Griffin v. State

G
In the Supreme Court of Georgia



                                     Decided: May 17, 2021


                 S21A0448. GRIFFIN v. THE STATE.


      MELTON, Chief Justice.

      Rufus Griffin appeals his convictions for the malice murder of

Kerry Freeman and related offenses, contending, among other

things, that the trial court made certain evidentiary errors and that

trial counsel rendered constitutionally ineffective assistance.1 We


      1 On November 17, 2016, Griffin was indicted for malice murder (Count
1); felony murder predicated on armed robbery (Count 2); felony murder
predicated on aggravated assault (Count 3); armed robbery (Count 4); and
aggravated assault (Count 5). At a trial held from February 5 to February 14,
2018, a jury found Griffin guilty on all counts. The trial court sentenced Griffin
as a recidivist under OCGA § 16-7-1 (b) to serve life in prison without parole
for malice murder and life without parole for armed robbery. The trial court
merged the aggravated assault count (Count 5) with the malice murder count
(Count 1), and the felony murder counts (Counts 2 and 3) were vacated by
operation of law. See Malcolm v. State, 

263 Ga. 369

(4) (434 SE2d 479) (1993).
Griffin filed a motion for new trial on March 14, 2018, and amended it on
August 26, 2019 and February 21, 2020. The trial court denied the motion on
August 5, 2020. Griffin timely filed a notice of appeal on August 5, 2020, and
amended it the same day. Thereafter, Griffin’s appeal was docketed to the term
of this Court beginning in December 2020, and submitted for decision on the
briefs.
affirm.

      1. In relevant part, the evidence presented at trial shows that,

on August 22, 2016, Travis Williams, a friend of Freeman, became

concerned about Freeman after Williams witnessed two unknown

men riding around in Freeman’s car, which Freeman generally did

not loan to anyone.2 One of the men in Freeman’s car was wearing

Freeman’s clothes. Two days later, Williams, along with another

friend, went to Freeman’s apartment to check on him. The

apartment door was cracked open, 3 and Freeman, who had been

fatally stabbed in the back, was lying on the floor just inside.

Williams called 911, and, after police officers allowed Williams to go

inside the apartment, he noticed that a knife that Freeman kept by

his bed and a television had been removed from the bedroom.

      Later, Williams was alerted that someone had called a “chop



      2  Griffin does not challenge the sufficiency of the evidence to support his
convictions, and this Court no longer considers as a matter of course sufficiency
of the evidence in non-death penalty appeals in which it is not an enumerated
error. See Davenport v. State, 

309 Ga. 385

, 399 (4) (b) (846 SE2d 83) (2020).
       3 Freeman’s alarm system indicated that the door had been opened at

6:06 a.m. on August 22, 2016, but it was never closed again before Freeman’s
body was discovered.
                                        2
shop” to inquire about selling Freeman’s car. Police officers tracked

the number of the “chop-shop” caller to Rolanda Jemison, who was

living at a hotel with her son, Lance Jemison. Before Freeman’s

stabbing, Lance had moved from Alabama to live with Rolanda at

the hotel, and he brought Griffin with him. Following interviews,

police determined that Rolanda gave Lance the phone used to call

the “chop shop.” Further investigation revealed that Lance, in turn,

occasionally allowed Griffin to use the phone. Rolanda also informed

a police officer that, after Freeman’s death, Rolanda saw Griffin in

Freeman’s car.

      According to Lance, on August 22, 2016, Griffin, who was

wearing new clothes, 4 brought a silver Ford Taurus to Lance and

allowed him to use it.5 Lance later discovered that the car belonged

to Freeman, who had been found dead. Lance returned the car to

Griffin and confronted him. Griffin told Lance that he killed a man

for the car because the man “made a pass at him” and made him


      4 Lance testified that Griffin owned few articles of clothing, so he noticed
that the clothes Griffin was wearing that day were new.
      5 Griffin had sold Lance’s car in order to buy drugs.

                                        3
uncomfortable.

      Eventually, Griffin was arrested at the hotel, and he had

another cell phone in his possession that he later denied owning.

When Griffin was being booked into jail, he named Rufus and Robby

Griffin from Alabama as his emergency contacts. While in jail,

Griffin made two calls to the number shared by Rufus and Robby,

and this phone number was found in the contact list of the cell phone

recovered at the time of arrest. Griffin also made two calls from jail

to his mother and at least one call to his girlfriend. The number

associated with Griffin’s mother was in the phone’s contact list as

“Mom,” and the number for Griffin’s girlfriend was listed as “Baby

Doll.” 6

      Although data could not be extracted from the cell phone

because it was an older model, the phone’s location history could be

analyzed. That process showed that early-morning calls made on

August 22, 2016 from the cell phone pinged off the cell tower closest



      6At trial, the presence of these contacts in the cell phone was used to
show that the phone belonged to Griffin.
                                     4
to Freeman’s apartment. Records also showed that, later that day,

Griffin called the Georgia Electronic Benefits Transfer office in order

to find out the balance of Freeman’s account.

      Additional evidence showed that, after Griffin’s arrest, he was

housed in the same jail as Carlos Anderson. Griffin admitted to

Anderson that he had an altercation with a “client,” 7 they got into a

scuffle, and Griffin stabbed him and took his car. Griffin explained

that he disposed of the knife, and, after driving around in the car,

sold it in exchange for drugs.

      2. Griffin first contends that, during deliberations, the jury

improperly reviewed and considered texts contained in the cell

phone he possessed at the time of his arrest. We disagree.

      At trial, the State introduced Griffin’s cell phone into evidence. 8

In addition, the jury was shown photos taken of the cell phone’s

contact list in order to prove that the phone contained personal




      7There was testimony that Griffin had been working as a prostitute.
      8Griffin’s counsel objected on the ground that the State had not shown
a proper chain of custody, but the objection was overruled. No other objections
were raised.
                                      5
contacts for the individuals Griffin had called from jail. Following

the admission of the cell phone, which had been charged prior to

trial, Griffin made no objection to its being sent out with the jury

during deliberations. In the jury room, the jurors turned on the cell

phone and examined its contents. Later, after the verdict was

entered, the jury foreperson informed the trial court that the jury

reviewed text messages found on the phone. The foreperson

explained that the phone was already on, but they also used one

juror’s power cord to plug it in at a later point.

     Between trial and the time of the hearing on Griffin’s motion

for new trial, the cell phone was misplaced by the State and could

not be found. It is undisputed that the State did not purposely

dispose of this evidence. During the motion for new trial hearing,

the prosecutor testified that, prior to trial, he reviewed all of the

texts on the phone. The prosecutor had no recollection of the content

of individual text messages, but he recalled that “there was nothing

that stood out in [his] mind as controversial or something that [he]

thought would impede the case.” He testified that the texts included

                                   6
only “chatter” that neither helped nor harmed Griffin. The

prosecutor further testified that he would have notified the defense

if there had been any exculpatory information contained in the texts,

and, if there had been any inculpatory texts, he would have used

them at trial.

      Based on this evidence, Griffin’s contention that the jury

improperly reviewed texts from the cell phone is misplaced, because

the cell phone was admitted into evidence and sent out with the jury

without objection. A similar situation occurred in Drammeh v. State,

285 Ga. App. 545

, 548 (2) (646 SE2d 742) (2007).9 There, like here, a

cell phone was admitted into evidence without objection. During

deliberations, jurors sent a note asking if they were allowed to

consider evidence they had “discovered” on the cell phone. The

defendant objected, arguing that review of the cell phone’s contents

was “tantamount to allowing the jury to conduct an independent




      9We note that Drammeh was decided under our former Evidence Code,
which is not applicable to this appeal. Accordingly, we consider the Court of
Appeals’ opinion for guidance on the topic of waiver, not for guidance as to the
admissibility of any specific piece of evidence.
                                       7
investigation of the crime, thereby violating his constitutional rights

to due process and public trial, as well as the right to confront

witnesses against him.”

Id. at 548-549.

The Court of Appeals

rejected this contention, as the defendant cited no legal authority to

support his argument. Instead, the Court of Appeals determined

that the defendant’s claim failed because the phone had been

admitted into evidence as a whole, without objection or stipulation.

In other words, any objection to the contents of the cell phone was

waived, as the cell phone, in its entirety, was admitted into evidence.

See id.10 In this case, the cell phone was admitted as a whole and


      10 Similar holdings have been reached in other jurisdictions. See, e.g.,
Solano v. Lewis, No. CV 12-7570-VAP (E), 2014 U.S. Dist. LEXIS (IV) 57544
(C.D. Cal. Feb. 4, 2014), at *46 (holding that the jury did not access extrinsic
evidence when considering what jurors described in their note as “additional
evidence on cell phone that was not discussed in trial” because the court
admitted the entire phone into evidence, so the contents of the phone also
necessarily were admitted into evidence); People v. Garrison, 303 P3d 117, 125
(IV) (B) (Colo. App. 2012) (jury properly considered text messages and
photographs from cell phone admitted into evidence; such information was not
extrinsic evidence because “by turning on the cell phone to discover the text
messages, the jury used the cell phone as it was intended to be used and
discovered information within the scope and purview of the evidence”); Haniffy
v. Gerry, 

2010 WL 347037

(C) (2), at *7 (D.N.H. Jan. 26, 2010) (information on
cell phone admitted into evidence was not “extrinsic” evidence; “once the cell
phone was admitted, the jury was entitled to examine it without violating [the
defendant’s] constitutional rights”).

                                       8
without objection to its being used during deliberations. As such,

contrary to Griffin’s arguments, the contents of the cell phone were

subject to the jury’s review at that point. See 

Drammeh, supra

, 285

Ga. App. at 548-549 (2). 11

      To the extent that Griffin’s contention could be construed as

alleging an evidentiary error made by the trial court by admitting

the whole cell phone into evidence, that contention would be subject

to plain-error analysis in the absence of a specific objection at trial.

      First, there must be an error or defect — some sort of
      “[d]eviation from a legal rule” — that has not been
      intentionally    relinquished    or    abandoned,     i.e.,
      affirmatively waived, by the appellant. Second, the legal
      error must be clear or obvious, rather than subject to
      reasonable dispute. Third, the error must have affected
      the appellant’s substantial rights, which in the ordinary
      case means he must demonstrate that it “affected the

      11 Griffin’s reliance on Chambers v. State, 

321 Ga. App. 512

(739 SE2d
513) (2013), does not alter this result, because that case is wholly
distinguishable. In Chambers, the jury requested a copy of the trial court’s final
charge after deliberations had begun. Before the trial court had a chance to
respond, one of the jurors conducted legal research on her own mobile device
regarding the use of force in defense of habitation. That juror then
inappropriately provided a number of legal definitions she had found on the
internet to the other jurors.

Id. at 517.

The Court of Appeals held that, given
this juror’s misconduct of considering “extra-judicial” law not provided in the
trial court’s charge and the State’s failure to overcome the presumption that
the misconduct was prejudicial, the defendant was entitled to a new trial.

Id.
at 519.
9

     outcome of the trial court proceedings.” Fourth and
     finally, if the above three prongs are satisfied, the
     appellate court has the discretion to remedy the error —
     discretion which ought to be exercised only if the error
     “‘seriously affect[s] the fairness, integrity or public
     reputation of judicial proceedings.’”

(Punctuation and emphasis omitted.) State v. Kelly, 

290 Ga. 29

, 33

(2) (a) (718 SE2d 232) (2011) (quoting Puckett v. United States, 

556

U.S. 129

, 135 (II) (a) (129 SCt 1423, 173 LE2d 266) (2009)). Thus,

beyond showing a clear or obvious error, “plain-error analysis . . .

requires the appellant to make an affirmative showing that the error

probably did affect the outcome below.” (Citation and punctuation

omitted.) Shaw v. State, 

292 Ga. 871

, 873 (2) (742 SE2d 707) (2013).

     Here, Griffin has not made such an affirmative showing that

any error probably did affect the outcome of his trial. Relying solely

on the fact that the State had misplaced the cell phone, Griffin chose

not to present any evidence about the contents of the phone at the

hearing on his motion for new trial. 12 However, the State did provide


     12 While the testimony of jurors about their thought processes during
deliberations would have been inadmissible, it nonetheless may have been
appropriate to ask what was on the phone. See OCGA § 24-6-606 (b) (allowing

                                    10
testimony about the cell phone’s contents from the prosecutor who

handled Griffin’s trial, and the trial court accepted this testimony as

credible. In addition, with two confessions to the crime having been

made by Griffin, the evidence against Griffin was substantial. Under

these circumstances, there was no plain error. See

id.

3.

  Griffin     maintains      that     trial   counsel     provided

constitutionally ineffective assistance by not investigating the text

messages on the cell phone confiscated at the time of his arrest and

by not objecting to their admission prior to the phone being sent out

with the jury for deliberations. We conclude that Griffin has not

shown the necessary prejudice to support his claim.

      To prevail on a claim of ineffective assistance of counsel,
      a defendant must prove both deficient performance and
      resulting prejudice. See Strickland v. Washington, 466 U.
      S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To
      establish deficient performance, a defendant must show
      that . . . trial counsel performed in an objectively
      unreasonable way, considering all the circumstances and
      in the light of prevailing professional norms. See

id. at

questions whether “extraneous prejudicial information was improperly
brought to the jury’s attention” or whether “any outside influence was
improperly brought to bear upon any juror.” See also Collins v. State, 

308 Ga.
608

, 611 (2) (842 SE2d 811) (2020) (discussion of “internal” versus “external”
matters); Beck v. State, 

305 Ga. 383

(2) (825 SE2d 184) (2019) (same).
                                     11
      687-690. To establish prejudice, a defendant must show
      that there is “a reasonable probability that, but for
      counsel’s unprofessional errors, the result of the
      proceeding would have been different.”

Id. at 694.

We
      need not address both components of this test if [a
      defendant] has not proved one of them. See Walker v.
      State, 

301 Ga. 482

, 489 (801 SE2d 804) (2017).

(Punctuation omitted.) Watson v. State, 

303 Ga. 758

, 761-762 (2) (d)

(814 SE2d 396) (2018).

      Here, as set forth in Division 2 above, Griffin has not made a

sufficient showing of prejudice. Even if we assume that trial counsel

performed deficiently by failing to object to the texts contained in

the cell phone, “the test for prejudice in the ineffective assistance

analysis is equivalent to the test for harm in plain error review.”

Roberts v. State, 

305 Ga. 257

, 265 (5) (a) (824 SE2d 326) (2019)

(citation and punctuation omitted). 13 Accordingly, Griffin’s claim of

ineffective assistance fails.

      4. Next, Griffin argues that he has been denied the opportunity


      13 Griffin relies on his own speculation as to what the jurors may have
seen in order to support his contention of prejudice. Mere speculation, however,
is not sufficient to prove prejudice under Strickland. See, e.g., Williams v.
State, 

302 Ga. 147

, 152 (2) (805 SE2d 873) (2017); Goodwin v. Cruz-Padillo,

265 Ga. 614

, 616 (458 SE2d 623) (1995).
                                      12
for full and fair appellate review because the text messages the jury

viewed are now missing from the record, as the cell phone that

contained the messages cannot be found. To support this contention,

Griffin relies on OCGA § 17-8-5, OCGA § 5-6-41 (f), and Johnson v.

State, 

302 Ga. 188

, 197-198 (805 SE2d 890) (2017). This reliance is

misplaced. In Johnson, this Court considered a situation in which a

fourteen-page summary was drafted to re-create the events of a six-

day trial. See

id. at

188. There, we concluded that the bare-bones

summary was insufficient.

     Griffin appears to contend that statutory law required that the

contents of the cell phone be transcribed for inclusion in the record,

although he cites no authority for the proposition that the contents

of physical evidence admitted as exhibits must be transcribed by the

court reporter. In any event, the prosecutor provided a summary of

the phone’s contents, and Griffin produced no evidence that

contradicted that summary. Moreover, where, as here, an otherwise

complete record “is missing only one or a few parts of the trial, the

appellant is not entitled to a new trial unless he alleges that he has

                                 13
been harmed by some specified error involving the omitted part and

shows that the omission prevents proper appellate review of that

error.” West v. State, 

306 Ga. 783

, 787 (2) (833 SE2d 501) (2019)

(quoting Gadson v. State, 

303 Ga. 871

, 878 (3) (a) (815 SE2d 828)

(2018)). Griffin has raised only speculation about how he might have

been harmed, and the State presented the prosecutor’s testimony

rebutting that speculation, which the trial court credited. Under

these circumstances, Griffin’s contention that he has not been

afforded the means of a full and fair appellate review is without

merit. See

id. at

787 (2).

     5. Griffin next argues that the trial court erred by ruling that

he could not introduce evidence regarding Rolanda’s involvement in

an alleged armed robbery that occurred one month after Freeman’s

murder in order to argue that Rolanda stabbed Freeman.14 Again,

we disagree.

     The transcript indicates that Griffin proffered that this


     14 Although Griffin was prevented from going into the details, he was
allowed to ask Rolanda whether she had pending charges against her and
whether that fact created any bias on her part in favor of the State.
                                   14
testimony would show that Rolanda and her ex-boyfriend, Clarence

Hill, robbed a cell phone store together. To commit the robbery, Hill

used a gun and Rolanda used a knife. Griffin argued that the

evidence of this robbery was admissible to show that Rolanda may

have committed Freeman’s murder because a knife had been used

during the robbery. The trial court ruled that it would not allow the

evidence to be admitted at trial because there was no connection

between Rolanda’s robbery charge and the events that led to

Freeman’s death, and the evidence of her apparent involvement in

a later armed robbery did not raise a reasonable inference of

Griffin’s innocence. The trial court also found that there was no

evidence at all that Rolanda committed Freeman’s murder.

     The trial court did not abuse its discretion. Evidence of

Rolanda’s participation in the subsequent armed robbery was

inadmissible. Although a defendant may be entitled to introduce

relevant and admissible testimony tending to show that another

person committed the crime for which the defendant is being tried,

the proffered evidence must raise at least a reasonable inference of

                                 15
the defendant’s innocence, and must directly connect the other

person with the corpus delicti, or show that the other person has

recently committed a crime of the same or similar nature. See De La

Cruz v. State, 

303 Ga. 24

, 27 (3) (810 SE2d 84) (2018). See also Elkins

v. State, 

306 Ga. 351

, 358 (2) (b) (830 SE2d 217) (2019). “However,

‘[e]vidence that merely casts a bare suspicion on another or ‘raise(s)

a conjectural inference as to the commission of the crime by another

is not admissible.’” De La 

Cruz, supra

, 303 Ga. at 28 (3) (internal

citations omitted). Griffin’s argument that the subsequent robbery

might prove that Rolanda stabbed Freeman is, at best, a highly

conjectural inference. As such, the trial court did not abuse its

discretion by excluding this evidence. See

id.

6.

Lastly, Griffin contends that the trial court erred by denying

his motion to suppress a statement he made regarding his

connection to the cell phone seized during his arrest. Specifically,

Griffin contends that the request for his phone number as part of

the standard biographical questions posed before his initial post-

arrest interview violated his rights under Miranda v. Arizona, 384

                                  

16
U.S. 436

, 444-445 (86 SCt 1602, 16 LE2d 694) (1966), by eliciting

the statement at issue.

     At the Jackson-Denno 15 hearing on Griffin’s motion, Detective

Lynn Shuler testified that, after Griffin was arrested and prior to

taking a statement, Detective Shuler filled out a form by asking

Griffin for his name, date of birth, gender, height, weight, race,

address (including city and state), employment status, and phone

number (which could be home, work, or cell phone). Detective

Schuler further testified that this form was used for all suspects,

and the biographical information was also used for purposes of

booking. When Detective Schuler requested Griffin’s phone number,

Griffin replied, “I don’t know my cell phone. I got a cell phone

somewhere. I don’t know. I thought you all picked it up.” Griffin now

argues that this statement should have been suppressed.

     Both the United States Supreme Court and this Court have

held that there is an exception to Miranda for general booking

questions because these questions do not relate to the investigation


     15   See Jackson v. Denno, 

378 U.S. 368

(84 SCt 1774, 12 LE2d 908) (1964).
                                       17
of the case and serve a legitimate administrative need. See

Pennsylvania v. Muniz, 

496 U.S. 582

, 601-602 (III) (C) (110 SCt

2638, 110 LE2d 528) (1990) (plurality); Franks v. State, 

268 Ga. 238

,

239 (486 SE2d 594) (1997). Accordingly, “Georgia courts have

allowed questions seeking basic biographical data, such as the

suspect’s name, age, address, educational background, marital

status, and other information required to complete an arrest form,”

even after a defendant has invoked his right to counsel. Brooks v.

State, 

237 Ga. App. 546

, 548 (1) (515 SE2d 851) (1999). Whether a

police officer may ask a suspect for his phone number, specifically,

under the booking exception to Miranda, however, has not

previously been decided by this Court, and we need not decide that

issue today. Even if we assume without deciding that Miranda

applied to the question that resulted in Griffin’s response, his

contention still fails. During Griffin’s trial, he was connected to the

cell phone by matching his calls from jail to contact numbers in the

cell phone, separate from Griffin’s statement at booking. Griffin’s

claim therefore lacks merit because, even if Griffin could show that

                                  18
the trial court committed any error, that error was harmless beyond

a reasonable doubt. See Ensslin v. State, 

308 Ga. 462

, 471 (1) (d)

(841 SE2d 676) (2020) (an error of constitutional magnitude “may be

deemed harmless if the State can prove beyond a reasonable doubt

that the error did not contribute to the verdict”) (citation and

punctuation omitted). Not only was there ample other evidence of

Griffin’s connection to the cell phone, the evidence included two

confessions made by Griffin.

     Judgment affirmed. All the Justices concur.




                                19

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