309 Ga. 102 FINAL COPY
S20A0133. GLOVER v. THE STATE.
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
1 Williams was killed on November 27, 2015. On March 9, 2016, a Chatham County grand jury indicted Glover and Brandon Miller for malice murder, felony murder predicated on robbery, and aggravated assault. Glover was separately indicted for making a false statement, and Miller was separately indicted for felony murder predicated on possession of a firearm by a convicted felon and for possession of a firearm by a convicted felon. Miller pleaded guilty to robbery by sudden snatching in exchange for testifying against Glover at trial. Glover was tried alone from April 30 to May 3, 2018. The trial court directed a verdict of acquittal on the felony murder count, and a jury found Glover guilty on all other counts. The trial court sentenced Glover to serve life in prison for malice murder and to serve five years consecutive for making a false statement. The remaining count was merged for sentencing. Glover filed a motion for new trial on May 7, 2018, which he amended through new counsel on October 25, 2018. Following a hearing, the trial court denied Glover’s motion (as amended) on June 12, 2019. Glover filed a notice of appeal to this Court, and this case was docketed to the term beginning in December 2019 and thereafter submitted for a decision on the briefs. 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
2 The medical examiner testified that Williams’s cause of death was a
gunshot wound to the head. 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 Miller and Glover 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 SCt 2781, 61 LE2d 560) (1979). See also
Vega v. State, 285 Ga.
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309 Ga. 102 FINAL COPY
S20A0133. GLOVER v. THE STATE.
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
1 Williams was killed on November 27, 2015. On March 9, 2016, a Chatham County grand jury indicted Glover and Brandon Miller for malice murder, felony murder predicated on robbery, and aggravated assault. Glover was separately indicted for making a false statement, and Miller was separately indicted for felony murder predicated on possession of a firearm by a convicted felon and for possession of a firearm by a convicted felon. Miller pleaded guilty to robbery by sudden snatching in exchange for testifying against Glover at trial. Glover was tried alone from April 30 to May 3, 2018. The trial court directed a verdict of acquittal on the felony murder count, and a jury found Glover guilty on all other counts. The trial court sentenced Glover to serve life in prison for malice murder and to serve five years consecutive for making a false statement. The remaining count was merged for sentencing. Glover filed a motion for new trial on May 7, 2018, which he amended through new counsel on October 25, 2018. Following a hearing, the trial court denied Glover’s motion (as amended) on June 12, 2019. Glover filed a notice of appeal to this Court, and this case was docketed to the term beginning in December 2019 and thereafter submitted for a decision on the briefs. 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
2 The medical examiner testified that Williams’s cause of death was a
gunshot wound to the head. 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 Miller and Glover 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 SCt 2781, 61 LE2d 560) (1979). See also
Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 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 SCt 2052, 80 LE2d 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 SE2d
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 SE2d 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
3 We note that the prosecutor made a similar comment during his opening statement: “And in America one of the things you can do is invoke your rights and just not bother talking to the police, and another thing you can do is choose to speak to them. He went with option two, and he did give a statement.” Glover did not object to this remark at trial, nor does he raise on appeal a claim of ineffective assistance based on his counsel’s failure to object. 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 SE2d
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.
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 (III)
n.37 (86 SCt 1602, 16 LE2d 694) (1966) (“[I]t is impermissible to
penalize an individual for exercising his Fifth Amendment privilege
when he is under police custodial interrogation. The prosecution
may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”); Doyle v. Ohio, 426 U.S. 610,
619 (II) (96 SCt 2240, 49 LE2d 91) (1976) (“We hold that the use
[even] for impeachment purposes of petitioners’ silence, at the time
of arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment.”).
Here, the prosecutor’s comment cannot be construed as a
comment on Glover’s post-arrest exercise of his right to counsel and
right to remain silent because Glover did not exercise either of those
rights; rather, he chose to waive those rights and to make a false
statement to police. See Hill v. State, 290 Ga. 493, 496 (3) (722 SE2d
708) (2012) (“[I]t is clear under the circumstances of this case that
the officer’s testimony [that defendant did not want to sign a written
statement or make a recorded statement] did not constitute an
impermissible comment on [appellant’s] invocation of his right to
silence. [Appellant] did not invoke his right to silence. On the
contrary he waived it[.]” (citation and punctuation omitted)). The
State commented on Glover’s post-arrest waiver of his rights and the
statements that Glover did make, which supported the charge of making a false statement. Glover has pointed to no basis, nor can
we discern one, on which counsel could have successfully objected to
the prosecutor’s comment about Glover’s electing not to exercise his
rights, and “failure to make a meritless objection to the State’s
closing argument is not evidence of ineffective assistance.” Gaston v.
State, 307 Ga. 634, 640 (2) (b) (837 SE2d 808) (2020) (citation and
punctuation omitted).
3. Glover also complains broadly that the trial court erred by
admitting testimony by the lead detective regarding what Larry,
Miller, and Samuel Gholston4 told him during the course of his
investigation. However, Glover has failed both to specify which
portions of the detective’s testimony he contends were wrongfully
admitted and to engage in legal analysis with respect to the
testimony he is challenging. He merely argues that none of the
detective’s testimony regarding these three witnesses’ statements
4 Gholston testified at trial that he was a friend of Williams and was with
Williams at the convenience store on the night of the crimes. Gholston witnessed the shooting of Williams from a distance but could not identify who fired the shot that killed Williams. was admissible as prior consistent statements and instead
“constituted ‘pure hearsay evidence,’ which should not have been
admitted at trial.” Our review of this claim is thus significantly
hampered. As we have emphasized before, “this Court is not
required to scour the record for support for an appellant’s
arguments.” Davis v. State, 306 Ga. 140, 144 (3) (829 SE2d 321)
(2019).
Turning to the error alleged, Glover argues that the trial court
erred by admitting the detective’s testimony as evidence of the three
witnesses’ prior consistent statements. OCGA § 24-6-613 (c)
provides:
A prior consistent statement shall be admissible to rehabilitate a witness if the prior consistent statement logically rebuts an attack made on the witness’s credibility. A general attack on a witness’s credibility with evidence offered under Code Section 24-6-608 [evidence of character and conduct of witness] or 24-6-609 [impeachment by evidence of conviction of a crime] shall not permit rehabilitation under this subsection. If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose. See also OCGA § 24-8-801 (d) (1) (A) (an out-of-court statement is
not hearsay if the declarant “testifies at the trial or hearing, is
subject to cross-examination concerning the statement, and the
statement is admissible as . . . a prior consistent statement under
Code Section 24-6-613”).
As to Larry, the detective testified about what Larry told him
on the night of the crimes, within hours of the shooting. Larry
testified at trial and was cross-examined by Glover, who attacked
Larry’s credibility by suggesting that there were inconsistencies
between what Larry told police on the night of the shooting and what
he testified to on direct examination. Glover also questioned Larry
about his relationship with Miller, implying that the two were close
friends and that Larry had developed a motive to protect Miller after
Miller was arrested and charged with murder; Larry refuted these
implications. Because the detective testified about what Larry told
him mere hours after the shooting, weeks before Miller was arrested
and charged with murder, the testimony served to rebut both Glover’s implication that Larry fabricated his account of the crime
and his attack on Larry’s credibility. Pretermitting whether Glover
preserved for appellate review his objection to the detective’s
testimony regarding Larry’s statement, there was no error in
admitting the detective’s testimony under the circumstances
described above. See Sawyer v. State, 308 Ga. 375, 390 (2) (c) (839
SE2d 582) (2020) (witness’s prior consistent statement admissible to
rebut implication that witness’s pre-trial statement differed from
her trial testimony); Dorsey v. State, 303 Ga. 597, 603 (3) (814 SE2d
378) (2018) (no error in admitting witness’s prior consistent
statement, where, while cross-examining witness, defendant
implied that witness fabricated his testimony and suggested that
witness’s trial testimony and his prior statement were inconsistent).
Turning to Glover’s contentions regarding Miller’s and
Gholston’s statements, our review of the record shows that Glover
failed to object to the detective’s testimony pertinent to these two
witnesses. As such, his argument is not preserved for ordinary
appellate review, and our review is confined to plain error. To establish plain error, Glover must demonstrate that:
(1) there was an error that [he] did not affirmatively waive; (2) the error was obvious; (3) the error affected [his] substantial rights, which means [he] must demonstrate that it likely affected the outcome of [his] proceedings; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Spence v. State, 307 Ga. 520, 525 (2) (837 SE2d 334) (2019). See also
State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). Glover
has not met this high standard.
In regard to Miller, the detective testified about what Miller
said shortly after being taken into custody in December 2015.
Though Glover argues that this testimony was inadmissible because
Glover did not raise against Miller “any affirmative charges of recent
fabrication . . . or improper motive,” this claim is clearly belied by
the record. Miller testified at trial and was subject to cross-
examination by Glover, who attacked his credibility and suggested
through questioning that Miller was actually the shooter. Glover
also questioned Miller extensively regarding the plea agreement he
entered into with the State after he made the statements at issue, in which he agreed to testify against Glover in exchange for the
State’s dismissing all charges against Miller and waiving recidivist
punishment when he pleaded guilty to a single charge of robbery by
sudden snatching. “[Q]uestioning a witness about whether he would
receive a lesser sentence as part of a plea deal if he agreed to testify
against a defendant is a classic example of an implication of
improper motive for testifying,” and prior consistent statements are
properly admitted to rebut a charge of improper motive. Abney v.
State, 306 Ga. 448, 454 (3) (a) (831 SE2d 778) (2019) (citation and
punctuation omitted). See also Bolling v. State, 300 Ga. 694, 701 (3)
(797 SE2d 872) (2017) (explaining that, by questioning a witness
regarding his plea deal with the State, a defendant “implicitly
argued” that the witness had an improper motive to testify and that
the witness’s prior consistent statements predating the improper
motive were therefore admissible to rehabilitate his credibility).
Thus, any error in admitting the detective’s testimony regarding
Miller’s prior statements was neither clear nor obvious.
Finally, even assuming that the admission of the detective’s testimony regarding Gholston’s interview statement was erroneous,
we conclude that there is no plain error because Glover has not
shown that this testimony had any effect on the result of his trial.
The detective testified only briefly about Gholston’s statement, and
the detective’s testimony in this regard was offered to highlight the
inconsistencies in Gholston’s statement and to demonstrate the
unreliability of his account. Moreover, the State presented strong
evidence against Glover, including surveillance video, eyewitness
testimony, DNA evidence placing Glover at the crime scene, and the
false alibi Glover gave police. See Harris v. State, 302 Ga. 832, 835
(2) (809 SE2d 723) (2018) (no plain error where evidence of
defendant’s guilt was “strong”). Accordingly, this claim also fails.
Judgment affirmed. All the Justices concur.
DECIDED JUNE 16, 2020. Murder. Chatham Superior Court. Before Judge Morse. Robert L. Persse, for appellant. Meg E. Heap, District Attorney, Jerome M. Rothschild, Jr., Abigail B. Long, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O’Brien, Assistant Attorney General, for appellee.