Ward v. StateWard v. State
Appellant Rodricus Ward was convicted of malice murder and firearm offenses in connection with the shooting death of his on-again, off-again girlfriend, Darla Gibbons. He appeals, contending that the evidence presented at his trial was insufficient to support his convictions and that the trial court erred in allowing six witnesses to testify about hearsay statements that Gibbons made to them. Appellant also argues that his trial counsel provided ineffective assistance in three ways: by failing to adequately argue against the State‘s motion to introduce the hearsay testimony; by failing to try to suрpress all of Appellant‘s interview with two police detectives; and by failing to sufficiently prepare for trial. We see no
1. The evidence presented at trial showed the following. On Wednesday, October 22, 2014, a worker discovered a burned-out car with a charred human body in its trunk at a rock quarry adjacent to a local airport in Athens. The body was identified as Gibbons by dental analysis; the car was a white Buick Sentry that her mother had bought for her nine days earlier. Gibbons was killed by two gunshots to her head; two .25-caliber bullets were found in her skull. Her autopsy and a fire investigator‘s examination of the car indicated that the car‘s trunk was intentionally set on fire after Gibbons was killed.
Text messages between Gibbons and Appellant indicate that they were together for part of the weekend before her body was found (October 18 and 19). On Monday, October 20, Gibbons told her co-worker and friend, Rodney Rivers, that she was “going to call it off” with Appellant. Cell phone records and surveillance video
Right after Gibbons left her apartment on Monday night, she called Appellant and spoke with him for 47 minutes, while her phone traveled east toward his residence in the Union Point area near Greensboro in Greene County. Around 9:00 p.m., Gibbons called Appellant again; her phone pinged a cell tower in the Union Point area. Gibbons‘s phone signal then remained stationary for about three and a half hours, pinging close to Appellant‘s residence. At 12:45 a.m. on Tuesday morning, October 21, her phone began moving toward Athens. At 1:50 a.m., her phone pinged the tower serving the rock quarry area where her body was found. The phone signal disappeared at 2:17 a.m., indicating that the phone had a dead battery, was turned off, or was destroyed.
Between midnight and 1:00 a.m. on Tuesday, Appellant
When investigators searched Appellant‘s bedroom on October 23, the day after Gibbons‘s body was discovered, they found that a section of carpet in the middle of the room was missing, and the bedding and mattress appeared to be brand new, with some tags still attached. A blood reagent indicated the рresence of wiped-up blood on the floor and on a wall, with droplets going toward the door, and a blood stain, which DNA testing later confirmed to be from Gibbons, was found on an electrical cord. Investigators also found a spent .25-caliber cartridge case and an unfired .25-caliber cartridge.
During a lengthy interview with two police detectives on the
2. Appellant contends that the evidence presented at his trial
At trial, Appellant‘s counsel objected before the first of these witnesses testified, making an argument that was somewhat confused but appeared to include the grounds that Appellant raises here.7 The trial court overruled the objection. We will assume that Appellant‘s Rule 807 claims were properly preserved and review the trial court‘s decision to admit the testimony for an abuse of disсretion. See State v. Holmes, 304 Ga. 524, 529 (820 SE2d 26) (2018). But we note that “[t]his Court is particularly hesitant to overturn a trial court‘s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” Id. (citation and punctuation omitted).
(a) The six witnesses about whom Appellant complains gave the following testimony at trial.
Second, Gerald Harris testified that Gibbons was a “real good friend” from college, and he “considered her like a big sister.” Gibbons told Harris that she had loaned Appellant money “to help him out,” and he never paid it back.
Third, Sherrieonce Turnipseed testified that she was Gibbons‘s best friend. To her, it seemed like Gibbons and Appellant were always arguing. Turnipseed never observed “anything physical between them,” but Gibbons told her that one time while driving, Gibbons “had to pull over to the side of the road and they got into a
Fourth, JayIvey White, who was Gibbons‘s cousin, testified that she and Gibbons “were more like sisters“; they grew up together and talked almost daily. JayIvey lived two minutes away from Gibbons, and they spent a lot of time together. JayIvey also spent time with Appellant and Gibbons, but Gibbons‘s family was not fond of Appellant. JayIvey noted that when Appellant and Gibbons‘s relationship “was good, it was great, and when it was bad, it was terrible.” According to JayIvey, at first Gibbons was not excited about her pregnancy by Appellant, “but she felt that she owed him
Fifth, JayIvey‘s husband, Michael White, testified that before
Sixth and finally, Griffeth testified that she and Gibbons “grew up in church together.” Since college, they continued their friendship “mainly on the phone.” She first thought that Appellant was “a sweet guy,” but with time she realized that Appellant and Gibbons were “argumentative” with each other. When Gibbons had her miscarriage, she was in emotional distress and told Griffeth that she felt Appellant “was blaming her for it.” Gibbons also told Griffeth that in college, “there was a gun pulled on her [by Appellant], but it wasn‘t used, of course[.]”
(b) Appеllant first argues that the State did not prove that the statements by Gibbons that these witnesses repeated had
“Statements admissible under Rule 807 are considered sufficiently trustworthy not because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made.” Rawls v. State, 310 Ga. 209, 214 (850 SE2d 90) (2020) (citation and punctuation omitted).9 Here, the circumstances of Gibbons‘s statements, namely that they were statements about abuse and problems in her romantic relationship made to close friends and family, demonstrate sufficient guarantees of trustworthiness under Rule 807. See Rawls, 310 Ga. at 215 (holding that the victim‘s “close relationship with each of these witnesses gave her statements to them about the abuse she was experiencing from her boyfriend sufficient guarantees of trustworthiness to be admissible under Rule 807“). See also Merritt v. State, 311 Ga. 875, 887 (860 SE2d 455) (2021) (“[A] victim‘s description of prior acts of domestic violence against her to her family and friends carries an increased level of trustworthiness.“); Jacobs v. State, 303 Ga. 245, 250-251 (811 SE2d 372) (2018) (concluding that statements and text messages from the murder victim to her close friends and confidantes describing the nature of her relationship with the appellant as well as his “abusive, controlling, and violent behavior toward [the victim]” had the requisite guarantees of trustworthiness).
In addition, the witnesses’ testimony about Gibbons and Appellant‘s relationship troubles was highly probative as to his motive for shooting and killing his longtime girlfriend. See Rawls, 310 Ga. at 215 (holding that testimony about the defendant‘s prior violent acts against his girlfriend showed “the nature of the relationship between [the defendant] and the victim [and] shed[] light on [the defendant]‘s motive in committing the offense[s] charged” (citation and punctuation omitted)). Appellant suggests thаt the State could have used police reports and medical records,
(c) Appellant argues that Griffeth‘s testimony should have been excluded because he was not given notice of it “in advance of the trial,” as Rule 807 requires. On the second day of trial, the State filed a supplemental notice to add the hearsay statements from Griffeth; she testified two days later, on the last day of trial, giving the
Pretermitting whether the trial court abused its discretion by admitting Griffeth‘s testimоny because the State‘s notice was untimely, any such error was harmless.10 A nonconstitutional evidentiary error “is harmless if it is highly probable that the error did not contribute to the verdict.” Adkins v. State, 301 Ga. 153, 158 (800 SE2d 341) (2017). Griffeth‘s testimony was largely cumulative of the properly admitted testimony of the other witnesses. And although Griffeth was the only one of Gibbons‘s confidants to testify that Gibbons said that Appellant once “pulled [a gun] on her” back in college, the jury had already heard about at least two other incidents of Appellant‘s violence against Gibbons, the jury had seen a video of Appellant holding a gun around the time of the murder, and the overall evidence of Appellant‘s guilt was strong. Thus, it is highly
4. Appellant contends that his trial counsel provided constitutionally ineffective assistance in three wаys. To prevail on these claims, Appellant must show both that his “counsel‘s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LEd2d 674) (1984). “To prove deficient performance, Appellant must show that his counsel performed in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Rawls, 310 Ga. at 220. To prove prejudice, Appellant “must show that there is a reasonable
(a) Appellant first contends that his trial counsel was ineffective in making only a “tepid” argument that, under Rule 807, the State was required to show that the hearsay testimony discussed in Division 3 above was more probative than any other evidence that could reasonably be procured. However, as explained in that division, in which we assumed that trial counsel properly preserved Appellant‘s claims, the evidence met this Rule 807 requirement. Appellant has not specified what else his trial counsel supposedly should have argued that would have altered this conclusion.11 Thus, this ineffective-assistance claim fails. See Stuckey v. State, 301 Ga. 767, 773 (804 SE2d 76) (2017) (“Fаilure to make a meritless objection cannot be considered deficient or prejudicial.“). See also Washington v. State, 312 Ga. 495, 503 (863 SE2d 109) (2021) (“[D]eficiency cannot be demonstrated by merely arguing that there is another, or even a better, way for counsel to have performed.” (citation and punctuation omitted)); Brown v. State, 303 Ga. 617, 621 (814 SE2d 364) (2018) (holding that trial counsel‘s performance was not deficient in allegedly failing to cross-examine a witness about a particular issue when counsel did explore that issue on cross-examination and the appellant presented no argument as to how counsel could have bеtter developed that issue).
(b) Appellant also contends that his trial counsel provided ineffective assistance by failing to argue that Appellant‘s full interview with two detectives on October 23, 2014, should have been suppressed because it was custodial from the beginning but Appellant was not warned of his rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LEd2d 694) (1966), until about four
Appellant was interviewed by Detectives Richard Boyle and Chris Brogden. They approached Appellant at a vigil held at Gibbons‘s mother‘s house in Athens, and Appellant agrеed to drive to the police station in his mother‘s car to discuss Gibbons‘s whereabouts. The interview room was at the back of the police station. Although the door was not locked, the room was monitored from a “bullpen” area right outside.13 The interview began at 12:30 p.m. and lasted about nine hours, including some lengthy
At the start of the interview, Detective Boyle told Appellant that the investigation was in its infancy and that the detectives were just gathering information. Appellant was not read the Miranda warnings at that point. Over the next four hours, Appellant shared the information discussed in Division 1 above, and he gave the detectives permission to examine and download the contents of his cell phone. After Appellant repeatedly contradicted himself as well as other evidence, including his text messages, Detective Boyle informed him that “the pretense [of the conversation] had changed . . . [to] an in-custody interview” and that “right now [he was] not free to leave.” Detective Boyle then read Appellant the Miranda warnings, which Appellant said he understood. The
A person is deemed to be in custody, requiring Miranda warnings before interrogation, when he is “(1) formally arrested or (2) restrained to the degree associated with a formal arrest.” DeVaughn v. State, 296 Ga. 475, 479 (769 SE2d 70) (2015) (citation and punctuation omitted). “Unless a reasonable person in the suspect‘s situation would perceive that he was in custody, Miranda warnings are not necessary.” Id. (citation and punctuation omitted). The record here supports a finding that Appellant‘s interview, to which he drove himself and which was conducted while he was unrestrained in an unlocked room that he occasionally left for breaks, was not custodial until Detective Boyle told him that he was no longer free to leave and read him the Miranda warnings. See, e.g., Drake v. State, 296 Ga. 286, 289-290 (766 SE2d 447) (2014) (concluding that a defendant was not in custody during the initial part of a series of video-recorded interviews when he willingly
Thus, a motion to suppress the entire interview on the ground now proposed by Appellant would not clearly have succeeded, and his trial counsel was not ineffective in failing to make such a motion. See Evans v. State, 308 Ga. 582, 586 (842 SE2d 837) (2020) (“Where, as here, [a defendant] claims that trial counsel was deficient for failing to file a motion to suppress, the defendant must make а strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (citation and punctuation
(c) Appellant‘s final ineffective assistance claim is based on his trial counsel‘s alleged overall failure to prepare for trial. Although Appellant argues generally that his trial counsel failed to review discovery, misrepresented Georgia law, refused to question lay witnesses, and failed to question the credentials of the State‘s expert witnesses, Appellant does not identify any specific instances to support these broad allegations. Instead, the record and trial counsel‘s testimony at the motion for new trial hearing show that counsel reviewed discovery with Appellant, filed a successful motion to suppress bad character evidence, and cross-examined the witnesses. Thus, Appellant has failed to demonstrate either deficient performance or prejudice. See Lane v. State, 299 Ga. 791, 795-796 (792 SE2d 378) (2016) (“[Appellant] presents no evidence, or even assertion, as to what further investigation or preparation might have produced that would have made a difference in the outcome of his trial. Consequently, [Appellant] fails to show ineffective assistance of trial counsel on this ground.“); Tepanca v. State, 297 Ga. 47, 51 (771 SE2d 879) (2015) (“[Appellant] leaves this Court to engage in a guessing game as to how appellate counsel‘s representation, or rather lack thereof, might have amounted to ineffective assistance. Under these circumstances, [Appellant] has failed to show even a possibility of ineffective assistance.“).
Judgment affirmed. All the Justices concur.
Notes
A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not bе 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.
However, a statement may not be admitted under this Code section unless the proponent of it makes known to the adverse party, suffiсiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent‘s intention to offer the statement and the particulars of it, including the name and address of the declarant.