitted). We granted certiorari in this case to decide whether the Court of Appeals erred in holding that a video recording presumed to have no discernible audio, which depicts a now-deceased confidential informant ("CI") purchasing a small bag of suspected methamphetamine from appellant David Lee Gilmore (a fact neither party disputes on appeal), contained testimonial statements prohibited by the Confrontation Clause. For the reasons that follow, we conclude that the video recording depicts the CI's nonverbal conduct but did not depict any nonverbal statements.1 As a result, admission of the video recording was not barred by the Confrontation Clause, and we reverse the decision of the Court of Appeals.
The Court of Appeals summarized the relevant facts, as presented by the parties at an evidentiary hearing, as follows. In the summer of 2018, law enforcement officers with the Rome Metro Task Force suspected that Gilmore was a drug dealer and arranged for a CI to conduct a "controlled buy" of methamphetamine from him. See State v. Gilmore , 355 Ga. App. 536, 537-538, 844 S.E.2d 877 (2020). On July 20, 2018, officers attached a video camera to the CI's key ring, gave him a $20 bill, and sent him to Gilmore's house to purchase the drugs. See id. Officers followed the CI to Gilmore's house but did not witness the transaction. See id. After the controlled buy, the CI met the officers at a predetermined location and gave them a bag of suspected methamphetamine and the video camera he had been carrying on his key ring. See id. The video recording of the transaction shows Gilmore handing the CI a small bag of suspected methamphetamine and then Gilmore holding a $20 bill. See id. at 538, 844 S.E.2d 877.2 On April 11, 2019, the CI, who was incarcerated, died by suicide.
The next day, a Floyd County grand jury indicted Gilmore for multiple violations of the Georgia Controlled Substances Act, OCGA § 16-13-30 et seq., stemming from Gilmore's alleged July 2018 sale of methamphetamine to the CI.3 Before trial, the State filed two motions to admit the video recording of the controlled buy. It argued that the video could properly be authenticated, even with the CI being unavailable, and that any hearsay statements in the video fell under the so-called "residual exception" to the hearsay rule. See OCGA § 24-8-807.4
Gilmore opposed the motions, contending that admission of the video recording would violate his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution because the CI was not available to testify at trial, Gilmore never had an opportunity to cross-examine the CI, and any statements that could be heard on the video recording—as well as any nonverbal conduct depicted in it—were testimonial statements. See Crawford , 541 U.S. at 68, 124 S.Ct. 1354. After an evidentiary hearing, the trial court denied the State's motions to admit the video recording, finding that Gilmore never had an opportunity to cross-examine the CI and that the nonverbal statements depicted in the video were "testimonial in nature."5
Id. at 539, 844 S.E.2d 877. We granted the State's petition for certiorari.
We ordinarily review the trial court's grant of a motion in limine for abuse of discretion. See State v. Stephens , 307 Ga. 615, 616, 837 S.E.2d 830 (2020). And when confronted with a mixed question of law and fact, "we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts." Jones v. State , 291 Ga. 35, 36-37, 727 S.E.2d 456, 458 (2012) ; see also Lilly v. Virginia , 527 U.S. 116, 136-137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) ( )(citation and punctuation omitted). As a result, we will review de novo a trial court's ruling on whether the conduct depicted on a video recording constitutes a testimonial statement under the Confrontation Clause. See Jones , 291 Ga. at 36-37, 727 S.E.2d 456. See also, e.g., United States v. Taylor , 688 Fed. Appx. 638, 640 (11th Cir. 2017) (per curiam) ( )(citation and punctuation omitted). For the reasons explained below, we conclude that the Court of Appeals erred by affirming the trial court's denial of the State's motions to admit the video recording of the controlled buy on Confrontation Clause grounds.
In Crawford , the United States Supreme Court held that the Sixth Amendment's Confrontation Clause barred the admission of testimonial statements—a form of hearsay, see Crawford , 541 U.S. at 53, 124 S.Ct. 1354 ( )—from a declarant who is unavailable to testify at trial unless the party against whom the statements were offered had a prior opportunity to cross-examine the declarant. See id. at 68, 124 S.Ct. 1354.6 Thus, for evidence to fall within the ambit of the Confrontation Clause, it must be both a "statement" and "testimonial." See id. See also Stephens , 307 Ga. at 618, 837 S.E.2d 830.
Under OCGA § 24-8-801 (" Rule 801"), which we may look to in considering whether the Confrontation Clause's restrictions apply to evidence, a "statement" is not limited only to "[a]n oral or written assertion." See OCGA § 24-8-801 (a) (1). Indeed, included in the Rule 801 definition of "statement" is the "[n]onverbal conduct of a person, if it is intended by the person as an assertion." OCGA § 24-8-801 (a) (2). See also United States v. Lamons , 532 F.3d 1251, 1263 (11th Cir. 2008) () (quoting Fed. R. Evid. 801 (a) ) (emphasis in original).7
We have noted that "the key to the definition of ‘statement’ is that nothing is an assertion unless intended to be one." State v. Orr , 305 Ga. 729, 741, 827 S.E.2d 892 (2019) ( ). Examples of conduct deemed a nonverbal statement by this Court and the federal Courts of Appeals include "the act of an eyewitness pointing to a suspect in a lineup as the perpetrator of a crime," id., and a co-conspirator "pointing out" a drug dealer's house, United States v. Caro , 569 F.2d 411, 416 n.9 (5th Cir. 1978). See also, e.g., United States v. Martinez , 588 F.3d 301, 310-311 (6th Cir. 2009) ( ); United States for the Use and Benefit of Carter Equip. Co., Inc. v. H.R. Morgan, Inc. , 544 F.2d 1271, 1273 n.1 (5th Cir. 1977) ( ). Cf. Wiggins v. State , 295 Ga. 684, 685-686 & n.2, 763 S.E.2d 484 (2014) (...
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