Gialenios v. State ( 2021 )

In the Supreme Court of Georgia
Decided: March 1, 2021
S20A1196. GIALENIOS v. THE STATE.
BOGGS, Justice.
After a 2019 jury trial, Robert Derek Gialenios was convicted
of malice murder and possession of a firearm during the commission
of a felony arising out of the shooting death of Bryan Overseth, the
husband of Gialenios’ mistress. His amended motion for new trial
was denied, and he appeals, asserting seven enumerations of error.
For the reasons stated below, we affirm. 1
1 The crimes occurred on January 21, 2017. On April 11, 2017, a
Cherokee County grand jury indicted Gialenios for malice murder, felony
murder, aggravated assault, possession of a firearm during the commission of
a felony, stalking Kerri Overseth, and loitering and prowling on the property
of Kerri Overseth’s sister, Jennifer Grady. The stalking and loitering-and-
prowling charges were severed, and after a trial from January 28 to February
7, 2019, a jury found Gialenios guilty of all remaining charges. The trial court
sentenced Gialenios to life imprisonment without the possibility of parole for
murder and five years to be served consecutively for the firearms charge. The
trial court merged the aggravated assault count into the malice murder count
and purported to merge the felony murder count into the malice murder count
1. (a) Construed in the light most favorable to the jury’s
verdicts, the evidence presented at trial showed that Overseth and
his wife, Kerri, were married for 16 years. Gialenios and Kerri met
online while the Overseths were living in Montana, where they had
recently moved from Georgia. Gialenios and Kerri established a
long-distance romantic relationship, calling or texting on an almost
daily basis. After Kerri’s father suffered a stroke, she returned to
Georgia in July 2016 to stay with him for about ten days at his home
in a large subdivision in Holly Springs. She met Gialenios in person
for the first time on the night she arrived, and the relationship
became sexual after she let him into her father’s home through a
window.
Thereafter, Gialenios met Kerri almost every night while she
was in Georgia, parking his white Toyota 4Runner at a Mexican
as well, although the felony murder count was actually vacated by operation of
law. See Malcolm v. State, 263 Ga. 369, 371-72 (4) (434 SE2d 479) (1993). An
order of nolle prosequi was entered on the stalking and loitering-and-prowling
charges. New counsel filed a motion for new trial on February 15, 2019, which
he amended on March 11, 2019. After a hearing on March 12, 2020, the motion
was denied on March 27, 2020. Gialenios filed a timely notice of appeal on April
7, 2020, and the case was docketed in this Court for the August 2020 term and
orally argued on September 17, 2020.
2
restaurant a few blocks from her father’s house and walking with
Kerri through the neighborhood and on trails surrounding the
nearby lake. Gialenios was carrying several guns whenever he met
Kerri, and he told her that he “always carries. He never is without
his guns.” Kerri confided in Gialenios that she was unhappy in her
marriage, and Gialenios told her that if she slept with Overseth
again, he would kill them both. When Kerri said she was returning
to her family in Montana, Gialenios was angry and sent her multiple
messages demanding that she stay, even after she was on the flight
home.
Gialenios repeatedly told Kerri that she “deserved better” and
urged her to leave her husband, and he sent Kerri and her children
gifts. Kerri’s adult son, Brendan, discovered the affair through social
media and spoke with Gialenios, who told the son that he and Kerri
were in love and tried to enlist his sympathy. In November, Kerri
told Gialenios that she was pregnant, and he became angry because
it meant she had sex with Overseth despite his earlier threat to kill
them both.
3
In December 2016, the Overseths came to visit Kerri’s family
in Georgia for the holidays. Overseth stayed with Kerri’s father so
that he could work remotely without interruption, and the family
dog stayed there as well, while Kerri and the children stayed at her
sister’s house in Canton. Gialenios visited the sister’s house
frequently to continue the affair, sometimes appearing “unwanted
and uninvited” and banging on the windows.
On Friday, January 20, 2017, Kerri told Gialenios that she was
planning on returning to Montana with her husband and children.
They met that night, and Kerri again told Gialenios that she would
be leaving; he texted her repeatedly that something was “in the way”
of their affair. On Saturday, January 21, the day of the murder, they
communicated frequently by phone and text, and Gialenios texted
her: “It’s a good thing you and I, it’s us, Babe. It’s all us.” He also
texted her that “s**t that holds you back, I will remove. . . .” They
last spoke shortly after 8:00 p.m. Gialenios also sent a text that day
to a friend in reference to Kerri stating: “She is all mine. I got my
Queen.”
4
That evening, Overseth returned from dinner and, while
talking to Kerri on the phone, remarked that a large brick was
sitting in her father’s driveway. Kerri testified that she was
suspicious that Gialenios had something to do with it and had “gone
to confront” her husband; she attempted to text and call Gialenios,
but his phone went to voicemail. According to cell phone records
later obtained by means of a search warrant, Gialenios’ cell phone
was located close to a nearby Cherokee County cell tower multiple
times between 7:40 p.m. and 9:04 p.m., and at around 10:00 p.m., an
employee of the nearby Mexican restaurant saw a white Toyota
4Runner parked beside the dumpster in the restaurant parking lot,
with a male occupant.
Shortly after 10:00 p.m., Overseth left the house to walk the
dog and did not return. At about 10:30 p.m., Kerri’s father’s next-
door neighbor heard a single loud bang. Eventually, concerned that
his son-in-law had not returned, her father went out to look for
Overseth and found him lying by the side of the access road behind
the house. The father tried to find a pulse, but could not, and he ran
5
to the next-door neighbor’s house and told him, “My son-in-law’s
lying out in the road. I think he’s dead.” At 10:41 p.m., the neighbor
called 911, and police and EMTs responded but were unable to
revive Overseth, who had a bullet wound in his forehead. Police
found Overseth’s wallet, keys, and cell phone on his person. An
expended Federal brand .22-caliber shell was found near his feet.
When police informed Kerri of her husband’s death and asked
if she knew of anyone who wanted to harm him, she immediately
gave them Gialenios’ name, although she did not know his address
and had only his cell phone number. Police investigators located
Gialenios the following day, and when interviewed, he gave evasive
answers, saying that he did not recall if he was in Cherokee County
the previous evening.
During Overseth’s burial service, held on January 28, 2017,
Gialenios showed up uninvited at the cemetery with what appeared
to be dead flowers, and even though relatives told him to leave, he
did not leave right away. On the night of February 1, Gialenios
entered the back yard of Kerri’s sister’s house and left a package
6
addressed to Kerri on the basement terrace. The package contained
two Hallmark cards, a love note, a rose, a Publix receipt, and a note
with a time and place for a movie. The family called the police, who
located Gialenios at a nearby gas station. Gialenios admitted to a
police officer that he had entered the sister’s back yard and left the
package there; he was arrested for stalking, and later for murder.
The medical examiner testified that the cause of death was a
single contact gunshot wound to the head. A firearms examiner
testified that the bullet, which was recovered from Overseth’s head,
was a .22-caliber bullet consistent with being fired from a Walther
P22 pistol. Police learned from Gialenios’ ex-wife that he owned a
.45-caliber Kimber pistol and a .22-caliber Walther P22 pistol; a
firearms dealer testified that he sold Gialenios both firearms and a
box of Federal brand .22-caliber ammunition. The Kimber pistol was
recovered, but the Walther pistol was never found despite an
extensive search. After Gialenios’ ex-wife told the police that they
used to shoot both pistols from the back deck at their former home,
the police searched the deck area of that home and recovered three
7
expended Federal brand .22-caliber shells. A Georgia Bureau of
Investigation firearms examiner testified that two of the shells were
too corroded for him to determine any significant individual
characteristics, but that the third shell and the shell recovered at
Overseth’s feet were fired from the same pistol.
(b) Gialenios contends that the evidence was insufficient to
support his conviction, because the State’s case was based solely on
circumstantial evidence and failed to exclude all reasonable
hypotheses of innocence under OCGA § 24-14-6.
However, whether an alternative hypothesis raised by the
defendant is “reasonable” is a question committed
principally to the jury, and where the jury is authorized
to find that the evidence, though circumstantial, was
sufficient to exclude every reasonable hypothesis save
that of the guilt of the accused, we will not disturb that
finding unless it is insupportable as a matter of law.
(Citations and punctuation omitted.) Long v. State, 309 Ga. 721, 726
(1) (b) (848 SE2d 91) (2020). “Not every hypothesis is reasonable,
and the evidence does not have to exclude every conceivable
inference or hypothesis; it need rule out only those that are
reasonable.” (Citation omitted.) Akhimie v. State, 297 Ga. 801, 804
8
(1) (777 SE2d 683) (2015).
First, Gialenios asserts that the State’s evidence did not
exclude the hypothesis that Overseth was murdered by one of two
other men with whom Kerri had exchanged sexual text messages in
the past. But the evidence showed that one of those men lived in
Montana, and nothing indicated that he had ever traveled to
Georgia. The other man with whom Kerri had exchanged text
messages lived in Cherokee County, but he had only met Kerri once
at a grocery store in Canton over a year before the murder, and no
evidence was presented of a physical relationship. Gialenios’ second
hypothesis is that Overseth may have been shot by an unidentified
person who was seen by another subdivision resident behaving
suspiciously on the night of the murder. But no evidence connected
this unidentified person to the crime or to the area of the subdivision
in which Kerri’s father lived.2
In contrast, evidence was presented that Gialenios was well
2 That witness’ home was slightly over a mile and a half from the crime
scene, on the far side of two lakes, and near the opposite end of this large
subdivision of approximately 2,000 homes.
9
acquainted with both Kerri’s father’s house and the surrounding
area as he had been there on a daily basis, his vehicle was seen
parked nearby on numerous occasions, including on the night of the
murder, and his cell phone “pinged” off a nearby tower
approximately one hour before the murder. And not only did
Gialenios have a long-standing emotional and physical relationship
with Kerri, he tried to persuade her to leave her husband,
threatened to kill both her and her husband, and continued to press
his attentions on her after her husband’s murder, arriving uninvited
at the burial service and leaving her flowers and an invitation to a
date in the middle of the night less than two weeks after the murder.
Finally, the fatal bullet was fired from the same .22-caliber pistol
that Gialenios shot from the deck at his former home.
Viewed as a whole, this evidence was sufficient to enable the
jury to reject either of the hypotheses proposed and to determine
instead that Gialenios killed Overseth. “It was for the jury to
determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.” (Citations and
10
punctuation omitted.) Long, 309 Ga. at 726-727. The evidence
presented at trial and summarized above also was sufficient as a
matter of constitutional due process to enable a rational trier of fact
to conclude beyond a reasonable doubt that Gialenios was guilty of
the crimes of which he was convicted. See Jackson v. Virginia, 443
U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Gialenios enumerates as error the trial court’s denial of his
motion to suppress his cell phone records, including cell site location
information (CSLI), contending that the records were obtained in
violation of Carpenter v. United States, 585 U. S. ___, (138 SCt 2206,
201 LE2d 507) (2018).3 In accordance with this Court’s recent
decision in Lofton v. State, __ Ga. __, __ (2) (__ SE2d __) 2021 Ga.
3 As we noted in Lofton v. State, __ Ga. __, __ (2) (__ SE2d __) 2021 Ga.
LEXIS 28 (Case No. S20A1101, decided Feb. 15, 2021), the United States
Supreme Court held in Carpenter that “accessing seven days of CSLI
constitutes a Fourth Amendment search,” Carpenter, ___ U.S. at ___ & n.3 (III)
(138 SCt at 2217); Lofton, 2021 Ga. LEXIS 28 at *19 (2). However, as we also
noted in Lofton, Carpenter was narrowly decided: it addressed “government-
compelled production of cell phone records under 18 USC § 2703 (c) (1) (B) and
(d),” not “a request under 18 USC § 2702 (c) (4) for the voluntary disclosure of
records to address an emergency.” Lofton, 2021 Ga. LEXIS 28 at *19 (2).
Moreover, Carpenter expressly declined to consider whether Fourth
Amendment scrutiny applied to CSLI obtained for a shorter period of time. See
Carpenter, 585 U.S. at ___ & n.3 (III) (138 SCt at 2217).
11
LEXIS 28 (Case No. S20A1101, decided Feb. 15, 2021), we conclude
that this contention is meritless under the facts presented here.
In reviewing a ruling on a motion to suppress, we review
the trial court’s factual findings for clear error and its
legal conclusions de novo. In addition, in reviewing such
a ruling, an appellate court must construe the evidentiary
record in the light most favorable to the trial court’s
factual findings and judgment. An appellate court also
generally must limit its consideration of the disputed
facts to those expressly found by the trial court.
(Citations and punctuation omitted). Kennebrew v. State, 304 Ga.
406, 409 (819 SE2d 37) (2018). So viewed, the testimony at the
hearing on Gialenios’ motion to suppress showed that the lieutenant
in charge of the criminal investigations division of the Holly Springs
Police Department received a call to the crime scene at
approximately 11:00 p.m. on January 21, 2017. He was concerned
because the police initially were presented with an execution-style
shooting with no suspect, no witnesses, and no weapon on the scene.
In addition, the contact nature of the fatal wound indicated that
evidence might be found on the suspect if he were located quickly.
Early on the following morning, Kerri informed police officers that
12
she believed Gialenios was responsible, that he carried multiple
firearms, that Gialenios knew where her sister and her father lived,
and that she was concerned that she and her family were in danger.
And while Kerri identified Gialenios by name and believed he lived
in Hall County, she did not know his address and had only his cell
phone number. The lieutenant testified that he had no other reliable
means to locate Gialenios other than his phone number.
Later on the same day, the lieutenant contacted Verizon
Wireless to request Gialenios’ cell phone records. A Verizon
employee instructed the lieutenant to fill out an “Emergency
Situation Disclosure” form, which stated that the request was made
“pursuant to 18 U.S.C. § 2702 (b) (8) or § 2702 (c) (4) or an equivalent
state law.”4 The lieutenant completed the form, affirming that the
request “potentially involve[d] the danger of death or serious
4 These provisions of Title II of the Electronic Communications Privacy
Act of 1986 or Stored Communications Act (“SCA”) allow the voluntary
disclosure to a governmental entity of the “contents of communications” or
customer records, respectively, upon a showing that “the provider, in good
faith, believes that an emergency involving danger of death or serious physical
injury to any person requires disclosure without delay of communications [or
records] relating to the emergency.” See Lofton, 2021 Ga. LEXIS 28 at *16 &
n.11.
13
physical injury to a person, necessitating the immediate release of
information relating to that emergency,” and noting that the subject
was a “murder suspect considered armed and dangerous.” This
request was sent in the early afternoon of the day following the
murder, seeking information beginning with the last time Kerri had
telephone contact with Gialenios, approximately two hours before
the murder, to the time of the request.
At the hearing on Gialenios’ motion to suppress, the lieutenant
testified that when Verizon sent him the requested records, he was
unable to decipher the contents. Because of the emergency situation,
he telephoned Verizon again and asked the employee simply to tell
him the last known location of Gialenios’ cell phone. When the
employee told him that the phone was last located in Gainesville,
the lieutenant concluded that Gialenios was no longer an immediate
risk to Kerri or her family: “And at the point [that] we determined
he was in Hall County, that fear ended at that point.” Nothing more
was done with the records provided to the lieutenant pursuant to
the emergency request, but a police officer kept Kerri’s sister’s house
14
under guard until Gialenios was arrested.
Gialenios contended that because the police lieutenant
improperly obtained cell phone records in violation of Carpenter, the
trial court should suppress all subsequently obtained cell phone
information, including the more substantial quantity of records
obtained under a later search warrant. The trial court denied the
motion to suppress under the independent source exception to the
exclusionary rule, see Reaves v. State, 284 Ga. 181, 183-84 (2) (c)
(664 SE2d 211) (2008), finding that a later investigation by a GBI
agent would have discovered the same cell phone-related
information without relying upon the information released to the
lieutenant, and that the agent’s investigation independently
supplied “more than enough” probable cause to support the later
issuance of a search warrant for the much broader range of records
sought by the GBI. 5 In its order denying Gialenios’ motion for new
5 The GBI agent who obtained the search warrant testified that, while
she was aware of the lieutenant’s earlier request for approximately 18 hours
of phone records, she did not rely upon those records but upon her independent
investigation, including interviews with Gialenios and others, to support her
15
trial, the trial court also found that exigent circumstances as
permitted by Carpenter justified the initial release of the CSLI
information for the 18 hours immediately surrounding the murder.6
We need not address those findings directly, because, in accordance
with our decision in Lofton, we conclude that the exclusionary rule
does not apply in the circumstances presented here.
At the time of the lieutenant’s request for Gialenios’ cell phone
records in January 2017, no precedent controlling in Georgia courts
held that a government agency’s emergency request for cell site
location data in the custody of a third party cell phone service
provider constituted a search under the Fourth Amendment. See
Lofton, 2021 Ga. LEXIS 28 at *20-21 (2); see also Reed v. State, 307
Ga. 527, 535 (2) (b) (837 SE2d 272) (2019) (ineffective assistance of
request for a search warrant.
6 Carpenter noted that its holding was fact-specific and that a
warrantless search would likely remain permissible under exigent
circumstances such as “the need to pursue a fleeing suspect, protect individuals
who are threatened with imminent harm, or prevent the imminent destruction
of evidence,” and that the holding did not “call into doubt warrantless access
to CSLI in such circumstances” or “limit [the police’s] ability to respond to an
ongoing emergency.” (Citations and punctuation omitted.) Carpenter, 138 SCt
at 2222-2223 (IV).
16
counsel claim rejected because “[a]t the time of Appellant’s trial,
Georgia appellate precedent held that a search warrant was not
required to obtain CSLI.”).
In Lofton and Registe v. State, 292 Ga. 154, 155-156 (734 SE2d
19) (2012), we concluded, after a thorough review of the controlling
decisional and statutory law, that the applicable laws in effect at the
time, particularly the provision of 18 USC § 2702 (c) (4) for voluntary
disclosure of CSLI when “the provider, in good faith, believes that
an emergency involving danger of death or serious physical injury
to any person requires disclosure without delay,” supported the
disclosure of the CSLI without a warrant. Lofton, 2021 Ga. LEXIS
28 at *22 (2). Bearing in mind the stated intention of the
exclusionary rule to deter improper conduct on the part of police
officers, see Davis v. United States, 564 U. S. 229, 236-237 (II) (131
SCt 2419, 180 LE2d 285) (2011), this Court held in Lofton that there
would be no deterrent value in excluding evidence obtained by the
police acting with an objectively “reasonable good-faith belief” that
their conduct was lawful based on a reasonable reliance on an
17
applicable federal statute and binding appellate precedent. We
concluded that, given the good-faith belief of the officer in that case
that his conduct in this emergency context was lawful, “reversing
the trial court’s decision in this case would have little, if any,
additional benefit in deterring future violations of the privacy
interests recognized in Carpenter.” (Citations omitted.) Lofton, 2021
Ga. LEXIS 28 at *23 (2).
Similarly, here the police lieutenant made a good-faith request
based on the applicable law at the time permitting the cell phone
provider in good faith to make an emergency release of records
without a search warrant. The request was made while the suspect
was still at large, was likely armed, and had threatened a witness,
and the police had no other immediate means to ascertain his
whereabouts. As in Lofton, exclusion of the CSLI evidence in this
case would have little, if any, effect in deterring future violations,
and we therefore affirm the trial court’s denial of Gialenios’ motion
to suppress. See Lofton, 2021 Ga. LEXIS 28 at *23 (2).
3. Gialenios contends that the admission into evidence of his
18
cell phone records through the business records exception to the
hearsay rule violated the Sixth Amendment’s Confrontation Clause.
See Johnson v. State, 289 Ga. 22, 26 (4) (709 SE2d 217) (2011) (“The
Confrontation Clause generally prohibits the admission of an out-of-
court testimonial statement made by a declarant who is not
available for cross-examination by the accused.” (Citations
omitted.)). Because the records were non-testimonial, we disagree.
Here, the records at issue were maintained in the ordinary
course of Verizon’s business, and they were not documents created
for the primary purpose of establishing evidence for use in a future
prosecution. See Franklin v. State, 298 Ga. 636, 640 (2) (784 SE2d
359) (2016). Because Verizon’s business records were non-
testimonial, their introduction in accordance with OCGA §§ 24-8-
803 (5) and 24-9-902 (11) does not implicate the Confrontation
Clause. 7
7 At trial, the State introduced Verizon’s records under certification by
their custodian as “true and accurate copies of the records created from the
information maintained by Verizon in the actual course of business [and in its]
ordinary practice” and “made contemporaneously with the transaction[s] and
19
Gialenios asserts that the United States Supreme Court’s
decision in Melendez-Diaz v. Massachusetts, 557 U. S. 305 (129 SCt
2527, 174 LE2d 314) (2009), requires that an authenticating records
custodian testify and be subject to cross-examination, but that is
incorrect. In Melendez-Diaz, a drug prosecution, the documents at
issue were “certificates,” prepared by state forensic analysts,
declaring that the “the substance found in the possession of
Melendez-Diaz and his codefendants was, as the prosecution
claimed, cocaine – the precise testimony the analysts would be
expected to provide if called at trial.” 557 U. S. at 310 (II). The sole
purpose of these documents was testimonial, and any opinions set
out in the documents therefore needed to be presented by witnesses
subject to cross-examination in order to comply with the
Confrontation Clause. See id. “A statement is testimonial if it is
events stated therein.” OCGA § 24-9-902 (11) provides for self-authentication
of business records admissible under OCGA § 24-8-803 (6) by means of an
affidavit of the records custodian. The latter Code section provides an exception
to the hearsay rule for records made “at or near” the time of the described acts
of “a regularly conducted business activity” made “as a regular practice of that
business activity” by “a person with personal knowledge and a business duty
to report.” See Hayes v. State, 298 Ga. 98, 100-104 (2) (b) (779 SE2d 609) (2015).
20
made with the involvement of government officers in the production
of testimonial evidence.” (Citations and punctuation omitted.) Agee
v. State, 310 Ga. 64, 70 (2) (849 SE2d 482) (2020). In contrast with a
state employee preparing a document for the sole purpose of
prosecution, “[w]ireless carriers collect and store CSLI for their own
business purposes.” Carpenter, 138 SCt at 2212 (I) (A).
Gialenios’ reliance on this Court’s decision in Wise v. State, 300
Ga. 593 (797 SE2d 447) (2017), similarly fails because the State’s
expert witness who interpreted the Verizon records at trial was
available to testify and was cross-examined by Gialenios. The
Confrontation Clause was not violated, and this enumeration of
error has no merit. See Wise, 300 Ga. at 597-598 (4).
4. Gialenios asserts that the trial court abused its discretion in
limiting the cross-examination of Kerri and her oldest son, Brendan,
about whether Overseth had emotionally abused Kerri and tricked
or forced her into intercourse, resulting in her pregnancy. Gialenios
suggests that this evidence would have rebutted testimony that
Gialenios referred to the unborn child in question as “the spawn of
21
Hell.” Under the evidence presented here, particularly given the
trial court’s decision to allow Gialenios to make an inquiry, though
limited, on the circumstances of the pregnancy, the trial court did
not abuse its discretion.
The State called Brendan, Kerri’s oldest child by a previous
marriage, who testified that his mother married Overseth when he
was three years old and that he treated Overseth as his father.
Brendan testified that he moved out of the house when he was 18 as
a result of conflicts with Overseth, and that his parents’ marriage
was “rough at times.” Asked by the prosecutor if he had told police
investigators that “there were times in the past when [he] had
wished that [Overseth] were dead,” he acknowledged that he had
said that to members of his family but did not recall if he had said
that to the police. His memory was refreshed with his transcribed
statement to the police, and he acknowledged that he had made that
statement.
On cross-examination, Brendan was asked if his mother ever
confided in him, and he testified that Kerri told him that Overseth
22
was “verbally abusive.” He agreed that he had stated in the past that
he would like to beat Overseth or kill him. Asked if Kerri confided
any details of her sex life to him, Brendan responded, “Not like in
to[o] great detail.” He then was asked if Kerri told him “that she
believed that [Overseth] raped her?” The State immediately
objected, and a conference was held outside the presence of the jury.
The defense contended that Brendan’s testimony regarding his
mother’s marriage had opened the door to asking Brendan about
whether his mother ever told him that the unborn child was a “rape
baby” and argued that the “rule of completeness” in OCGA
§ 24-8-822 demanded that Brendan’s entire police interview come
into evidence. The trial court ruled that any such statement was
hearsay not subject to an exception, that it was not relevant to any
issue in the case, and, finally, that “the prejudicial effect . . . far
outweighs any probative value of this,” and instructed the jury to
disregard the question.
Before the defense cross-examination of Kerri, this evidence
was discussed once again. Gialenios contended that, because Kerri
23
testified that he called the baby “the spawn of hell,” he was entitled
to elicit testimony that the child was the product of rape. The trial
court reiterated that any question on cross-examination could not
inquire whether Kerri had mentioned “rape” or a “rape baby,” but
that counsel could ask Kerri how the child was conceived.8
The trial court did not abuse its discretion in limiting
Gialenios’ questioning with regard to this issue.
Although a defendant’s right to cross-examine witnesses
is secured by the Sixth Amendment to the Constitution,
that right does not allow for unlimited questioning. Trial
courts retain wide latitude to impose reasonable limits on
cross-examination based on concerns about, among other
things, interrogation that is only marginally relevant.
(Citations and punctuation omitted.) Harris v. State, 302 Ga. 832,
836 (3) (809 SE2d 723) (2018).
(a) Since the enactment of Georgia’s current Evidence Code,
“[a]dmissibility of evidence of a victim’s character is now governed
8 In response to a question on cross-examination, “And what did you tell
[Gialenios] about how it was that you became pregnant with this baby?” Kerri
responded that she told him that Overseth “made [her] some strong vodka
tonics” in order to encourage her to have sex with him, and that his
contraception failed.
24
by OCGA §§ 24-4-404 (a) (2) and 24-4-405 (a), which generally limit
evidence of a victim’s character to reputation or opinion and not
specific bad acts.” (Citation omitted.) White v. State, 307 Ga. 882,
885 (2) (838 SE2d 828) (2020). Moreover, even relevant evidence
may be excluded if the trial court finds that “its probative value is
substantially outweighed by the danger of unfair prejudice.” OCGA
§ 24-4-403 (“Rule 403”). Even assuming without deciding that the
testimony Gialenios sought to elicit from Brendan was in any way
relevant and was not excludable as hearsay, we agree with the trial
court that the evidence was not probative and was overly prejudicial
to Overseth by suggesting that he was deserving of death, whether
at the hands of Gialenios or someone else.
[T]here remains a presumption in this State that
character evidence is inadmissible, and this presumption
is particularly strong as to the character of the victim in
a criminal case. This presumption will continue in the
new evidence code. See OCGA § 24-4-404 (effective Jan.
1, 2013). Courts of law are, and should be, on guard
against “frontier” justice – judgment based not on the
evidence and the law but rather on the jury’s view of
whether the victim “needed killing.” Thus, we have
emphasized that “it is just as unlawful to murder a violent
person as it is to murder a nonviolent person.”
25
(Citations omitted.) State v. Hodges, 291 Ga. 413, 425 (4) (728 SE2d
582) (2012) (Nahmias, J., concurring specially). Particularly after
permitting Brendan to testify about Overseth’s verbal abuse of Kerri
and in light of its ruling permitting Gialenios to examine Kerri
regarding the circumstances of her pregnancy, the trial court did not
abuse its discretion in prohibiting reference to the terms “rape” or
“rape baby.”
(b) In another enumeration of error, Gialenios relies upon the
“rule of completeness” in OCGA § 24-8-822.9 Gialenios asserts that,
once Brendan referred to his statement to the police to refresh his
recollection, Gialenios should have been allowed to cross-examine
Brendan with regard to his entire statement, including his alleged
mention of Kerri’s “rape baby” remark, and that Gialenios also
should have been able to cross-examine Kerri with regard to
9OCGA § 24-8-22 provides: “When an admission is given in evidence by
one party, it shall be the right of the other party to have the whole admission
and all the conversation connected therewith admitted into evidence.” This
Code provision is identical to former OCGA § 24-3-38, and cases decided under
the former Code section therefore remain good law. See Jackson v. State, 301
Ga. 866, 869 n.3 (3) (804 SE2d 367) (2017).
26
whether she made such a statement. The trial court noted Gialenios’
assertion of the rule of completeness but concluded that the remark’s
prejudicial effect outweighed its probative value, if any. Assuming
without deciding that the matter sought to be introduced by
Gialenios falls within the scope of OCGA § 24-8-822, 10 see generally
State v. Holmes, 304 Ga. 524, 530 n.6 (2) (b) (820 SE2d 26) (2018),
we cannot say that the trial court abused its discretion.
The rule of completeness “prevents parties from misleading the
jury by presenting portions of statements out of context, but it does
not make admissible parts of a statement that are irrelevant to the
parts of the statement introduced into evidence by the opposing
party.” (Citations and punctuation omitted.) Jackson v. State, 301
10 We note that the Evidence Code contains another rule-of-completeness
provision. OCGA § 24-1-106 says:
When a writing or recorded statement or part thereof is introduced
by a party, an adverse party may require the introduction at that
time of any other part or any other writing or recorded statement
which, in fairness, should be considered contemporaneously with
the writing or recorded statement.
Unlike OCGA § 24-8-822, this provision “mirrors Federal Rule of Evidence 106”
and is interpreted consistently with federal appellate decisions construing the
federal rule. Edwards v. State, 308 Ga. 176, 182 n.3 (2) (839 SE2d 599) (2020).
But Gialenios does not argue his claim under OCGA § 24-1-106.
27
Ga. 866, 869 (3) (804 SE2d 367) (2017). It “permits introduction only
of additional material that is relevant and is necessary to qualify,
explain, or place into context the portion already introduced.”
(Citation and punctuation omitted; emphasis supplied.) Id. Here,
Brendan’s statement to the police was not introduced into evidence
or published to the jury; indeed, it does not even appear in the trial
record. Brendan simply refreshed his recollection from the
statement with regard to what he had told the police and then
testified based on his recollection of the events in question.
Similarly, while Kerri testified to telling Gialenios about her
pregnancy, no evidence was introduced of any statement by her with
regard to a “rape baby,” and Kerri did not testify about making such
a statement. The wording and context of this alleged remark are not
part of the trial record, and thus we cannot say that the trial court
abused its discretion in ruling that the remark was not “necessary
to qualify, explain, or place into context” any statement. This
enumeration of error therefore is without merit.
5. Gialenios contends that the trial court improperly admitted
28
as “intrinsic evidence” testimony and photographs regarding his
entry into Kerri’s sister’s back yard in the middle of the night to
leave flowers, valentine cards, and a note for Kerri. He argues that
the evidence was not relevant because the loitering-and-prowling
and stalking charges against him were severed for trial, that the
evidence was not intrinsic, that it was barred by Rule 403, and that
it was unfairly prejudicial and should have been excluded. 11 We
disagree.
The requirements of OCGA § 24-4-404 (b) do not apply to
“intrinsic evidence,” which is an uncharged act arising from the
same transaction or series of transactions as the charged offense,
necessary to complete the story of the crime, or “inextricably
intertwined” with the evidence of the charged offense. Williams v.
State, 302 Ga. 474, 485 (IV) (d) (807 SE2d 350) (2017).
[E]vidence of other acts is inextricably intertwined with
the evidence regarding the charged offense if it forms an
integral and natural part of the witness’s accounts of the
11In granting the motion to sever, the trial court expressly noted that it
was not ruling on the admissibility at Gialenios’ trial on the murder charges of
the evidence underlying the severed charges, and that the evidence would not
necessarily be inadmissible.
29
circumstances surrounding the offenses for which the
defendant was indicted. And this sort of intrinsic evidence
remains admissible even if it incidentally places the
defendant’s character at issue.
(Citations and punctuation omitted.) Id. at 486 (IV) (d). Whether to
admit such evidence is a matter within the trial court’s sound
discretion. See Fleming v. State, 306 Ga. 240, 245 (3) (a) (830 SE2d
129) (2019). And while intrinsic evidence must also satisfy the
requirements of Rule 403,12
it is only when unfair prejudice substantially outweighs
probative value that the rule permits exclusion. And Rule
403 is an extraordinary remedy, which should be used
only sparingly, and the balance should be struck in favor
of admissibility. Thus, in reviewing issues under Rule
403, we look at the evidence in a light most favorable to
its admission, maximizing its probative value and
minimizing its undue prejudicial impact.
(Citations and punctuation omitted; emphasis in original.) Anglin v.
State, 302 Ga. 333, 337 (3) (806 SE2d 573) (2017).
Here, the evidence at issue was necessary to complete the story
12 OCGA § 24-8-822 provides: “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.”
30
of the crime, because it sheds light on Gialenios’ motives in his
single-minded and continuing pursuit of Kerri without any apparent
concern over her husband’s murder or his previous threats. And the
probative value of the evidence was not substantially outweighed by
the danger of unfair prejudice under Rule 403, particularly in light
of the trial court’s caution that the witnesses were not to testify to
Gialenios’ arrest for the severed charges or to mention those charges
by name. We cannot say that the trial court abused its discretion in
admitting this evidence.
6. Finally, Gialenios asserts that the trial court erred in
denying his motion to suppress his interview with the police, which
took place in the front yard of his residence in Hall County. He
contends that he was in custody and was not given his Miranda
warnings 13 and that he invoked his right to remain silent and asked
for an attorney.
Miranda warnings are required only when a person is
interviewed by law enforcement while in custody. One is
considered to be “in custody” for Miranda purposes if he
13See Miranda v. Arizona, 384 U. S. 436, 467-468 (III) (86 SCt 1602, 16
LE2d 694) (1966).
31
has been formally arrested or his freedom of movement
has been restrained to the degree associated with a formal
arrest. The determination of custody in this context
requires assessing whether a reasonable person in the
suspect’s situation would perceive that he was at liberty
to terminate the interview and leave.
(Citations and punctuation omitted.) Drake v. State, 296 Ga. 286,
288-289 (2) (766 SE2d 447) (2014). The circumstances surrounding
the admissibility of a defendant’s statement are determined by the
trial court and construed by an appellate court in the light most
favorable to the trial court’s findings, which will be upheld unless
they are clearly erroneous. See State v. Rumph, 307 Ga. 477, 477-
478 (837 SE2d 358) (2019).
So viewed, the evidence presented at the hearing on the motion
to suppress – consisting of the testimony of four law enforcement
officers, four photographs, and portions of an audio recording of the
interview with Gialenios at his home 14 – supports the trial court’s
finding that Gialenios was not in custody. In the early afternoon of
January 23, 2017, the Monday after the Saturday night murder, a
14The prosecution and defense stipulated to the playing of the first 11
minutes and last 26 minutes of the recorded interview for the trial court.
32
Holly Springs police detective and a GBI agent drove to the area of
Gialenios’ home. Because they had been unable to determine
Gialenios’ actual address, a Holly Springs police sergeant and a
Cherokee County sheriff’s deputy accompanied them in another car
and a Hall County K9 officer who was familiar with the area also
assisted them in looking for Gialenios’ residence.
The police sergeant eventually spotted Gialenios’ vehicle
parked beside a single-wide mobile home and called the other
officers. They initially approached the mobile home, but it was
unoccupied; Gialenios was living in a shed or outbuilding behind it.
When the Hall County officer walked around the side of the mobile
home, he encountered Gialenios, who had a .45-caliber pistol and a
large hunting knife in his waistband and was accompanied by a very
large, mastiff-type dog. The Hall County officer drew his sidearm at
“low ready” – that is, pointed towards the ground – and instructed
Gialenios to control his dog and not to reach for a weapon. The other
officers gathered; they initially had their weapons drawn but
33
reholstered them when Gialenios put his hands in the air. 15 The
Holly Springs detective approached Gialenios to secure his weapons
and Gialenios dropped to his knees; the detective asked him to stand
up and told him he didn’t need to get down, and informed him that
he was not under arrest. The detective secured the pistol and knife,
and asked Gialenios if he would come to the Gainesville Police
Department to talk with them. Gialenios said that he would speak
to them at the department later, but he “had some things to do.”
At this point, the GBI agent perceived that “tensions were a
little high,” probably as a result of the police having had to disarm
Gialenios, and that Gialenios and the detective did not seem to have
“a very good rapport with one another,” so she persuaded the other
officers to step away so that she could talk to Gialenios by herself.
She introduced herself, and apologized for starting “on the wrong
foot” with five officers on the scene. The agent testified that “then
[Gialenios] seemed more agreeable to speak with me.”
15 Asked on cross-examination if Gialenios observed the other officers
with their pistols drawn, the detective responded that they approached him
from the side and rear, “so he didn’t even see them until they got there.”
34
She asked if Gialenios would talk to them at the police
department, but he declined, saying he had errands to run and
might come to the police department the next day. The agent asked
if he would talk to her there, instead, adding that she had her
notebook in the car. He responded, “Yes, as best I can.” They spoke
for between an hour and an hour and a half, and near the end of that
time Gialenios called his father on his cell phone. After that call, in
which Gialenios’ side of the conversation but not his father’s was
audible on the recording, he told the agent that he did not want to
talk further and asked for an attorney. The agent immediately
ended the interview, and Gialenios called his mother, who came and
picked him up to get something to eat. The agent testified that
Gialenios was never given Miranda warnings because he was never
in custody, he was never put in handcuffs or otherwise restrained,
and he was not coerced, threatened, or promised any benefit.
The trial court denied Gialenios’ motion, finding that, while the
encounter began “at a pretty heightened level of stress,” it calmed
down and then the GBI agent conducted her interview; that
35
Gialenios declined to go to the station and there was no restriction
on his leaving; and that Gialenios “seemed pretty agreeable to talk
to [the GBI agent].” The trial court concluded that Gialenios’
decision to speak with the agent was voluntary. In its order denying
Gialenios’ motion for new trial, the trial court further found that
under the totality of the circumstances, Gialenios was not in custody
when he gave his statement, that nothing indicated that the
statement was the product of the slightest hope of benefit or
remotest threat of injury, 16 and that in any event admission of the
statement was harmless because it contained nothing
incriminating.
Here, the evidence supports the trial court’s conclusions.
Evidence was presented that Gialenios was not in custody: he was
told that he was not under arrest, and he was requested, not
16While Gialenios can be heard during the phone conversation with his
father and again in speaking with the GBI agent claiming that the detective
had threatened him and said that they would “make [him] talk,” the detective
denied having said this, and the trial court apparently credited that testimony.
The trial court’s factual findings and credibility determinations will be upheld
unless clearly erroneous. See State v. Rumph, 307 Ga. 477, 477-478 (837 SE2d
358) (2019).
36
ordered, to go to the police station and he declined to do so. He did
not wish to speak to the Holly Springs detective, but agreed to talk
to the GBI agent in front of his home. Photographs of the interview
and the audio recording confirm that he was not handcuffed or
restrained, and his conversation with the GBI agent was relaxed
and polite. He did not indicate a desire not to speak or that he
wanted an attorney until the end of the interview, and when he
communicated this the agent immediately turned off the recorder
and stopped the interview. The trial court correctly concluded that
Gialenios was neither formally arrested nor restrained to the degree
associated with a formal arrest, and Miranda warnings therefore
were not required. See Rumph, 307 Ga. at 481-482 (reversing trial
court’s conclusion that defendant was in custody when, among other
things, defendant agreed to speak with officers and retained his keys
and phone and made phone calls during questioning); Drake, 296
Ga. at (2) (defendant not in custody when investigators asked rather
than demanded to speak with him, he voluntarily agreed to go to
police station, he was never physically restrained or threatened, and
37
he was told that he was not under arrest). The trial court’s
determination that Gialenios’ statement to police was non-custodial
and voluntary was not clearly erroneous.
Judgment affirmed. All the Justices concur, except Melton, C.J.,
not participating.
38