Glover v. State

309 Ga. 102

844 S.E.2d 743

GLOVER

v.The STATE.

S20A0133

Supreme Court of Georgia.

Decided: June 16, 2020

Robert Lawrence Persse, 202 Wedgefield Crossing, Savannah, Georgia 31405, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Margaret Ellen Heap, District Attorney, Jerome M. Rothschild, Jr., A.D.A., Eastern Judicial Circuit District Attorney's Office, P.O. Box 2309, Savannah, Georgia 31402, Abigail Beth Long, A.D.A., Eastern Judicial Circuit District Attorney's Office, 133 Montgomery Street, Suite 600, Savannah, Georgia 31402, Attorneys for the Appellee.

McMillian, Justice.

Appellant DeAndre Tobias Glover was convicted of malice murder and making a false statement in connection with the shooting death of Mario Williams.¹ Following the trial court's denial of his motion for new trial, Glover appeals, arguing that his trial counsel was ineffective and that the trial court erred in admitting hearsay testimony. Finding no error, we affirm.

1. Viewed in the light most favorable to the jury's verdicts, the evidence at trial showed that in the early morning hours of November 27, 2015, Glover and his co-indictee Brandon Miller met up while walking to a Savannah gas station convenience store. When the two reached the store, Miller was approached by Williams, a homeless man to whom Miller, a dealer of crack cocaine, had previously sold drugs. Williams sought to trade Miller a cell phone for crack cocaine. Miller declined Williams's offer, and he and Glover proceeded into the convenience store, where each purchased a fountain drink in a cup with a straw. While in the store, Miller encountered Julius Larry, an acquaintance whom he knew from middle school, and he asked Larry for a ride to another part of town to pick up a female friend of Miller's. Larry agreed to give Miller a ride in exchange for gas money and permitted Glover to ride along.

The three exited the gas station, and Miller initially got into the front passenger seat of Larry's vehicle, while Glover got into the rear passenger-side seat. The two swapped places, however, because Miller assumed his female friend would not want to sit in the back seat with a man she did not know. The rear passenger-side window was broken and stuck in a half-open position. Larry was in the driver's seat "messing with the music" and not paying attention to Miller and Glover.

According to Miller, who testified at trial, he called out to Williams, who had remained in the store's parking lot, to bring the cell phone over to Larry's car and trade the phone for crack cocaine. When Williams approached the car, Miller snatched the cell phone from him and ducked down in the seat just as Larry was pulling out of the parking lot. Williams reached into the car and, attempting to grab the phone, briefly ran along with the car as it pulled away. Then, Glover shot him.² Miller testified that he looked up to see the bullet flash in front of his face, as Glover had reached into the backseat to shoot out the half-open window. Larry did not see the shooting but testified that he heard the gunshot and then heard Miller exclaim, "Damn, why you just kill that man?" Miller testified that "when [he] look[ed] up, [he] was like, man, you just killed that man. What the f*ck? You just killed that man." Larry stopped his car in the middle of the road just outside the parking lot and told Miller and Glover to get out of the car; upon exiting the vehicle, Miller and Glover ran in separate directions, leaving their drink cups behind in the car. Larry parked his car on a nearby side street and then returned to the gas station to ask the clerk to call the police so that Larry could explain that he was not involved in the shooting.

When police officers arrived on the scene, Larry led them back to his car and allowed them to inspect it. The officers recovered Miller's and Glover's drink cups and straws from the vehicle; DNA testing revealed Miller's DNA on the straw in the cup recovered from the front-seat cup holder and Glover's DNA on the straw in the cup recovered from the rear-seat cup holder, consistent with the co-indictees’ initial seating positions. Officers also recovered surveillance video recordings from the convenience store that showed, from multiple angles, the entire series of events leading up to Williams's shooting, as well as the shooting itself; the surveillance video was played for the jury at trial.

From information provided by Larry, police officers were able to identify Miller and Glover as suspects. Both Larry and the convenience store clerk on duty at the time of the shooting were asked to view a six-person photographic array. From this array, Larry identified Miller and Glover as the two men who were in his car when Williams was shot, and the convenience store clerk identified Glover and Miller as the men shown on the surveillance video purchasing drinks and then getting into Larry's car. Glover was apprehended by federal marshals approximately one month after the shooting and was interviewed by Savannah Police Department detectives. During his interview – a video-recording of which was played for the jury during trial – Glover claimed that he was not at the convenience store on the night of the shooting and that he was, instead, in the company of a woman named Kiki. After his DNA was matched to the drinking straw recovered from Larry's vehicle, Glover was charged with making a false statement to police.

Glover's main theory of defense at trial was that Miller was the shooter. Glover extensively cross-examined Miller, who testified on the State's behalf, about Miller's prior convictions, as well as his motivation for testifying. Glover also attempted to show that Miller had a motive to shoot Williams. Further, while cross-examining Larry, Glover implied that Larry was armed on the night of the crime and that Larry was the shooter, while insinuating that Larry and Miller were good friends who were attempting to cover for each other. Glover also argued as much in closing. Glover did not testify in his own defense.

Though not enumerated as error by Glover, as is consistent with our customary practice in murder cases, we conclude that the evidence as summarized above was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Glover was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State , 285 Ga. 32, 33 (1), 673 S.E.2d 223 (2009) ("It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence." (citation and punctuation omitted)).

2. Glover argues that his trial counsel rendered ineffective assistance by failing to object when, during closing argument, the prosecutor improperly commented on Glover's failure to testify at trial and his right to remain silent and right to counsel. To succeed on this claim, Glover must demonstrate both that his trial counsel's performance was professionally deficient and that he was prejudiced by that deficient performance. See Strickland v. Washington , 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To establish deficient performance, [Glover] must overcome the strong presumption that his counsel's conduct falls within the broad range of reasonable professional conduct and show that his counsel performed in an objectively unreasonable way in the light of all of the circumstances." Chavez v. State , 307 Ga. 804, 809 (2), 837 S.E.2d 766 (2020) (citation and punctuation omitted). And to demonstrate prejudice, Glover must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (citation and punctuation omitted). "We need not address both parts of the Strickland test if [Glover] makes an insufficient showing on one." Redding v. State , 307 Ga. 722, 726 (2), 838 S.E.2d 282 (2020).

Glover contends that his trial counsel should have objected to the following portion of the prosecutor's closing argument, which addressed the charge of making a false statement:

One thing [Glover] could do is invoke and [say] I just don't want to talk to you guys anymore. Instead he just goes video schmideo. Nope. He's still insisting he's not there. Because he doesn't know what else they know, right? He doesn't know there's going to be DNA. And, of course, he won't ever find out until much later.

So he – though counsel wants to distance himself from this horrendous statement [-] is of all the things in America he could say, one of which is, no thanks. I want a lawyer, which you're allowed to say.³

Characterizing these remarks as "prohibited," Glover argues that any comment upon the right to counsel or the right to remain silent is improper and objectionable. In support of this proposition, Glover cites only one case, Anderson v. State , 285 Ga. App. 166, 645 S.E.2d 647 (2007), but the facts of Anderson are clearly distinguishable from those present here. In Anderson , the trial court declared a mistrial after the prosecutor elicited on direct examination testimony from a police officer that the defendant, during a post-arrest interview, refused to sign a waiver-of-rights form and invoked both his right to remain silent and his right to counsel. Id. at 167, 645 S.E.2d 647. But Anderson does not stand for the sweeping proposition that any comment or evidence on the right to silence or right to counsel is per se improper, as Glover argues. Instead, it is argument or evidence about the defendant's exercise of those rights that is generally considered improper. See Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S.Ct. 1602, 16 L.Ed.2d 694 ...