State v. David Lee Gilmore, A20A0189

Background

Law enforcement used a confidential informant (CI) to conduct a controlled buy from David Gilmore; agents gave the CI $20 and a video camera and followed him but did not witness the handoff.
The CI returned with a small bag of suspected methamphetamine and the recording device; Gilmore was later indicted for sale/possession of methamphetamine.
The CI committed suicide before trial, and the State moved to admit the CI’s video recording under OCGA § 24-9-923 and the residual hearsay exception.
The recording plainly shows Gilmore handing a bag and then holding a $20 bill; the audio is unintelligible (mumbled) and the CI is unavailable for cross-examination.
The trial court excluded the video, finding the CI’s verbal and nonverbal conduct in the recording were testimonial and admission would violate the Sixth Amendment Confrontation Clause; the State appealed.
The Court of Appeals affirmed, holding the CI’s movements were testimonial statements and the Confrontation Clause barred admission despite the authentication statute.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the CI’s nonverbal conduct in the video is a “statement” for Confrontation/hearsay purposes	State: Recording is authentic and nonverbal conduct is not a testimonial or inadmissible hearsay, so admissible	Gilmore: CI’s gestures/hand-off were assertive conduct intended as an accusation and offered for the truth	Movements were statements (assertive nonverbal conduct) and thus subject to hearsay/Confrontation analysis
Whether the CI’s statements/movements are testimonial	State: Even if statements, they were not testimonial for Confrontation purposes (or not offered for truth) and statute can apply	Gilmore: Movements/statements were made to law enforcement to establish evidence against him and thus are testimonial	The CI’s conduct was testimonial (made knowingly to authorities and intended to be used at trial) and admission would violate the Confrontation Clause because no prior cross-examination occurred
Whether OCGA § 24-9-923 permits admission despite Confrontation concerns	State: The statute allows admission when authenticating witness is unavailable and the recording reliably shows facts offered	Gilmore: Constitutional Confrontation rights cannot be circumvented by statute for testimonial statements	The statute cannot override the Sixth Amendment; testimonial statements remain barred absent prior opportunity for cross-examination
Whether the State’s alternate authentication argument under OCGA § 24-9-901(b)(1) can be considered on appeal	State: (argued on appeal) recording is admissible under § 24-9-901(b)(1)	Gilmore: Argument was not raised below	Not considered — State did not raise this theory below or enumerate it as error on appeal, so appellate court declined to address it

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements require prior opportunity for cross-examination or are barred by the Confrontation Clause)
Freeman v. State, 329 Ga. App. 429 (2014) (confidential-informant tips and statements to law enforcement are testimonial)
Jenkins v. State, 303 Ga. 314 (2018) (appellate review standard for admission of evidence; Georgia looks to federal rule interpretations)
Wiggins v. State, 295 Ga. 684 (2014) (nonverbal conduct, like nodding, can be an assertive statement)
State v. Orr, 305 Ga. 729 (2019) (pointing out a person in a lineup is assertive nonverbal conduct)
United States v. Martinez, 588 F.3d 301 (6th Cir. 2009) (video of a declarant’s movements made at law enforcement request can be treated as assertive nonverbal statements)
United States v. Lamons, 532 F.3d 1251 (11th Cir. 2008) (nonverbal conduct may constitute a statement under the federal rules)
United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir. 2005) (same: assertive nonverbal conduct falls within the definition of a statement)
United States v. Caro, 569 F.2d 411 (5th Cir. 1978) (co-conspirator’s pointing to a location deemed assertive conduct)