State v. Gilmore ( 2021 )

In the Supreme Court of Georgia
Decided: August 24, 2021
S20G1430. THE STATE v. GILMORE.
WARREN, Justice.
The Sixth Amendment’s Confrontation Clause provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” U.S. Const.
amend. VI. In Crawford v. Washington, 541 U.S. 36, 68 (124 SCt
1354, 158 LE2d 177) (2004), the United States Supreme Court held
that the “admission of out-of-court statements that are testimonial
in nature violates the Confrontation Clause unless the declarant is
unavailable and the defendant had a prior opportunity for cross-
examination.” Hester v. State, 283 Ga. 367, 370 (659 SE2d 600)
(2008) (citation and punctuation omitted). We granted certiorari in
this case to decide whether the Court of Appeals erred in holding
that a video recording presumed to have no discernible audio, which
depicts a now-deceased confidential informant (“CI”) purchasing a
small bag of suspected methamphetamine from appellant David Lee
Gilmore (a fact neither party disputes on appeal), contained
testimonial statements prohibited by the Confrontation Clause. For
the reasons that follow, we conclude that the video recording depicts
the CI’s nonverbal conduct but did not depict any nonverbal
statements. 1 As a result, admission of the video recording was not
barred by the Confrontation Clause, and we reverse the decision of
the Court of Appeals.
1. Background
(a) Facts
The Court of Appeals summarized the relevant facts, as
presented by the parties at an evidentiary hearing, as follows. In
the summer of 2018, law enforcement officers with the Rome Metro
1 Because the question we asked upon granting certiorari pertains only
to the admissibility of the nonverbal conduct depicted on the video recording
at issue here, we do not address the admissibility of any audible statements
that can be heard on the video recording. See Martin v. Six Flags Over Georgia
II, L.P., 301 Ga. 323, 332 n.6 (801 SE2d 24) (2017) (declining to address an
issue on which this Court did not grant certiorari).
2
Task Force suspected that Gilmore was a drug dealer and arranged
for a CI to conduct a “controlled buy” of methamphetamine from
him. See State v. Gilmore, 355 Ga. App. 536, 537-538 (844 SE2d
877) (2020). On July 20, 2018, officers attached a video camera to
the CI’s key ring, gave him a $20 bill, and sent him to Gilmore’s
house to purchase the drugs. See id. Officers followed the CI to
Gilmore’s house but did not witness the transaction. See id. After
the controlled buy, the CI met the officers at a predetermined
location and gave them a bag of suspected methamphetamine and
the video camera he had been carrying on his key ring. See id. The
video recording of the transaction shows Gilmore handing the CI a
small bag of suspected methamphetamine and then Gilmore holding
a $20 bill. See id. at 538.2 On April 11, 2019, the CI, who was
incarcerated, died by suicide.
2 The trial court said that it “could not make out what they were saying
on the video” and that “it was mumbled,” and the Court of Appeals stated that
“[i]t is undisputed . . . that, while the recording includes audio, the quality is
poor and any verbal statements made during the alleged transaction are
indiscernible.” Gilmore, 355 Ga. App. at 537-538.
3
(b) Proceedings Below
The next day, a Floyd County grand jury indicted Gilmore for
multiple violations of the Georgia Controlled Substances Act, OCGA
§ 16-13-30 et seq., stemming from Gilmore’s alleged July 2018 sale
of methamphetamine to the CI.3 Before trial, the State filed two
motions to admit the video recording of the controlled buy. It argued
that the video could properly be authenticated, even with the CI
being unavailable, and that any hearsay statements in the video fell
under the so-called “residual exception” to the hearsay rule. See
OCGA § 24-8-807. 4
Gilmore opposed the motions, contending that admission of the
3 Specifically, Gilmore was charged with one count each of selling
methamphetamine, possession with intent to distribute methamphetamine,
and possession of less than one gram of methamphetamine.
4 OCGA § 24-8-807 provides for the admissibility of a hearsay statement
“not specifically covered by any law but having equivalent circumstantial
guarantees of trustworthiness” if
(1) [t]he statement is offered as evidence of a material fact; (2) [t]he
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) [t]he general purposes of the rules of
evidence and the interests of justice will best be served by
admission of the statement into evidence.
4
video recording would violate his rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution
because the CI was not available to testify at trial, Gilmore never
had an opportunity to cross-examine the CI, and any statements
that could be heard on the video recording—as well as any nonverbal
conduct depicted in it—were testimonial statements. See Crawford,
541 U.S. at 68. After an evidentiary hearing, the trial court denied
the State’s motions to admit the video recording, finding that
Gilmore never had an opportunity to cross-examine the CI and that
the nonverbal statements depicted in the video were “testimonial in
nature.” 5
The State appealed. See OCGA § 5-7-1 (a) (5) (giving the State
the right to appeal directly a trial court order excluding evidence in
criminal cases). The Court of Appeals affirmed the denial of the
State’s motions to admit the video recording, holding that the CI’s
“conduct constituted testimonial statements that are subject to and
5As explained more below in footnote 6, verbal or nonverbal statements
made by a criminal defendant do not implicate the Confrontation Clause.
5
barred by the Confrontation Clause.” Gilmore, 355 Ga. App. at 541.
Specifically, the court reasoned that
the video recording of the confidential informant’s
movements during the controlled drug buy was made at
the request of and with equipment supplied by law
enforcement agents as part of their investigation of
Gilmore. At the hearing, an agent agreed that the video
recording showed Gilmore handing a plastic bag
(containing suspected methamphetamine) to the
confidential informant. It is undisputed that the
recording then shows Gilmore taking or holding the $20
bill. It is clear that the confidential informant intended
to show that Gilmore was selling methamphetamine to
him, and that the statement was offered for the truth of
the matter asserted. The confidential informant’s
movements were thus a statement.
Id. at 539. We granted the State’s petition for certiorari.
2. Analysis
(a) Standard of Review
We ordinarily review the trial court’s grant of a motion in
limine for abuse of discretion. See State v. Stephens, 307 Ga. 615,
616 (837 SE2d 830) (2020). And when confronted with a mixed
question of law and fact, “we accept the trial court’s findings on
disputed facts and witness credibility unless they are clearly
6
erroneous, but independently apply the law to the facts.” Jones v.
State, 291 Ga. 35, 36-37 (727 SE2d 456, 458) (2012); see also Lilly v.
Virginia, 527 U.S. 116, 136-137 (119 SCt 1887, 144 LE2d 117) (1999)
(setting forth a de novo standard of review for “fact-intensive, mixed
questions of constitutional law,” reasoning that “independent review
is necessary to maintain control of, and to clarify, the legal principles
governing the factual circumstances necessary to satisfy the
protections of the Bill of Rights,” but reviewing the trial court’s
determination of “historical facts” for clear error) (citation and
punctuation omitted). As a result, we will review de novo a trial
court’s ruling on whether the conduct depicted on a video recording
constitutes a testimonial statement under the Confrontation Clause.
See Jones, 291 Ga. at 36-37. See also, e.g., United States v. Taylor,
688 Fed. Appx. 638, 640 (11th Cir. 2017) (per curiam) (“We review
the district court’s ruling on a Confrontation Clause claim de novo.”)
(citation and punctuation omitted). For the reasons explained
below, we conclude that the Court of Appeals erred by affirming the
trial court’s denial of the State’s motions to admit the video
7
recording of the controlled buy on Confrontation Clause grounds.
(b) The CI’s Nonverbal Conduct Depicted on the Video
Recording Does Not Constitute a Statement.
In Crawford, the United States Supreme Court held that the
Sixth Amendment’s Confrontation Clause barred the admission of
testimonial statements—a form of hearsay, see Crawford, 541 U.S.
at 53 (noting that “testimonial hearsay” is the “primary object” of
the Confrontation Clause)—from a declarant who is unavailable to
testify at trial unless the party against whom the statements were
offered had a prior opportunity to cross-examine the declarant. See
id. at 68.6 Thus, for evidence to fall within the ambit of the
Confrontation Clause, it must be both a “statement” and
“testimonial.” See id. See also Stephens, 307 Ga. at 618.
Under OCGA § 24-8-801 (“Rule 801”), which we may look to in
considering whether the Confrontation Clause’s restrictions apply to
6 We note that any verbal or nonverbal statements Gilmore—the
defendant in a criminal case—made on the video recording would not implicate
the Confrontation Clause. See Reed v. State, 307 Ga. 527, 535-536 (837 SE2d
272) (2019) (explaining that, in general, admissions by a defendant are not
subject to the Confrontation Clause).
8
evidence, a “statement” is not limited only to “[a]n oral or written
assertion.” See OCGA § 24-8-801 (a) (1). Indeed, included in the
Rule 801 definition of “statement” is the “[n]onverbal conduct of a
person, if it is intended by the person as an assertion.” OCGA § 24-
8-801 (a) (2). See also United States v. Lamons, 532 F3d 1251, 1263
(11th Cir. 2008) (“The Federal Rules of Evidence define a ‘statement’
as an ‘(1) oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by the person as an assertion.’”) (quoting
Fed. R. Evid. 801 (a)) (emphasis in original). 7
7 OCGA § 24-8-801 (a) (2) is materially identical to its federal
counterpart, see Federal Rules of Evidence 801 (a), and in a case where the
analysis turned on the interpretation of Georgia’s Rule 801 (a) (2), we would
be required to look to federal decisions interpreting Federal Rule of Evidence
801 (a). See Jenkins v. State, 303 Ga. 314, 317 (812 SE2d 238) (2018).
Although not required to do so in this constitutional law case, we nonetheless
turn to federal decisions interpreting Rule 801 for guidance.
We note that although the U.S. Supreme Court has said that “[i]t seems
apparent that the Sixth Amendment’s Confrontation Clause and the
evidentiary hearsay rule stem from the same roots,” Giles v. California, 554
U.S. 353, 365 (128 SCt 2678, 171 LE2d 488) (2008), that Court has not yet
clarified whether the definition of “statement” in Rule 801 captures the
universe of statements protected by the original public meaning of the
Confrontation Clause. However, courts generally have viewed the definition
of “statement” in Rule 801 (a) to be “uncontroversial,” even though neither the
Georgia Evidence Code nor the Federal Rules of Evidence “formally demarcate
the scope of ‘statements’ for Confrontation Clause purposes.” See, e.g.,
Lamons, 532 F3d at 1263; United States v. Washington, 498 F3d 225, 230 n.1
9
We have noted that “the key to the definition of ‘statement’ is
that nothing is an assertion unless intended to be one.” State v. Orr,
305 Ga. 729, 741 (827 SE2d 892) (2019) (quoting Fed. R. Evid. 801
(a) advisory committee’s note on 1972 Proposed Rules). Examples of
conduct deemed a nonverbal statement by this Court and the federal
Courts of Appeals include “the act of an eyewitness pointing to a
suspect in a lineup as the perpetrator of a crime,” id., and a co-
conspirator “pointing out” a drug dealer’s house, United States v.
Caro, 569 F2d 411, 416 n.9 (5th Cir. 1978). See also, e.g., United
States v. Martinez, 588 F3d 301, 310-311 (6th Cir. 2009) (holding
that a doctor’s conduct on a video recording, which depicted him
performing a medical procedure, constituted a nonverbal statement
(4th Cir. 2007).
Gilmore acknowledges that Rule 801 “might provide guidance” in
defining a “statement” for Confrontation Clause purposes, but contends that
“[t]he definition of hearsay under the Confrontation Clause is broader than
Rule 801’s.” In this regard, the sole contention Gilmore advances is that the
CI’s conduct in this case constituted implied hearsay, which Gilmore contends
is not necessarily covered by Rule 801 (a)’s definition of a “statement” but
which nonetheless constitutes a testimonial statement. As we explain more
below, the CI’s conduct in this case was not implied hearsay; accordingly, we
need not decide Gilmore’s contention about the scope of “statements” for
purposes of the Confrontation Clause and assume, without deciding, that Rule
801 (a) (2)’s definition of “statement” applies here.
10
about the proper way to perform the procedure); United States for
the Use and Benefit of Carter Equip. Co., Inc. v. H.R. Morgan, Inc.,
544 F2d 1271, 1273 n.1 (5th Cir. 1977) (holding that a
subcontractor’s signing of invoices for repair and maintenance
“clearly constitute[d] nonverbal conduct intended as an assertion”
that he owed debt on the invoices). Cf. Wiggins v. State, 295 Ga. 684,
685-686 & n.2 (763 SE2d 484) (2014) (holding that a shooting victim
“respond[ing] affirmatively by nodding his head” to a family
member’s question about whether a particular person shot him was
a statement (and thus hearsay) but was admissible as a dying
declaration under former OCGA § 24-3-6).
On the other hand, this Court and others have concluded that
nonverbal conduct does not constitute a statement when it is not
intended to be an assertion. See Orr, 305 Ga. at 741 (stating that a
defendant’s failure to call the police after he was allegedly attacked
by the victim was not a nonverbal statement). See also, e.g., United
States v. Farrad, 895 F3d 859, 877 (6th Cir. 2018) (rejecting
defendant’s argument that photographs of guns—including one
11
featuring a person who looked like the defendant and others
showing a close-up of a hand holding a gun—“were all out-of-court
‘statements’ that [the defendant] illegally possessed a firearm,” and
concluding that the photographs did not constitute nonverbal
statements) (citation and punctuation omitted); United States v.
Kool, 552 Fed. Appx. 832, 834 (10th Cir. 2014) (holding that a
defendant did not intend to make an assertion when he, upon being
told that law enforcement officials had an incriminating photograph
showing a hand with tattoos on it, moved his hands from the
interview table and placed them under his armpits).
Here, Gilmore contends that the CI’s nonverbal conduct in the
video recording constituted a statement because the CI intended to
“prove [that] Gilmore sold drugs.” But we are not convinced. Unlike
a witness pointing to a specific person in a police lineup (nonverbal
conduct intended to assert something along the lines of “that is the
person”) or a person nodding her head in response to a specific
question (nonverbal conduct that is intended to assert “yes”) we
cannot say that a person handing money to another person and
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taking possession of a physical object in return is “intended [to be]
an assertion.” See Rule 801 (a) (2). We simply cannot conclude on
this record—as Gilmore implicitly asks us to—that the CI intended
to assert through his conduct something along the lines of “You are
a drug dealer” or “We are entering into a sale of illegal drugs” when
he handed a $20 bill to Gilmore and received drugs in exchange. 8
Other courts that have evaluated Confrontation Clause claims
8 We emphasize that we reach this conclusion based on the specific
evidence in the record before us in this appeal: a presumptively mute video
recording of a transaction. We also note that a foundational assumption in our
analysis is that “[l]aw enforcement officers with a drug task force suspected
Gilmore of selling drugs” and that agents “sent [the CI] to Gilmore’s home to
purchase drugs,” as opposed to sending the CI to purchase methamphetamine
from an unspecified drug dealer that the CI was asked to identify and select.
See Gilmore, 355 Ga. App. at 537. That law enforcement officials specifically
targeted Gilmore comports with the State’s representation on appeal that
“members of the Rome Floyd Metro Task Force . . . met with a confidential
informant for the purpose of conducting a controlled methamphetamine
purchase from David Gilmore.” (Emphasis supplied). We leave for another day
the harder question of whether the Confrontation Clause would be implicated
if, for example, law enforcement officials had instead instructed a CI to
purchase drugs “from his dealer,” and then the same video recording of the
transaction were made. Compare United States v. Gomez, 617 F3d 88, 91-97
(2d Cir. 2010) (holding that an agent’s testimony that he told a CI to “call his
[drug] supplier,” took the CI’s phone, and dialed the defendant’s number before
handing the phone back to the CI was “prejudicial hearsay” because it created
the “inescapable” inference that the CI “had told [the agent] that [the
defendant] was his supplier,” and recognizing that such testimony “directly
implicates the Confrontation Clause and [the defendant’s] right to confront his
accusers in court”).
13
pertaining to conduct depicted in video recordings or still images
taken from them have reached the same conclusion on similar
questions. For example, the Eleventh Circuit in Taylor evaluated a
Confrontation Clause claim pertaining to a muted video recording
that showed “from [a] confidential informant’s perspective” a CI
getting out of a car as part of a controlled drug purchase, walking
toward the defendant, and police officers “arriv[ing] on the scene”
after an “arrest signal was given.” 688 Fed. Appx. at 641-643. It
concluded that “the muted video clip did not appear to depict the [CI]
or the defendant, the only two individuals involved, making any
‘assertions.’” Id. at 642 (“On this record, it is not clear that the
footage of the confidential informant even contained testimonial
statements for purposes of the Confrontation Clause.”). In addition,
the Seventh Circuit in United States v. Wallace, 753 F3d 671 (7th
Cir. 2014), held that a mute video showing a drug dealer handing
cocaine to a CI did not depict a nonverbal statement, while also
noting that a law enforcement official “narrated the video at trial,”
that “his narration was a series of statements,” that “he was subject
14
to being cross-examined and was,” and that he was “thus . . .
‘confronted.’” 753 F3d at 674-675 (explaining that the court could
not “fit the videotape to” Federal Rule of Evidence 801 (a)’s
definition of a “statement”). See also United States v. Baker, No.
3:17-cr-59, 2019 WL 5682952, at *2-*3 (S.D. Oh. Nov. 1, 2019)
(finding that video clips from surveillance footage depicting the
defendant weighing drugs, providing drugs to customers, displaying
a firearm, and interacting with members of the conspiracy contained
no testimonial statements and was therefore not barred by the
Confrontation Clause and that, for hearsay purposes, the nonverbal
conduct depicted on the recording was not a statement). Here, much
like in Taylor, Wallace, and similar cases from across the country,
the video recording of the CI’s conduct serves as a visual depiction
of a transaction, and the conduct the video depicts does not
constitute a statement. See, e.g., Wallace, 753 F3d at 675; Taylor,
688 Fed. Appx. at 642.
Gilmore nonetheless points to Martinez to support his
contention that the nonverbal conduct depicted on the video
15
recording was, in fact, intended as an assertion (and thus
constituted a statement). He places significant analytical weight on
“who requested the nonverbal conduct” (i.e., law enforcement
officials) and on “the nonverbal conduct’s purpose” (i.e., “to accuse
someone of committing a crime”). See Martinez, 588 F3d at 311
(noting that the doctor “made the video in response to an FBI
request” and did so “with the purpose of demonstrating the proper
performance” of the medical procedure at issue in that case). In
Martinez, the Sixth Circuit held that the nonverbal portion of a video
recording in which a doctor demonstrated the “proper performance
of nerve-block injections” constituted a statement under Federal
Rule 801. Id. at 311. Extrapolating from the analysis in that case,
Gilmore argues for a categorical rule that “[c]onduct intentionally
made at law enforcement’s request to accuse someone of committing
a crime” constitutes a statement, and thus implies that the CI’s
nonverbal conduct on the video in this case constituted a statement.
But Gilmore’s proposed rule misapprehends the Sixth Circuit’s
analysis in Martinez. Although that court noted that the doctor in
16
Martinez made a video at the FBI’s request, its reference to the
doctor’s “purpose” in making the video pertained to the doctor’s
“intent” to demonstrate how to conduct a specific medical
procedure—not an intent to “accuse someone of committing a crime,”
as Gilmore suggests. See id. at 311 (“Here, Dr. Boswell made the
video in response to an FBI request, with the purpose of
demonstrating the proper performance of nerve-block injections.
Accordingly, because of Dr. Boswell’s intent, we conclude that his
conduct during the course of the video is an assertion of proper
medical performance and is, therefore, a statement under Rule
801(a) of the Federal Rules of Evidence.”). Put simply, the Sixth
Circuit’s conclusion that the nonverbal conduct depicted in the video
recording was a statement turned on the doctor’s intention to make
an assertion—that is, an intention to demonstrate with his conduct
how to perform a particular medical procedure—and not on his
cooperation with law enforcement officials, or on a characterization
17
of why he agreed to make the video in the first place.9 Martinez is
thus distinguishable, and Gilmore’s reliance on it is misplaced. 10
Citing a number of other non-binding cases, Gilmore argues
alternatively that even if the CI’s conduct did not constitute a
statement, it must still be barred by the Confrontation Clause
because it was implied hearsay—in other words, it was offered to
imply the testimonial assertion that the CI purchased drugs from
Gilmore. See, e.g., Park v. Huff, 493 F2d 923, 928 (5th Cir. 1974)
(explaining that “[p]roof of a particular fact . . . which is relevant
9 In this respect, Gilmore conflates the analysis of whether nonverbal
conduct constitutes a statement with whether a given statement is testimonial
for purposes of the Confrontation Clause. See Crawford, 541 U.S. at 52(describing the “core class of ‘testimonial’ statements” as “ex parte in-court
testimony or its functional equivalent—that is, material . . . that declarants
would reasonably expect to be used prosecutorially”). In so doing, Gilmore
sidesteps the threshold question of whether the conduct was intended to be an
assertion (and was thus a statement) in the first place. Contrary to Gilmore’s
contentions on appeal, the fact that a CI cooperated with law enforcement
officials does not by itself convert nonverbal conduct that was not intended to
be an assertion into a statement.
10 Since the Sixth Circuit decided Martinez, that same Circuit, a district
court in the Circuit, and other federal courts have specifically distinguished it
in their Confrontation Clause analyses. See, e.g., Farrad, 895 F3d at 877
(photographs of the defendant holding a gun); Baker, 2019 WL 5682952 at *2-
*3 & n.2 (video clips from surveillance footage of a defendant interacting with
members of a conspiracy and weighing drugs).
18
only as implying a statement or opinion of a third person” is
inadmissible implied hearsay) (citation and punctuation omitted);
State v. Davis, 800 SE2d 138, 146-147 & n.8 (S.C. Ct. App. 2017)
(holding that a law enforcement officer’s testimony was implied
hearsay barred by the Confrontation Clause where the officer
testified that a CI went to the defendant’s house with government
funds, purchased drugs, and returned with methamphetamine,
given that the CI was unavailable to testify at trial, the testifying
officer had not been present at the buy, and there was no video
recording of the buy).
But this argument also fails. As an initial matter, the CI’s
conduct depicted on the video recording does not imply that the CI
somehow made a statement accusing Gilmore of selling
methamphetamine or expressing an opinion or belief that he did so.
As Gilmore readily admits, the CI engaged in the controlled buy at
the direction of law enforcement, who sent him to purchase
methamphetamine specifically from Gilmore. We cannot say that
the video recording itself implied that the CI made any testimonial
19
statements to law enforcement. Compare Park, 493 F2d at 928.
Moreover, Davis is inapposite because—unlike in that case, where
there was no video recording of the controlled buy and the substance
of the officer’s testimony could only have come from the CI’s
statements, see Davis, 800 SE2d at 146—the controlled buy at issue
here was captured on a video recording, which a law enforcement
officer who participated in setting up the buy reviewed and the State
can play for the jury (if it is otherwise admissible) at Gilmore’s trial.
Thus, unlike the officer’s testimony in Davis, the evidence at issue
here—the video recording—does not create an implication that the
CI told the officers anything.
We are similarly unpersuaded by Lowe v. State, 97 Ga. 792 (25
SE 676) (1896), the one Georgia case Gilmore cites in support of his
implied-hearsay argument. See id. at 793-794 (holding that the trial
testimony of a rape victim’s mother was inadmissible hearsay
because the mother testified that the victim had shown her “the
clothes she had on at the time” of the rape, where “the mother was
not present on that occasion, [and] her only knowledge as to what
20
clothes her daughter wore at the time must have been derived alone
from the latter’s statements”). Again, unlike the testimony in Lowe,
the video recording here merely depicts the CI’s nonverbal conduct,
and that conduct does not imply a hearsay statement.
Because the CI’s nonverbal conduct depicted in the video
recording did not constitute a statement—even by implication—it
could not as a matter of law constitute a testimonial statement
barred by the Confrontation Clause. See Crawford, 541 U.S. at 68.
Accordingly, we reverse the decision of the Court of Appeals and
remand this case for further proceedings consistent with this
opinion.
Judgment reversed and case remanded. All the Justices concur.
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