State v. Gilmore

862 S.E.2d 499

The STATE

v.GILMORE.

S20G1430

Supreme Court of Georgia.

Decided: August 24, 2021

Luke Anthony Martin, A.D.A., Leigh Ellen Patterson, District Attorney, Morgan Birdsong Bottger, Floyd County District Attorney's Office, 3 Government Plaza, Suite 108, Rome, Georgia 30161, for Appellant.

Jonathan Ross Hamrick, Sean Justin Lowe, Lookout Mountain Judicial Circuit Public Defender, 12F 4th Avenue, Suite #10, Rome, Georgia 30161, for Appellee.

Warren, Justice.

The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the "admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination." Hester v. State , 283 Ga. 367, 370, 659 S.E.2d 600 (2008) (citation and punctuation omitted). We granted certiorari in this case to decide whether the Court of Appeals erred in holding that a video recording presumed to have no discernible audio, which depicts a now-deceased confidential informant ("CI") purchasing a small bag of suspected methamphetamine from appellant David Lee Gilmore (a fact neither party disputes on appeal), contained testimonial statements prohibited by the Confrontation Clause. For the reasons that follow, we conclude that the video recording depicts the CI's nonverbal conduct but did not depict any nonverbal statements.¹ As a result, admission of the video recording was not barred by the Confrontation Clause, and we reverse the decision of the Court of Appeals.

1. Background

(a) Facts

The Court of Appeals summarized the relevant facts, as presented by the parties at an evidentiary hearing, as follows. In the summer of 2018, law enforcement officers with the Rome Metro Task Force suspected that Gilmore was a drug dealer and arranged for a CI to conduct a "controlled buy" of methamphetamine from him. See State v. Gilmore , 355 Ga. App. 536, 537-538, 844 S.E.2d 877 (2020). On July 20, 2018, officers attached a video camera to the CI's key ring, gave him a $20 bill, and sent him to Gilmore's house to purchase the drugs. See id. Officers followed the CI to Gilmore's house but did not witness the transaction. See id. After the controlled buy, the CI met the officers at a predetermined location and gave them a bag of suspected methamphetamine and the video camera he had been carrying on his key ring. See id. The video recording of the transaction shows Gilmore handing the CI a small bag of suspected methamphetamine and then Gilmore holding a $20 bill. See id. at 538, 844 S.E.2d 877.² On April 11, 2019, the CI, who was incarcerated, died by suicide.

(b) Proceedings Below

The next day, a Floyd County grand jury indicted Gilmore for multiple violations of the Georgia Controlled Substances Act, OCGA § 16-13-30 et seq., stemming from Gilmore's alleged July 2018 sale of methamphetamine to the CI.³ Before trial, the State filed two motions to admit the video recording of the controlled buy. It argued that the video could properly be authenticated, even with the CI being unavailable, and that any hearsay statements in the video fell under the so-called "residual exception" to the hearsay rule. See OCGA § 24-8-807.⁴

Gilmore opposed the motions, contending that admission of the video recording would violate his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution because the CI was not available to testify at trial, Gilmore never had an opportunity to cross-examine the CI, and any statements that could be heard on the video recording—as well as any nonverbal conduct depicted in it—were testimonial statements. See Crawford , 541 U.S. at 68, 124 S.Ct. 1354. After an evidentiary hearing, the trial court denied the State's motions to admit the video recording, finding that Gilmore never had an opportunity to cross-examine the CI and that the nonverbal statements depicted in the video were "testimonial in nature."⁵

The State appealed. See OCGA § 5-7-1 (a) (5) (giving the State the right to appeal directly a trial court order excluding evidence in criminal cases). The Court of Appeals affirmed the denial of the State's motions to admit the video recording, holding that the CI's "conduct constituted testimonial statements that are subject to and barred by the Confrontation Clause." Gilmore , 355 Ga. App. at 541, 844 S.E.2d 877. Specifically, the court reasoned that

the video recording of the confidential informant's movements during the controlled drug buy was made at the request of and with equipment supplied by law enforcement agents as part of their investigation of Gilmore. At the hearing, an agent agreed that the video recording showed Gilmore handing a plastic bag (containing suspected methamphetamine) to the confidential informant. It is undisputed that the recording then shows Gilmore taking or holding the $20 bill. It is clear that the confidential informant intended to show that Gilmore was selling methamphetamine to him, and that the statement was offered for the truth of the matter asserted.

The confidential informant's movements were thus a statement.

Id. at 539, 844 S.E.2d 877. We granted the State's petition for certiorari.

2. Analysis

(a) Standard of Review

We ordinarily review the trial court's grant of a motion in limine for abuse of discretion. See State v. Stephens , 307 Ga. 615, 616, 837 S.E.2d 830 (2020). And when confronted with a mixed question of law and fact, "we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts." Jones v. State , 291 Ga. 35, 36-37, 727 S.E.2d 456, 458 (2012) ; see also Lilly v. Virginia , 527 U.S. 116, 136-137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (setting forth a de novo standard of review for "fact-intensive, mixed questions of constitutional law," reasoning that "independent review is necessary to maintain control of, and to clarify, the legal principles governing the factual circumstances necessary to satisfy the protections of the Bill of Rights," but reviewing the trial court's determination of "historical facts" for clear error) (citation and punctuation omitted). As a result, we will review de novo a trial court's ruling on whether the conduct depicted on a video recording constitutes a testimonial statement under the Confrontation Clause. See Jones , 291 Ga. at 36-37, 727 S.E.2d 456. See also, e.g., United States v. Taylor , 688 Fed. Appx. 638, 640 (11th Cir. 2017) (per curiam) ("We review the district court's ruling on a Confrontation Clause claim de novo. ") (citation and punctuation omitted). For the reasons explained below, we conclude that the Court of Appeals erred by affirming the trial court's denial of the State's motions to admit the video recording of the controlled buy on Confrontation Clause grounds.

(b) The CI's Nonverbal Conduct Depicted on the Video Recording Does Not Constitute a Statement.

In Crawford , the United States Supreme Court held that the Sixth Amendment's Confrontation Clause barred the admission of testimonial statements—a form of hearsay, see Crawford , 541 U.S. at 53, 124 S.Ct. 1354 (noting that "testimonial hearsay" is the "primary object" of the Confrontation Clause)—from a declarant who is unavailable to testify at trial unless the party against whom the statements were offered had a prior opportunity to cross-examine the declarant. See id. at 68, 124 S.Ct. 1354.⁶ Thus, for evidence to fall within the ambit of the Confrontation Clause, it must be both a "statement" and "testimonial." See id. See also Stephens , 307 Ga. at 618, 837 S.E.2d 830.

Under OCGA § 24-8-801 (" Rule 801"), which we may look to in considering whether the Confrontation Clause's restrictions apply to evidence, a "statement" is not limited only to "[a]n oral or written assertion." See OCGA § 24-8-801 (a) (1). Indeed, included in the Rule 801 definition of "statement" is the "[n]onverbal conduct of a person, if it is intended by the person as an assertion." OCGA § 24-8-801 (a) (2). See also United States v. Lamons , 532 F.3d 1251, 1263 (11th Cir. 2008) ("The Federal Rules of Evidence define a ‘statement’ as an ‘(1) oral or written assertion or (2) nonverbal conduct of a person , if it is intended by the person as an assertion.’ ") (quoting Fed. R. Evid. 801 (a) ) (emphasis in original).⁷

We have noted that "the key to the definition of ‘statement’ is that nothing is an assertion unless intended to be one." State v. Orr , 305 Ga. 729, 741, 827 S.E.2d 892 (2019) (quoting Fed. R. Evid. 801 (a) advisory committee's note on 1972 Proposed Rules). Examples of conduct deemed a nonverbal statement by this Court and the federal Courts of Appeals include "the act of an eyewitness pointing to a suspect in a lineup as the perpetrator of a crime," id., and a co-conspirator "pointing out" a drug dealer's house, United States v. Caro , 569 F.2d 411, 416 n.9 (5th Cir. 1978). See also, e.g., United States v. Martinez , 588 F.3d 301, 310-311 (6th Cir. 2009) (holding that a doctor's conduct on a video recording, which depicted him performing a medical procedure, constituted a nonverbal statement about the proper way to perform the procedure); United States for the Use and Benefit of Carter Equip. Co., Inc. v. H.R. Morgan, Inc. , 544 F.2d 1271, 1273 n.1 (5th Cir. 1977) (holding that a subcontractor's signing of invoices for repair and maintenance "clearly constitute[d] nonverbal conduct intended as an assertion" that he owed debt on the invoices). Cf. Wiggins v. State , 295 Ga. 684, 685-686 & n.2, 763 S.E.2d 484 (2014) (holding that a shooting victim "respond[ing] affirmatively by nodding his head" to a family member's question about whether a...