Kennebrew v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: September 19, 2023
S23A0530. KENNEBREW v. THE STATE
COLVIN, Justice.
Following a reversal of his convictions on appeal and a retrial,
Appellant Phillip Kennebrew was convicted of malice murder and
related crimes in connection with the October 2011 beating and
stabbing death of Breyon Alexander.1 On appeal, Appellant argues
1 This is the third time Appellant has appeared before this Court
concerning these criminal proceedings against him. The crimes occurred on
October 18, 2011, and Alexander died the next day. On December 20, 2011, a
DeKalb County grand jury indicted Appellant, Mason Babbage, and Samuel
Hall for malice murder (Count 1), felony murder (Count 2), aggravated assault
(Count 3), armed robbery (Count 4), false imprisonment (Count 5), and
possession of a knife during the commission of a felony (Count 8). Hall was
also charged with possession of a firearm during the commission of a felony
(Count 6) and possession of a firearm by a convicted felon (Count 7). Appellant
was jointly tried with Babbage and Hall from August 13 through 17, 2012. The
jury found the three defendants guilty of all counts. After sentencing and the
denial of his motion for new trial, Appellant filed his first appeal to this Court.
On October 31, 2016, we reversed Appellant’s convictions on the ground
that he received constitutionally ineffective assistance of trial counsel based
on counsel’s failure to object to an improper argument made by the State in
closing arguments and counsel’s failure to seek suppression of evidence
that the trial court erred in allowing the State to introduce into
evidence testimony from a witness who testified at Appellant’s first
trial but was unavailable to testify at his second trial. Appellant
contends that the witness’s testimony was inadmissible hearsay
that did not fall within the prior testimony hearsay exception,
OCGA § 24-8-804 (b) (1), and that violated his rights under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution. Appellant further argues that, even if the witness’s
obtained through an improper search of Appellant’s backpacks. See
Kennebrew v. State, 299 Ga. 864, 868-874 (2) (792 SE2d 695) (2016).
Prior to Appellant’s retrial, the knife charge (Count 8) was nolle prossed
and new counsel filed a motion to suppress the evidence recovered from the
backpacks. The trial court denied the motion to suppress on the ground that
the evidence “would have inevitably been discovered through a lawful
inventory search.” Appellant then sought interlocutory review of the trial
court’s ruling in this Court. We granted Appellant’s interlocutory appeal and
reversed the trial court’s ruling. See Kennebrew v. State, 304 Ga. 406, 406 (819
SE2d 37) (2018).
Appellant was then re-tried by a jury from February 5 through 11, 2019.
The jury found Appellant guilty of all counts, and the trial court sentenced
Appellant to life in prison for malice murder (Count 1), 25 years consecutive
for armed robbery (Count 4), and five years consecutive for false imprisonment
(Count 5). All remaining counts were either vacated by operation of law or
merged for sentencing purposes. Appellant timely filed a motion for new trial
on February 11, 2019, which was amended through new counsel on March 23,
2022. After a hearing, the trial court denied the motion as amended on August
31, 2022. Appellant filed a timely notice of appeal. The case was docketed to
this Court’s April 2023 term and submitted for a decision on the briefs.
2
prior testimony was not altogether inadmissible, the trial court
abused its discretion in failing to exclude double hearsay within that
testimony. Appellant also challenges the trial court’s admission of
hearsay statements made by the victim, which were admitted under
the residual hearsay exception, OCGA § 24-8-807. We affirm for the
reasons set out below.
1. The evidence at trial showed the following. In October 2011,
Alexander lived with his friend, Darrious Oliver, in a one-bedroom
apartment at the Wellington Court Apartments in DeKalb County.
Alexander frequently sold marijuana at the apartment, and the men
kept large amounts of cash and “a lot” of weapons, including several
pistols, a rifle, and a sawed-off shotgun, hidden throughout the
apartment. They also had several electronic devices, including a
MacBook laptop, an HP laptop, two PlayStation 3s, an Xbox, and a
42-inch television. In addition, they had a 50-inch television that,
according to Oliver, Alexander had recently bought from Mason
3
Babbage.2
Alexander’s sister, LaShonda Hiley, testified that, a few days
before October 18, she overheard Alexander having a heated
discussion on the phone with someone. Hiley stated that, after
Alexander hung up the phone, he told her that Babbage “wanted his
TV back,” but that he “ain’t selling his TV back” to Babbage.
Cell phone records introduced at trial revealed that, on October
17, Appellant sent a text message to his roommate, Joseph Torres,
who was also Babbage’s brother. The text message stated, “Find out
when Dough Boy work.” Oliver, who was known as “Dough Boy,”
later testified that he knew Babbage but did not know Appellant,
and that Appellant would not have any legitimate reason to need to
know his work schedule. That same day, according to the testimony
of Erin Tew, who was Samuel Hall’s girlfriend, Tew overheard Hall
talking on speaker phone to Babbage about “[h]itting a lick.”3
2 Appellant was originally tried along with Babbage and another co-
defendant, Samuel Hall.
3 Tew testified at Appellant’s first trial. Because she had died before
Appellant was retried, her testimony from the first trial was read to the jury
during Appellant’s retrial.
4
According to the cell phone records, in the early morning hours
of October 18, Babbage’s phone sent text messages to both
Appellant’s and Samuel Hall’s phones and received responses from
both phones. Shortly after, Appellant’s girlfriend, Durriyyah
Mullins, dropped off Appellant at his apartment on Boundary
Boulevard in Suwanee. Around 10:00 a.m., according to cell-phone
location data, Babbage’s and Hall’s phones traveled from the area of
Hall’s residence to the area of Appellant’s apartment.
At 11:36 a.m., Babbage’s phone sent a text message to
Alexander’s phone. Cell-phone location data showed that, minutes
later, Appellant’s, Babbage’s, and Hall’s phones traveled from the
area of Appellant’s apartment to the area of Alexander’s apartment
complex. The phones stayed in that area until approximately 12:25
p.m., when Alexander’s neighbor called 911 to report a home
invasion. The cell-phone location data indicated that their phones
then traveled to the area of Hall’s residence.
Officers were dispatched to Alexander’s apartment. Upon
arrival, officers found that the apartment had been “ransacked” with
5
“stuff flipped over like someone had been searching for something.”
Officers saw Alexander, who was “unresponsive” but breathing,
“l[y]ing facedown” in the living room with “his face . . . in a pool of
blood.” Alexander was “hogtied” with “his hands . . . tied behind his
back with a black cord” and “[h]is feet . . . tied together with a white
cord.” Officers also observed Alexander’s teeth had come out and
were “around [his] body” and “a piece of [his] ear . . . on the floor.”
An autopsy later revealed that Alexander had “a mixture of sharp-
force and blunt-force injuries,” as well as a “profuse amount of
hemorrhage” beneath his scalp, and that his cause of death was
“stab wounds [to] the neck” with “blunt force head trauma”
contributing to his death.
Tew’s testimony indicated that Hall contacted her shortly after
leaving the crime scene. According to Tew, around 12:30 p.m., Tew
received two text messages from Hall, which stated, “I think we
f**ked up,” and “I think we killed somebody.”
Later that afternoon, Jazmine Tew White, who was Tew’s
daughter and lived at Hall’s apartment, came home from school and
6
saw Hall and Babbage with “[an]other person.” She testified that
the men had with them several electronics that she had never seen
before, including “two flat screen TVs” and “an Xbox.” White further
testified that the men were “smoking,” that everyone seemed “laid
back” and “really chill,” and that the men were “shaving their hair.”
According to Tew, sometime that afternoon, Hall sent her a
picture of “[a] sink full of dreads” and a picture of himself “with a
bald head.” She further testified that, when she got home from work
that night, Hall was “really out of it” and “didn’t say anything” other
than that “it wasn’t even worth it.” According to Tew, the next day,
Hall mentioned that Babbage and some “other boy” tried to “leav[e]”
him, that Hall “had to run after the car,” and that Babbage was
worried that “he had been seen” by someone.
Mullins testified that, although she and Appellant generally
would text “[f]requently . . . [t]hroughout the . . . entire day,”
Appellant had been unresponsive to her text messages on October
18, which worried her “because [she] never liked [Torres] or
[Babbage].” Mullins further testified that she saw Appellant around
7
10:30 in the evening of October 18, and that she noticed “[h]e had on
different clothes” than when she had dropped him off at his
apartment that morning. According to Mullins, on the evening of
October 18, Appellant did not mention anything about the incident
or being afraid of anyone.
On October 19, Babbage voluntarily entered a DeKalb County
Police Department precinct and submitted to an interview.
Following the interview, Babbage was arrested. Appellant and Hall
were arrested soon after.
Appellant waived his Miranda rights 4 and spoke to a detective
in a video-recorded interview that was played for the jury. During
the interview, Appellant told the following story. On the morning of
October 18, Appellant’s girlfriend drove him to his apartment, where
he had planned to meet Babbage because Babbage knew someone
who was interested in buying Appellant’s PlayStation. After
meeting Babbage at Appellant’s apartment, Babbage drove
Appellant to the Wellington Court Apartments, where Alexander
4 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
8
lived.
Upon arriving, Babbage went into the apartment building
while Appellant stayed in the car. Babbage then returned to the car
with Alexander, who invited Appellant inside. Appellant was
“chillin[g]” with the other men in the apartment, smoking a cigarette
on Alexander’s sofa, when a man, whom he believed was named
“Sammy,” entered the apartment, pulled out a pistol, and used the
pistol to hit Alexander. Later in the interview, however, Appellant
admitted that Sammy, whom officers identified as Hall, had ridden
in the car with Appellant and Babbage to Alexander’s apartment.
After Hall hit Alexander with the pistol, Alexander “f[ell] to the
ground.”
Hall then “cock[ed] the gun,” pointed it toward Babbage, and
told Babbage to “tie [Alexander] up.” When Babbage refused, Hall
told Appellant to hand him the black computer charging cable next
to the sofa. Appellant claimed he felt threatened by Hall, so he
“tossed” Hall the cable. Hall then tied Alexander’s wrists together
with “his hands behind his back.” When Alexander started “making
9
a moaning noise,” Hall told him to “shut up” and then started
“stomping on [Alexander]” and hitting him “a bunch of times” with
the butt of the gun. Alexander told Hall, “Man, you can have it,” and
Hall responded, “I know.”
Hall then “pointed [his] gun” at Appellant, handed Appellant a
large duffle bag, and told Appellant to “look for some money in some
shoeboxes or something” in the bedroom. When Appellant was
unable to find any money, Hall “started getting mad” and “just
started telling [Appellant] to put different stuff inside the bag.”
Appellant then “loaded the bag up” with “a bunch of stuff,” including
“a couple PlayStations,” “a[n] Xbox,” and “a very old MacBook.”
After loading the bag, Hall told Appellant “to go pull the car around
back,” and Appellant followed Hall’s instruction.
After parking the car and returning to the apartment,
Appellant observed Hall “kicking [Alexander] in the head again” and
saw that the living room carpet was “saturated with blood.”
Appellant and Babbage then left Hall with Alexander and brought
the duffle bag, along with “two brown pillowcases” filled with
10
electronics and guns, to the car. Appellant then went back to the
apartment to get the 42-inch television, and Hall carried the 50-inch
television to the car himself.
Hall went back inside the apartment while Appellant and
Babbage waited in the car. Appellant and Babbage started driving
away without Hall after waiting “a couple minutes” for Hall to
return. After pulling out of the apartment complex, they saw Hall
running toward the car. Hall then jumped inside the car, telling
them, “I thought you left me. I was going to have to bust you,” and
directed Babbage to drive to Hall’s house.
After arriving at Hall’s house, Appellant, Babbage, and Hall
started “pull[ing] the stuff out of the car” and “tak[ing] it in the
house.” Hall told Appellant and Babbage to use his barbeque grill
to “burn [their] shoes” and said they needed to shave their heads.
However, after Hall and Babbage shaved their heads, “the clippers
stopped working,” and the men “all sat around” at Hall’s apartment.
When the detective asked Appellant whether it felt like Hall
was keeping Appellant and Babbage hostage, Appellant responded,
11
“Almost.” But he said that Hall became “super laid-back” after he
“dr[a]nk,” “smoked a couple of blunts,” and “popped some pill.”
Appellant said that he later drove with Babbage to drop off the car,
and that the men then “g[ot] something to eat.”
A search of Hall’s residence pursuant to a search warrant
uncovered several items that Oliver later identified as belonging to
him and Alexander, including a .380-caliber handgun and the 12-
gauge sawed-off shotgun. Officers also found “a black burnt piece of
cloth.” Upon searching Babbage’s home, officers found a pair of
blood-stained pants, which revealed the presence of Alexander’s
DNA. Further, a DNA sample taken from a cigarette butt on the
sofa at the crime scene was later determined to contain Appellant’s
DNA.
2. Appellant first contends that the trial court abused its
discretion in admitting into evidence the prior sworn testimony of
Tew, who testified at Appellant’s first trial but had died and was
therefore unavailable to testify during Appellant’s retrial. We
disagree.
12
Prior to Appellant’s second trial, the State filed a motion to
admit Tew’s testimony from the first trial under OCGA § 24-8-804
(b) (1) (“Rule 804 (b) (1)”), the hearsay exception for prior sworn
testimony of an unavailable witness. At a hearing on the motion,
Appellant objected to the admission of Tew’s testimony on several
grounds, including that the testimony was inadmissible hearsay not
falling within Rule 804 (b) (1)’s exception and that the testimony
violated Appellant’s confrontation rights under the United States
Constitution. Over Appellant’s objections, the trial court granted
the State’s motion to admit the testimony.
At trial, the jury heard Tew’s testimony from Appellant’s first
trial, including her direct examination and her cross-examination by
Appellant’s trial counsel. Specifically, on direct examination, Tew
was asked whether Hall ever explained to her “what actually
happened.” Tew responded, “No,” but that “[h]e said that they tried
to leave him.” Tew was then asked whether Hall “name[d] who the
they were,” and Tew responded that she knew Babbage was one of
them, but that she “d[idn’t] know the other boy.” Further, during
13
Tew’s cross-examination, Appellant’s trial counsel elicited
admissions that Tew did not know Appellant and that she had never
heard his name mentioned by Hall or Babbage.5
On appeal, Appellant argues that the admission of Tew’s
testimony was hearsay that did not fall within Rule 804 (b) (1)’s
exception for prior testimony of an unavailable witness. He also
argues that the testimony violated his rights under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution. In support of both of these arguments, Appellant
5 Specifically, the following exchange occurred between Appellant’s trial
counsel and Tew on cross-examination:
DEFENSE COUNSEL: [D]o you know Phillip Kennebrew?
TEW: No.
DEFENSE COUNSEL: Have you ever seen Phillip Kennebrew?
TEW: No.
DEFENSE COUNSEL: Have you ever heard his voice on a
telephone?
TEW: No.
DEFENSE COUNSEL: Have you ever heard his name mentioned
by Samuel Hall?
TEW: No.
DEFENSE COUNSEL: Have you ever heard his name mentioned
by Mason Babbage?
TEW: No.
DEFENSE COUNSEL: During the conversation with – that you
overheard with Samuel and Mason, did you ever hear his name?
TEW: No.
14
argues that he did not have an “opportunity and similar motive” to
develop Tew’s testimony at his first trial because Tew’s testimony
served primarily as evidence against his co-defendants at his first
trial, and because his original trial counsel failed to adequately
challenge Tew’s credibility and her testimony about a third,
unknown person having participated in the crimes. As explained
below, we are unpersuaded by Appellant’s arguments.
(a) First, Appellant argues that Tew’s prior testimony was not
admissible under Rule 804 (b) (1), which provides that the hearsay
rule does not exclude the testimony of an “unavailable” witness if
the “[t]estimony [was] given as a witness at another hearing of the
same or a different proceeding” and “the party against whom the
testimony is now offered . . . had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect examination.”
OCGA § 24-8-804 (b) (1). To satisfy the opportunity requirement
imposed by Rule 804 (b) (1), the defendant must have had an
“adequate or meaningful” opportunity to cross-examine the witness.
United States v. King, 713 F2d 627, 630 (II) (11th Cir. 1983) (citation
15
and punctuation omitted). When assessing whether the similar
motive requirement is met, the motive in the two proceedings does
not need to be identical. See United States v. Miles, 290 F3d 1341,
1353 (II) (C) (2) (11th Cir. 2002) (“similar motive does not mean [an]
identical motive”). 6 Instead, whether a similar motive is present
“depend[s] in part on the similarity of the underlying issues and on
the context of the questioning.” Id. In assessing similar motive
under Federal Rule of Evidence 804 (b) (1) and Georgia’s Rule 804
(b) (1), courts have looked to factors including whether the defendant
faces the same charges in both trials, see id., whether the party
opposing the testimony had “at a prior proceeding an interest of
substantially similar intensity to prove (or disprove) the same side
of a substantially similar issue,” United States v. Jackson, 335 F3d
170, 178 (I) (C) (2) (2nd Cir. 2003), whether the party opposing the
6 OCGA § 24-8-804 (b) (1) is materially identical to Federal Rule of
Evidence 804 (b) (1). See State v. Hamilton, 308 Ga. 116, 121 (3) (a) (839 SE2d
560) (2020). “And when we consider the meaning of a rule in Georgia’s current
Evidence Code that is materially identical to a Federal Rule of Evidence, we
look to decisions of the federal appellate courts construing and applying the
Federal Rules, especially the decisions of the United States Supreme Court
and the Eleventh Circuit for guidance.” Id. (citation and punctuation omitted).
16
testimony had a similar “trial strategy” in both proceedings, United
States v. Reed, 227 F3d 763, 768 (I) (A) (7th Cir. 2000) (citation and
punctuation omitted), and the type of proceeding in which the
testimony was first presented, see Shealey v. State, 308 Ga. 847, 853
(2) (b) (843 SE2d 864) (2020).
Here, Appellant had an adequate opportunity and similar
motive to develop Tew’s testimony at his first trial. The record
shows that Appellant’s original trial counsel had an adequate
opportunity to cross-examine Tew and meaningfully did so,
distancing Appellant from the actions of Hall and Babbage by
getting Tew to admit that she had never met Appellant or heard Hall
or Babbage mention Appellant’s name. Additionally, although the
evidence presented at the two trials was not identical, the same
charges against Appellant were litigated in the same type of
proceeding, the State’s theory that Appellant was a party to the
crimes remained consistent, and the State’s reason for introducing
Tew’s testimony was the same, namely, to tie Hall, Babbage, and
Appellant to the murder and robbery. See Miles, 290 F3d at 1353
17
(II) (C) (2) (similar motive to develop witness’s testimony on cross-
examination existed where, “[a]t both trials, the government offered
[the witness’s] testimony to prove [the defendant’s] involvement in
a methamphetamine conspiracy”). Additionally, although
Appellant’s defense at the first trial was focused on mere presence
and Appellant’s defense at the second trial was “a combination of”
mere presence and coercion, Appellant employed similar trial
strategies in both proceedings, attempting to distance himself from
Babbage and Hall by asking Tew whether she had ever heard of
Appellant or heard Hall or Babbage mention Appellant’s name. See
Reed, 227 F3d at 768 (I) (A) (similar motive to develop witness’s
testimony on cross-examination existed in part because defendant’s
“principal strategy” at both proceedings was to impeach the
witness); United States v. Avants, 367 F3d 433, 444 (II) (B) (1) (a)
(5th Cir. 2004) (defendant had a similar motive to cross-examine
witness because, in both proceedings, the defendant’s goal “was to
discredit a witness . . . whose testimony could, if believed, convict
him”). Accordingly, the trial court did not abuse its discretion in
18
admitting Tew’s prior testimony under Rule 804 (b) (1).
(b) Appellant also contends that the trial court erred in
admitting Tew’s prior testimony from Appellant’s first trial because
her testimony was inadmissible under the Confrontation Clause of
the Sixth Amendment to the United States Constitution. The
Confrontation Clause provides that, “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. Amend. VI. “With respect to
the right to confrontation, the Sixth Amendment provides two types
of protections for a criminal defendant: the right physically to face
those who testify against him, and the right to conduct cross-
examination.” Burney v. State, 309 Ga. 273, 282 (3) (a) (845 SE2d
625) (2020) (citation and punctuation omitted). As the United States
Supreme Court has made clear, the Confrontation Clause “prohibits
the introduction of testimonial statements by a nontestifying
witness, unless the witness is ‘unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.’” Ohio
v. Clark, 576 U.S. 237, 243 (II) (A) (135 SCt 2173, 192 LE2d 306)
19
(2015) (quoting Crawford v. Washington, 541 U.S. 36, 54 (II) (B) (124
SCt 1354, 158 LE2d 177) (2004)).
As discussed above with respect to Appellant’s Rule 804 (b) (1)
argument, Tew was unavailable and Appellant had a prior
opportunity for cross-examination. Accordingly, because the
requirements of Crawford’s Confrontation Clause test are met,
Appellant’s constitutional argument fails. See Avants, 367 F3d at
445 (II) (B) (1) (b) (“The qualities that made [the prior] testimony
admissible under 804 (b) (1) make it meet Crawford’s Confrontation
Clause test: unavailability and prior opportunity for cross-
examination.”)
3. Appellant next contends that, even if Tew’s prior testimony
was not altogether barred, the portion of Tew’s testimony in which
she recounted Hall’s hearsay statements that “I think we f**ked up,”
and “I think we killed somebody,” should have been excluded under
Georgia’s Evidence Code.7 Appellant’s claim fails.
7 Based on our review of Appellant’s brief, Appellant does not challenge
the admissibility of these statements under the Confrontation Clause.
20
At the hearing on the State’s motion to admit Tew’s prior sworn
testimony, defense counsel argued that Hall’s statements were
inadmissible hearsay, and the State responded that Hall’s
statements were admissible as “statement[s] by a coconspirator”
under OCGA § 24-8-801 (d) (2) (E) (“Rule 801 (d) (2) (E)”). Without
expressly ruling on the admissibility of Hall’s statements, the trial
court admitted the entirety of Tew’s prior sworn testimony.
However, in its order denying Appellant’s motion for new trial, the
trial court clarified that Hall’s statements were admissible under
both Rule 801 (d) (2) (E) and as “statement[s] against interest” under
OCGA § 24-8-804 (b) (3).
Assuming without deciding that the trial court abused its
discretion in admitting Hall’s statements through Tew’s testimony,
Appellant’s claim fails because it is highly probable that any error
in admitting Hall’s statements did not contribute to the verdict. See
Kitchens v. State, 310 Ga. 698, 702 (2) (854 SE2d 518) (2021) (“The
test for determining nonconstitutional harmless error is whether it
is highly probable that the error did not contribute to the verdict.”
21
(citation and punctuation omitted)).
As an initial matter, Hall’s statements were not particularly
prejudicial to Appellant, as they did not directly implicate him in the
charged offenses. See Stafford v. State, 312 Ga. 811, 823 (5) (a) (865
SE2d 116) (2021) (any error in admitting hearsay evidence was
harmless where the “statements were not especially prejudicial”
because they “did not directly implicate Appellant in any crime”).
Although Hall used the word “we,” his statements did not mention
Appellant by name. Further, Tew, who recounted Hall’s statements,
stated on cross-examination that she did not know Appellant and
had never heard his name mentioned.
Moreover, the evidence against Appellant was strong. The jury
watched Appellant’s interview, in which he stated that he “tossed”
Hall the computer charger used to tie up Alexander; helped
transport the electronics and guns into Babbage’s car, even after he
had an opportunity to leave the crime scene; stayed at Hall’s house
for several hours following the crimes, despite his assertion that he
felt threatened by Hall; and that he “almost” felt held hostage.
22
Additionally, the jury heard testimony from White that, after the
crimes occurred, the men appeared “laid back” and “chill”; testimony
from Mullins that Appellant never mentioned feeling threatened or
being afraid of anyone; and evidence that, on the day before the
incident, Appellant’s phone sent a text message seeking to find out
when Alexander’s roommate, Oliver, would be working, despite
never having met Oliver and having no apparent legitimate reason
for inquiring into when Oliver would be absent from the apartment.
See Kitchens, 310 Ga. at 702 (2) (any error in admitting hearsay
statement harmless “[i]n light of the strong evidence of Appellant’s
guilt”). Given the ample evidence that Appellant participated in the
crimes and that he appeared comfortable around Hall and not under
coercion, it is highly probable that Hall’s double hearsay statement
did not contribute to the verdict.
4. Finally, Appellant contends that the trial court erred in
admitting into evidence Alexander’s hearsay statements through
Hiley’s testimony. Specifically, Hiley testified that, about one month
before the incident, she overheard Alexander on the phone telling
23
someone, “You don’t get the TV back. That’s not how the streets
work.” Hiley further testified that she asked Alexander who he was
speaking with, and “[h]e said [Babbage]; he want his TV back, but I
ain’t selling his TV back.” We discern no error in the court’s decision
to admit these statements.
Prior to Appellant’s retrial, the State filed a notice of intent to
introduce evidence under the residual hearsay exception, OCGA
§ 24-8-807 (“Rule 807”), which provides in relevant part:
A statement not specifically covered by any law but
having equivalent circumstantial guarantees of
trustworthiness shall not be excluded by the hearsay rule,
if the court determines that:
(1) The statement is offered as evidence of a material
fact;
(2) The statement is more probative on the point for
which it is offered than any other evidence which
the proponent can procure through reasonable
efforts; and
(3) The general purposes of the rules of evidence and
the interests of justice will best be served by
admission of the statement into evidence.
OCGA § 24-8-807. At a hearing on the admissibility of Alexander’s
statements, the State argued that the statements had “particular
24
guarantees of trustworthiness” because the statements were
corroborated by Oliver’s testimony that Alexander had recently
purchased a television from Babbage, and because Hiley would
testify that, before his death, Alexander was “one of [her] closest
siblings,” that she saw him “every day,” and that she talked to him
“[t]wo to three times a day.” The trial court found that the
statements had particular guarantees of trustworthiness and
admitted the statements. In its order denying Appellant’s motion
for new trial, the trial court further clarified that the testimony was
offered as evidence of the material fact that Babbage and Alexander
were “having a disagreement prior to Alexander’s death,” that the
testimony “was more probative on that point than any other
evidence reasonably procurable because the speaker was deceased,”
and that “the interests of justice were best served by admission of
the statement.”
On appeal, Appellant argues that Alexander’s statements were
improperly admitted under Rule 807. He contends that the
statements did not have sufficient guarantees of trustworthiness,
25
the statements did not directly implicate Appellant and therefore
had little probative value, and the interests of justice were not best
served by the admission of the statements because they could have
led the jury to question Appellant’s character as someone associated
with a person who “killed the victim in cold blood over a minor
disagreement.” Appellant’s arguments fail.
“Under Rule 807, a trial court’s decision to admit hearsay
evidence is reviewed for an abuse of its discretion.” Tanner v. State,
301 Ga. 852, 856 (1) (804 SE2d 377) (2017). A trial court does not
abuse its discretion in admitting hearsay evidence not specifically
covered by any law where the requirements listed in OCGA § 24-8-
807 (1)-(3) are met and the trial court finds that the statements have
sufficient guarantees of trustworthiness “because of the
circumstances under which they were originally made.” Rawls v.
State, 310 Ga. 209, 214 (3) (a) (850 SE2d 90) (2020) (citation and
punctuation omitted). 8
8 Appellant does not contend on appeal that Alexander’s statements were
inadmissible under Rule 807 because they were “specifically covered” by
another law. OCGA § 24-8-807.
26
Here, we cannot say that the trial court abused its discretion
in concluding that Alexander’s statements had sufficient guarantees
of trustworthiness. The record shows that Alexander made the
statements to his sister, with whom he had a close relationship;
there was no evidence presented indicating that he had any motive
to fabricate his statements; and his statements were corroborated
by Oliver’s testimony that Alexander had recently purchased a
television from Babbage. See Ash v. State, 312 Ga. 771, 786 (3) (b)
(865 SE2d 150) (2021) (statements had sufficient guarantees of
trustworthiness where the witness and declarant had a “close
relationship” and “talked to each other daily”); Jones v. State, 311
Ga. 455, 460, 460 (858 SE2d 462) (2) (b) (2021) (statements had
sufficient guarantees of trustworthiness where “there was no
evidence indicating that [the declarant] had a motive to fabricate
her statements”); Tanner, 301 Ga. at 856 (1) (statements had
sufficient guarantees of trustworthiness where witness and
declarant “had a close relationship,” declarant had “no apparent
reason to lie,” and the “statements were consistent with other
27
evidence”).
The trial court also did not abuse its discretion in concluding
that the statements met the requirements of OCGA § 24-8-807 (1)-
(3). The trial court acted within its discretion to conclude that the
statements met Rule 807’s materiality requirement because they
were offered as evidence that the men had a motive to commit the
crimes against Alexander based on Alexander’s prior disagreement
with Babbage. The trial court also exercised its discretion to
conclude that the State could not have procured other evidence
establishing a motive, particularly because Alexander was deceased
and Babbage had a Fifth Amendment right against self-
incrimination under the United States Constitution. See Jones, 311
Ga. at 461 (2) (b) (statements met the materiality and probative
requirements of Rule 807 because the statements were “material as
evidence of the nature of the relationship” between the parties and
“shed[ ] light on [a] motive in committing the offenses charged,” and
because the defendant failed to show the State could have procured
other evidence “that would have been more probative to show . . .
28
motive” (citation and punctuation omitted)). Nor has Appellant
shown that the interests of justice were not best served by the
admission of the statements. Contrary to Appellant’s arguments,
the statements were probative of motive and did not concern
Appellant’s character. Accordingly, we conclude that the trial court
did not abuse its discretion in admitting Alexander’s statements.
Judgment affirmed. All the Justices concur.
29