Glover v. State

FINAL COPY

                 S20A0133. GLOVER v. THE STATE.


      MCMILLIAN, Justice.

      Appellant DeAndre Tobias Glover was convicted of malice

murder and making a false statement in connection with the

shooting death of Mario Williams.1 Following the trial court’s denial

of his motion for new trial, Glover appeals, arguing that his trial

counsel was ineffective and that the trial court erred in admitting



      1  Williams was killed on November 27, 2015. On March 9, 2016, a
Chatham County grand jury indicted Glover and Brandon Miller for malice
murder, felony murder predicated on robbery, and aggravated assault. Glover
was separately indicted for making a false statement, and Miller was
separately indicted for felony murder predicated on possession of a firearm by
a convicted felon and for possession of a firearm by a convicted felon. Miller
pleaded guilty to robbery by sudden snatching in exchange for testifying
against Glover at trial.
       Glover was tried alone from April 30 to May 3, 2018. The trial court
directed a verdict of acquittal on the felony murder count, and a jury found
Glover guilty on all other counts. The trial court sentenced Glover to serve life
in prison for malice murder and to serve five years consecutive for making a
false statement. The remaining count was merged for sentencing.
       Glover filed a motion for new trial on May 7, 2018, which he amended
through new counsel on October 25, 2018. Following a hearing, the trial court
denied Glover’s motion (as amended) on June 12, 2019. Glover filed a notice of
appeal to this Court, and this case was docketed to the term beginning in
December 2019 and thereafter submitted for a decision on the briefs.
hearsay testimony. Finding no error, we affirm.

     1. Viewed in the light most favorable to the jury’s verdicts, the

evidence at trial showed that in the early morning hours of

November 27, 2015, Glover and his co-indictee Brandon Miller met

up while walking to a Savannah gas station convenience store.

When the two reached the store, Miller was approached by

Williams, a homeless man to whom Miller, a dealer of crack cocaine,

had previously sold drugs. Williams sought to trade Miller a cell

phone for crack cocaine. Miller declined Williams’s offer, and he and

Glover proceeded into the convenience store, where each purchased

a fountain drink in a cup with a straw. While in the store, Miller

encountered Julius Larry, an acquaintance whom he knew from

middle school, and he asked Larry for a ride to another part of town

to pick up a female friend of Miller’s. Larry agreed to give Miller a

ride in exchange for gas money and permitted Glover to ride along.

     The three exited the gas station, and Miller initially got into

the front passenger seat of Larry’s vehicle, while Glover got into the

rear passenger-side seat. The two swapped places, however, because
Miller assumed his female friend would not want to sit in the back

seat with a man she did not know. The rear passenger-side window

was broken and stuck in a half-open position. Larry was in the

driver’s seat “messing with the music” and not paying attention to

Miller and Glover.

     According to Miller, who testified at trial, he called out to

Williams, who had remained in the store’s parking lot, to bring the

cell phone over to Larry’s car and trade the phone for crack cocaine.

When Williams approached the car, Miller snatched the cell phone

from him and ducked down in the seat just as Larry was pulling out

of the parking lot. Williams reached into the car and, attempting to

grab the phone, briefly ran along with the car as it pulled away.

Then, Glover shot him.2 Miller testified that he looked up to see the

bullet flash in front of his face, as Glover had reached into the

backseat to shoot out the half-open window. Larry did not see the

shooting but testified that he heard the gunshot and then heard



     2 The medical examiner testified that Williams’s cause of death was a

gunshot wound to the head.
Miller exclaim, “Damn, why you just kill that man?” Miller testified

that “when [he] look[ed] up, [he] was like, man, you just killed that

man. What the f*ck? You just killed that man.” Larry stopped his

car in the middle of the road just outside the parking lot and told

Miller and Glover to get out of the car; upon exiting the vehicle,

Miller and Glover ran in separate directions, leaving their drink

cups behind in the car. Larry parked his car on a nearby side street

and then returned to the gas station to ask the clerk to call the police

so that Larry could explain that he was not involved in the shooting.

     When police officers arrived on the scene, Larry led them back

to his car and allowed them to inspect it. The officers recovered

Miller’s and Glover’s drink cups and straws from the vehicle; DNA

testing revealed Miller’s DNA on the straw in the cup recovered from

the front-seat cup holder and Glover’s DNA on the straw in the cup

recovered from the rear-seat cup holder, consistent with the co-

indictees’   initial   seating   positions.   Officers   also   recovered

surveillance video recordings from the convenience store that

showed, from multiple angles, the entire series of events leading up
to Williams’s shooting, as well as the shooting itself; the surveillance

video was played for the jury at trial.

     From information provided by Larry, police officers were able

to identify Miller and Glover as suspects. Both Larry and the

convenience store clerk on duty at the time of the shooting were

asked to view a six-person photographic array. From this array,

Larry identified Miller and Glover as the two men who were in his

car when Williams was shot, and the convenience store clerk

identified Miller and Glover as the men shown on the surveillance

video purchasing drinks and then getting into Larry’s car. Glover

was apprehended by federal marshals approximately one month

after the shooting and was interviewed by Savannah Police

Department detectives. During his interview – a video-recording of

which was played for the jury during trial – Glover claimed that he

was not at the convenience store on the night of the shooting and

that he was, instead, in the company of a woman named Kiki. After

his DNA was matched to the drinking straw recovered from Larry’s

vehicle, Glover was charged with making a false statement to police.
     Glover’s main theory of defense at trial was that Miller was the

shooter. Glover extensively cross-examined Miller, who testified on

the State’s behalf, about Miller’s prior convictions, as well as his

motivation for testifying. Glover also attempted to show that Miller

had a motive to shoot Williams. Further, while cross-examining

Larry, Glover implied that Larry was armed on the night of the

crime and that Larry was the shooter, while insinuating that Larry

and Miller were good friends who were attempting to cover for each

other. Glover also argued as much in closing. Glover did not testify

in his own defense.

     Though not enumerated as error by Glover, as is consistent

with our customary practice in murder cases, we conclude that the

evidence as summarized above was sufficient to enable a rational

trier of fact to find beyond a reasonable doubt that Glover was guilty

of the crimes of which he was convicted. See Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979). See also

Vega v. State, 

 (1) (

) (2009) (“It was for

the jury to determine the credibility of the witnesses and to resolve
any conflicts or inconsistencies in the evidence.” (citation and

punctuation omitted)).

     2. Glover argues that his trial counsel rendered ineffective

assistance by failing to object when, during closing argument, the

prosecutor improperly commented on Glover’s failure to testify at

trial and his right to remain silent and right to counsel. To succeed

on this claim, Glover must demonstrate both that his trial counsel’s

performance was professionally deficient and that he was prejudiced

by that deficient performance. See Strickland v. Washington, 

 (III) (

, 80 LE2d 674) (1984). “To establish

deficient   performance,   [Glover]   must   overcome   the   strong

presumption that his counsel’s conduct falls within the broad range

of reasonable professional conduct and show that his counsel

performed in an objectively unreasonable way in the light of all of

the circumstances.” Chavez v. State, 

 (2) (

) (2020) (citation and punctuation omitted). And to demonstrate

prejudice, Glover must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 

 (citation and punctuation

omitted). “We need not address both parts of the Strickland test if

[Glover] makes an insufficient showing on one.” Redding v. State,

 (2) (

) (2020).

      Glover contends that his trial counsel should have objected to

the following portion of the prosecutor’s closing argument, which

addressed the charge of making a false statement:

      One thing [Glover] could do is invoke and [say] I just don’t
      want to talk to you guys anymore. Instead he just goes
      video schmideo. Nope. He’s still insisting he’s not there.
      Because he doesn’t know what else they know, right? He
      doesn’t know there’s going to be DNA. And, of course, he
      won’t ever find out until much later.

      So he – though counsel wants to distance himself from
      this horrendous statement [−] is of all the things in
      America he could say, one of which is, no thanks. I want
      a lawyer, which you’re allowed to say.3

Characterizing these remarks as “prohibited,” Glover argues that




      3 We note that the prosecutor made a similar comment during his
opening statement: “And in America one of the things you can do is invoke your
rights and just not bother talking to the police, and another thing you can do
is choose to speak to them. He went with option two, and he did give a
statement.” Glover did not object to this remark at trial, nor does he raise on
appeal a claim of ineffective assistance based on his counsel’s failure to object.
any comment upon the right to counsel or the right to remain silent

is improper and objectionable. In support of this proposition, Glover

cites only one case, Anderson v. State, 

 (

) (2007), but the facts of Anderson are clearly distinguishable

from those present here. In Anderson, the trial court declared a

mistrial after the prosecutor elicited on direct examination

testimony from a police officer that the defendant, during a post-

arrest interview, refused to sign a waiver-of-rights form and invoked

both his right to remain silent and his right to counsel. 

.

But Anderson does not stand for the sweeping proposition that any

comment or evidence on the right to silence or right to counsel is per

se improper, as Glover argues. Instead, it is argument or evidence

about the defendant’s exercise of those rights that is generally

considered improper. See Miranda v. Arizona, 

 (III)

n.37 (

, 16 LE2d 694) (1966) (“[I]t is impermissible to

penalize an individual for exercising his Fifth Amendment privilege

when he is under police custodial interrogation. The prosecution

may not, therefore, use at trial the fact that he stood mute or claimed
his privilege in the face of accusation.”); Doyle v. Ohio, 

 (II) (

, 49 LE2d 91) (1976) (“We hold that the use

[even] for impeachment purposes of petitioners’ silence, at the time

of arrest and after receiving Miranda warnings, violated the Due

Process Clause of the Fourteenth Amendment.”).

     Here, the prosecutor’s comment cannot be construed as a

comment on Glover’s post-arrest exercise of his right to counsel and

right to remain silent because Glover did not exercise either of those

rights; rather, he chose to waive those rights and to make a false

statement to police. See Hill v. State, 

 (3) (

) (2012) (“[I]t is clear under the circumstances of this case that

the officer’s testimony [that defendant did not want to sign a written

statement or make a recorded statement] did not constitute an

impermissible comment on [appellant’s] invocation of his right to

silence. [Appellant] did not invoke his right to silence. On the

contrary he waived it[.]” (citation and punctuation omitted)). The

State commented on Glover’s post-arrest waiver of his rights and the

statements that Glover did make, which supported the charge of
making a false statement. Glover has pointed to no basis, nor can

we discern one, on which counsel could have successfully objected to

the prosecutor’s comment about Glover’s electing not to exercise his

rights, and “failure to make a meritless objection to the State’s

closing argument is not evidence of ineffective assistance.” Gaston v.

State, 

 (2) (b) (

) (2020) (citation and

punctuation omitted).

     3. Glover also complains broadly that the trial court erred by

admitting testimony by the lead detective regarding what Larry,

Miller, and Samuel Gholston4 told him during the course of his

investigation. However, Glover has failed both to specify which

portions of the detective’s testimony he contends were wrongfully

admitted and to engage in legal analysis with respect to the

testimony he is challenging. He merely argues that none of the

detective’s testimony regarding these three witnesses’ statements




     4 Gholston testified at trial that he was a friend of Williams and was with

Williams at the convenience store on the night of the crimes. Gholston
witnessed the shooting of Williams from a distance but could not identify who
fired the shot that killed Williams.
was admissible as prior consistent statements and instead

“constituted ‘pure hearsay evidence,’ which should not have been

admitted at trial.” Our review of this claim is thus significantly

hampered. As we have emphasized before, “this Court is not

required to scour the record for support for an appellant’s

arguments.” Davis v. State, 

 (3) (

)

(2019).

     Turning to the error alleged, Glover argues that the trial court

erred by admitting the detective’s testimony as evidence of the three

witnesses’ prior consistent statements. OCGA § 24-6-613 (c)

provides:

           A prior consistent statement shall be admissible to
     rehabilitate a witness if the prior consistent statement
     logically rebuts an attack made on the witness’s
     credibility. A general attack on a witness’s credibility
     with evidence offered under Code Section 24-6-608
     [evidence of character and conduct of witness] or 24-6-609
     [impeachment by evidence of conviction of a crime] shall
     not permit rehabilitation under this subsection. If a prior
     consistent statement is offered to rebut an express or
     implied charge against the witness of recent fabrication
     or improper influence or motive, the prior consistent
     statement shall have been made before the alleged recent
     fabrication or improper influence or motive arose.
See also OCGA § 24-8-801 (d) (1) (A) (an out-of-court statement is

not hearsay if the declarant “testifies at the trial or hearing, is

subject to cross-examination concerning the statement, and the

statement is admissible as . . . a prior consistent statement under

Code Section 24-6-613”).

     As to Larry, the detective testified about what Larry told him

on the night of the crimes, within hours of the shooting. Larry

testified at trial and was cross-examined by Glover, who attacked

Larry’s credibility by suggesting that there were inconsistencies

between what Larry told police on the night of the shooting and what

he testified to on direct examination. Glover also questioned Larry

about his relationship with Miller, implying that the two were close

friends and that Larry had developed a motive to protect Miller after

Miller was arrested and charged with murder; Larry refuted these

implications. Because the detective testified about what Larry told

him mere hours after the shooting, weeks before Miller was arrested

and charged with murder, the testimony served to rebut both
Glover’s implication that Larry fabricated his account of the crime

and his attack on Larry’s credibility. Pretermitting whether Glover

preserved for appellate review his objection to the detective’s

testimony regarding Larry’s statement, there was no error in

admitting the detective’s testimony under the circumstances

described above. See Sawyer v. State, 

 (2) (c) (

) (2020) (witness’s prior consistent statement admissible to

rebut implication that witness’s pre-trial statement differed from

her trial testimony); Dorsey v. State, 

 (3) (

) (2018) (no error in admitting witness’s prior consistent

statement, where, while cross-examining witness, defendant

implied that witness fabricated his testimony and suggested that

witness’s trial testimony and his prior statement were inconsistent).

     Turning to Glover’s contentions regarding Miller’s and

Gholston’s statements, our review of the record shows that Glover

failed to object to the detective’s testimony pertinent to these two

witnesses. As such, his argument is not preserved for ordinary

appellate review, and our review is confined to plain error. To
establish plain error, Glover must demonstrate that:

     (1) there was an error that [he] did not affirmatively
     waive; (2) the error was obvious; (3) the error affected [his]
     substantial rights, which means [he] must demonstrate
     that it likely affected the outcome of [his] proceedings;
     and (4) the error seriously affected the fairness, integrity,
     or public reputation of judicial proceedings.

Spence v. State, 

 (2) (

) (2019). See also

State v. Kelly, 

 (2) (a) (

) (2011). Glover

has not met this high standard.

     In regard to Miller, the detective testified about what Miller

said shortly after being taken into custody in December 2015.

Though Glover argues that this testimony was inadmissible because

Glover did not raise against Miller “any affirmative charges of recent

fabrication . . . or improper motive,” this claim is clearly belied by

the record. Miller testified at trial and was subject to cross-

examination by Glover, who attacked his credibility and suggested

through questioning that Miller was actually the shooter. Glover

also questioned Miller extensively regarding the plea agreement he

entered into with the State after he made the statements at issue,
in which he agreed to testify against Glover in exchange for the

State’s dismissing all charges against Miller and waiving recidivist

punishment when he pleaded guilty to a single charge of robbery by

sudden snatching. “[Q]uestioning a witness about whether he would

receive a lesser sentence as part of a plea deal if he agreed to testify

against a defendant is a classic example of an implication of

improper motive for testifying,” and prior consistent statements are

properly admitted to rebut a charge of improper motive. Abney v.

State, 

 (3) (a) (

) (2019) (citation and

punctuation omitted). See also Bolling v. State, 

 (3)

(

) (2017) (explaining that, by questioning a witness

regarding his plea deal with the State, a defendant “implicitly

argued” that the witness had an improper motive to testify and that

the witness’s prior consistent statements predating the improper

motive were therefore admissible to rehabilitate his credibility).

Thus, any error in admitting the detective’s testimony regarding

Miller’s prior statements was neither clear nor obvious.

     Finally, even assuming that the admission of the detective’s
testimony regarding Gholston’s interview statement was erroneous,

we conclude that there is no plain error because Glover has not

shown that this testimony had any effect on the result of his trial.

The detective testified only briefly about Gholston’s statement, and

the detective’s testimony in this regard was offered to highlight the

inconsistencies in Gholston’s statement and to demonstrate the

unreliability of his account. Moreover, the State presented strong

evidence against Glover, including surveillance video, eyewitness

testimony, DNA evidence placing Glover at the crime scene, and the

false alibi Glover gave police. See Harris v. State, 

(2) (

) (2018) (no plain error where evidence of

defendant’s guilt was “strong”). Accordingly, this claim also fails.

     Judgment affirmed. All the Justices concur.

                      DECIDED JUNE 16, 2020.
     Murder. Chatham Superior Court. Before Judge Morse.
     Robert L. Persse, for appellant.
     Meg E. Heap, District Attorney, Jerome M. Rothschild, Jr.,
Abigail B. Long, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Matthew D. O’Brien, Assistant Attorney General, for appellee.