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Gregory v. State

Court of Appeals of Georgia, Fifth Division

June 28, 2017

GREGORY
v.
THE STATE.

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

          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 S.E.2d 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]

         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 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 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. 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 S.E.2d 67) (2012).

         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 S.E.2d 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 ...


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