Gialenios v. State

FINAL COPY

               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-andprowling 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
as well, although the felony murder count was actually vacated by operation of
law. See Malcolm v. State, 

 (4) (

) (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
      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

restaurant a few blocks from her father’s house and walking with

Kerri through the neighborhood and on trails surrounding the


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 to the August 2020 term and
orally argued on September 17, 2020.
                                       2
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.

     In December 2016, the Overseths came to visit Kerri’s family

in Georgia for the holidays. Overseth stayed with Kerri’s father so

                                  3
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.”

     That evening, Overseth returned from dinner and, while

talking to Kerri on the phone, remarked that a large brick was

                                  4
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

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

                                  5
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

addressed to Kerri on the basement terrace. The package contained

two Hallmark cards, a love note, a rose, a Publix receipt, and a note

                                 6
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

expended Federal brand .22-caliber shells. A Georgia Bureau of

Investigation firearms examiner testified that two of the shells were

                                  7
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.

(Citation and punctuation omitted.) Long v. State, 

(1) (b) (

) (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.” Akhimie v. State, 

 (1) (

)

(2015).

     First, Gialenios asserts that the State’s evidence did not

                                 8
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

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


     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
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 longstanding 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.” (Citation and

punctuation omitted.) Long, 

 (1) (b). The evidence

presented at trial and summarized above also was sufficient as a

                                 10
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, 

 (III) (B) (

, 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, 

 (

,

201 LE2d 507) (2018).3 In accordance with this Court’s recent

decision in Lofton v. State, 

 (2) (__ SE2d __) (2021),

we conclude that this contention is meritless under the facts

presented here.

      In reviewing a ruling on a motion to suppress, we review

      3 As we noted in Lofton v. State, 

 (2) (

)

(2021), the United States Supreme Court held in Carpenter that “accessing
seven days of CSLI constitutes a Fourth Amendment search,” Carpenter, 

 (III) & n.3 (

); Lofton, 

 (2). However,
as we also noted in Lofton, Carpenter was narrowly decided: it addressed
“government-compelled production of cell phone records under 

(c) (1) (B) and (d),” not “a request under 

 (c) (4) for the voluntary
disclosure of records to address an emergency.” Lofton, 

 (2).
Moreover, Carpenter expressly declined to consider whether Fourth
Amendment scrutiny applied to CSLI obtained for a shorter period of time. See
Carpenter, 

 (III) & n.3 (

).
                                       11
     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, 

 (

) (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

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.

                                 12
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 

 (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

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



      4 These provisions of Title II of the Electronic Communications Privacy

Act of 1986 or Stored Communications Act 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, 

 (2) n.11.
                                      13
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

under guard until Gialenios was arrested.

     Gialenios contended that because the police lieutenant

improperly obtained cell phone records in violation of Carpenter, the

                                  14
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, 

 (2) (c)

(

) (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

trial, the trial court also found that exigent circumstances as

permitted by Carpenter justified the initial release of the CSLI




      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
request for a search warrant.

                                     15
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, 

 (2); see also Reed v. State, 

(2) (b) (

) (2019) (ineffective assistance of 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”).


      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, 

 (IV) (

).
                                      16
     In Lofton and Registe v. State, 

 (

) (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 

 (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, 

 (2)

n.11. 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, 

 (II) (

, 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 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

                                  17
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, 

 (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, 

 (2).

     3. Gialenios contends that the admission into evidence of his

cell phone records through the business records exception to the

hearsay rule violated the Sixth Amendment’s Confrontation Clause.

See Johnson v. State, 

 (4) (

) (2011) (“The

Confrontation Clause generally prohibits the admission of an out-of-

                                 18
court testimonial statement made by a declarant who is not

available for cross-examination by the accused.”). 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, 

 (2) (

) (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

      Gialenios asserts that the United States Supreme Court’s



      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
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, 

 (2) (b) (

) (2015).
                                       19
decision in Melendez-Diaz v. Massachusetts, 

 (

, 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 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.” 

 (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 

 “A statement is testimonial if it is made with the involvement

of government officers in the production of testimonial evidence.”

(Citations and punctuation omitted.) Agee v. State, 

(2) (

) (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.”

                                 20
Carpenter, 

 (I) (A) (

).

     Gialenios’ reliance on this Court’s decision in Wise v. State, 

 (

) (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, 

 (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

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

                                  21
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

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

                                 22
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

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



                                  23
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, 

 (3) (

) (2018).

     (a) Since the enactment of Georgia’s current Evidence Code,

“[a]dmissibility of evidence of a victim’s character is now governed

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.” White v. State, 

 (2) (

)

(2020). Moreover, even relevant evidence may be excluded if the trial




     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
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 [E]vidence [C]ode. 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.”

(Citations omitted.) State v. Hodges, 

 (4) (

) (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

                                 25
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

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



      9 OCGA § 24-8-822 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, 

 (3) n.3 (

) (2017).

                                      26
Gialenios falls within the scope of OCGA § 24-8-822,10 see generally

State v. Holmes, 

 (2) (b) n.6 (

) (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, 

 (3) (

) (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.) 

 Here, Brendan’s statement


      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, 

 (2) n.3 (

) (2020).
But Gialenios does not argue his claim under OCGA § 24-1-106.

                                      27
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

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

                                  28
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, 

 (IV) (d) (

) (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
      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.) 

 (IV) (d). Whether to




      11 In 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
admit such evidence is a matter within the trial court’s sound

discretion. See Fleming v. State, 

 (3) (a) (

) (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, 

 (3) (

) (2017).

      Here, the evidence at issue was necessary to complete the story

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


      12 OCGA § 24-4-403 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
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

warnings13 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
     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.



     13 See Miranda v. Arizona, 

 (III) (

, 16

LE2d 694) (1966).
                                    31
(Citations and punctuation omitted.) Drake v. State, 

 (2) (

) (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, 

, 477-

478 (

) (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 home14 — 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

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



      14 The 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
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 toward 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

reholstered them when Gialenios put his hands in the air.15 The

Holly Springs detective approached Gialenios to secure his weapons,


     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.”
                                   33
and Gialenios dropped to his knees; the detective asked him to stand

up and told him he did not 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.”

     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

                                 34
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

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

                                  35
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

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




      16 While 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 Rumph, 

.
                                      36
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, 

 (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, 

 (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 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.

                                 37
J., not participating.



                      DECIDED MARCH 1, 2021.
    Murder. Cherokee Superior Court. Before Judge Baker.
    James K. Luttrell, for appellant.
    Shannon G. Wallace, District Attorney, Cliff Head, Zachary H.
Smith, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Kathleen L.
McCanless, Assistant Attorney General, for appellee.




                                38