311 Ga. 579 FINAL COPY
S21A0448. GRIFFIN v. THE STATE.
MELTON, Chief Justice.
Rufus Griffin appeals his convictions for the malice murder of
Kerry Freeman and related offenses, contending, among other
things, that the trial court made certain evidentiary errors and that
trial counsel rendered constitutionally ineffective assistance.1 We
affirm.
1 On November 17, 2016, Griffin was indicted for malice murder (Count
1); felony murder predicated on armed robbery (Count 2); felony murder predicated on aggravated assault (Count 3); armed robbery (Count 4); and aggravated assault (Count 5). At a trial held from February 5 to February 14, 2018, a jury found Griffin guilty on all counts. The trial court sentenced Griffin as a recidivist under OCGA § 16-7-1 (b) to serve life in prison without parole for malice murder and life without parole for armed robbery. The trial court merged the aggravated assault count (Count 5) with the malice murder count (Count 1), and the felony murder counts (Counts 2 and 3) were vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371 (4) (434 SE2d 479) (1993). Griffin filed a motion for new trial on March 14, 2018, and amended it on August 26, 2019 and February 21, 2020. The trial court denied the motion on August 5, 2020. Griffin timely filed a notice of appeal on August 5, 2020, and amended it the same day. Thereafter, Griffin’s appeal was docketed to the term of this Court beginning in December 2020 and submitted for a decision on the briefs. 1. In relevant part, the evidence presented at trial shows that,
on August 22, 2016, Travis Williams, a friend of Freeman, became
concerned about Freeman after Williams witnessed two unknown
men riding around in Freeman’s car, which Freeman generally did
not loan to anyone.2 One of the men in Freeman’s car was wearing
Freeman’s clothes. Two days later, Williams, along with another
friend, went to Freeman’s apartment to check on him. The
apartment door was cracked open,3 and Freeman, who had been
fatally stabbed in the back, was lying on the floor just inside.
Williams called 911, and, after police officers allowed Williams to go
inside the apartment, he noticed that a knife that Freeman kept by
his bed and a television had been removed from the bedroom.
Later, Williams was alerted that someone had called a “chop
shop” to inquire about selling Freeman’s car. Police officers tracked
2 Griffin does not challenge the sufficiency of the evidence to support his
convictions, and this Court no longer considers as a matter of course sufficiency of the evidence in non-death penalty appeals in which it is not an enumerated error. See Davenport v. State, 309 Ga. 385, 399 (4) (b) (846 SE2d 83) (2020). 3 Freeman’s alarm system indicated that the door had been opened at
6:06 a.m. on August 22, 2016, but it was never closed again before Freeman’s body was discovered. 2 the number of the “chop-shop” caller to Rolanda Jemison, who was
living at a hotel with her son, Lance Jemison. Before Freeman’s
stabbing, Lance had moved from Alabama to live with Rolanda at
the hotel, and he brought Griffin with him. Following interviews,
police determined that Rolanda gave Lance the phone used to call
the “chop shop.” Further investigation revealed that Lance, in turn,
occasionally allowed Griffin to use the phone. Rolanda also informed
a police officer that, after Freeman’s death, Rolanda saw Griffin in
Freeman’s car.
According to Lance, on August 22, 2016, Griffin, who was
wearing new clothes,4 brought a silver Ford Taurus to Lance and
allowed him to use it.5 Lance later discovered that the car belonged
to Freeman, who had been found dead. Lance returned the car to
Griffin and confronted him. Griffin told Lance that he killed a man
for the car because the man “made a pass at him” and made him
uncomfortable.
4 Lance testified that Griffin owned few articles of clothing, so he noticed
that the clothes Griffin was wearing that day were new. 5 Griffin had sold Lance’s car in order to buy drugs.
3 Eventually, Griffin was arrested at the hotel, and he had
another cell phone in his possession that he later denied owning.
When Griffin was being booked into jail, he named Rufus and Robby
Griffin from Alabama as his emergency contacts. While in jail,
Griffin made two calls to the number shared by Rufus and Robby,
and this phone number was found in the contact list of the cell phone
recovered at the time of arrest. Griffin also made two calls from jail
to his mother and at least one call to his girlfriend. The number
associated with Griffin’s mother was in the phone’s contact list as
“Mom,” and the number for Griffin’s girlfriend was listed as “Baby
Doll.”6
Although data could not be extracted from the cell phone
because it was an older model, the phone’s location history could be
analyzed. That process showed that early-morning calls made on
August 22, 2016, from the cell phone pinged off the cell tower closest
to Freeman’s apartment. Records also showed that, later that day,
6 At trial, the presence of these contacts in the cell phone was used to
show that the phone belonged to Griffin. 4 Griffin called the Georgia Electronic Benefits Transfer office in order
to find out the balance of Freeman’s account.
Additional evidence showed that, after Griffin’s arrest, he was
housed in the same jail as Carlos Anderson. Griffin admitted to
Anderson that he had an altercation with a “client,”7 they got into a
scuffle, and Griffin stabbed him and took his car. Griffin explained
that he disposed of the knife, and, after driving around in the car,
sold it in exchange for drugs.
2. Griffin first contends that, during deliberations, the jury
improperly reviewed and considered texts contained in the cell
phone he possessed at the time of his arrest. We disagree.
At trial, the State introduced Griffin’s cell phone into evidence.8
In addition, the jury was shown photographs taken of the cell
phone’s contact list in order to prove that the phone contained
personal contacts for the individuals Griffin had called from jail.
7 There was testimony that Griffin had been working as a prostitute. 8 Griffin’s counsel objected on the ground that the State had not shown
a proper chain of custody, but the objection was overruled. No other objections were raised. 5 Following the admission of the cell phone, which had been charged
prior to trial, Griffin made no objection to its being sent out with the
jury during deliberations. In the jury room, the jurors turned on the
cell phone and examined its contents. Later, after the verdict was
entered, the jury foreperson informed the trial court that the jury
reviewed text messages found on the phone. The foreperson
explained that the phone was already on, but they also used one
juror’s power cord to plug it in at a later point.
Between trial and the time of the hearing on Griffin’s motion
for new trial, the cell phone was misplaced by the State and could
not be found. It is undisputed that the State did not purposely
dispose of this evidence. During the motion for new trial hearing,
the prosecutor testified that, prior to trial, he reviewed all of the
texts on the phone. The prosecutor had no recollection of the content
of individual text messages, but he recalled that “there was nothing
that stood out in [his] mind as controversial or something that [he]
thought would impede the case.” He testified that the texts included
only “chatter” that neither helped nor harmed Griffin. The
6 prosecutor further testified that he would have notified the defense
if there had been any exculpatory information contained in the texts,
and, if there had been any inculpatory texts, he would have used
them at trial.
Based on this evidence, Griffin’s contention that the jury
improperly reviewed texts from the cell phone is misplaced, because
the cell phone was admitted into evidence and sent out with the jury
without objection. A similar situation occurred in Drammeh v. State,
285 Ga. App. 545, 548 (2) (646 SE2d 742) (2007).9 There, like here, a
cell phone was admitted into evidence without objection. During
deliberations, jurors sent a note asking if they were allowed to
consider evidence they had “discovered” on the cell phone. The
defendant objected, arguing that review of the cell phone’s contents
was “tantamount to allowing the jury to conduct an independent
investigation of the crime, thereby violating his constitutional rights
9 We note that Drammeh was decided under our former Evidence Code,
which is not applicable to this appeal. Accordingly, we consider the Court of Appeals’ opinion for guidance on the topic of waiver, not for guidance as to the admissibility of any specific piece of evidence. 7 to due process and a public trial, as well as the right to confront
witnesses against him.” Id. at 548-549 (2). The Court of Appeals
rejected this contention, as the defendant cited no legal authority to
support his argument. Instead, the Court of Appeals determined
that the defendant’s claim failed because the phone had been
admitted into evidence as a whole, without objection or stipulation.
In other words, any objection to the contents of the cell phone was
waived, as the cell phone, in its entirety, was admitted into evidence.
See id.10 In this case, the cell phone was admitted as a whole and
without objection to its being used during deliberations. As such,
10 Similar holdings have been reached in other jurisdictions. See, e.g.,
Solano v. Lewis, No. CV 12-7570-VAP (E), 2014 U. S. Dist. LEXIS (IV) 57544 (C.D. Cal. Feb. 4, 2014), at *46 (holding that the jury did not access extrinsic evidence when considering what jurors described in their note as “additional evidence on cell phone that was not discussed in trial” because the court admitted the entire phone into evidence, so the contents of the phone also necessarily were admitted into evidence); People v. Garrison, 303 P3d 117, 125 (IV) (B) (Colo. App. 2012) (jury properly considered text messages and photographs from cell phone admitted into evidence; such information was not extrinsic evidence because “by turning on the cell phone to discover the text messages, the jury used the cell phone as it was intended to be used and discovered information within the scope and purview of the evidence”); Haniffy v. Gerry, 2010 WL 347037 (C) (2), at *7 (D. N.H. Jan. 26, 2010) (information on cell phone admitted into evidence was not “extrinsic” evidence; “once the cell phone was admitted, the jury was entitled to examine it without violating [the defendant’s] constitutional rights”).
8 contrary to Griffin’s arguments, the contents of the cell phone were
subject to the jury’s review at that point. See id.11
To the extent that Griffin’s contention could be construed as
alleging an evidentiary error made by the trial court by admitting
the whole cell phone into evidence, that contention would be subject
to plain-error analysis in the absence of a specific objection at trial.
First, there must be an error or defect — some sort of “[d]eviation from a legal rule” — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error
11 Griffin’s reliance on Chambers v. State, 321 Ga. App. 512 (739 SE2d
513) (2013), does not alter this result, because that case is wholly distinguishable. In Chambers, the jury requested a copy of the trial court’s final charge after deliberations had begun. Before the trial court had a chance to respond, one of the jurors conducted legal research on her own mobile device regarding the use of force in defense of habitation. That juror then inappropriately provided a number of legal definitions she had found on the Internet to the other jurors. Id. at 517. The Court of Appeals held that, given this juror’s misconduct of considering “extra-judicial” law not provided in the trial court’s charge and the State’s failure to overcome the presumption that the misconduct was prejudicial, the defendant was entitled to a new trial. Id. at 519. 9 “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’”
(Punctuation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33
(2) (a) (718 SE2d 232) (2011) (quoting Puckett v. United States, 556
U. S. 129, 135 (II) (129 SCt 1423, 173 LE2d 266) (2009)). Thus,
beyond showing a clear or obvious error, “plain-error analysis . . .
requires the appellant to make an affirmative showing that the error
probably did affect the outcome below.” (Citation and punctuation
omitted.) Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013).
Here, Griffin has not made such an affirmative showing that
any error probably did affect the outcome of his trial. Relying solely
on the fact that the State had misplaced the cell phone, Griffin chose
not to present any evidence about the contents of the phone at the
hearing on his motion for new trial.12 However, the State did provide
12 While the testimony of jurors about their thought processes during
deliberations would have been inadmissible, it nonetheless may have been appropriate to ask what was on the phone. See OCGA § 24-6-606 (b) (allowing questions whether “extraneous prejudicial information was improperly brought to the juror’s attention” or whether “any outside influence was improperly brought to bear upon any juror.”). See also Collins v. State, 308 Ga. 608, 611 (2) (842 SE2d 811) (2020) (discussion of “internal” versus “external” matters); Beck v. State, 305 Ga. 383, 385 (2) (825 SE2d 184) (2019) (same). 10 testimony about the cell phone’s contents from the prosecutor who
handled Griffin’s trial, and the trial court accepted this testimony as
credible. In addition, with two confessions to the crime having been
made by Griffin, the evidence against Griffin was substantial. Under
these circumstances, there was no plain error. See Shaw, supra, 292
Ga. at 873 (2).
3. Griffin maintains that trial counsel provided
constitutionally ineffective assistance by not investigating the text
messages on the cell phone confiscated at the time of his arrest and
by not objecting to their admission prior to the phone being sent out
with the jury for deliberations. We conclude that Griffin has not
shown the necessary prejudice to support his claim.
To prevail on a claim of ineffective assistance of counsel, [a defendant] must prove both deficient performance and resulting prejudice. See Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To establish deficient performance, [a defendant] must show that . . . trial counsel performed in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. To establish prejudice, [a defendant] must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
11 proceeding would have been different.” Id. at 694. We need not address both components of this test if [a defendant] has not proved one of them. See Walker v. State, 301 Ga. 482, 489 (801 SE2d 804) (2017).
Watson v. State, 303 Ga. 758, 761-762 (2) (d) (814 SE2d 396) (2018).
Here, as set forth in Division 2 above, Griffin has not made a
sufficient showing of prejudice. Even if we assume that trial counsel
performed deficiently by failing to object to the texts contained in
the cell phone, “the test for prejudice in the ineffective assistance
analysis is equivalent to the test for harm in plain error review.”
Roberts v. State, 305 Ga. 257, 265 (5) (a) (824 SE2d 326) (2019)
(citation and punctuation omitted).13 Accordingly, Griffin’s claim of
ineffective assistance fails.
4. Next, Griffin argues that he has been denied the opportunity
for full and fair appellate review because the text messages the jury
viewed are now missing from the record, as the cell phone that
13 Griffin relies on his own speculation as to what the jurors may have
seen in order to support his contention of prejudice. Mere speculation, however, is not sufficient to prove prejudice under Strickland. See, e.g., Williams v. State, 302 Ga. 147, 152 (2) (805 SE2d 873) (2017); Goodwin v. Cruz-Padillo, 265 Ga. 614, 616 (458 SE2d 623) (1995). 12 contained the messages cannot be found. To support this contention,
Griffin relies on OCGA § 17-8-5, OCGA § 5-6-41 (f), and Johnson v.
State, 302 Ga. 188, 197-198 (3) (c) (805 SE2d 890) (2017). This
reliance is misplaced. In Johnson, this Court considered a situation
in which a fourteen-page summary was drafted to re-create the
events of a six-day trial. See id. at 188. There, we concluded that the
bare-bones summary was insufficient.
Griffin appears to contend that statutory law required that the
contents of the cell phone be transcribed for inclusion in the record,
although he cites no authority for the proposition that the contents
of physical evidence admitted as exhibits must be transcribed by the
court reporter. In any event, the prosecutor provided a summary of
the phone’s contents, and Griffin produced no evidence that
contradicted that summary. Moreover, where, as here, an otherwise
complete record “ ‘is missing only one or a few parts of the trial, the
appellant is not entitled to a new trial unless he alleges that he has
been harmed by some specified error involving the omitted part and
shows that the omission prevents proper appellate review of that
13 error.’” West v. State, 306 Ga. 783, 787 (2) (833 SE2d 501) (2019)
(quoting Gadson v. State, 303 Ga. 871, 878 (3) (a) (815 SE2d 828)
(2018)). Griffin has raised only speculation about how he might have
been harmed, and the State presented the prosecutor’s testimony
rebutting that speculation, which the trial court credited. Under
these circumstances, Griffin’s contention that he has not been
afforded the means of a full and fair appellate review is without
merit. See id. at 787 (2).
5. Griffin next argues that the trial court erred by ruling that
he could not introduce evidence regarding Rolanda’s involvement in
an alleged armed robbery that occurred one month after Freeman’s
murder in order to argue that Rolanda stabbed Freeman.14 Again,
we disagree.
The transcript indicates that Griffin proffered that this
testimony would show that Rolanda and her ex-boyfriend, Clarence
Hill, robbed a cell phone store together. To commit the robbery, Hill
14 Although Griffin was prevented from going into the details, he was
allowed to ask Rolanda whether she had pending charges against her and whether that fact created any bias on her part in favor of the State. 14 used a gun and Rolanda used a knife. Griffin argued that the
evidence of this robbery was admissible to show that Rolanda may
have committed Freeman’s murder because a knife had been used
during the robbery. The trial court ruled that it would not allow the
evidence to be admitted at trial because there was no connection
between Rolanda’s robbery charge and the events that led to
Freeman’s death, and the evidence of her apparent involvement in
a later armed robbery did not raise a reasonable inference of
Griffin’s innocence. The trial court also found that there was no
evidence at all that Rolanda committed Freeman’s murder.
The trial court did not abuse its discretion. Evidence of
Rolanda’s participation in the subsequent armed robbery was
inadmissible. Although a defendant may be entitled to introduce
relevant and admissible testimony tending to show that another
person committed the crime for which the defendant is being tried,
the proffered evidence must raise at least a reasonable inference of
the defendant’s innocence, and must directly connect the other
person with the corpus delicti, or show that the other person has
15 recently committed a crime of the same or similar nature. See De La
Cruz v. State, 303 Ga. 24, 27 (3) (810 SE2d 84) (2018). See also Elkins
v. State, 306 Ga. 351, 358 (2) (b) (830 SE2d 217) (2019). “However,
‘(e)vidence that merely casts a bare suspicion on another or “raise(s)
a conjectural inference as to the commission of the crime by another
is not admissible.”’” De La Cruz, supra, 303 Ga. at 28 (3) (.citations
omitted). Griffin’s argument that the subsequent robbery might
prove that Rolanda stabbed Freeman is, at best, a highly conjectural
inference. As such, the trial court did not abuse its discretion by
excluding this evidence. See id.
6. Lastly, Griffin contends that the trial court erred by denying
his motion to suppress a statement he made regarding his
connection to the cell phone seized during his arrest. Specifically,
Griffin contends that the request for his phone number as part of
the standard biographical questions posed before his initial post-
arrest interview violated his rights under Miranda v. Arizona, 384
U. S. 436, 444-445 (86 SCt 1602, 16 LE2d 694) (1966), by eliciting
the statement at issue.
16 At the Jackson-Denno15 hearing on Griffin’s motion, Detective
Lynn Shuler testified that, after Griffin was arrested and prior to
taking a statement, Detective Shuler filled out a form by asking
Griffin for his name, date of birth, gender, height, weight, race,
address (including city and state), employment status, and phone
number (which could be home, work, or cell phone). Detective Shuler
further testified that this form was used for all suspects, and the
biographical information was also used for purposes of booking.
When Detective Shuler requested Griffin’s phone number, Griffin
replied, “I don’t know my cell phone. I got a cell phone somewhere. I
don’t know. I thought you all picked it up.” Griffin now argues that
this statement should have been suppressed.
Both the United States Supreme Court and this Court have
held that there is an exception to Miranda for general booking
questions because these questions do not relate to the investigation
of the case and serve a legitimate administrative need. See
Pennsylvania v. Muniz, 496 U. S. 582, 601-602 (III) (C) (110 SCt
15 See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
17 2638, 110 LE2d 528) (1990) (plurality); Franks v. State, 268 Ga. 238,
239 (486 SE2d 594) (1997). Accordingly, “Georgia courts have
allowed questions seeking basic biographical data, such as the
suspect’s name, age, address, educational background, marital
status, and other information required to complete an arrest form,”
even after a defendant has invoked his right to counsel. Brooks v.
State, 237 Ga. App. 546, 548 (1) (515 SE2d 851) (1999). Whether a
police officer may ask a suspect for his phone number, specifically,
under the booking exception to Miranda, however, has not
previously been decided by this Court, and we need not decide that
issue today. Even if we assume without deciding that Miranda
applied to the question that resulted in Griffin’s response, his
contention still fails. During Griffin’s trial, he was connected to the
cell phone by matching his calls from jail to contact numbers in the
cell phone, separate from Griffin’s statement at booking. Griffin’s
claim therefore lacks merit because, even if Griffin could show that
the trial court committed any error, that error was harmless beyond
a reasonable doubt. See Ensslin v. State, 308 Ga. 462, 471 (1) (d)
18 (841 SE2d 676) (2020) (an error of constitutional magnitude “may be
deemed harmless if the State can prove beyond a reasonable doubt
that the error did not contribute to the verdict”) (citation and
punctuation omitted). Not only was there ample other evidence of
Griffin’s connection to the cell phone, the evidence included two
confessions made by Griffin.
Judgment affirmed. All the Justices concur.
Decided May 17, 2021.
Murder. DeKalb Superior Court. Before Judge Barrie.
Ryan C. Locke, for appellant.
Sherry Boston, District Attorney, Deborah D. Wellborn,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Michael A. Oldham,
Assistant Attorney General, for appellee.