Grier v. State

In the Supreme Court of Georgia

Decided: February 15, 2022

S21A1249. GRIER v. THE STATE.

BOGGS, Presiding Justice.

Appellant Deunta Grier challenges his 2016 convictions for

malice murder and other crimes in connection with the shooting

death of his girlfriend, Tiffany Bailey. Appellant contends that the

evidence presented at his trial was insufficient to support his

convictions, that the trial court committed plain error in admitting

hearsay statements allegedly made by Bailey’s five-year-old

daughter, J.F., and the couple’s three-year-old daughter, A.G., under

the Child Hearsay Statute and in violation of Appellant’s

constitutional right of confrontation, and that he was denied the

effective assistance of counsel. We affirm. 1

1 The crimes occurred on November 7, 2015. On February 16, 2016, a
Fulton County grand jury indicted Appellant for malice murder, three counts
 1. The evidence at trial showed the following. In November

2015, Appellant lived in Bailey’s apartment with J.F., A.G., and the

couple’s baby. Appellant and Bailey had been in a romantic

relationship for several years, and J.F. often referred to Appellant

as “Daddy.” Appellant and Bailey had a tumultuous relationship

that included hair-pulling and physical fights that left bruises on

Bailey. Appellant’s name was not on the lease, and the complex’s

property manager, Regina Brettnacher, told Bailey about a week

before Bailey’s murder that Appellant had to leave or Bailey would

of felony murder, aggravated assault with a deadly weapon, two counts of
cruelty to children in the third degree, possession of a firearm during the
commission of a felony, possession of a firearm by a convicted felon, and
possession of a firearm during the commission of a felony against the person of
another by a person previously convicted of a felony involving the use or
possession of a firearm. At a trial from June 27 to 30, 2016, the jury found
Appellant guilty of all charges. The trial court sentenced Appellant to serve life
in prison for malice murder, concurrent terms of 12 months each for the child
cruelty counts, and 15 consecutive years for possession of a firearm during the
commission of a felony against the person of another by a person previously
convicted of a gun crime. The court vacated the felony murder counts and
merged the remaining charges. On July 22, 2016, Appellant filed a motion for
new trial, which he amended with new counsel on November 28, 2017. The
court held an evidentiary hearing on April 10, 2018, and denied the motion on
May 12, 2021. Appellant filed a timely notice of appeal. The case was docketed
in this Court to the August 2021 term and was orally argued on November 10,
2021.

2
be evicted. Three days before the shooting, Bailey told her aunt that

she planned to break up with Appellant. On November 7, Appellant

called 911 to report that Bailey had been shot. When officers and

paramedics arrived, Appellant and the children were in the unit,

and Bailey was unconscious on the floor of the kitchen with a

gunshot wound through her eye. Bailey’s earrings and clumps of her

hair were scattered around the living room, and there was a suitcase

packed with men’s clothing in the kitchen. Bailey was transported

to the hospital within 45 minutes of the 911 call and later

pronounced dead.

Appellant agreed to go to the police precinct, where he was

interviewed by Scott Berhalter, the lead detective on the case. In a

video-recorded interview, which was played for the jury at trial,

Appellant admitted that he sold drugs out of the apartment.

According to Appellant, someone came to the apartment to buy

marijuana, pointed a gun at Appellant, demanded marijuana, and

then pulled the trigger, shooting Bailey when Appellant tried to

disarm the shooter. Appellant claimed that the shooter was friends

3
with 17-year-old Q.W., and that Q.W. and the shooter had purchased

marijuana together from him a few days prior. Appellant’s

description of the shooter led Detective Berhalter to 13-year-old

A.N., but A.N. provided an alibi for the night of the shooting. 2

Appellant did not identify A.N. as the shooter when presented with

a photographic lineup, instead identifying A.N. as someone who

“should know who did this.” Appellant admitted to recently firing a

gun but claimed that he had only fired at a car hours before Bailey

was shot. Appellant also admitted to owning .22-caliber

ammunition, the type of bullet that killed Bailey.

Two days after the shooting, Appellant told an acquaintance,

Isaac Turner, that he and Bailey were arguing, he pulled his gun in

an attempt to get her off him, “the gun went off when she went

towards him,” and the bullet hit her in the head. Appellant added

2 A.N. told Detective Berhalter that he was with his sister at the time of
the shooting. At that time, A.N. and his sister were both under surveillance
using GPS ankle monitors, and GPS information showed that A.N.’s sister was
on a different side of town at the time of the shooting. A.N.’s ankle monitor was
not charged and thus was not active the night of the shooting, but he was
seemingly unaware of this fact, as A.N.’s probation officer stated that “as far
as [A.N.] knew[,] he was being monitored 24/7.”
4
that he lied to the police about a robbery, staged the scene, and

threw the gun over the fence of the apartment complex. Later that

day, Brettnacher saw Appellant searching for something along the

fence line. The police returned to the complex, and a canine searched

along the fence line but did not find a gun. The police could tell that

the area had been recently searched.

At trial, the State did not call A.G. as a witness. J.F., who was

six at the time of the trial, testified by closed-circuit television from

elsewhere in the courthouse. 3 J.F. was asked if she “said that [her]

daddy killed [her mom],” and J.F. nodded her head up and down.

J.F. was asked if she was there when that happened, and she again

nodded her head up and down. When J.F. was asked if she saw it

happen, she shook her head from side to side. J.F.’s answers to many

of the State’s questions were nonverbal gestures or verbal responses

that were not audible in the courtroom. On cross-examination, J.F.

3 Appellant does not present any challenge to the use of closed-circuit
television to present this testimony.

5
answered only two questions audibly 4 before providing only non-

verbal responses to questions from Appellant’s trial counsel.

Appellant’s counsel then said that he was not going to ask her any

more questions about her “mommy and daddy.” Appellant’s counsel

proceeded to ask J.F. several questions about her favorite dessert,

school, and watching television, which she answered by nodding or

shaking her head.

Susan Paa, the Director of Forensic Services for the Fulton

County District Attorney’s Office, testified that she interviewed J.F.

and A.G. the week before trial. According to Paa, J.F. said that “her

dad had shot her mom,” and A.G. said that “her dad had killed her

mom.” J.F. said that she was asleep in her mom’s bedroom with her

sisters; that her mom and Appellant were arguing in the living room;

that she went into the living room; that her mom pushed Appellant

out of a chair; and that Appellant got his gun off the couch and shot

4 She was asked, “[H]ow you doing?” and responded, “Good.” She was
then asked, “You okay? My name is Mr. Marks, okay?” and responded, “Okay.”

6
her mom in the eye. 5 Veronica Delmar, Bailey’s cousin, testified that

“probably the night” of the shooting, J.F. said that “she saw them

arguing and stuff and saw her daddy . . . pull out a gun and shoot

mommy and put them in a room, stuff like that.” Brettnacher

testified that assistant property manager Charlsella Jackson called

her from Bailey’s apartment immediately after the shooting while

the paramedics were still working on Bailey. According to

Brettnacher, Jackson said, in an excited state, that Bailey had been

shot, that Appellant was sitting in a police car, and that “the little

girl [J.F.] just came up to me and said daddy shot mommy.” 6

Detective Berhalter did not testify to any out-of-court statements by

J.F. or A.G. However, the jury saw the recording of his interview of

Appellant, in which Detective Berhalter said, “from what I am being

told, okay, is that your five-year-old and two-year-old [sic] are saying

5 On cross-examination, Paa testified that Tamara Glover, a forensic
interviewer, interviewed J.F. on the day of the shooting; that J.F. initially told
Glover that her daddy did not shoot her mom; and that Paa’s recollection was
that J.F. later said otherwise to Glover.
6 Appellant made a Confrontation Clause objection to Brettnacher’s

testimony. The State responded, “It’s non-testimonial, excited utterance,” and
the trial court overruled the objection.
7
that you and [Bailey] were fighting, okay, and during that fight you

shot her.” The detective also questioned Appellant as to why the

girls were “saying that Daddy is responsible for this?”

The parties entered into several stipulations that were read to

the jury. Among other things, the parties stipulated that Appellant

was a convicted felon on the date of the shooting, that he was in

possession of a .22-caliber revolver during an arrest in 2007, and

that he was arrested on March 6, 2015, for possession of a firearm

by a convicted felon.

Appellant did not testify at trial. He called one witness, Ameer

Davis, who lived at the apartment complex and worked there as a

security guard. Davis testified that on the day of the shooting, he

heard what he believed to be a gunshot, and a minute or two later

he saw a young black male walk out of Bailey’s building. Davis also

testified that he chased after the young man but lost him, and that

Appellant was in Bailey’s unit when Davis went back to the building.

According to Davis, Appellant said, “they just tried to rob me.” Davis

further testified that he was familiar with Appellant and Bailey

8
from many interactions prior to the date of the shooting, that he

never saw Appellant and Bailey arguing or fighting, and that he

never had to respond to Bailey’s unit for any type of complaint. The

defense’s theory was that a young man came to Bailey’s apartment

under the pretense of buying marijuana and shot Bailey during an

attempted robbery.

2. Appellant contends that without the child hearsay

testimony, which he argues was erroneously admitted, the evidence

was legally insufficient to support his convictions. However, in

determining the sufficiency of the evidence, we consider all of the

evidence that was admitted at trial, even if evidence should have

been excluded. See McGarity v. State, 311 Ga. 158, 161 (1) (856 SE2d

241) (2021). See also Davenport v. State, 309 Ga. 385, 397 (4) (b) (846

SE2d 83) (2020) (“[W]e consider all the evidence admitted at trial,

regardless of whether the trial court erred in admitting some of that

evidence.” (emphasis in original)). After reviewing the evidence

admitted at trial in the light most favorable to the verdict, we

conclude that the evidence was more than sufficient to support the

9
charges upon which Appellant was convicted. See Jackson v.

Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979). Accordingly, this enumeration of error lacks merit.

3. Appellant contends that the trial court erred in admitting

hearsay statements by J.F. and A.G. under the Child Hearsay

Statute and, as to Paa’s testimony about A.G.’s statement, in

violation of his right of confrontation protected by the Georgia and

United States Constitutions. Appellant did not object to this

testimony on these grounds at trial, so we review his claims only for

plain error. See OCGA § 24-1-103 (d); Kemp v. State, 303 Ga. 385,

397-398 (3) (810 SE2d 515) (2018) (applying plain error review to

Confrontation Clause claim raised for first time on appeal); Lupoe v.

State, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016) (applying plain error

review to hearsay claim raised for first time on appeal). To establish

plain error, Appellant

must point to an error that was not affirmatively waived,
the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial
rights, and the error must have seriously affected the
fairness, integrity, or public reputation of judicial

10
 proceedings.

Lupoe, 300 Ga. at 243 (4) (citation and punctuation omitted).

Appellant did not affirmatively waive any of the claimed errors, and

it was clear error to admit one bit of the testimony. Appellant has

not established plain error, however, because he has not shown that

the single clear error in admitting child hearsay testimony affected

his substantial rights.

(a) Paa’s testimony about A.G.’s statement. It was clear error to

admit Paa’s testimony that A.G. said that “her dad had killed her

mom.” “The Confrontation Clause ‘imposes an absolute bar to

admitting out-of-court statements in evidence when they are

testimonial in nature, and when the defendant does not have an

opportunity to cross-examine the declarant.’” McCord v. State, 305

Ga. 318, 321 (1) (825 SE2d 122) (2019) (footnote and citation

omitted). See also Crawford v. Washington, 541 U.S. 36, 68 (V) (B)

(124 SCt 1354, 158 LE2d 177) (2004). A.G.’s statement to Paa was

testimonial, as Paa worked for the Fulton County District Attorney’s

Office and the statement was made in an interview of A.G.

11
conducted by Paa a week before trial for the purpose of gathering

evidence for use at trial. See Lindsey v. State, 282 Ga. 447, 452 (4)

(651 SE2d 66) (2007) (citing Jenkins v. State, 278 Ga. 598, 605 (2)

(604 SE2d 789) (2004), and holding that testimonial statements

under Crawford include statements made by witnesses to

government officers investigating a crime). A.G. did not testify at

trial, and Appellant had no prior opportunity to cross-examine A.G.

about her statement. Thus, Paa’s testimony about A.G.’s statement

clearly should have been excluded under the Confrontation Clause.

See Crawford, 541 U.S. at 53-54 (“[T]he Framers would not have

allowed admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”).

(b) Paa’s testimony about J.F.’s statement. It was not clear and

obvious error to admit Paa’s testimony that J.F. said that Appellant

shot Bailey during an argument, as this testimony satisfied the

requirements of the Child Hearsay Statute. At the time of

Appellant’s trial, the Child Hearsay Statute provided:

12
 A statement made by a child younger than 16 years of age
describing any act of sexual contact or physical abuse
performed with or on such child by another or with or on
another in the presence of such child shall be admissible
in evidence by the testimony of the person to whom made
if the proponent of such statement provides notice to the
adverse party prior to the trial of the intention to use such
out-of-court statement and such child testifies at the trial,
unless the adverse party forfeits or waives such child’s
testimony as provided in this title, and, at the time of the
testimony regarding the out-of-court statements, the
person to whom the child made such statement is subject
to cross examination regarding the out-of-court
statements.

OCGA § 24-8-820 (2011).7 Appellant argues that Paa’s testimony

about J.F.’s statement was inadmissible for three unconvincing

reasons.

First, Appellant argues that the Child Hearsay Statute does

not apply because a shooting does not constitute “physical abuse”

within the meaning of the statute. “For an error to be obvious for the

purposes of plain error review, it must be plain under controlling

precedent or in view of the unequivocally clear words of a statute or

rule.” Cheddersingh v. State, 290 Ga. 680, 685 n.5 (2) (724 SE2d 366)

7The Child Hearsay Statute was amended in 2019. This same language
now appears in OCGA § 24-8-820 (a).
13
(2012) (punctuation omitted and cleaned up). Further, whether an

error is considered “clear and obvious” is evaluated “based on the

state of the law as it exists at the time of [appellate] review.” Lyman

v. State, 301 Ga. 312, 317 (2) (800 SE2d 333) (2017). Appellant

cannot point to any precedent from this Court that holds that a

shooting that causes injury does not constitute “physical abuse”

under the statute, and it is not unequivocally clear from the words

of the Child Hearsay Statute that such a shooting does not qualify

as physical abuse. Thus, Appellant’s first argument fails.

Second, Appellant argues that the State failed to provide

sufficient notice of Paa’s testimony about J.F.’s statement. The Child

Hearsay Statute requires the proponent of child hearsay testimony

to “provide notice to the adverse party prior to the trial of the

intention to use such out-of-court statement.” OCGA § 24-8-820

(emphasis added). The State did not provide any notice of its intent

to present child hearsay from Paa. However, absent a showing of

prejudice to the defendant and bad faith by the State, the ordinary

remedy for failure to comply with a requirement that a witness must

14
be identified prior to trial is simply a continuance to allow for an

interview of the witness, and we assume that the trial court would

have followed the law if an objection to notice had been made. See

Massey v. State, 272 Ga. 50, 51 (4) (525 SE2d 694) (2000). Because

the exclusion of Paa’s testimony about J.F.’s statement would not

have been required had Appellant’s counsel objected to the lack of

proper notice, Appellant has not satisfied his burden in showing

clear error. Cf. Lee v. Smith, 307 Ga. 815, 821-822 (2) (838 SE2d 870)

(2020) (holding that trial court abused its discretion by excluding a

witness solely due to late identification). Accordingly, Appellant’s

second argument fails.

Finally, Appellant argues that J.F. did not actually “testify” at

trial as required by the Child Hearsay Statute, because most of her

responses were non-verbal, so Paa’s testimony about J.F.’s

statement was inadmissible. But J.F. did testify at trial, was cross-

examined, and provided responses to many of the questions asked to

her. That defense counsel willingly abandoned his case-related

questioning of J.F. after she provided non-verbal responses to some

15
of the State’s questions does not mean she did not “testify” as

required by the Child Hearsay Statute. Compare Soto v. State, 285

Ga. 367, 368-369 (2) (677 SE2d 95) (2009) (holding that the

defendant did not have an opportunity to cross-examine a witness

when the witness refused to answer questions altogether).

Accordingly, Appellant’s final argument fails.

(c) Delmar’s testimony. It was not clear error to admit Delmar’s

testimony that J.F. said that she saw Appellant pull out a gun and

shoot Bailey during an argument. Appellant again argues that the

testimony should have been excluded because a shooting does not

constitute “physical abuse,” J.F. did not actually “testify,” and

proper notice was not provided, but these arguments fail for the

reasons discussed above. Moreover, a report of J.F.’s statement to

Delmar was included in discovery provided to Appellant, so there is

no indication that he was surprised by the testimony.

Appellant also argues that Delmar’s testimony about J.F.’s

statement should have been excluded because there was no evidence

that J.F. made the statement directly to Delmar. But Delmar

16
testified that the statement was made to her alongside other family

members, and nothing in the Child Hearsay Statute precludes the

admission of a statement simply because it was made to multiple

people simultaneously. The evidence shows that Delmar was an

original recipient of J.F.’s statement, so this argument also fails.

(d) Brettnacher’s testimony. The trial court did not err, much

less commit plain error, in admitting Brettnacher’s testimony that

J.F. told Jackson that “daddy shot mommy,” because both Jackson’s

statement to Brettnacher and J.F.’s statement to Jackson were

admissible as excited utterances. See OCGA § 24-8-805 (“Hearsay

included within hearsay shall not be excluded under the hearsay

rule if each part of the combined statements conforms with an

exception to the hearsay rule.”).

Under OCGA § 24-8-803 (2), regardless of whether the

declarant is available as a witness, otherwise inadmissible hearsay

can be admissible as an excited utterance when the “statement [is

related] to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition.”

17
(Emphasis added.) Brettnacher testified that Jackson was in an

“excited” state when she called from Appellant and Bailey’s

apartment shortly after the shooting and told Brettnacher that J.F.

said that “daddy shot mommy.” And while there was no direct

testimony that J.F. was under the stress of excitement caused by the

shooting when she told Jackson that “daddy shot mommy,” the trial

court could have reasonably concluded from the circumstances that

J.F. was in such a state when she made the statement to Jackson.

See Robbins v. State, 300 Ga. 387, 390 (2) (793 SE2d 62) (2016)

(holding that whether a hearsay statement was an excited utterance

is determined not by one single factor, but the “totality of the

circumstances”). J.F.’s testimony indicated that she was in the

apartment when the shooting occurred and, according to

Brettnacher, the paramedics were still trying to resuscitate J.F.’s

mother Bailey when Jackson called Brettnacher from the apartment

and relayed what J.F. said to Jackson. Thus, the circumstances

indicate that this statement was made close in time to the shooting.

Accordingly, J.F.’s statement to Jackson, which Jackson relayed to

18
Brettnacher, was admissible. See Jackson v. State, 311 Ga. 626, 631-

632 (3) (859 SE2d 46) (2021) (holding that trial court did not abuse

its discretion when it allowed hearsay testimony as an excited

utterance from a witness who was inside a house at the time of a

shooting and heard, but did not physically see, the shooting).

(e) Detective Berhalter’s interview of Appellant. Finally, it was

not clear legal error to admit the part of the recording of Detective

Berhalter’s interview with Appellant where Detective Berhalter

referenced statements by J.F. and A.G. that Appellant shot Bailey

during a fight and that he was responsible for the shooting, as the

statements were not hearsay. See OCGA § 24-8-801 (c) (defining

“hearsay” as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted”). “The detective’s statements were

clearly not meant to establish as true that the others had implicated

Appellant, but were simply a part of an interrogation technique.”

Myrick v. State, 306 Ga. 894, 901 (3) (b) (834 SE2d 542) (2019)

(citation and punctuation omitted). “What [Detective Berhalter]

19
asked of or said to [Appellant] during interrogation was not offered

for its truth, but rather to establish what questions or statements

[Appellant] was responding to and the effect the former had on

[Appellant] as the listener.” Id. (citation and punctuation omitted).

Because Detective Berhalter’s recorded statements were not

hearsay, the trial court did not clearly err in admitting them.

(f) Substantial rights. The trial court’s single error did not

affect Appellant’s substantial rights. The erroneous admission of

Paa’s testimony recounting A.G.’s brief statement did not give rise

to a reasonable probability that the outcome of the trial would have

been different. See Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d

707) (2013) (holding that under plain error analysis, the defendant

must show that the trial court’s errors “probably affected the

verdict”). While Appellant claims that Bailey was shot by an

unidentified person attempting to rob Appellant of his marijuana,

his description of the shooter led the police to a 13-year-old with an

alibi whom Appellant himself identified as not being the shooter

during a photographic lineup. Further, the other evidence of

20
Appellant’s guilt was strong. J.F. indicated at trial that she was

present when the shooting happened and that Appellant shot

Bailey. Moreover, there was evidence of motive; Appellant admitted

to Turner that he shot Bailey; and Brettnacher, Delmar, and Paa

testified that J.F. said that Appellant shot Bailey during an

argument. Appellant has not met his burden under the plain error

standard to show a reasonable probability that the outcome would

have been different, as the improperly admitted hearsay was merely

duplicative of other properly admitted evidence. See Allen v. State,

310 Ga. 411, 417 (3) (851 SE2d 541) (2020) (holding that defendant

failed to demonstrate plain error from improperly admitted hearsay

where properly admitted evidence of defendant’s guilt was strong);

see also Anglin v. State, 302 Ga. 333, 336 (2) (806 SE2d 573) (2017)

(“[T]he erroneous admission of hearsay is harmless where

substantial, cumulative, legally admissible evidence of the same fact

is introduced.” (citation and punctuation omitted)).

4. Appellant contends that trial counsel was ineffective in

failing to object to each of the aforementioned hearsay issues. To

21
prevail on this claim, Appellant must prove both deficient

performance by his counsel and resulting prejudice. See Strickland

v. Washington, 466 U.S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674)

(1984). To prove deficient performance, he must show that his

attorney “performed at trial in an objectively unreasonable way

considering all the circumstances and in the light of prevailing

professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d

637) (2013) (citation omitted). This requires Appellant to “overcome

the strong presumption that counsel’s performance fell within a

wide range of reasonable professional conduct, and that counsel’s

decisions were made in the exercise of reasonable professional

judgment.” Marshall v. State, 297 Ga. 445, 448 (2) (774 SE2d 675)

(2015) (citation and punctuation omitted). And to establish

prejudice, Appellant must show “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466

U. S. at 694 (III) (B). We need not address both components of the

22
inquiry if a defendant makes an insufficient showing on one. See id.

at 697 (IV).

First, Appellant has not shown that trial counsel was deficient

in failing to object to Detective Berhalter’s and Brettnacher’s

testimony. Detective Berhalter’s testimony was admissible

nonhearsay, and Brettnacher’s testimony was admissible under the

hearsay exception for excited utterances. See Harris v. State, 304

Ga. 652, 658 (2) (821 SE2d 346) (2018) (“[F]ailure to make a

meritless objection cannot support a claim of ineffective assistance.”

(citation and punctuation omitted)).

Further, while an objection to Delmar’s and Paa’s testimony

about J.F.’s statements for lack of notice might have been sustained,

the trial court would not have excluded Delmar or Paa from

testifying on that basis. See Massey, 272 Ga. at 51 (4). Such an

objection would thus have had no effect on the trial’s outcome. And

even if we assume that trial counsel performed deficiently by failing

to object to Paa’s testimony about A.G.’s statement, “the test for

prejudice in the ineffective assistance analysis is equivalent to the

23
test for harm in plain error review.” Griffin v. State, 311 Ga. 579,

584-585 (3) (858 SE2d 688) (2021) (citation and punctuation

omitted). As set forth in Division 3 (f), Appellant has not made a

sufficient showing of prejudice from the admission of this one piece

of hearsay. Accordingly, Appellant’s ineffective assistance of counsel

claim fails.

Judgment affirmed. All the Justices concur.

24