Merritt v. StateMerritt v. State
Following a jury trial, Shay Alexander Merritt was convicted of malice murder and related offenses in connection with the shooting death of his wife, Rita Ann Merritt.1 On appeal, Merritt
1. Merritt contends that the evidence presented at trial was constitutionally insufficient to sustain his convictions. When evaluating the sufficiency of evidence as a matter of constitutional due process, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the [fact finder’s] assessment of the weight and credibility of the evidence.” (Citation and punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013).
When the GBI crime scene investigator arrived on the scene, she noted large amounts of blood spatter on the wall, television and cabinet, and a video game console near Rita’s body, as well as brain matter and a piece of Rita’s jaw on the floor. The crime scene investigator testified that there was no evidence to suggest that any kind of fight or altercation had occurred at the residence and further opined that the physical evidence did not support a conclusion that Rita had committed suicide. The crime scene investigator collected the rifle, bullet fragment, and shell casing, and sent them for further testing.
A GBI firearms examiner testified that the rifle was operational, functioned properly, and did not accidentally misfire or discharge. The firearms examiner opined that the rifle required four and three-quarter pounds of pressure to pull the trigger, and further concluded that the rifle fired the shell casing and bullet fragment that were found at the scene.
During a custodial interview, Merritt told officers the following story. On the night of Rita’s death, he and Rita got into an argument after she came home from a restaurant drunk. Rita physically attacked him as he was trying to leave the house and, at one point, lunged for a nearby gun that Merritt had not put away after target practice earlier in the day. He grabbed the gun, not because he believed Rita was going to shoot him, but because he was afraid Rita would harm herself. Rita sat down on the floor but continued to grab for the gun and, during one of her attempts, the gun accidentally fired.
The State also presented the testimony of a GBI expert in blood spatter and crime scene reconstruction. The expert opined that, based upon the blood spatter patterns, the location of Rita’s gunshot wound, and the physical evidence found at the scene, Rita was sitting on the floor next to the television cabinet, in an upright position with her legs crossed, and that her head was turned away from the gun when she was shot. The expert testified that Merritt’s statement to officers recounting how the shooting occurred was not
The State also presented evidence that Rita told her friends and family about instances of physical abuse she suffered at Merritt’s hands. In addition, witnesses testified about numerous occasions when they either directly witnessed instances of physical and verbal abuse or saw Rita bleeding or with fresh bruises that Rita said Merritt inflicted from incidents of domestic violence. Prior to her death, Rita told a friend and her family members that she feared that if she left Merritt, he would kill her. The State also introduced a certified copy of Merritt’s September 2008 conviction for simple battery for “grabbing, pushing, and choking” Rita’s sister, Felicia Mercer.
Merritt did not testify at trial. His defense was based on the theory that the shooting was an accident. Based on the evidence presented at trial, the jury was authorized to reject Merritt’s accident theory and find him guilty of the crimes of which he was convicted beyond a reasonable doubt. See Jackson, supra, 443 U. S. at 319 (III) (B). See also Jones v. State, 292 Ga. 656 (1) (a) (740 SE2d 590) (2013) (criminal intent is a question for the fact finder, and can be inferred from the defendant’s conduct before, during, and after the commission of the crimes). Accordingly, the evidence was sufficient to support Merritt’s convictions.
2. Merritt claims that he received constitutionally ineffective assistance of counsel because his trial counsel failed to object to the introduction of Merritt’s 2008 simple battery conviction as improper character evidence pursuant to
3. Merritt raises two allegations of error regarding the trial court’s evidentiary rulings pursuant to
even where an abuse of discretion is shown, there are no grounds for reversal if the error did not affect a “substantial right,” and thus harm, the defendant. See
OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. . . . “); see also Smith v. State, 299 Ga. 424, 431 (788 SE2d 433) (2016) (OCGA § 24-1-103 (a) “continues Georgia’s existing harmless error doctrine for erroneous evidentiaryrulings“). “‘In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so,’” and we assess “‘whether it is highly probable that the error did not contribute to the verdict.’” Smith, 299 Ga. at 432 (quoting Rivera v. State, 295 Ga. 380, 382 (761 SE2d 30) (2014)).
Venturino v. State, 306 Ga. 391, 393 (2) (830 SE2d 110) (2019). With these principles in mind, we address Merritt’s claims of evidentiary error in turn.
(a) At trial, Merritt called Dr. Abbasi, a psychiatrist, as a defense witness to testify about Rita’s diagnosis with and treatment for bi-polar disorder. During direct examination, Dr. Abassi explained bi-polar disorder to the jury, testified about the medications he prescribed for Rita and how those medications worked to treat bi-polar disorder, testified regarding the consequences of a person’s failure to take his or her prescribed medications, and testified that it is common for a person diagnosed with bi-polar disorder, such as Rita, to threaten to commit suicide.
On cross-examination, the prosecutor asked Dr. Abbasi whether he was biased against the State, to which Dr. Abbasi said
The prosecutor continued his cross-examination of Dr. Abbasi, during which the following transpired:
Q: Dr. Abbasi, my last question to you was whether or
not you had any bias – whether you harbored any bias against the state prosecution. I believe you indicated no. That was your answer? A: That’s right.
Q: My question to you then is, are you the same doctor who was – who has been accused of sexually inappropriately touching some of your patients at your facility?
A: You said patients?
Q: Yes.
A: Not true.
The prosecutor moved on to a new line of questioning, and the jury was not given an instruction concerning the limited purpose of this testimony.
(i) Abuse of Discretion
Merritt argues that the trial court abused its discretion by allowing the State to question Dr. Abassi concerning the accusation of sexual battery. As an initial matter, because Rule 622 is a “holdover” from Georgia’s old Evidence Code with no federal counterpart, this Court “look[s] to Georgia cases decided under the former version of that rule –
included the ability to question an opposing party’s expert witness about how often he had been hired by the counsel in the case and how much he had been paid, to question witnesses about reduction in prison time in exchange for cooperating with the State, and to elicit evidence that an employee witness received a promotion and pay increase as a reward for favorable testimony to defendant.
(Citations omitted.) Id. at 364 (II) (A). We also explained that, while Rule 622 “establishes that a witness’s bias is always a legitimate issue to be proved,” it does not provide “that any evidence offered to show bias is always admissible no matter how prejudicial or irrelevant to the issue being tried.” Id. Instead, evidence admitted pursuant to Rule 622 is subject to the familiar balancing test laid out in
Reviewing the testimony at issue in this light, we agree with
(ii) Harmless Error
However, in light of the strong evidence of guilt in this case, because Dr. Abassi’s testimony did not directly relate to Merritt’s defense of accident, and because Dr. Abassi’s answer indicated that the allegations were not true, we conclude that the error was harmless, as it is highly probable that the State’s brief questioning of Dr. Abassi regarding the prior allegation of sexual battery did not contribute to the jury’s verdict.
(b) Merritt argues that the trial court erred in excluding evidence under Rule 622 that Rita and her family were Romanichal gypsies. We see no error.
I’m going to allow you to do that, but the issue is not with the family. The issue is with Rita and what kind of relationship she had with [Merritt] in the way of prior conflicts, what generated that, whether it be family or whatever the case is. I’ll allow you to cross-examine any witness put up with regard to bias.
At trial, during the defense’s cross-examination of Rita’s sister, Felicia Mercer, defense counsel questioned Mercer extensively about her family background. When counsel began asking about the women’s cultural upbringing, however, the State objected. Defense counsel stated that she was entitled to ask questions “to show the bias of the witnesses against [Merritt] and why [the witnesses are] saying the things that they’re saying about him.” The trial court ruled that it would
Defense counsel then continued to cross-examine Mercer about her family’s background and Rita’s upbringing, but counsel did not attempt to ask any additional questions about the family’s Romanichal background, nor did counsel make a proffer as to this witness on the same.
Later, during counsel’s cross-examination of Rita’s sister-in-law, Louann Jeffrey, counsel made a proffer outside the presence of the jury concerning the family’s Romanichal culture and their
The Court: If you married someone like me who, to my knowledge, has no gypsy culture in my background, have you sinned in some kind of way or –
Jeffrey: No.
The Court: Is your family going to be prejudiced against mine?
Jeffrey: I’m not shunned against or nothing, no. Maybe in 1905. . . . But today, no.
Defense: Is it expected in the gypsy culture that the gypsies will marry other gypsies?
Jeffrey: It’s like, you know, we try to keep our bloodline, and our race is fading, as with any other race. You want to try to keep your bloodline strong. But I feel like if you fall in love with somebody, love is no boundary.
Defense: And you would say that gypsies see everyone who’s not a gypsy as an outsider?
Jeffrey: Not so much a[n] outsider, just not a gypsy.
After hearing this testimony, the trial court concluded that questions about the family’s cultural background were not relevant to the case, and “any relevance it may have is far outweighed by . . .
Even if we were to assume that Merritt was trying to establish Mercer’s and Jeffrey’s personal biases under Rule 622, defense counsel did not lay a proper foundation to do so. “Before a witness may be impeached for bias or hostility toward a party, the proper foundation must be laid by cross-examining the witness regarding his ill-feelings toward that party.” (Citations omitted.) Simmons v. State, 266 Ga. 223, 226-227 (4) (466 SE2d 205) (1996). See also Farley v. State, 225 Ga. App. 687, 694 (484 SE2d 711) (1997) (“Unless there is evidence produced outside the hearing of the jury from a witness examined under oath with regard to feelings concerning the accused and any occurrence giving rise to such feelings, to create a factual basis that racial bias or prejudice exists and, in fact, influenced the witness’ testimony or could be reasonably inferred to do so, such issue of racial bias or prejudice should not be
4. Merritt contends that the trial court erred by granting the State’s motion in limine to exclude the testimony of one of the defense’s expert witnesses. The record shows that the trial court specially set Merritt’s jury trial to begin on June 16, 2014. One week before trial, Merritt filed a motion to continue the case because his expert in forensic and clinical psychology was unavailable. Specifically, the defense planned to call this expert to testify about Merritt’s prior diagnosis of post-traumatic stress disorder (“PTSD“) and how it affected his interactions with law enforcement officers during his custodial interview. After holding a hearing on the
Thereafter, the State moved in limine to exclude the defense expert‘s testimony, arguing that it was immaterial and inadmissible. The record contains no written or oral ruling on the State‘s motion. However, in later motions contained in the record, defense counsel referenced a July 10, 2014 hearing in which the trial court allegedly granted the State‘s motion in limine.2 There is nothing in the record indicating that Merritt ever objected to the State‘s motion in limine or took exception to the trial court‘s alleged
As this Court has previously explained,
[w]e may remedy an error under plain error review if (1) the error was not affirmatively waived by the appellant; (2) the error is “clear or obvious, rather than subject to reasonable dispute“; (3) the error “affected the appellant‘s substantial rights“; and (4) “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”
(Citation omitted.) Williams v. State, 302 Ga. 147, 151-152 (2) (805 SE2d 873) (2017). Assuming without deciding that Merritt did not affirmatively waive this claim and that the trial court committed a clear legal error by excluding the expert‘s testimony, Merritt still cannot obtain reversal on this basis because he cannot show that the error affected his substantial rights – i.e., that there is a reasonable probability that the outcome of trial would have been different had this evidence been admitted. See Martin v. State, 298 Ga. 259, 278 (6) (c) (779 SE2d 342) (2015), disapproved of in part on other grounds by Willis v. State, 304 Ga. 686, 706 n.3 (820 SE2d 640) (2018) (explaining that the test for harm under plain error review “requires
Based on the foregoing, Merritt has failed to show that the trial court committed plain error because he cannot demonstrate that the outcome of his trial probably would have been different had his expert witness been allowed to testify at trial.
5. Prior to trial, the State filed a notice of intent to present
Merritt did not object to the admission of this testimony at trial. Now, on appeal, he claims that the trial court committed plain error by admitting the hearsay testimony of Lyle, Mercer, and
Here, Rita consistently described acts of domestic abuse to her close friend and family members, and these same people directly witnessed acts of domestic violence against Rita. Accordingly, we
6. Merritt contends that the trial court erred by admitting at trial evidence relating to his 2008 simple battery conviction pursuant to Rule 404 (b) (evidence of other acts may be admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.“). During the State‘s case-in-chief, the prosecutor asked Mercer to describe an incident that occurred at the hospital after Rita had given birth to one of her and Merritt‘s children. Mercer testified that, while visiting the new baby, Rita‘s mother remarked that Merritt was being too rough with another of the couple‘s children. Merritt then struck his mother-in-law, which led to a physical fight between Merritt, Rita‘s mother, and Mercer. Rita, who was recovering from giving birth, pleaded for Merritt to stop. Mercer testified that, as the fight broke up, Merritt shouted that he would kill them all. The State then tendered its
Ladies and gentlemen, sometimes evidence is tendered for a limited purpose and that‘s the case with regard to Exhibit Number 36. In this case, the State has offered evidence in the form of Exhibit 36, which is a certified copy of the defendant‘s conviction for simple [battery] in Carroll County.
It is tendered for the limited purpose of proving the defendant‘s intent and against a claim or affirmative defense of accident about which I will charge you more fully at the conclusion of this case. And again, it is not to be considered for any other purpose other than the limited purpose for which it has been tendered, which is proving the defendant‘s intent, if you so decide, and against any claim of accident, if you so decide.
But that‘s all it‘s offered for and you can – it has nothing to do with the issue of guilt or innocence of his conviction of this case, okay?
Merritt now contends that the trial court erred by admitting this evidence for the purpose of showing intent. Because this
Here, in addition to the significant physical and forensic evidence establishing Merritt‘s guilt, the State presented the statements of the three-year-old witness to the shooting and testimony from other witnesses describing numerous instances of Merritt‘s prior acts of domestic violence against Rita, all of which contradicted his accident defense. Based on the foregoing, Merritt has failed to show that the trial court committed plain error, because he cannot demonstrate that the outcome of his trial would have been different absent the introduction of evidence regarding the prior simple battery.
7. Merritt argues that the trial court erred by failing to
Merritt‘s requested charge read as follows:
A person is justified in threatening or using force against another person when, and to the extent that, he reasonably believes that such threat or force is necessary to defend himself or a third person against the other‘s imminent use of unlawful force. A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony. The State has the burden of proving beyond a reasonable doubt that the defendant was not justified.
Ga. Suggested Pattern Instructions, Vol. II: Criminal Cases §
We conclude that the trial court did not err by refusing to give the requested charge because there was not slight evidence in this case to support a charge on justification. “A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other‘s imminent use of unlawful force. . . .”
Judgment affirmed. All the Justices concur.
Notes
However, there is no transcript of the July 10, 2014 hearing in the record before this Court.granted the motion and ordered that Defendant will be prohibited from offering expert testimony as to his diagnosis of PTSD and its effects on his conduct, intent, demeanor, communication and mental state. The basis for the Court‘s ruling was that Defendant has not filed a notice of intent to raise a defense of insanity, the Defendant‘s mental state, including his diagnosis of PTSD, is not at issue and is not relevant to the case.
A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.