Gregory v. the State

                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 28, 2017




In the Court of Appeals of Georgia
 A17A0209. GREGORY v. THE STATE.

      BETHEL, Judge.

      Richard Gregory appeals from the denial of his motion for a new trial following

his conviction on a single count of aggravated battery for which he was sentenced to

twenty years imprisonment and ordered to pay a fine. On appeal, Gregory alleges that

the trial court erred by admitting into evidence and publishing to the jury a recording

of a 9-1-1 call that was placed shortly after the incident giving rise to his arrest, and

by admitting certain statements by a witness over the defendant’s hearsay objection.

He also alleges that his trial counsel was ineffective by failing to object to the

admission of the 9-1-1 call recording. Finally, he argues that the trial judge

improperly commented on the evidence in the case when instructing the jury as to
what it would hear when the 9-1-1 call was played in court. For the reasons set forth

below, we affirm his conviction.

      On appeal, the defendant “is no longer presumed innocent and all of the

evidence is to be viewed in the light most favorable to the jury verdict.” Batten v.

State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citations omitted). So viewed,

shortly after midnight one evening, Karen Andrews was at the home of a friend when

she placed a call to Gregory asking that he come to the house to pick her up. He

arrived a few minutes later, and the two of them drove back to Andrews’ house where

they spent the night.

      The next afternoon, a neighbor of Andrews heard screaming outside her home.

The neighbor walked out of her house and ran down the street, finding Andrews

sitting on the ground. Andrews was hysterical and crying, her eye was swollen, and

her face was bleeding. At that time, the neighbor also saw a man leave Andrews’

house, get into a car parked in Andrews’ driveway, and drive away. The neighbor

later testified that Andrews told her that the man had beaten her up.1



      1
        This statement was admitted over the defense’s hearsay objection. The trial
court ruled that Andrews’ statement to the neighbor could be admitted as an excited
utterance.

                                          2
       A few minutes later, Andrews placed a 9-1-1 call to the county police

department.2 Andrews remained on the line with the operator until police arrived, at

which time the responding officer observed injuries to her face. Following further

investigation by the police, including an interview of Andrews, Gregory was arrested

and charged with a single count of aggravated battery.3

       Before trial, Gregory moved to suppress the recording of Andrews’ 9-1-1 call.

The court denied the motion but ruled that certain statements made by Andrews in the

call placing Gregory’s character at issue would be redacted from the recording prior

to trial.

       Andrews was not available to testify at the trial,4 and the State did not call

anyone from the 9-1-1 center to testify regarding her call. Instead, the redacted 9-1-1

recording was played before the jury in conjunction with testimony from the police

officer who arrived at Andrews’ house following the call. The recording was

accompanied by several documents relating to the call, including a records


       2
         The contents of this 9-1-1 call are discussed in more detail in Division 1(a)
of this opinion.
       3
            See OCGA § 16-5-24.
       4
        The record indicates that Andrews passed away in December 2014 from
causes unrelated to the incident giving rise to this criminal action and appeal.

                                          3
certification from the 9-1-1 center and a copy of the dispatch report (known as a CAD

report).5

       Although the State had provided each of these documents and a copy of the

recording to Gregory as part of pre-trial discovery, the State did not provide Gregory

with separate notice of its intent to introduce the 9-1-1 recording as a business record

pursuant to Rule 902 (11). Gregory did not challenge the admissibility of the

recording and the documents as business records.6

       The trial judge, prior to playing the recording, instructed the jury that it was

about to hear an audio recording of the “alleged victim” on the 9-1-1 call. Gregory

made no objection to this instruction at trial. Later testimony by a police investigator



       5
        Portions of the redacted 9-1-1 call were also played to the jury as part of the
State’s closing argument and again during deliberation upon request by the jury.
       6
         At the hearing on Gregory’s motion for a new trial, the State admitted to the
trial court that it did not provide separate notice to the defense that it planned to
introduce the 9-1-1 recording as a business record. The State argued to the trial court
that, by failing to object to introduction of the recording on that basis, Gregory had
waived the notice requirement. At the same hearing, Gregory’s trial counsel indicated
that he could not think of a strategic reason for why he would not have moved to
exclude the recording of the 9-1-1 call pursuant to Rule 902 (11). Gregory’s trial
counsel also indicated at the motion hearing that he did not have a strategic reason
for failing to object to the admission of the 9-1-1 recording on the grounds that it
contained inadmissible hearsay and that the State failed to authenticate the caller’s
voice.

                                           4
indicated that Karen Andrews was the person who placed the 9-1-1 call, but this

information was not shared with the jury through witness testimony before the

recording of the call was played in court.

      Gregory was convicted of a single count of aggravated battery. The trial court

denied of Gregory’s motion for a new trial and this appeal followed.

      1. Gregory first asserts that the trial court erred by denying his motion to

suppress the 9-1-1 recording, arguing that admission of the call violated Gregory’s

Sixth Amendment right to confront the caller as a witness because at least some of the

statements made on the call were testimonial in nature. Gregory also argues that the

recording should have been suppressed because statements made by Andrews on the

call were not admissible under any hearsay exception. For the reasons set forth below,

we affirm the trial court’s denial of Gregory’s motion to suppress.

      (a) In Crawford v. Washington,7 the United States Supreme Court held that

statements made by witnesses outside the courtroom that are testimonial in nature are

barred from admission into evidence by the Confrontation Clause unless the witness

is unavailable at trial and the defendant had a prior opportunity to cross-examine the

witness. A subsequent decision by the United State Supreme Court, Davis v.

      7
          541 U.S. 36, 53-54 (124 SCt 1354, 158 LE2d 177) (2004).

                                          5
Washington,8 applied this principle to the admission of a victim’s 9-1-1 conversation

in which she identified the defendant as her assailant. In Davis, the Supreme Court

held that statements made to the 9-1-1 operator while the defendant was in the home

of the caller in violation of a protective order were not testimonial. Davis, 547 U. S.

at 826-28. The Supreme Court reasoned that statements made to the operator

identifying the defendant were made while the incident was still unfolding (as

opposed to a description of past events) and that the primary purpose of the colloquy

with the 9-1-1 operator was to obtain police assistance to intervene in “an ongoing

emergency” where physical harm to the caller was possible. Id.

      As the Georgia Supreme Court subsequently noted,

      [i]n Michigan v. Bryant,9 the Supreme Court gave further guidance on
      this subject. The court referenced the “primary purpose” test, but cited
      additional factors to determine whether a statement was made to meet
      an ongoing emergency, including the nature of the emergency, the
      formality of the exchange, and the probable intent of the parties judged
      by an objective observer.


Hatley v. State, 290 Ga. 480, 485 (722 SE2d 67) (2012).


      8
          547 U.S. 813, 826-27 (126 SCt 2266, 165 LE2d 224) (2006).
      9
          562 U.S. 344, 360 (131 SCt 1143, 179 LE2d 93) (2011).

                                          6
      Here, we agree with the trial court that the statements on the call were not

testimonial in nature. The 9-1-1 call was placed several minutes after Gregory had

driven away from Andrews’ house, and her statements on the call described in some

detail her injuries and the incident that occurred between her and Gregory that

afternoon. However, on the call, Andrews provided Gregory’s physical description,

described his vehicle, identified his residence, and stated the location Andrews

believed him to be driving toward after he left her house. She also indicated to the

operator that she believed Gregory was sending someone to her house to kill her.

      This case is closely analogous to the Georgia Supreme Court’s decision in

Thomas v. State, 284 Ga. 540, 542-45 (2) (668 SE2d 711) (2008). In Thomas, the

victim was attacked by the defendant in a vehicle parked in front of her home. Id. at

541. She was found by a neighbor who placed a 9-1-1 call on her behalf in which the

neighbor relayed information from the victim identifying her attacker and the source

of her injuries. Id. The neighbor also provided a description of the assailant’s vehicle.

Id. The Georgia Supreme Court ruled that these statements were not testimonial, in

that they were made “while the incident was still ongoing and the perpetrator was at

large.” Id. at 543.



                                           7
      Here, like in Thomas, even though the 9-1-1 call in this case was made several

minutes after Gregory had fled the premises, the statements made by Andrews were

not testimonial because they were made while Gregory remained at large and because

they provided information that could aid authorities in his capture.10 We therefore

affirm the trial court’s determination that statements made by Gregory in the

recording were not testimonial.

      (b) Gregory also argues that the trial court erred in concluding that the

statements in the call were admissible as an excited utterance and under what it refers

to as the “necessity exception.” From the record below, it appears that the trial court

determined that the contents of the call could be admitted pursuant to Rule 803 (2)

as an excited utterance and pursuant to Rule 804 (a) (4), which applies to unavailable

witnesses. Gregory, however, fails to cite to the record or draw out any authority


      10
         Cf. Pitts v. State, 272 Ga. App. 182, 187 (612 SE2d 1) (2005), where we
upheld the admission of a 9-1-1 call in which the victim called the police to request
that they come to her home to remove the defendant, who had broken in. This Court
ruled that the victim’s statements “were made while the incident was actually in
progress . . . were not made for the purpose of establishing or proving a fact regarding
some past event, but for the purpose of preventing or stopping a crime as it was
actually occurring.” Id. (emphasis supplied). Thomas appears to extend Pitts by
suggesting that information provided by the victim that is relevant to the assailant’s
capture as he flees in the immediate aftermath of a physical attack is not testimonial
in nature.

                                           8
supporting his argument on this point. Instead, he baldly asserts that the State failed

to lay the proper foundation for admission of the evidence. Because of the dearth of

information provided to this Court in support of this argument, pursuant to Court of

Appeals Rule 25 (c) (2), we deem the argument abandoned and do not consider it

here. See Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007) (finding

abandonment of issues on appeal where appellant did not support his enumeration of

error with citations to record or applicable case law).

       2. Gregory next argues that the trial court erred in overruling his hearsay

objection to the testimony of Karen Andrews’ neighbor regarding statements she

heard Andrews make following the incident. However, it does not appear from the

record before us that Gregory raised this issue in his motion for a new trial or that the

trial court otherwise had an opportunity to rule on this issue when considering

Gregory’s arguments for a new trial. As an “appellant cannot now raise and request

a ruling on a ground of argument that he did not make below,” we will not consider

this enumeration. Stone v. State, 229 Ga. App. 367, 371 (2) (494 SE2d 48) (1997).

       3. Gregory argues that his trial counsel was ineffective by failing to object to

the admission of the 9-1-1 recording, the CAD report, and the business record

certification on the ground that the State failed to file pre-trial notice of its intent to

                                            9
introduce the recording as a business record pursuant to Rule 803 (6) and Rule 902

(11). We disagree with this contention because Gregory cannot show a reasonable

probability that the outcome of his case would have been different had a separate

notice been provided.

      Rule 902 (11) provides, in relevant part, that “[a] party intending to offer a

record into evidence under this paragraph shall provide written notice of such

intention to all adverse parties and shall make the record and declaration available for

inspection sufficiently in advance of their offer into evidence to provide an adverse

party with a fair opportunity to challenge such record and declaration[.]”

      To establish ineffective assistance of counsel under Strickland v. Washington,11

the defendant must show that the trial counsel’s performance was deficient and that

there is a reasonable possibility that the trial result would have been different if not

for the deficient performance.

      In this case, without regard to his trial counsel’s performance, Gregory cannot

satisfy the second prong of the Strickland analysis because he has not shown how the

result of his trial would differ had he received a separate notice. Although the State

admits that it did not provide Gregory with a separate document indicating its intent

      11
           466 U.S. 668, 688 (III) (A) (104 SCt 2052, 80 LE2d 674) (1984)

                                          10
to introduce the documents as business records, it is not clear how Gregory was

harmed by the failure to receive this notice. What is clear is that Gregory received

copies of the 9-1-1 recording and its supporting documentation (which certified the

recording and the CAD report as business records in compliance with Rules 803 (6)

and 902 (11)) as part of pre-trial discovery. He filed a motion in limine to suppress

the 9-1-1 recording and later objected that the State had not properly laid the

foundation for the admission of the 9-1-1 recording into evidence.

      Although Gregory’s trial counsel did not raise any objection to admission of

the evidence as a business record, the State’s disclosure of the evidence and the

ensuing pretrial proceedings afforded Gregory the opportunity to raise any objections

he had to the recording and its accompanying documents. We find that this satisfies

Rule 902 (11)’s broad notice requirement.

      Accordingly, as Gregory cannot show that the trial court would have been

likely to exclude the 9-1-1 recording had he received separate notice of the State’s

intent to introduce it–or, more importantly, that his trial result would have been

different had his counsel objected on the basis of the notice requirement–he has not

satisfied the second prong of the Strickland analysis. We therefore agree with the trial



                                          11
court that Gregory has not shown ineffective assistance of counsel with respect to his

trial counsel’s failure to raise the notice requirement.

      4. Gregory next argues that the trial court erred in admitting the recording of

the 9-1-1 call because it was not a business record and because the State failed to

authenticate the caller’s voice prior to playing the recording to the jury. He also

argues that admission of the recording was in error because it contained hearsay.

Finally, Gregory maintains that his counsel was ineffective by failing to object to the

admission of the recording on these bases.

      (a) We agree with the trial court that Gregory did not receive ineffective

assistance when his trial counsel failed to object to the admission of the 9-1-1

recording because the recording could properly be admitted as a self-authenticating

business record under Rules 803 (6) and 902 (11). Here, the recording of the call was

made by the county 9-1-1 center, and it was accompanied in the record by a written

declaration from the 9-1-1 operations center certifying that it met the requirements

of Rules 803 (6) and 902 (11). Gregory points us to no authority indicating that a

recording of a 9-1-1 call by the operations center is not a record made as part of that

agency’s regularly conducted activity or that it somehow otherwise fails to meet the

requirements of Rules 803 (6) or 902 (11).

                                          12
      Likewise, we find Gregory’s attempts to analogize 9-1-1 recordings to accident

or incident reports made in anticipation of potential litigation unpersuasive. The

redacted version of the 9-1-1 recording played for the jury contains no additional

information other than the conversation that unfolded between Andrews and the

operator. More importantly, it does not contain the verbal or written impressions of

an investigator or statements by any other parties made after the incident in question,

that might undermine the recording’s credibility. This is in contrast to the cases cited

by Gregory in which a third party, unconnected to the incident in question prepares

a report which includes statements in addition to the witness’s own testimony of what

occurred. Cf., e.g., Palmer v. Hoffman, 318 U. S. 109, 113-15 (63 SCt 477, 87 LE

645) (1943) (finding the accident report prepared by the train company based on a

later interview of the train conductor by an agent from regulatory agency was not

admissible as business record, as the record was “calculated for use essentially in the

court, not in the business.”).

      We therefore agree with the trial court that the 9-1-1 recording was admissible

as a business record pursuant to Rules 803 (6) and 902 (11), and, as such, “additional

extrinsic evidence of authenticity” other than the certification by the records



                                          13
custodian was not required. Accordingly, Gregory’s counsel was not ineffective in

failing to raise an objection to the admission of the recording on that basis.

      (b) Gregory’s arguments regarding admission of the 9-1-1 recording pursuant

to exceptions to the hearsay rule mirror the points raised in regard to his motion to

suppress, which we addressed in Division 1(b) of this opinion, supra. As noted, we

have deemed this argument abandoned pursuant to Court of Appeals Rule 25 (c) (2).

      5. Gregory argues that the trial judge improperly commented on what the

evidence in the case had proven when the judge instructed the jury that it would be

hearing a 9-1-1 call made by “the alleged victim” in the case. We disagree.

      At trial, Gregory objected to the introduction of the recording, arguing that

Andrews’ voice had not been properly authenticated. The trial court overruled this

objection and instructed the jury regarding the 9-1-1 recording, as follows:

      [Y]ou’re about to hear an audio recording of a telephone call of the
      alleged victim in this case. As you hear the audio recording, you will
      hear the interviewing 911 operator make certain statements to the
      alleged victim. I caution you that the declarations or statements of the
      911 operator are not evidence, and you should not consider such
      statements as evidence unless such statements are proven to you by
      other competent evidence.




                                          14
       Gregory did not raise any objection to the wording of this instruction at trial,

but on appeal he argues that the judge’s reference to the caller as the “alleged victim”

relieved the State of its affirmative burden to prove that Karen Andrews placed the

9-1-1 call. We disagree.

       OCGA § 17-8-57 governs commentary by the trial court regarding the evidence

before the jury and what has or has not been proven in the case. Because this case

came to trial in June 2015, a prior version of this statute was in effect12 and provided,

in relevant part, that:

       It is error for any judge in a criminal case, during its progress . . . to
       express or intimate his opinion as to what has or has not been proved .
       . . . Should any judge violate this Code section, the violation shall be
       held by the . . . Court of Appeals to be error and the decision in the case
       reversed, and a new trial granted with such directions as the . . . Court
       of Appeals may lawfully give.


See Ga. L. 1985, p. 1190, §1. Under this version of the statute, a judge’s commentary

on the evidence constitutes plain error, and counsel’s failure to contemporaneously


       12
          See Smart v. State, 299 Ga. 414, 423 (4) (788 SE2d 442) (2016) (applying
former version of OCGA § 17-8-57 because that version of the statute was in effect
at the time of defendant’s trial).

                                           15
object to such comment, as occurred here, does not preclude appellate review. State

v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

      In order to violate former OCGA §17-8-57 and necessitate reversal, the trial

court’s comments must pertain to a disputed issue of fact in the case. Gardner, 286

Ga. at 634-35. Here, we note that at no point in the entirety of these proceedings has

Gregory disputed that Andrews was the alleged victim in this case. Rather than

arguing that Andrews did not suffer the injuries alleged by the State, Gregory’s theory

of the case was that someone else (or some cause other than a physical attack by him)

was the cause of her injuries. Although Andrews’ status as the alleged victim in the

case is not in dispute, Gregory invites this Court to believe that the identity of the

caller is a fact at issue such that the judge’s identification of the voice on the call as

that of the victim was an impermissible comment upon the evidence. We decline this

invitation.

      Gregory’s argument that, by identifying the caller as the alleged victim, the trial

court impermissibly relieved the State of its burden to establish facts authenticating

the caller’s voice is also baseless. The trial judge had already ruled on the

admissibility of the recording (a ruling which did not necessitate any further action

by the State to make the call admissible). See, supra, Division 4(a). Gregory cannot

                                           16
now attack that prior ruling by suggesting that the judge’s comment on a fact which

is not in dispute–that Andrews was the alleged victim in the case or that she was the

caller on the 9-1-1 recording–is “an opinion as to what has or has not been proven.”

The purpose of OCGA § 17-8-57 is to prevent the trial court from invading the

province of the jury, either by expressing its views on the credibility of a witness13 or

by indicating what facts it believes have or have not been established by the

evidence.14 Callaham v. State, 305 Ga. App. 626, 627 (1) (700 SE2d 624) (2010). In

this case, neither occurred. The judge’s statement did not express an opinion as to the

veracity of the statements made in the call or as to Andrews’ credibility, nor did the

judge’s statement indicating that the alleged victim (which, by that point, was known

by the jury to be Andrews)15 was the person who placed the 9-1-1 call resolve any

factual dispute that would aid the jury in determining whether Gregory had committed



      13
         See, e.g., Murphy v. State, 290 Ga. 459, 460-61 (a) (722 SE2d 51) (2012)
(finding plain error under OCGA § 17-8-57 where trial court referred to witness as
a “good detective” who used his “best efforts” in the case).
      14
         See, e.g., Patel v. State, 282 Ga. 412, 414-15 (651 SE2d 55) (2007) (finding
plain error under OCGA § 17-8-57 where trial court indicated that venue was proper
in the prosecuting county even though that was disputed by the defendant).
      15
         After some brief pleasantries, the State began its opening argument in the
case by saying, “The victim in this case is Karen Andrews.”

                                           17
the charged offense. The only dispute seems to have been whether the State had laid

the proper evidentiary foundation in order to admit the recording. As this is a question

for the judge, not the jury to resolve, OCGA §17-8-57 does not apply. We thus find

no error in these statements by the trial court.

      6. Gregory finally argues that the trial court erred by publishing the redacted

version of the 9-1-1 call recording to the jury. Here, the record makes clear that the

redactions were made at the trial court’s instruction so as to eliminate from the

recording any extraneous statements made by Andrews that impermissibly addressed

Gregory’s character. The Georgia Supreme Court has made clear that, where the

proper foundation for a business record has been laid and the court has deemed it

admissible as such, portions of the original version of the business record containing

information which the court deems to be inadmissible can be redacted at the court’s

direction so that only the admissible portions are presented to the jury as evidence.

See Turner v. State, 273 Ga. 340, 344 (4) (541 SE2d 641) (2001) (allowing

introduction of redacted version of report where full report was deemed admissible

as a business record). No additional authentication of the record, as redacted, is

required. Accordingly, we find no error in the trial court’s decision to publish a

redacted version of the 9-1-1 call to the jury.

                                          18
Judgment affirmed. McFadden, P. J., and Branch, J., concur.




                                      19