CourtListener 10680178

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315 Ga. 408
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S22A0891. THE STATE v. KENNEY.

COLVIN, Justice.

A Fulton County grand jury indicted Michael Jerome Kenney

for malice murder and related offenses in connection with the

shooting death of Laquitta Brown (“Laquitta”).1 Before trial,

Kenney moved in limine to exclude hearsay statements that Sharrie

Dixon, a witness present during the shooting who was unavailable

to testify at trial, allegedly made to Aisha Brown (“Aisha”),

Laquitta’s partner.2 In response, the State filed a notice of intent to

admit Dixon’s statements to Aisha under OCGA § 24-8-807, also

known as “the residual exception” or “Rule 807,” which provides

1 Laquitta died on February 10, 2018. The grand jury returned an
indictment on July 20, 2018, charging Kenney with malice murder (Count 1),
felony murder (Counts 2, 3, and 4), aggravated assault (Count 5), possession of
a firearm during the commission of a felony (Count 6), and possession of a
firearm by a convicted felon (Counts 7 and 8).
2 Dixon died in an unrelated incident several weeks after Laquitta’s

shooting.
that, if certain conditions apply, “[a] statement not specifically

covered by any law but having equivalent circumstantial guarantees

of trustworthiness shall not be excluded by the hearsay rule.” The

court construed the State’s notice as a motion to admit Dixon’s

statements. Then, finding that the State had failed to establish

exceptional guarantees of trustworthiness, the court granted

Kenney’s motion in limine and denied the State’s construed motion

to admit Dixon’s statements. The State timely appealed under

OCGA § 5-7-1 (a) (5) (permitting the State to appeal “[f]rom an order

. . . excluding any other evidence to be used by the state at trial”).

On appeal, the State argues that the trial court abused its

discretion in excluding Dixon’s statements because the statements

were admissible under OCGA §§ 24-8-803 (1) (present sense

impression), 24-8-803 (2) (excited utterance), and 24-8-807 (the

residual exception). We conclude, however, that the State

affirmatively waived its present-sense-impression and excited-

utterance arguments and that the court was authorized to conclude

that Dixon’s statements were inadmissible under the residual

2
exception. Accordingly, we affirm.

1. At a hearing on Kenney’s motion in limine, the trial court

reviewed two recorded statements Aisha gave to investigators after

Laquitta’s death, in which Aisha provided the following description

of events.3 On Friday, February 9, 2018, Dixon and Kenney were

hanging out at the Browns’ townhome in East Point, Georgia.4

Dixon had been staying with the Browns since the day before, when

she called Aisha saying she had just returned from Florida and

needed somewhere to stay for the night.5 Laquitta, who had known

Kenney for over 15 years, had invited Kenney to stay with them that

night because he was having relationship problems with the mother

of his children.

While the four of them were drinking, dancing, and playing

3 Aisha’s interviews occurred on February 10 and July 12, 2018.
4 Aisha and Dixon knew Kenney as “Jones.” For clarity, references to
“Jones” in this opinion, including references to “Jones” that appear within
quotations from Aisha and Dixon, have been replaced with “Kenney.”
5 An investigator’s written summary of Aisha’s first recorded interview

stated: “Ms. Brown stated that [Dixon] was someone who stayed in the area
and sometimes she hung out in the apartment or stayed a few days when she
was in the area. Ms. Brown said she considered [Dixon] a friend who liked to
have a good time.”
3
cards in Aisha’s upstairs bedroom, Aisha and Dixon saw that

Kenney had a gun in his waistband. Dixon, who had lost her son to

gun violence, asked Kenney to put the gun away. Kenney complied,

sliding it under the bed.

Around 1:00 or 2:00 a.m. on February 10, Aisha took pain

medication for a sprained ankle. The medication “knocked [her]

out,” and she fell asleep. Sometime after 5:00 a.m., however, a loud

argument between Laquitta and a “gentleman” downstairs

awakened Aisha, who found Dixon sitting on her bed.

As relevant to Kenney’s motion in limine, Dixon told Aisha

that, while Aisha was sleeping, Dixon and Kenney had driven to

Kenney’s mother’s house.6 Dixon further said that Kenney had been

crying, had loaded his gun, and had said that he was going to kill

the mother of his children and the kids. Aisha, who could hear

Laquitta telling Kenney “it’s not worth it” and “calm down,” asked

Dixon to check on Laquitta for her, since Aisha’s ankle was injured.

6 According to the State’s factual proffer, Dixon and Kenney had gone out

to buy more beer, and unopened beer cans were later found in Aisha’s bedroom.
4
But Dixon refused, saying that Kenney had a loaded gun and had

been talking about killing his family. Aisha then heard three

gunshots.

Aisha ran downstairs and found Laquitta lying dead on the

ground with a gunshot wound to her head. She called 911. While

speaking to dispatch, Aisha said she heard “[Kenney], the guy who

shot and killed [her] girl,” outside yelling obscenities.

In addition to Aisha’s recorded statements, the trial court

considered additional evidence, which showed the following. An

officer who responded to the scene spoke with Aisha and prepared a

report documenting her statements. As relevant to Kenney’s motion

in limine, the officer’s report stated that Aisha told the officer that

she heard gunshots and then heard Dixon shout, “[Kenney]! Just

shot Laquitta!”

Although Dixon was too intoxicated to give a statement at the

scene, she provided a recorded statement to law enforcement officers

5
several hours later.7 In her statement, Dixon said that she

sometimes stayed with the Browns when she was in the area. She

further said that she had left the apartment to get more beer with

Kenney that night and that, while out, Kenney had loaded a gun and

said he was going to kill the mother of his children and the kids.

According to Dixon, when they returned to the apartment, Laquitta

grabbed the keys from Kenney’s hand and the two of them argued

in the kitchen while Dixon went upstairs. After hearing three shots,

Dixon said, she went downstairs with Aisha and found Laquitta

dead on the floor.

Sometime later, an officer presented Aisha and Dixon with

photo lineups that included Kenney. Although Aisha identified

Kenney, Dixon was unsure if she knew anyone in the lineup.

About three weeks after Laquitta’s death, Dixon was stabbed

to death in an unrelated incident. When asked during her second

7 The record includes only an investigator’s summary of Dixon’s
interview, and the State conceded that Dixon’s statements to the investigator
were inadmissible under the Confrontation Clause of the Sixth Amendment to
the United States Constitution.
6
recorded interview what she knew about Dixon’s death, Aisha said

only that Dixon had been at her house the day before she died and

that Dixon’s daughter had called her on the morning of Dixon’s

death to see if Aisha knew Dixon’s whereabouts.

Kenney argued that the court should exclude the statements

Dixon allegedly made to Aisha just before the shooting. Specifically,

Kenney sought to exclude Dixon’s statements that Dixon and

Kenney had temporarily left the Browns’ townhome; that, while

they were out, Kenney had loaded a gun and threatened to kill the

mother of his children and the kids; and that Dixon did not want to

go downstairs to check on Laquitta because Kenney had a loaded

gun and had been talking about killing his family. Kenney also

argued that the court should exclude the statement Dixon allegedly

made to Aisha after hearing the gunshots, namely, that “[Kenney]!

Just shot Laquitta!”

The court granted Kenney’s motion in limine and denied the

State’s construed motion to admit Dixon’s statements to Aisha,

finding that “the State fail[ed] to show that there [were] exceptional

7
guarantees of trustworthiness surrounding [Dixon’s] declaration[s]”

and thus that Dixon’s statements were inadmissible under the

residual exception to the hearsay rule. The court found “no evidence

that a close relationship between Ms. Dixon and Ms. Aisha Brown

existed that would guarantee the trustworthiness of the statements”

because “there was no evidence presented as to how Ms. Aisha

Brown, or any of the other parties involved that evening, knew Ms.

Dixon, how long they had known her, or the closeness of her

relationship to any of the residents,” and “Ms. Aisha Brown’s

recorded interviews did not indicate that Ms. Dixon was anything

more than a passing acquaintance.” The court further found that

there were no circumstantial guarantees of trustworthiness

“equivalent to cross-examined former testimony, statements under

a belief of impending death, statements against interest, and

statements of personal or family history.” Finally, the court noted

that Dixon was “under the influence of alcohol and/or other

substances” when she made the statements to Aisha, that officers

had to “delay[ ] getting Ms. Dixon’s statement due to her state of

8
inebriation,” and that, “despite having spent an entire night in

[Kenney’s] company, Ms. Dixon had difficulty identifying him in a

line up.”

2. The State argues that the trial court abused its discretion

in excluding Dixon’s hearsay statements because they were

admissible as present sense impressions, under OCGA § 24-8-803

(1) (“Rule 803 (1)”), and excited utterances, under OCGA § 24-8-803

(2) (“Rule 803 (2)”).8 This claim of error fails, however, because, as

explained below, the State affirmatively waived admission of

Dixon’s hearsay statements under those exceptions. See Dukes v.

State, 311 Ga. 561, 569 (3) (858 SE2d 510) (2021)

(“[A]ffirmative waiver . . . prevents reversal.” (citation and

punctuation omitted)).

8 Although OCGA § 24-8-802 (“the hearsay rule”) provides that hearsay

statements are generally inadmissible, present sense impressions and excited
utterances “shall not be excluded by the hearsay rule.” OCGA §§ 24-8-803 (1)
(defining a “present sense impression” as “[a] statement describing or
explaining an event or condition made while the declarant was perceiving the
event or condition or immediately thereafter”); 24-8-803 (2) (defining an
“excited utterance” as “[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the
event or condition”).
9
After Kenney filed the pretrial motion in limine to exclude

Dixon’s statements to Aisha, the State filed a notice of intent to

admit Dixon’s statements under the residual exception to the

hearsay rule (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. In its notice, the State indicated that “[t]he State

will offer this evidence pursuant to the Residual Exception to the

Hearsay Rule” and argued that “[t]he [s]tatements made by Dixon

to Aisha Brown meet the certainties of reliability required of

residual hears[a]y admission under OCGA § 24-8-807.”

Likewise, at the motion-in-limine hearing, the State argued

that Dixon’s statements were admissible under the residual

10
exception (Rule 807). Citing our decision in State v. Holmes, 304 Ga.

524 (820 SE2d 26) (2018), the State argued that, in assessing

whether Dixon’s statements were trustworthy under Rule 807, the

court needed “to look to the other reasons for the admissibility of

hearsay under [the Rule] 803 [exceptions],” including the present-

sense-impression and excited-utterance exceptions. See Holmes,

304 Ga. at 530 (2) (a) (holding that the trial court abused its

discretion in admitting a hearsay statement “under the residual

exception without considering whether this was an exceptional

circumstance in which the guarantees of trustworthiness were the

equivalent to those found in the other statutory exceptions to

hearsay set forth in Rules 803 and 804 of Georgia’s Evidence Code”).

The State further said that, under Holmes, “you need to look at both,

you know, the [Rule] 804 exceptions [where] the declarant was

unavailable, as well as [Rule] 803. I believe I cited those: the present

sense[ and] the excited utterance [under Rules 803 (1) and (2)].”

Assuming without deciding that the State’s references to Rules

803 (1) and (2) constituted arguments that Dixon’s hearsay

11
statements were independently admissible as present sense

impressions and excited utterances, the State affirmatively waived

admission of Dixon’s statements under those exceptions later in the

hearing.9 See Davis v. State, 311 Ga. 225, 230 (2) (857 SE2d 207)

(2021) (“To constitute an affirmative waiver, [a claim of] error must

have been intentionally relinquished or abandoned.” (citation and

punctuation omitted)).10 Specifically, in explaining why Dixon’s

statements were admissible under the residual exception (Rule 807),

the State argued:

In fact, what the case law shows is that these
statements come in quite frequently. But compared to
other exceptions and other avenues for the admission of

9 To the extent that the logic of the special concurrence suggests that a

party’s statement cannot constitute an affirmative waiver of an argument if
the statement was “part and parcel of,” or was “made only in service of,”
another argument, we disagree. See, e.g., Dukes, 311 Ga. at 569 (3) (holding
that defense counsel’s statement that a witness was not qualified to give
further testimony on an issue, which defense counsel only made in service of
an argument that the court should not strike other testimony from the witness,
affirmatively waived an argument on appeal that the court should have
permitted further testimony).
10 “[W]e have contrasted [an affirmative] waiver — the intentional

relinquishment of a known right — with ‘forfeiture,’ which is the mere ‘failure
to make the timely assertion of the right.’” Grullon v. State, 313 Ga. 40, 46 (2)
(a) (867 SE2d 95) (2021) (citations and punctuation omitted). Whereas
affirmative waiver precludes appellate review, we ordinarily review forfeited
evidentiary arguments for plain error under OCGA § 24-1-103 (d). See Griffin
v. State, 309 Ga. 860, 864-865 (2) (849 SE2d 191) (2020).
12
this evidence, it’s quite rare. It is rare. And I think what
you have to look at making it rare is that you’ve got to
exhaust all other options of admissibility. And we’ve done
that here. We can’t use, you know, [Rule] 803 by itself
because obviously the declarant in this is deceased, so
she’d be unavailable [to] testify.

(Emphasis supplied.) The State then argued that the statements

were inadmissible under the hearsay exceptions contained in OCGA

§ 24-8-804 (“Rule 804”), stating, “The defendant didn’t cause the

death [of Dixon], . . . [s]o that really takes us out of the realm of

[Rule] 804 exceptions.” See OCGA § 24-8-804 (b) (5) (providing that

“[a] statement offered against a party that has engaged or

acquiesced in wrongdoing that was intended to, and did, procure the

unavailability of the declarant as a witness” is excepted from the

rule against hearsay). Finally, the State concluded by saying, “And

so we’ve exhausted everything.”

In context, then, the statement that “[w]e can’t use . . . [Rule]

803 by itself” showed not only that the State was aware of Rules 803

(1) and (2) but that the State intentionally conceded, perhaps

13
unwisely,11 that Dixon’s hearsay statements were inadmissible

under those exceptions in an effort to show that they were

“statement[s] not specifically covered by any law.” OCGA § 24-8-

807. See Blackmon v. State, 306 Ga. 90, 94 (2) n.3 (829 SE2d 75)

(2019) (noting that the trial court erred in concluding that hearsay

statements “were admissible under both the excited utterance

exception and the residual exception” because “[t]he residual

exception applies . . . only to statements not specifically covered by

any law,” and “[t]hus, if the hearsay statements at issue were

admissible under the excited utterance law, they were not

admissible under the residual exception” (citation and punctuation

omitted)). By conceding that the State “can’t use . . . [Rule] 803 by

itself” to admit Dixon’s statements, the State affirmatively waived

any argument that Dixon’s statements were independently

11 We note that the State’s representation that Dixon’s hearsay
statements could not be admitted under Rule 803 because she was unavailable
to testify reflects an apparent misunderstanding of Rule 803, which identifies
hearsay exceptions that apply “regardless of whether the declarant
is available as a witness.” Grier v. State, 313 Ga. 236, 244 (3) (d) (869 SE2d
423) (2022) (discussing the excited utterance exception).

14
admissible as present sense impressions or excited utterances.12 See

Heade v. State, 312 Ga. 19, 28 (4) (a) (860 SE2d 509) (2021)

(evidentiary arguments are affirmatively waived if “conceded”

below). See also Dukes, 311 Ga. at 569 (3) (defense counsel

affirmatively waived a claim that the trial court erred “by

prohibiting counsel from further cross-examining the medical

examiner about the effects of amphetamines on a person” because

defense counsel stated at trial that the medical examiner “was not

qualified to give any additional testimony on the topic”). Cf. Vasquez

v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019) (withdrawn

arguments are affirmatively waived).

The State contends that, even if it waived admission of Dixon’s

hearsay statements under Rules 803 (1) and (2), its arguments on

12 Although it did not do so, the State could have preserved an argument

that the hearsay statements were admissible under Rule 803 if, rather than
conceding that Rule 803 did not apply, it had argued in the alternative that the
statements were either admissible under Rule 803 or, if they were not
admissible under Rule 803, then they were admissible under Rule 807. See
Atkins v. State, 310 Ga. 246, 249-252 (2) (850 SE2d 103) (2020) (considering on
appeal whether the trial court had abused its discretion in concluding that
hearsay statements were inadmissible under both the excited-utterance
exception and the residual-hearsay exception, where the defendant had argued
both exceptions “[i]n the alternative”).
15
appeal that the statements were admissible as present sense

impressions and excited utterances are properly before this Court.

This is so, the State argues, because a court cannot determine

whether evidence is admissible under the residual exception (Rule

807) without “first determin[ing] the evidence’s admissibility under

other law.” For this proposition, the State cites our decisions in

Holmes, Hickman v. State, 299 Ga. 267 (787 SE2d 700) (2016), and

State v. Hamilton, 308 Ga. 116 (839 SE2d 560) (2020). We are

unpersuaded.

Neither Holmes nor Hickman held that a court must first

determine whether hearsay statements are admissible under

another hearsay exception before concluding they are otherwise

inadmissible under the residual exception. Holmes clarified that a

court must find that hearsay statements have “guarantees of

trustworthiness [that are] equivalent to those found in the other

statutory exceptions to hearsay set forth in Rules 803 and 804”

before they can be admitted under the residual exception. Holmes,

304 Ga. at 529-530 (2) (a). As for Hickman, we held only that Rule

16
807’s requirements for admitting statements under the residual

exception were irrelevant to whether evidence could be admitted

under another exception because, “[b]y its own terms, OCGA § 24-8-

807 does not apply to evidence which is admissible under another

exception to the hearsay rule.” Hickman, 299 Ga. at 272 (4).

Neither case required a trial court to perform a specific analysis

before concluding that hearsay statements are inadmissible under

the residual exception.

The same can be said of Hamilton.13 According to the State,

because Hamilton said that “trial courts should consider whether a

specific exception to the hearsay rule applies before applying Rule

807,” Hamilton, 308 Ga. at 124 (3) (b) n.10 (emphasis supplied), a

trial court must “first determine that a statement is inadmissible

under other law prior to considering admissibility under Rule 807.”

(Emphasis supplied.) This argument, however, misconstrues

13 Notably, Hamilton could not have held that a trial court must perform

a specific analysis before concluding that hearsay statements are inadmissible
under the residual exception because Hamilton concluded that the statements
at issue were admissible under the residual exception. See Hamilton, 308 Ga.
at 127 (4) (b).
17
Hamilton.

In Hamilton, we noted that the trial court had concluded that

hearsay statements were alternatively admissible under either

OCGA § 24-8-804 (b) (1) (“Rule 804 (b) (1)”) or Rule 807. See

Hamilton, 308 Ga. at 124 (3) (b). Then, after concluding that Rule

804 (b) (1) did not apply, “[w]e caution[ed] that[,] because the

residual exception applies only to statements not specifically

covered by any law, trial courts should consider whether a specific

exception to the hearsay rule applies before applying Rule 807.” Id.

at 124 (3) (b) n.10 (citation and punctuation omitted; emphasis in

original). The context surrounding this statement clarifies that we

were not saying a court should determine that no other hearsay

exception might apply before even considering Rule 807, as the State

contends. Rather, in context, our statement that “trial courts should

consider whether a specific exception to the hearsay rule applies

before applying Rule 807,” id. (emphasis supplied), suggested that,

when a party argues in the alternative that hearsay statements are

admissible under either Rule 807 or another specific hearsay

18
exception, the court should not admit the statements under Rule 807

without first determining that the other hearsay exception does not

apply.

To summarize, neither Holmes nor Hickman nor Hamilton

purported to hold that a trial court must determine that other

hearsay exceptions do not apply before concluding for an

independent reason that hearsay statements are inadmissible under

the residual exception. To the contrary, a court may conclude that

statements are inadmissible under the residual exception if the

proponent of the evidence fails to establish any one of the

preconditions for admitting a statement under Rule 807. See OCGA

§ 24-8-807 (identifying several preconditions for admission,

including that the statement has “circumstantial guarantees of

trustworthiness”; “[t]he statement is offered as evidence of a

material fact”; “[t]he statement is more probative on the point for

which it is offered than any other evidence which the proponent can

procure through reasonable efforts”; “[t]he general purposes of the

rules of evidence and the interests of justice will best be served by

19
admission of the statement into evidence”; and the proponent of the

evidence provides adequate notice of intent to admit the statement).

This enumeration of error therefore fails.

3. The State argues that the trial court abused its discretion

in concluding that Dixon’s statements were inadmissible under the

residual exception to the hearsay rule (Rule 807) because, according

to the State, the trial court (a) improperly relied on case law

applying the former Evidence Code, and (b) made several clearly

erroneous factual findings. As explained below, although the court

should not have relied upon cases applying the former Evidence

Code, that error was harmless under the circumstances, and the

court did not abuse its discretion in excluding Dixon’s statements.

See State v. Stephens, 307 Ga. 615, 616 (837 SE2d 830) (2020) (“We

review the trial court’s grant or denial of a motion in limine for abuse

of discretion.”).

(a) The residual exception to the hearsay rule applies only

when “the circumstances under which [the statements] were

originally made” establish “exceptional guarantees of

20
trustworthiness.” Rawls v. State, 310 Ga. 209, 214 (3) (a) (850 SE2d

90) (2020) (citations and punctuation omitted). In assessing

whether exceptional guarantees of trustworthiness exist, relevant

factors include “the trustworthiness of the original declarant” and

whether the circumstantial guarantees of trustworthiness “are

equivalent in significance to the specific hearsay exceptions

enumerated in Federal Rules of Evidence 803 and 804.” Holmes,

304 Ga. at 529 (2) (a) (citation, punctuation and emphasis omitted).

“[S]uch guarantees must be equivalent to cross-examined former

testimony, statements under a belief of impending death,

statements against interest, and statements of personal or family

history.” Id. (citation and punctuation omitted). “A trial court

should consider the totality of the circumstances in determining

whether to admit evidence pursuant to OCGA § 24-8-807.” Reyes v.

State, 309 Ga. 660, 668 (2) (b) (847 SE2d 194) (2020).

Although the trial court correctly set out these legal principles

governing the admission of hearsay statements under the residual

exception, the State contends that the court abused its discretion

21
because, in ruling on whether Dixon’s statements were admissible

under the exception, it improperly relied on Georgia cases applying

the former Evidence Code’s “necessity exception” to the hearsay

rule.14 Specifically, the State notes that the trial court cited

Slakman v. State, 272 Ga. 662 (533 SE2d 383) (2000), and Navarrete

v. State, 283 Ga. 156 (656 SE2d 814) (2008), both of which addressed

the former necessity exception.

We agree that, by citing Slakman and Navarrete in the context

of addressing the residual exception (Rule 807), the trial court

violated our admonition in Reyes that “[c]ases decided under the

‘necessity’ exception to the hearsay rule in Georgia’s former

Evidence Code are . . . not applicable to the interpretation of OCGA

§ 24-8-807 and should not be relied on by trial courts in determining

whether to admit evidence.” Reyes, 309 Ga. at 666 (2) (a). The

14 Admitting statements under the former necessity exception required

the proponent of the evidence to show both “necessity” and “particularized
guarantees of trustworthiness.” Navarrete v. State, 283 Ga. 156, 159 (2) (656
SE2d 814) (2008) (citation and punctuation omitted). The necessity exception
“was not carried over into the current Evidence Code” and was instead replaced
by Rule 807, which was “modeled . . . on Rule 807 of the Federal Rules of
Evidence.” Reyes, 309 Ga. at 666 (2) (a).
22
court’s error was harmless, however, because it was clear from the

court’s order that the court “ultimately applied the appropriate

evidentiary standard.” Id. at 667 (2) (a).

The trial court cited Slakman and Navarrete only after

correctly describing Rule 807’s requirements based on controlling

authority and after expressly acknowledging that, because “the

[Rule] 807 Residual Exception replaced the necessity exception of

the old code,” former necessity-exception cases no longer controlled.

It is true that the trial court erroneously relied on Slakman and

Navarrete to identify relevant factors in assessing the

trustworthiness of a statement under Rule 807 — specifically, the

closeness of a relationship between a declarant and a hearsay

witness, and the intoxication of a hearsay declarant when the

statement was made. But because our precedent applying Rule 807

and federal case law applying Rule 807’s federal counterpart have

likewise identified such factors as relevant to the Rule 807

trustworthiness inquiry, the court’s error did not result in the

application of an incorrect legal standard. Compare Slakman, 272

23
Ga. at 667-668 (3) (b) (1), (2) (closeness of relationships between the

declarant and the hearsay witnesses was relevant to

trustworthiness under the former necessity exception), with Rawls,

310 Ga. at 215 (3) (a) (i) (close relationships provided sufficient

guarantees of trustworthiness under Rule 807). Compare

Navarrete, 283 Ga. at 159-160 (2) (intoxication of declarant when he

allegedly made the hearsay statement was relevant to

trustworthiness under the former necessity exception), with United

States v. Two Shields, 497 F3d 789, 794-795 (8th Cir. 2007) (“The

district court acted entirely within its discretion in treating Buffalo

Boy’s extreme intoxication as one consideration in the totality of the

circumstances” and “concluding that Buffalo Boy’s intoxication

diminished the trustworthiness of his statement for purposes of the

residual exception to the hearsay rule.”). “Because the trial court

ultimately applied the appropriate evidentiary standard despite its

citation to . . . case[s] construing the former Evidence Code, it is

unnecessary for us to vacate the trial court’s [order] on this ground.”

Reyes, 309 Ga. at 667 (2) (a).

24
(b) The State also argues that the trial court clearly erred in

making several findings of fact. First, the State challenges the

court’s finding that there was “no evidence [of] a close relationship

between Ms. Dixon and Ms. Aisha Brown . . . that would guarantee

the trustworthiness of the statements.” According to the State, this

finding was clearly erroneous because Aisha called Dixon a friend

and a regular houseguest, Dixon had been staying with the Browns

for several days when the homicide occurred, Aisha saw Dixon

shortly before she died, and Dixon’s daughter knew to call Aisha to

inquire about Dixon’s whereabouts around the time of her death.

This argument fails.

The record supports the trial court’s finding that “there was no

evidence presented as to how Ms. Aisha Brown, or any of the other

parties involved that evening, knew Ms. Dixon, how long they had

known her, or the closeness of her relationship to any of the

residents.” Although an investigator’s written summary of Aisha’s

recorded interview stated that Aisha had called Dixon a friend and

a regular houseguest, the recording itself does not support these

25
details. The interview recording reveals that Aisha repeatedly

described Dixon only as “the lady downstairs,” referring to the

downstairs of the police department. She never referred to Dixon as

a friend or a regular houseguest, and the trial court was entitled to

discredit the investigator’s written summary of the recording. See

Daniels v. State, 313 Ga. 400, 407 (2) (b) (i) (870 SE2d 409) (2022)

(noting that courts can “consider facts that definitely can be

ascertained exclusively by reference to evidence that is

uncontradicted and presents no questions of credibility, such as facts

indisputably discernible from audio- or video-recordings” (citation

and punctuation omitted)). See also State v. Rosenbaum, 305 Ga.

442, 449 (2) (826 SE2d 18) (2019) (noting that, when reviewing a

motion-to-suppress ruling, a trial court’s “findings based

upon conflicting evidence . . . should not be disturbed by a reviewing

court if there is any evidence to support them,” and “the trial court’s

decision with regard to questions of fact and credibility must be

accepted unless clearly erroneous” (citation and punctuation

omitted)).

26
The other evidence on which the State relies to argue that

Aisha and Dixon clearly had a close relationship was sparse, in

contrast with cases where we have recognized that a close

relationship provided circumstantial guarantees of trustworthiness

under Rule 807. See, e.g., Lopez v. State, 311 Ga. 269, 275 (2) (a)

(857 SE2d 467) (2021) (hearsay statements “had the requisite

guarantees of trustworthiness” under Rule 807, where the declarant

“had a very close relationship with both [witnesses],” as the

declarant “had known them for approximately ten years, spoke with

them on a daily basis, and was related to [one of the witnesses] by

marriage”).15 We therefore cannot say that the trial court clearly

15 See also Ward v. State, 313 Ga. 265, 269-271 (3) (a), (b) (869 SE2d 470)

(2022) (statements “made to close friends and family, demonstrate[d] sufficient
guarantees of trustworthiness under Rule 807,” where the hearsay witnesses
included a “good friend[ ]” who was “like a big brother to [the declarant],” a
“real good friend from college” who “considered [the declarant] like a big sister,”
the declarant’s “best friend,” a cousin who was “more like [the declarant’s]
sister[ ]” and “talked [to the declarant] almost daily,” a family member by
marriage who “saw [the declarant] at least every other day,” and a friend who
“grew up in church” with the declarant and had continued to be in a friendship
even after college (punctuation omitted)); Ash v. State, 312 Ga. 771, 786 (3) (b)
(865 SE2d 150) (2021) (circumstantial guarantees of trustworthiness existed
under Rule 807 based on a “long and close friendship,” where the witness was
the declarant’s “lifelong” and “best” friend, and “[t]he pair talked to each other

27
erred in finding that the evidence failed to establish a close

relationship between Aisha and Dixon.

Further, the State’s argument that the trial court clearly erred

in finding that Aisha and Dixon were “passing acquaintance[s]” is

misguided. The court did not find that the women were “passing

acquaintances” but rather that the State failed to prove that they

had “a close relationship” and that “Ms. Aisha Brown’s recorded

interviews did not indicate that Ms. Dixon was anything more than

a passing acquaintance.” (Emphasis supplied.) Aisha’s recorded

interviews and the record as a whole support the court’s findings.

daily and shared the personal details of their lives with each other”); Rawls,
310 Ga. at 214-215 (3) (a) (i) (concluding that the declarant’s “close relationship
with each of the[ ] witnesses gave [the declarant’s] statements . . . sufficient
guarantees of trustworthiness to be admissible under Rule 807,” where the
witnesses were the declarant’s “best friend[ ],” cousin, and sister, and the
declarant and witnesses “often confided” in each other); Reyes, 309 Ga. at 668
(2) (b) (statements were adequately trustworthy under Rule 807 where the
declarant and witness “had a close relationship in which they regularly shared
with each other what was happening in their lives”); Miller v. State, 303 Ga. 1,
5 (2) (810 SE2d 123) (2018) (“statement made to a close personal friend” was
sufficiently trustworthy under Rule 807 where the witness and declarant “had
known [each other] for three decades” and “maintained a close relationship”);
Smart v. State, 299 Ga. 414, 422 (3) (788 SE2d 442) (2016) (“We cannot say
that statements from a wife to her friends or family, or her own writings, which
describe acts of domestic violence, do not, in fact, bear an increased level of
trustworthiness [for purposes of Rule 807].”).
28
The State also argues that the trial court clearly erred in

finding that Dixon’s intoxication weighed in favor of finding her

statements insufficiently trustworthy. Citing United States v. Two

Shields, 435 FSupp.2d 973 (D. N.D. 2006), where a federal district

court found that statements made by a declarant with a blood-

alcohol level “nearly five (5) times the legal limit” did not have

sufficient guarantees of trustworthiness, id. at 979 (II) (C), the State

argues that “mere intoxication is not determinative” of admissibility

and that “a declarant’s intoxication alone” does not support denying

admission of hearsay evidence under Rule 807. This argument,

however, misconstrues the trial court’s analysis. The trial court

considered Dixon’s intoxication as a relevant factor, not a dispositive

factor, in analyzing whether her statements were sufficiently

trustworthy. The record supported the court’s finding that Dixon

was intoxicated when she made the statements at issue, and the

court did not abuse its discretion in weighing that fact in its Rule

29
807 analysis. See Two Shields, 497 F3d at 794-795.16

In addition, the State challenges the trial court’s decision to

weigh Dixon’s inability to identify Kenney in a photo lineup when

assessing the trustworthiness of her statements under Rule 807.

The State contends that this fact was “not probative of Dixon’s

capacity to discuss with Aisha Brown the cause of the yelling and

shots both women overheard.” But the trial court was authorized to

conclude that Dixon’s inability to remember what Kenney looked

like, despite having spent hours with him on the night of Laquitta’s

death, showed that, when she spoke to Aisha shortly before and after

the homicide, she had an impaired ability to accurately perceive,

comprehend, and speak about the events surrounding the homicide.

Accordingly, the trial court did not clearly err in finding that Dixon’s

16 We are unpersuaded by the State’s argument that the court clearly

erred “in commenting [on] Aisha Brown’s supposed impairment at the time
Sh[a]rrie Dixon made her statement.” See Rawls, 310 Ga. at 214 (3) (a) (noting
that statements are “considered sufficiently trustworthy” under Rule 807 “not
because of the credibility of the witness reporting them in court, but because
of the circumstances under which they were originally made” (citation and
punctuation omitted)). Here, there is no indication in the trial court’s order
that Aisha’s credibility factored into the court’s Rule 807 analysis, as the court
quoted the relevant language from our decision in Rawls and focused its
intoxication analysis on Dixon’s inebriation, rather than Aisha’s.
30
inability to identify Kenney in a photo lineup weighed in favor of

finding that her statements describing the circumstances

surrounding Laquitta’s shooting were insufficiently trustworthy

under Rule 807.

Finally, the State contends that a “number of other

circumstantial guarantees of trustworthiness,” such as the lack of a

“discern[i]ble reason [for] Dixon [to] lie to [Aisha],” support

admission of Dixon’s statements under the residual exception. But

we cannot say that the trial court clearly erred in weighing more

heavily other factors — such as the lack of a close relationship

between Aisha and Dixon and Dixon’s intoxication when she made

the statements — in concluding that exceptional guarantees of

trustworthiness were lacking, and therefore that Dixon’s statements

were inadmissible under Rule 807. See Holmes, 304 Ga. at 529 (2)

(a) (noting that we will not overturn a trial court’s residual-hearsay

ruling “absent a definite and firm conviction that the court made a

clear error of judgment in the conclusion it reached based upon a

weighing of the relevant factors” (citation and punctuation

31
omitted)). Accordingly, we affirm.

Judgment affirmed. All the Justices concur, except Warren, J.,
who concurs specially, and LaGrua, J., disqualified.

WARREN, Justice, concurring specially.

I concur in the judgment in this case, because I agree that the

trial court did not abuse its discretion in excluding the evidence at

issue under OCGA § 24-8-807. And I agree with the majority insofar

as it concludes that the State’s arguments on appeal—that certain

out-of-court statements should have been admitted under Rule 803

or Rule 807—fail. But because I arrive at that conclusion by

applying a different legal analysis, I concur specially.

As an initial matter, I am skeptical of a major premise of

Division 2 in the majority opinion: that the State “affirmatively

waived” arguments under Rule 803 that certain out-of-court

statements were admissible as present-sense impressions or excited

utterances. I view the record differently: rather than affirmatively

waiving arguments under Rule 803, the State simply failed to raise

32
a free-standing argument that the evidence at issue was admissible

under Rule 803. Any mention the State made about Rule 803,

including its statement, “[w]e can’t use . . . [Rule] 803 by itself,” was

part and parcel of an argument that the evidence was instead

admissible under Rule 807. In other words, the State’s arguments

about Rule 803 were made only in service of its Rule 807 argument,

to show that the evidence at issue had “equivalent circumstantial

guarantees of trustworthiness” as hearsay admitted under Rule 803

and to show that the evidence was not admissible under other

hearsay exceptions. See OCGA § 24-8-807 (“A statement not

specifically covered by any law but having equivalent circumstantial

guarantees of trustworthiness shall not be excluded by the hearsay

rule[.]”). What makes the State’s argument difficult to decipher is

that it appears to have misunderstood the requirements of Rule 803,

apparently believing that a declarant’s availability was a

prerequisite for admission of her out-of-court statements, even

though Rule 803 identifies hearsay exceptions that apply

“regardless of whether the declarant is available as a witness.” Grier

33
v. State, 313 Ga. 236, 244 (869 SE2d 423) (2022) (excited-utterance

exception). Because the State did not make a free-standing Rule 803

argument before the trial court, it did not preserve that issue for

ordinary appellate review.

With respect to the State’s contention that the trial court was

required to determine the admissibility of the evidence at issue

under Rule 803 before deciding to deny its admission under Rule

807, I agree with the majority opinion’s conclusion that the trial

court was not required to do so. However, I note that the parties

may have been able to avoid this appeal altogether if the trial court

had followed this Court’s admonition in Hamilton: “We caution that

because the residual exception applies . . . only to statements not

specifically covered by any law, trial courts should consider whether

a specific exception to the hearsay rule applies before applying Rule

807.” State v. Hamilton, 308 Ga. 116, 124 n.10 (839 SE2d 560)

(2020) (citation, punctuation and emphasis omitted). To be sure, the

text of Rule 807 does not require trial courts to determine whether

other hearsay exceptions apply before denying a party’s request to

34
admit evidence under the rule. But Hamilton indicates that trial

courts should nonetheless consider doing so.17 This case illustrates

why that approach is a best practice: had the trial court considered

whether the out-of-court statements at issue in this case constituted

present-sense impressions or excited utterances under Rule 803, it

likely would have concluded that the State was incorrect when it

said that it “could not use” Rule 803 to admit at least some of those

statements. See OCGA § 24-8-803 (1) & (2) (“The following shall not

be excluded by the hearsay rule, even though the declarant is

available as a witness: (1) Present sense impression. A statement

describing or explaining an event or condition made while the

declarant was perceiving the event or condition or immediately

thereafter; (2) Excited utterance. A statement relating to a startling

event or condition made while the declarant was under the stress of

excitement caused by the event or condition[.]”). And this conclusion

17 By contrast, the text of Rule 807 does require trial courts to determine

whether hearsay exceptions apply before admitting evidence under that rule.
See OCGA § 24-8-807 (applying to “statement[s] not specifically covered by any
law”).
35
could have presented a more straightforward basis for the trial court

to deny the State’s motion to admit the evidence under Rule 807 in

this case. For this reason, I write to highlight once again the

prudence of trial courts evaluating as a threshold matter in any Rule

807 analysis whether other hearsay exceptions could apply to the

evidence at issue.

Decided January 18, 2023.

Admission of evidence. Fulton Superior Court. Before Judge

Eaton.

Fani T. Willis, District Attorney, Michael S. Carlson, Lyndsey

H. Rudder, Kevin C. Armstrong, Karen S. Bemis, Jayna Easton,

Bruce R. Hiles, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General, for

appellant.

Drake & Estes, R. Scott Estes, for appellee.

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: January 18, 2023

S22A0891. THE STATE v. KENNEY.

COLVIN, Justice.

A Fulton County grand jury indicted Michael Jerome Kenney

for malice murder and related offenses in connection with the

shooting death of Laquitta Brown (“Laquitta”).1 Before trial,

Kenney moved in limine to exclude hearsay statements that Sharrie

Dixon, a witness present during the shooting who was unavailable

to testify at trial, allegedly made to Aisha Brown (“Aisha”),

Laquitta’s partner. 2 In response, the State filed a notice of intent to

admit Dixon’s statements to Aisha under OCGA § 24-8-807, also

Laquitta died on February 10, 2018. The grand jury returned an
1

indictment on July 20, 2018, charging Kenney with malice murder (Count 1),
felony murder (Counts 2, 3, and 4), aggravated assault (Count 5), possession of
a firearm during the commission of a felony (Count 6), and possession of a
firearm by a convicted felon (Counts 7 and 8).
2 Dixon died in an unrelated incident several weeks after Laquitta’s

shooting.
known as “the residual exception” or “Rule 807,” which provides

that, if certain conditions apply, “[a] statement not specifically