311 Ga. 875 FINAL COPY
S21A0288. MERRITT v. THE STATE.
MELTON, Chief Justice.
Following a jury trial, Shay Alexander Merritt was convicted
of malice murder and related offenses in connection with the
shooting death of his wife, Rita Ann Merritt.1 On appeal, Merritt
raises six claims of trial court error and further argues that the
evidence was insufficient to support his convictions and that he was
1 On March 20, 2012, a Polk County grand jury indicted Merritt for malice murder, felony murder predicated on aggravated assault, aggravated assault family violence, possession of a firearm during the commission of a felony, and cruelty to children in the first degree. At a July 28 through August 19, 2014 jury trial, Merritt was found guilty of all charges. He was sentenced to life in prison without the possibility of parole for malice murder, twenty consecutive years for cruelty to children, and five consecutive years for the firearm charge. The remaining counts were either merged for sentencing purposes or vacated by operation of law. Merritt, through new counsel, filed a motion for new trial on September 2, 2014. However, counsel withdrew from representation on November 24, 2014, and another attorney filed an entry of appearance on March 21, 2016. That new counsel amended Merritt’s motion for new trial on June 28, 2019. After a hearing, the trial court denied the motion as amended on February 10, 2020. Merritt timely filed a notice of appeal to this Court. The appeal was docketed to the term of this Court beginning in December 2020 and was submitted for a decision on the briefs. denied constitutionally effective assistance of counsel. For the
reasons set forth below, we affirm.
1. Merritt contends that the evidence presented at trial was
constitutionally insufficient to sustain his convictions. When
evaluating the sufficiency of evidence as a matter of constitutional
due process, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Citation and emphasis omitted.)
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). “This Court does not reweigh evidence or resolve
conflicts in testimony; instead, evidence is reviewed in a light most
favorable to the verdict, with deference to the [factfinder’s]
assessment of the weight and credibility of the evidence.” (Citation
and punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739
SE2d 313) (2013).
Viewed in this light, the evidence presented at trial showed
that Merritt and Rita were married and had three children at the
2 time of her death. Their relationship was tumultuous and included
numerous incidents of Merritt’s physical and verbal abuse of Rita.
During the evening hours of September 17, 2011, Merritt shot Rita
in the back of her head in front of the couple’s then three-year-old
daughter. After the shooting, Merritt called 911 and reported that
Rita had committed suicide. When local law enforcement officers
arrived at the scene, they found Rita leaning against a wall covered
in blood. A KFS 7.62 x 39 semi-automatic rifle was lying on the floor
behind her, a single shell casing was on the floor in front of her, and
a bullet fragment was located along the wall behind the television
cabinet on Rita’s right side. Sometime thereafter, the Polk County
coroner arrived. Upon observing the scene, blood spatter patterns,
and Rita’s gunshot wound, the coroner opined that “[t]here[ was] no
physical way [Rita] could have shot herself behind the ear with that
rifle,” and advised that the GBI be contacted to assist with the
investigation. While he was at the residence, the coroner overheard
Merritt state, “I f**ked up,” and admit that “he had done this and
they might as well put the handcuffs on him.”
3 When the GBI crime scene investigator arrived on the scene,
she noted large amounts of blood spatter on the wall, television and
cabinet, and a video game console near Rita’s body, as well as brain
matter and a piece of Rita’s jaw on the floor. The crime scene
investigator testified that there was no evidence to suggest that any
kind of fight or altercation had occurred at the residence and further
opined that the physical evidence did not support a conclusion that
Rita had committed suicide. The crime scene investigator collected
the rifle, bullet fragment, and shell casing, and sent them for further
testing.
A GBI firearms examiner testified that the rifle was
operational, functioned properly, and did not accidentally misfire or
discharge. The firearms examiner opined that the rifle required four
and three-quarter pounds of pressure to pull the trigger, and further
concluded that the rifle fired the shell casing and bullet fragment
that were found at the scene.
After the shooting, Merritt’s then three-year-old daughter told
her aunt that Merritt shot Rita and that she saw her mother’s
4 “brains and blood splattered all over the walls.” The child was taken
to a child advocacy center, and, during her forensic interview, she
stated that Merritt was yelling “bad words” at Rita prior to the
shooting, that Merritt was standing in the kitchen when he picked
up a gun and shot Rita, and that Rita was turned away from the gun
when she was shot.
During a custodial interview, Merritt told officers the following
story. On the night of Rita’s death, he and Rita got into an argument
after she came home from a restaurant drunk. Rita physically
attacked him as he was trying to leave the house and, at one point,
lunged for a nearby gun that Merritt had not put away after target
practice earlier in the day. He grabbed the gun, not because he
believed Rita was going to shoot him, but because he was afraid Rita
would harm herself. Rita sat down on the floor but continued to grab
for the gun and, during one of her attempts, the gun accidentally
fired.
The medical examiner who conducted Rita’s autopsy opined at
trial that her death was a homicide and that she died as a result of
5 the gunshot wound to her head. The medical examiner concluded
that the bullet that caused Rita’s death traveled from behind her left
ear, through her brain stem, and exited out of the front of her head
at her right jaw near her right ear. The autopsy revealed no other
wounds or injuries that were consistent with a physical struggle.
The medical examiner opined that the gunshot wound was
consistent with Rita sitting on the floor with her head turned so that
she was facing away from the gun when it was fired.
The State also presented the testimony of a GBI expert in blood
spatter and crime scene reconstruction. The expert opined that,
based upon the blood spatter patterns, the location of Rita’s gunshot
wound, and the physical evidence found at the scene, Rita was
sitting on the floor next to the television cabinet, in an upright
position with her legs crossed, and that her head was turned away
from the gun when she was shot. The expert testified that Merritt’s
statement to officers recounting how the shooting occurred was not
consistent with the physical and forensic evidence found at the
scene.
6 The State also presented evidence that Rita told her friends
and family about instances of physical abuse she suffered at
Merritt’s hands. In addition, witnesses testified about numerous
occasions when they either directly witnessed instances of physical
and verbal abuse or saw Rita bleeding or with fresh bruises that Rita
said Merritt inflicted from incidents of domestic violence. Prior to
her death, Rita told a friend and her family members that she feared
that if she left Merritt, he would kill her. The State also introduced
a certified copy of Merritt’s September 2008 conviction for simple
battery for “grabbing, pushing, and choking” Rita’s sister, Felicia
Mercer.
Merritt did not testify at trial. His defense was based on the
theory that the shooting was an accident. Based on the evidence
presented at trial, the jury was authorized to reject Merritt’s
accident theory and find him guilty of the crimes of which he was
convicted beyond a reasonable doubt. See Jackson, supra, 443 U. S.
at 319 (III) (B). See also Jones v. State, 292 Ga. 656, 658 (1) (a) (740
SE2d 590) (2013) (criminal intent is a question for the factfinder,
7 and can be inferred from the defendant’s conduct before, during, and
after the commission of the crimes). Accordingly, the evidence was
sufficient to support Merritt’s convictions.
2. Merritt claims that he received constitutionally
ineffective assistance of counsel because his trial counsel failed to
object to the introduction of Merritt’s 2008 simple battery conviction
as improper character evidence pursuant to OCGA § 24-4-404 (b)
(“Rule 404 (b)”). However, at the hearing on Merritt’s motion for
new trial, defense counsel informed the trial court that he was
abandoning this claim of ineffective assistance. In its order denying
the motion for new trial, the trial court noted that counsel had
waived this claim of ineffective assistance and did not issue a ruling
on the allegation of error. Accordingly, this claim is not preserved
for appellate review. See Prince v. State, 295 Ga. 788, 793 (2) (b)
(764 SE2d 362) (2014) (claim of ineffective assistance not preserved
where defendant failed to raise the issue in his amended motion for
new trial, failed to raise the claim at the hearing on that motion, and
failed to obtain a ruling on it from the trial court).
8 3. Merritt raises two allegations of error regarding the trial
court’s evidentiary rulings pursuant to OCGA § 24-6-622 (“Rule
622”) (“The state of a witness’s feelings towards the parties and the
witness’s relationship to the parties may always be proved for the
consideration of the jury.”). Specifically, Merritt alleges that the
trial court erred by (a) allowing the State to cross-examine a defense
witness, Dr. Muhammad Abbasi, about the witness’s prior arrest,
and (b) excluding evidence that Rita and her family were
Romanichal gypsies. We review the trial court’s rulings on the
admissibility of evidence for a clear abuse of discretion. See Davis
v. State, 301 Ga. 397, 399 (2) (801 SE2d 897) (2017). However,
even where an abuse of discretion is shown, there are no grounds for reversal if the error did not affect a “substantial right,” and thus harm, the defendant. See OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. . . .”); see also Smith v. State, 299 Ga. 424, 431 (788 SE2d 433) (2016) (OCGA § 24-1-103 (a) “continues Georgia’s existing harmless error doctrine for erroneous evidentiary rulings”). “‘In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so,’” and we assess “‘whether it is highly probable
9 that the error did not contribute to the verdict.’” Smith, 299 Ga. at 432 (quoting Rivera v. State, 295 Ga. 380, 382 (761 SE2d 30) (2014)).
Venturino v. State, 306 Ga. 391, 393 (2) (830 SE2d 110) (2019). With
these principles in mind, we address Merritt’s claims of evidentiary
error in turn.
(a) At trial, Merritt called Dr. Abbasi, a psychiatrist, as a
defense witness to testify about Rita’s diagnosis with and treatment
for bipolar disorder. During direct examination, Dr. Abbasi
explained bipolar disorder to the jury, testified about the
medications he prescribed for Rita and how those medications
worked to treat bipolar disorder, testified regarding the
consequences of a person’s failure to take his or her prescribed
medications, and testified that it is common for a person diagnosed
with bipolar disorder, such as Rita, to threaten to commit suicide.
On cross-examination, the prosecutor asked Dr. Abbasi
whether he was biased against the State, to which Dr. Abbasi said
he was not. The prosecutor asked to approach the bench and, during
a bench conference, informed the trial court of his intention to ask
10 Dr. Abbasi about whether he had been arrested in 2008 for sexual
battery against his patients. Defense counsel objected, arguing that
this constituted inadmissible impeachment evidence because there
was no conviction, pending charge, or indictment. The prosecutor
requested to make a proffer outside the presence of the jury, during
which the prosecutor asked Dr. Abbasi, “Are you the same Dr.
[Muhammad] Abbasi of Covington Alliance Family Practice [in
Covington, Georgia] that was arrested for sexual battery back in
2008?” to which Dr. Abbasi responded, “That’s right.” After making
this brief proffer, the State argued that the testimony was relevant
to test the doctor’s bias pursuant to Rule 622. The trial court agreed,
overruled Merritt’s objection, and allowed the prosecutor to pursue
that line of questioning.
The prosecutor continued his cross-examination of Dr. Abbasi,
during which the following transpired:
Q: Dr. Abbasi, my last question to you was whether or not you had any bias — whether you harbored any bias against the state prosecution. I believe you indicated no. That was your answer? A: That’s right.
11 Q: My question to you then is, are you the same doctor who was — who has been accused of sexually inappropriately touching some of your patients at your facility? A: You said patients? Q: Yes. A: Not true.
The prosecutor moved on to a new line of questioning, and the jury
was not given an instruction concerning the limited purpose of this
testimony.
(i) Abuse of Discretion.
Merritt argues that the trial court abused its discretion by
allowing the State to question Dr. Abbasi concerning the accusation
of sexual battery. As an initial matter, because Rule 622 is a
“holdover” from Georgia’s old Evidence Code with no federal
counterpart, this Court “look[s] to Georgia cases decided under the
former version of that rule — OCGA § 24-9-68 — for guidance.”
Chrysler Group v. Walden, 303 Ga. 358, 363 (II) (A) (812 SE2d 244)
(2018). In Chrysler, this Court looked to cases decided under former
OCGA § 24-9-68 and determined that proper applications of this rule
of evidence
12 included the ability to question an opposing party’s expert witness about how often he had been hired by the counsel in the case and how much he had been paid, to question witnesses about reduction in prison time in exchange for cooperating with the State, and to elicit evidence that an employee witness received a promotion and pay increase as a reward for favorable testimony to defendant.
(Citations omitted.) Id. at 364 (II) (A). We also explained that, while
Rule 622 “establishes that a witness’s bias is always a legitimate
issue to be proved,” it does not provide “that any evidence offered to
show bias is always admissible no matter how prejudicial or
irrelevant to the issue being tried.” Id. Instead, evidence admitted
pursuant to Rule 622 is subject to the familiar balancing test laid
out in OCGA § 24-4-403 (“Rule 403”) (“Relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”).
Reviewing the testimony at issue in this light, we agree with
Merritt that the trial court abused its discretion by allowing the
State to question Dr. Abbasi about the prior allegation of sexual
13 battery. Assuming that this testimony could conceivably be viewed
as relevant to show bias, the trial court abused its discretion by
allowing this testimony because the probative value of the evidence
was substantially outweighed by its unfair prejudicial effect under
Rule 403. This was not a case where the witness was facing a
pending criminal charge and the jury was instructed on the limited
purpose of such evidence to show bias. See Lee v. State, 306 Ga. 663
(4) (832 SE2d 851) (2019) (no abuse of discretion where the trial
court allowed the State to cross-examine a defense witness about a
pending criminal indictment brought by the same prosecuting office
and instructed the jury that the limited purpose of the evidence was
to show bias against the State); Smith v. State, 276 Ga. 263, 265 (2)
(577 SE2d 548) (2003) (a defendant has the right to show possible
bias of a witness in favor of the State by cross-examining that
witness about pending criminal charges or a pending probation
revocation). Instead, the State’s single question about an
unconfirmed allegation of sexual battery that had occurred on an
unidentified date did very little to show how Dr. Abbasi may have
14 been biased against the State, and a claim that a doctor had
committed sexual battery against his patients is clearly prejudicial.
Accordingly, the minimal probative value of the evidence was
substantially outweighed by its unfair prejudicial effect; therefore,
the trial court abused its discretion in allowing this testimony.
(ii) Harmless Error.
However, in light of the strong evidence of guilt in this case,
because Dr. Abbasi’s testimony did not directly relate to Merritt’s
defense of accident, and because Dr. Abbasi’s answer indicated that
the allegations were not true, we conclude that the error was
harmless, as it is highly probable that the State’s brief questioning
of Dr. Abbasi regarding the prior allegation of sexual battery did not
contribute to the jury’s verdict.
(b) Merritt argues that the trial court erred in excluding
evidence under Rule 622 that Rita and her family were Romanichal
gypsies. We see no error.
Prior to trial, the defense filed a motion seeking to elicit
testimony at trial from Rita’s family concerning their Romanichal
15 culture and its alleged dislike of outsiders, such as Merritt. Defense
counsel argued that this line of questioning was permissible in order
to show the family’s bias against Merritt. After hearing arguments,
the trial court ruled as follows:
I’m going to allow you to do that, but the issue is not with the family. The issue is with Rita and what kind of relationship she had with [Merritt] in the way of prior conflicts, what generated that, whether it be family or whatever the case is. I’ll allow you to cross-examine any witness put up with regard to bias.
At trial, during the defense’s cross-examination of Rita’s sister,
Felicia Mercer, defense counsel questioned Mercer extensively about
her family background. When counsel began asking about the
women’s cultural upbringing, however, the State objected. Defense
counsel stated that she was entitled to ask questions “to show the
bias of the witnesses against [Merritt] and why [the witnesses are]
saying the things that they’re saying about him.” The trial court
ruled that it would
allow [defense counsel] to ask the questions pertaining to the family’s bias or prejudice against [Merritt], but I’m going to instruct you not to go into ethnic background or anything of that nature as cultural bias of some kind. But
16 I will – I will allow you to ask all of the questions that you indicated that you were trying to probe into with regard to prejudice or bias, and then I’ll allow you to ask her why. But I’m not going to turn this into a case against Gypsies or whatever culture we’re talking about. . . . I’m going to allow you to go into prejudice or bias, but I’m not going to allow you to do it based on cultural background. And if you get into that, I’ll simply stop it and let you make your proffer and that will end it. . . . Because I’m inclined to agree with [the State] that the purpose of those kind of questions has nothing to do with the legitimate effort to show bias or prejudice. It’s simply for the purpose of the [sic] prejudicing this jury with regard to the victim’s cultural background, if it is.
Defense counsel then continued to cross-examine Mercer about her
family’s background and Rita’s upbringing, but counsel did not
attempt to ask any additional questions about the family’s
Romanichal background, nor did counsel make a proffer as to this
witness on the same.
Later, during counsel’s cross-examination of Rita’s sister-in-
law, Louann Jeffrey, counsel made a proffer outside the presence of
the jury concerning the family’s Romanichal culture and their
alleged cultural bias against outsiders like Merritt. During this
proffer, Jeffrey testified that she and her family were Romanichal
17 gypsies, that Rita was raised as such, and that a person outside the
Romanichal culture is called a “gorgia.” The proffer ended with the
following exchange:
COURT: If you married someone like me who, to my knowledge, has no gypsy culture in my background, have you sinned in some kind of way or — JEFFREY: No. COURT: Is your family going to be prejudiced against mine? JEFFREY: I’m not shunned against or nothing, no. Maybe in 1905. . . . But today, no. . . . DEFENSE: Is it expected in the gypsy culture that the gypsies will marry other gypsies? JEFFREY: It’s like, you know, we try to keep our bloodline, and our race is fading, as with any other race. You want to try to keep your bloodline strong. But I feel like if you fall in love with somebody, love is no boundary. DEFENSE: And you would say that gypsies see everyone who’s not a gypsy as an outsider? JEFFREY: Not so much a[n] outsider, just not a gypsy.
After hearing this testimony, the trial court concluded that
questions about the family’s cultural background were not relevant
to the case, and “any relevance it may have is far outweighed by . . .
the prejudice that will be created just because you’re referring to
someone as a [Romanichal gypsy].” Merritt contends that the trial
18 court’s rulings limiting the cross-examinations of Mercer and Jeffrey
on this topic amounted to an abuse of discretion. We disagree.
Even if we were to assume that Merritt was trying to establish
Mercer’s and Jeffrey’s personal biases under Rule 622, defense
counsel did not lay a proper foundation to do so. “Before a witness
may be impeached for bias or hostility toward a party, the proper
foundation must be laid by cross-examining the witness regarding
his ill-feelings toward that party.” (Citations omitted.) Simmons v.
State, 266 Ga. 223, 226-227 (4) (466 SE2d 205) (1996). See also
Farley v. State, 225 Ga. App. 687, 694 (484 SE2d 711) (1997)
(“Unless there is evidence produced outside the hearing of the jury
from a witness examined under oath with regard to feelings
concerning the accused and any occurrence giving rise to such
feelings, to create a factual basis that racial bias or prejudice exists
and, in fact, influenced the witness’ testimony or could be reasonably
inferred to do so, such issue of racial bias or prejudice should not be
injected into the proceedings, as such issue could tend to destroy the
impartiality of the jury and because it would not be relevant.”).
19 Here, defense counsel did not question Mercer about potential
cultural biases she held against Merritt, Jeffrey denied the existence
of such bias during her proffered testimony, and defense counsel
proffered no other evidence on the point. Based on the foregoing, we
conclude that the trial court did not abuse its discretion under Rule
622 by excluding this evidence.
4. Merritt contends that the trial court erred by granting the
State’s motion in limine to exclude the testimony of one of the
defense’s expert witnesses. The record shows that the trial court
specially set Merritt’s jury trial to begin on June 16, 2014. One week
before trial, Merritt filed a motion to continue the case because his
expert in forensic and clinical psychology was unavailable.
Specifically, the defense planned to call this expert to testify about
Merritt’s prior diagnosis of post-traumatic stress disorder (“PTSD”)
and how it affected his interactions with law enforcement officers
during his custodial interview. After holding a hearing on the
motion at which the parties presented arguments, the trial court
granted a continuance and re-set Merritt’s trial to begin on July 28,
20 2014.
Thereafter, the State moved in limine to exclude the defense
expert’s testimony, arguing that it was immaterial and
inadmissible. The record contains no written or oral ruling on the
State’s motion. However, in later motions contained in the record,
defense counsel referenced a July 10, 2014 hearing in which the trial
court allegedly granted the State’s motion in limine.2 There is
nothing in the record indicating that Merritt ever objected to the
State’s motion in limine or took exception to the trial court’s alleged
pre-trial ruling. Consequently, this claim can be reviewed only for
plain error.
As this Court has previously explained:
We may remedy an error under plain error review if (1)
2 Specifically, in a motion filed on July 14, 2014, defense counsel asserted
that, at the July 10, 2014 hearing, the trial court granted the motion and ordered that Defendant will be prohibited from offering expert testimony as to his diagnosis of PTSD and its effects on his conduct, intent, demeanor, communication and mental state. The basis for the Court’s ruling was that Defendant has not filed a notice of intent to raise a defense of insanity, the Defendant’s mental state, including his diagnosis of PTSD, is not at issue and is not relevant to the case. However, there is no transcript of the July 10, 2014 hearing in the record before this Court. 21 the error was not affirmatively waived by the appellant; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights”; and (4) “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”
(Citation omitted.) Williams v. State, 302 Ga. 147, 151-152 (2) (805
SE2d 873) (2017). Assuming without deciding that Merritt did not
affirmatively waive this claim and that the trial court committed a
clear legal error by excluding the expert’s testimony, Merritt still
cannot obtain reversal on this basis because he cannot show that the
error affected his substantial rights – i.e., that there is a reasonable
probability that the outcome of trial would have been different had
this evidence been admitted. See Martin v. State, 298 Ga. 259, 278
(6) (c) (779 SE2d 342) (2015), disapproved of in part on other grounds
by Willis v. State, 304 Ga. 686, 706 n.3 (820 SE2d 640) (2018)
(explaining that the test for harm under plain error review “requires
a showing of a reasonable probability that the result of the
proceeding would have been different, which is a probability
sufficient to undermine confidence in the outcome” (citation and
22 punctuation omitted.)). Here, the only evidence presented at trial
regarding Merritt’s behavior during his custodial interview
concerned whether he appeared to understand his Miranda3 rights
and his subsequent waiver of the same. And, while the prosecutor
made statements during closing argument regarding Merritt’s
apparent lack of remorse during his interview with the police, these
arguments were made in direct response to defense counsel’s closing
argument that Merritt was remorseful for shooting Rita.
Based on the foregoing, Merritt has failed to show that the trial
court committed plain error because he cannot demonstrate that the
outcome of his trial probably would have been different had his
expert witness been allowed to testify at trial.
5. Prior to trial, the State filed a notice of intent to present
testimony pursuant to the residual hearsay exception, see OCGA §
24-8-807,4 through lay witnesses Andrea Lyle, Mercer, and Jeffrey
3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 4 OCGA § 24-8-807 states in pertinent part:
A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not
23 concerning Rita’s descriptions of verbal and physical abuse that
occurred in her marriage prior to her death. At trial, Lyle testified
that she knew Rita through work, that they would socialize outside
of work, and that Rita was her “best friend.” She further testified
that she and Rita would confide in each other about things going on
in their lives, including things going on in Rita’s marriage to Merritt.
Specifically, Lyle testified that Rita reported being physically and
mentally abused by Merritt, showed Lyle bruising from the
beatings, and stated that Merritt would kill her if she ever tried to
leave. Mercer, Rita’s sister, testified that she and Rita were very
close and they were like best friends. They worked together, saw
each other every day, and discussed intimate and personal matters
with each other. Regarding her marriage, Rita told Mercer that
Merritt had “threatened to kill her if she ever left him.” Finally,
be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. . . .
24 Jeffrey, Rita’s sister-in-law, testified that she had a good
relationship with Rita, that they spoke on a regular basis, and that
Rita shared personal information with her, including information
about Rita’s marriage. Jeffrey testified that Rita would call her
crying because Merritt called her a “sorry mother” and a “b**ch,”
that Rita expressed concerns about Merritt’s potential infidelity,
that Rita told Jeffrey that Merritt had kicked her down the stairs
while she was pregnant with their youngest child, and that Rita told
Jeffrey she could not leave Merritt because he would kill her.5
Merritt did not object to the admission of this testimony at
trial. Now, on appeal, he claims that the trial court committed plain
error by admitting the hearsay testimony of Lyle, Mercer, and
Jeffrey pursuant to OCGA § 24-8-807. Specifically, Merritt argues
that these hearsay statements did not have sufficient guarantees of
trustworthiness. Merritt, however, has failed to show that the trial
court committed clear or obvious error by admitting Rita’s
5 In addition to this testimony, all three witnesses testified about numerous acts of physical violence and verbal abuse that Merritt had committed against Rita that these women had directly witnessed. 25 statements through these witnesses. See Williams, supra, 302 Ga.
at 151-152.
OCGA § 24-8-807 applies “only when certain exceptional
guarantees of trustworthiness exist and when high degrees of
probativeness and necessity are present.” (Citation and punctuation
omitted.) Smart v. State, 299 Ga. 414, 421 (3) (788 SE2d 442) (2016).
These guarantees of trustworthiness “must be equivalent to cross-
examined former testimony, statements under a belief of impending
death, statements against interest, and statements of personal or
family history.” (Citation and punctuation omitted.) Id. This is so
because “[s]uch categories of hearsay have attributes of
trustworthiness over and above that possessed by the general run of
hearsay statements, and the hearsay is considered sufficiently
trustworthy because of the circumstances under which the hearsay
statements were originally made.” Tanner v. State, 301 Ga. 852, 856
(1) (804 SE2d 377) (2017). However, this Court has previously held
that a victim’s description of prior acts of domestic violence against
her to her family and friends carries an increased level of
26 trustworthiness. See Jacobs v. State, 303 Ga. 245, 251 (2) (811 SE2d
372) (2018) (no abuse of discretion where the trial court
“determin[ed] that the statements from [the victim] to her friends .
. . describing the nature of her abusive relationship with [the
defendant] prior to her death had the requisite ‘exceptional
guarantees of trustworthiness’ to be admissible at trial pursuant to
Rule 807”); Smart, supra, 299 Ga. at 422 (3) (trial court’s admission
of statements from murder victim to her friends and family
describing acts of domestic violence committed by defendant was
neither clear nor obvious error as the hearsay statements had
sufficient guarantees of trustworthiness).
Here, Rita consistently described acts of domestic abuse to her
close friend and family members, and these same people directly
witnessed acts of domestic violence against Rita. Accordingly, we
cannot say that the trial court committed clear or obvious error by
determining that the statements had sufficient guarantees of
trustworthiness and admitting these hearsay statements at trial
through Lyle, Mercer, and Jeffrey.
27 6. Merritt contends that the trial court erred by admitting
at trial evidence relating to his 2008 simple battery conviction
pursuant to Rule 404 (b) (evidence of other acts may be admissible
to show “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident”). During the State’s
case-in-chief, the prosecutor asked Mercer to describe an incident
that occurred at the hospital after Rita had given birth to one of her
and Merritt’s children. Mercer testified that, while visiting the new
baby, Rita’s mother remarked that Merritt was being too rough with
another of the couple’s children. Merritt then struck his mother-in-
law, which led to a physical fight between Merritt, Rita’s mother,
and Mercer. Rita, who was recovering from giving birth, pleaded for
Merritt to stop. Mercer testified that, as the fight broke up, Merritt
shouted that he would kill them all. The State then tendered its
Exhibit 36, a certified copy of Merritt’s 2008 misdemeanor conviction
for simple battery stemming from this fight.6 Thereafter, the trial
6 The documents admitted at trial show that Merritt was accused of two
counts of simple battery, Count 1 for “grabbing, pushing and choking” Felicia
28 court instructed the jury as follows:
Ladies and gentlemen, sometimes evidence is tendered for a limited purpose and that’s the case with regard to Exhibit Number 36. In this case, the State has offered evidence in the form of Exhibit 36, which is a certified copy of the defendant’s conviction for simple [battery] in Carroll County.
It is tendered for the limited purpose of proving the defendant’s intent and against a claim or affirmative defense of accident about which I will charge you more fully at the conclusion of this case. And again, it is not to be considered for any other purpose other than the limited purpose for which it has been tendered, which is proving the defendant’s intent, if you so decide, and against any claim of accident, if you so decide.
But that’s all it’s offered for and you can — it has nothing to do with the issue of guilt or innocence of his conviction of this case, okay?
Merritt now contends that the trial court erred by admitting
this evidence for the purpose of showing intent. Because this
evidence was admitted at trial without objection, we can review this
claim only for plain error. See Williams, supra, 302 Ga. at 151-152.
Assuming without deciding that the trial court committed a clear
Mercer, and Count 2 for “grabbing and pushing” Rita’s mother. Merritt pled guilty to Count 1, and the trial court nolle prossed Count 2. 29 legal error by admitting this evidence for the purpose of showing
intent under Rule 404 (b), Merritt cannot obtain reversal on this
basis because he cannot show that the error affected his substantial
rights. See Martin, supra, 298 Ga. at 278 (6) (c).
Here, in addition to the significant physical and forensic
evidence establishing Merritt’s guilt, the State presented the
statements of the three-year-old witness to the shooting and
testimony from other witnesses describing numerous instances of
Merritt’s prior acts of domestic violence against Rita, all of which
contradicted his accident defense. Based on the foregoing, Merritt
has failed to show that the trial court committed plain error, because
he cannot demonstrate that the outcome of his trial would have been
different absent the introduction of evidence regarding the prior
simple battery.
7. Merritt argues that the trial court erred by failing to
instruct the jury on self-defense and defense of others. “To authorize
a requested jury instruction, there need only be slight evidence to
support the theory of the charge, and the necessary evidence may be
30 presented by the State, the defendant, or both.” (Citation and
punctuation omitted.) Collins v. State, 308 Ga. 515, 519 (2) (842
SE2d 275) (2020). “Whether the evidence presented is sufficient to
authorize the giving of a charge is a question of law.” (Citation and
punctuation omitted.) McClure v. State, 306 Ga. 856, 863 (1) (834
SE2d 96) (2019).
Merritt’s requested charge read as follows:
A person is justified in threatening or using force against another person when, and to the extent that, he reasonably believes that such threat or force is necessary to defend himself or a third person against the other’s imminent use of unlawful force. A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony. The State has the burden of proving beyond a reasonable doubt that the defendant was not justified.
Ga. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §
3.10.10 (4th ed. 2007) (Justification; Use of Force in Defense of Self
or Others).7 In support of the charge, defense counsel argued that
7 Merritt also requested the trial court give additional pattern charges
31 during Merritt’s custodial interview, officers “asked him if he
thought that Rita was going for the gun to shoot him with it and his
answer was, no, I don’t think so, but maybe she was. I hope she was,
or something like that. It would make me feel better to think that
she was.” Counsel argued that Merritt’s statement of “maybe she
was” going to shoot him, in combination with Merritt’s explanation
that he took the gun in order to protect Rita from herself, was
sufficient to support a charge on justification. The trial court
refused to give the requested charge, explaining, “I don’t recall any
line of testimony in this case, including his recorded statement,
where he ever indicated he was afraid of Rita. He always said, I
wasn’t afraid of her, you know, I just didn’t want her to hurt herself.”
Counsel objected to the trial court’s ruling.
We conclude that the trial court did not err by refusing to give
concerning self-defense. See Ga. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §§ 3.01.10 (Justification; Generally), 3.10.12 (Reasonable Beliefs; Doctrine of), and 3.16.10 (Justification; Threats, Menaces Causing Reasonable Belief of Danger). The trial court refused to give any instruction on justification, ruling that the evidence did not support the requested jury charges. 32 the requested charge because there was not slight evidence in this
case to support a charge on justification. “A person is justified in
threatening or using force against another when and to the extent
that he or she reasonably believes that such threat or force is
necessary to defend himself or herself or a third person against such
other’s imminent use of unlawful force. . . .” OCGA § 16-3-21 (a).
Merritt has pointed to no evidence that shooting Rita was necessary
to defend himself or any third person from any imminent use of
unlawful force. Indeed, Merritt told officers that he did not believe
Rita was trying to shoot him but, instead, believed she was
attempting to harm herself. And, even assuming that Merritt
picked up the gun with the purpose of saving Rita from herself (as
Merritt suggested to officers) it is illogical that this was also the
reason he used deadly force. Finally, the evidence presented at trial
established that Rita was sitting down and looking away from the
gun when she was shot in the back of the head. “Because no
construction of the evidence would support a finding that [Merritt]
shot in self-defense, the trial court properly refused to charge on that
33 issue.” (Citation omitted.) Broussard v. State, 276 Ga. 216, 217 (2)
(576 SE2d 883) (2003).8
Judgment affirmed. All the Justices concur.
Decided June 21, 2021.
Murder. Polk Superior Court. Before Judge Murphy.
James K. Luttrell, for appellant.
Oliver J. Browning, Jr., 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.
8 Merritt does not argue that all the errors we assume today, though
individually harmless, nevertheless harmed him when aggregated. And no such cumulative prejudice is apparent to us on this record. See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] defendant who wishes to take advantage of the [cumulative error rule] should explain to the reviewing court just how he was prejudiced by the cumulative effect of multiple errors.”); Armstrong v. State, 310 Ga. 598, 607 (5) n.13 (852 SE2d 824) (2020).