Gregory v. the State
342 Ga. App. 411
Ga. Ct. App.2017Background
- Gregory was convicted of aggravated battery and sentenced to 20 years; he appealed the denial of his motion for a new trial.
- Victim Karen Andrews was found injured outside her home; she placed a 9-1-1 call shortly after Gregory left the scene; Andrews later died of unrelated causes and was unavailable at trial.
- The prosecution played a redacted recording of Andrews’ 9-1-1 call and introduced a CAD dispatch report and a business‑records certification; no 9-1-1 operator testified.
- Trial court had denied Gregory’s pretrial motion to suppress the recording but ordered redaction of statements attacking Gregory’s character; the court told the jury they would hear the call from the “alleged victim.”
- Gregory argued on appeal that admission of the 9-1-1 recording violated the Confrontation Clause, was hearsay/not a business record, that counsel was ineffective for not objecting, and that the judge improperly commented on the evidence.
- The Court of Appeals affirmed: it held the 9-1-1 statements were non‑testimonial (so no Confrontation Clause violation), admissible as a business record, and found no reversible judicial comment or ineffective‑assistance prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under Confrontation Clause | 9-1-1 statements were testimonial; admitting them violated Gregory’s Sixth Amendment right to confront the caller | Statements were non‑testimonial because they were made while perpetrator was at large and to obtain police aid | Court held statements non‑testimonial (Davis/Michigan/Bryant framework); admission did not violate Confrontation Clause |
| Hearsay / hearsay exceptions | 9-1-1 statements were inadmissible hearsay and not covered by excited‑utterance or necessity exceptions | Trial court found excited‑utterance/Rule 804 basis; appellant failed to preserve or adequately brief this claim on appeal | Issue deemed abandoned for inadequate briefing; no relief granted |
| Business‑records authentication / notice (Rule 902(11)) | State failed to give separate pretrial notice required by Rule 902(11); recording not self‑authenticating; counsel ineffective for not objecting | Defense received the recording, CAD, and certification in discovery; judge admitted the record as a business record; failure to give separate notice caused no prejudice | Court found record met business‑records/self‑authenticating requirements; lack of separate notice did not create prejudice under Strickland; counsel not ineffective |
| Judicial comment on evidence | Judge’s instruction that jury would hear a call by the “alleged victim” improperly commented on evidence and relieved State of authentication burden | Identity of victim as caller was undisputed; judge’s statement did not comment on credibility or resolve contested facts | No plain error: statement did not address contested factual issues or credibility and did not relieve the State of its burden |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars testimonial out‑of‑court statements absent prior cross‑examination or unavailability)
- Davis v. Washington, 547 U.S. 813 (911 calls seeking assistance during ongoing emergency are generally non‑testimonial)
- Michigan v. Bryant, 562 U.S. 344 (refining the primary‑purpose test for determining testimonial nature of statements)
- Thomas v. State, 284 Ga. 540 (Georgia: 9‑1‑1 statements made while assailant at large were non‑testimonial)
- Turner v. State, 273 Ga. 340 (redacted portions of an otherwise admissible business record may be published to jury)
- Strickland v. Washington, 466 U.S. 668 (two‑prong test for ineffective assistance of counsel)
- Palmer v. Hoffman, 318 U.S. 109 (business‑record exception does not encompass reports prepared primarily for litigation)