State v. Hamilton

FINAL COPY

              S19A1363. THE STATE v. HAMILTON.


     WARREN, Justice.

     This case, which involves Marlina Hamilton’s indictment for

the murder of her ex-husband, Christopher Donaldson, has been

appealed to our Court three times. As explained in more detail

below, after Hamilton was convicted of felony murder and other

crimes in connection with Donaldson’s death in 2010, the trial court

granted a motion for new trial on the general grounds. The State

then brought its first appeal, and this Court affirmed the trial

court’s order. State v. Hamilton, 

 (

)

(2016) (Hamilton I). After the State elected to retry Hamilton, she

moved for immunity from criminal prosecution based on self-defense

under OCGA § 16-3-24.2. In connection with that motion, Hamilton

also requested that the trial court admit into evidence, for the

purposes of deciding whether she was immune from prosecution, the

transcripts of her jury trial and of her motion for new trial hearing.
The trial court granted that request, over the State’s objection, by

written order. The State appealed that order under OCGA § 5-7-1

(a) (5) (A), but this Court dismissed that appeal.     See State v.

Hamilton, Case No. S19A0555 (Jan. 22, 2019).

     In April 2019, the trial court held a hearing on Hamilton’s

immunity motion, and, consistent with its earlier order, admitted

into evidence the transcripts from Hamilton’s first trial and her

motion for new trial. Later that month, the trial court entered an

order granting Hamilton’s motion for immunity from criminal

prosecution under OCGA § 16-3-24.2.        The State now appeals

Hamilton’s grant of immunity and argues that the trial court erred

by considering Hamilton’s immunity motion before retrial; by

admitting and relying on the transcripts from Hamilton’s first trial

and her motion for new trial to decide Hamilton’s immunity motion;

by granting Hamilton’s immunity motion; and by failing to recuse

from the case. We hold that the trial court properly considered

Hamilton’s immunity motion before retrial. We further hold that

although the trial court abused its discretion by admitting the

                                 2
transcripts of Hamilton’s jury trial and her motion for new trial

hearing under OCGA § 24-8-804 (b) (1) (“Rule 804 (b) (1)”) without

making any determination regarding whether the witnesses who

provided the testimony in those transcripts were available for the

2019 immunity hearing, the trial court did not abuse its discretion

by considering and admitting that evidence under OCGA § 24-8-807

(“Rule 807”). And because there was evidence to support the trial

court’s determination that Hamilton was justified in using deadly

force to defend herself under OCGA § 16-3-21, we affirm the trial

court’s order granting Hamilton immunity under OCGA § 16-3-24.2.

Finally, we hold that the trial court properly rejected the State’s

motion to recuse.

     1. Case History.

     (a)   Background.

     Hamilton and Christopher Donaldson had been in a multi-

year, tumultuous relationship — including a marriage and a divorce

— before Hamilton killed Donaldson in 2010. On February 23, 2011,

a Dougherty County grand jury indicted Hamilton for the malice

                                 3
murder of Donaldson, felony murder based on aggravated assault

with a deadly weapon, aggravated assault (family violence),

aggravated assault with a deadly weapon, and possession of a

firearm during the commission of a felony.         A comprehensive

summary of the evidence presented at Hamilton’s 2011 trial can be

found in Hamilton I, 

, but for purposes of this

appeal, we summarize the following: The evidence presented at trial

included evidence that Donaldson physically abused Hamilton,

including instances of severe abuse, over a period of many years. At

trial, Hamilton testified on her own behalf and specifically testified

that on the night of Donaldson’s death, Donaldson was in the midst

of attacking Hamilton with his fists in Hamilton’s own home when

Hamilton grabbed a gun that she kept under a sofa and fatally shot

him. The evidence also included Hamilton’s earlier statement to

police that she shot Donaldson because she “felt like he was going to

kill [her] that night.”

     In March 2011, a jury found Hamilton not guilty of malice

murder but guilty of the remaining counts, and the trial court

                                  4
sentenced Hamilton to life in prison for felony murder with five

consecutive years in prison for the firearm charge.1 Hamilton then

filed a motion for a new trial. After an evidentiary hearing, the trial

court granted Hamilton’s motion on the general grounds, see OCGA

§§ 5-5-20; 5-5-21, and also ruled that trial counsel rendered

constitutionally ineffective assistance by, among other things,

failing to move for a pretrial determination on the issue of immunity

from criminal prosecution. The State appealed, and in Hamilton I,

we affirmed the trial court’s grant of a new trial to Hamilton on the

general grounds, although we also determined that the evidence

presented at Hamilton’s trial was constitutionally sufficient to

support the jury’s verdicts.2 

.



      (b)   Retrial and Motion for Immunity.




      1 The aggravated assault counts were merged for purposes of sentencing.


      2  With respect to the State’s challenge to the trial court’s ruling on
ineffective assistance, we concluded that “we need not decide this issue because
these instances of allegedly deficient performance by defense counsel are
unlikely to recur if Hamilton is tried again.” Hamilton I, 

.
                                       5
     The State sought to retry Hamilton. At that point, Hamilton,

through new counsel, filed a motion for immunity from prosecution

under OCGA § 16-3-24.2, which provides that “[a] person who uses

threats or force in accordance with Code Section 16-3-21 [defense of

self or others], 16-3-23 [defense of habitation], 16-3-23.1 [no duty to

retreat], or 16-3-24 [defense of property other than habitation] shall

be immune from criminal prosecution therefor. . . .” As noted above,

Hamilton also requested that the trial court admit into evidence, for

the purposes of deciding the immunity issue only, the transcripts of

the testimony of the nearly 30 witnesses who testified at her first

trial, as well as the transcripts of additional testimony presented at

her motion for new trial hearing. The State opposed Hamilton’s

motion, arguing that the transcripts were not admissible under any

of OCGA § 24-8-804 (b)’s hearsay exceptions and that Hamilton was

required to elicit “new” live testimony at the hearing on her

immunity motion since she was granted a “new” trial.



     (c)   Trial Court Orders.

                                  6
     On June 1, 2018, the trial court entered an order granting

Hamilton’s “motion to use witnesses’ prior sworn testimony to

determine if defendant is immune from prosecution pursuant to

OCGA § 16-3-24.2.”      The trial court reached its conclusion by

“liberally construing” Rule 804 (b) (1), reasoning that it was not

required to “rigidly apply” that rule to require proof of the

“unavailability of each witness as a prerequisite for admission of the

testimony” because that specific rule of evidence must be read “in

harmony with the values set forth in OCGA § 24-1-1,” which

provides that the “[r]ules of evidence shall be construed to secure

fairness in administration, eliminate unjustifiable expense and

delay, and promote the growth and development of the law of

evidence to the end that the truth may be ascertained and

proceedings justly determined.”       Along those same lines, it

concluded that “strict adherence to OCGA § 24-8-804 (b) (1) would

run afoul of each of the objectives of the rules of evidence.” It also

noted that “[a]lthough the Court will consider the trial transcript,

the Court will additionally hear testimony from any additional

                                  7
witness and from witnesses that did testify at trial if the witness has

any additional newly discovered information.”

     In the alternative, the trial court ruled that it could consider

the trial transcript under OCGA § 24-8-807, the “residual exception”

to the hearsay rule. In so doing, the trial court acknowledged that

Rule 804 (b) (1) expressly requires declarants to be unavailable for

it to apply and noted that “[u]nlike OCGA § 24-8-804 (b) (1), this

code section [Rule 807] does not expressly require that the declarant

be unavailable.” The State sought an appeal of that order to this

Court, which we dismissed for failure to obtain the required

certificate of immediate review under OCGA § 5-7-2 (a).

     On April 10, 2019, the trial court conducted a hearing on

Hamilton’s motion for immunity. Hamilton introduced into evidence

the transcripts from her 2011 trial and from the hearing on her

motion for new trial, without further objection from the State. Both

Hamilton and the State relied on the transcripts during the hearing,

and neither presented additional testimony or evidence. On April

26, 2019, the trial court entered an order granting Hamilton’s

                                  8
motion for immunity from prosecution. The State timely appealed

that ruling to this Court.

     2. It Was Not Procedurally Improper for Hamilton to Move for
Immunity From Prosecution Under OCGA § 16-3-24.2 Before a New
Trial.

     As an initial matter, the State makes the strange argument

that because immunity from criminal prosecution under OCGA § 16-

3-24.2 is a pre-trial matter, such immunity is not available to

Hamilton because she was already tried and found guilty by a jury,

which heard and rejected her claim of self-defense. That argument

ignores the critical fact that the trial court granted Hamilton a new

trial on the general grounds under OCGA §§ 5-5-20 and 5-5-21. And

“[w]hen a new trial has been granted by the court, the case shall be

placed on the docket for trial as though no trial had been had . . . .”

OCGA § 5-5-48 (emphasis supplied); see Bankhead v. State, 

 (

) (2001) (“Where a new trial has been

granted, the case stands ready for trial as if there had been no trial.

The effect of the grant of a new trial by an appellate court is to

require the case to be heard de novo unless specific direction be given

                                  9
in regard thereto.”) (quoting Reagan v. Reagan, 

(

) (1965)) (citations and punctuation omitted); cf.

Trauth v. State, 

 (

) (2014). When the

trial court granted Hamilton’s new trial, the jury verdict against her

was set aside. As a result, when the State elected to retry Hamilton,

she was free to seek immunity from prosecution under OCGA § 16-

3-24.2 before any new trial was conducted. The State’s meritless

contention fails.3

    3. The Trial Court Abused its Discretion By Relying on Rule
804 to Admit Prior Transcripts Into Evidence at Hamilton’s
Immunity Hearing.

      The State contends that the trial court erred in admitting into

evidence, under Rule 804 (b) (1), (and over objection)4 the transcripts


      3 In rejecting a similar argument by the State below, the trial court relied

on Hipp v. State, 

 (

) (2013), and the parties argue on
appeal about the applicability of that case. Hipp, however, concerned the
plenary authority of a trial court to reconsider — post-trial but before entry of
final judgment and within the same term of court — a pre-trial denial of an
immunity motion, and is therefore inapposite to the procedural posture of this
case.

      4 OCGA § 24-1-103 (a) provides that “[o]nce the court makes a definitive

ruling on the record admitting or excluding any evidence, either at or before
trial, a party need not renew an objection or offer of proof to preserve such

                                       10
from Hamilton’s previous jury trial and motion for new trial hearing

in considering Hamilton’s motion for immunity from prosecution

under OCGA § 16-3-24.2.5 For the reasons explained below, we

agree.

      (a) Legal Background.

      OCGA § 16-3-24.2 provides that “[a] person who uses threats

or force in accordance with Code Section 16-3-21 [self-defense] . . .

shall be immune from criminal prosecution therefor. . . .”                    “A

defendant bears the burden of demonstrating entitlement to

immunity from prosecution under OCGA § 16-3-24.2 by a



claim of error for appeal.” As a result, once the trial court issued the written
order rejecting the State’s objections and granting Hamilton’s request to use
the transcripts to determine immunity, the State was not required to renew its
objection to the use of the trial and hearing transcripts to preserve that issue
on appeal.

      5 As part of this contention, the State asserts that the trial court’s
admission of the transcripts violated the Confrontation Clause (though the
State does not make clear whether it is referring to the Confrontation Clause
of the United States Constitution, the Georgia Constitution, or both).
Regardless, the plain text of those clauses shows that they apply only to the
“accused,” U.S. Const. Amend. VI, or to “person[s] charged with an offense
against the laws of this state,” Ga. Const. of 1983, Art. I, Sec. I, Par. XIV. As
such, Confrontation Clause protections are not available for the State to assert.
See Smith v. State, 

 (

) (2008) (recognizing that
Confrontation Clause protections “belong[ ] to the defendant”).
                                       11
preponderance of the evidence,” and “[o]n review of a trial court’s

ruling regarding a motion for pretrial immunity, this Court views

the evidence in the light most favorable to the ruling, and accepts

the trial court’s findings of fact and credibility determinations if

there is any evidence to support them.” State v. Ogunsuyi, 

 (

) (2017) (citation and punctuation omitted).

Here, Hamilton sought to meet her burden under OCGA § 16-3-24.2

by offering transcripts of testimony from her first trial and her

motion for new trial.

     Our current Evidence Code’s hearsay rules, and specifically

Rule 804 (b) (1), govern the admissibility of former testimony —

which was presented in the form of transcripts in this case. See

OCGA § 24-8-804 (b) (1); Bolling v. State, 

, 698 n.4 (

) (2017); see also, e.g., United States v. Gabay, 923 F2d

1536, 1540-1541 (11th Cir. 1991); United States v. Bizzard, 674 F2d

1382, 1387 (11th Cir. 1982). That rule provides that under certain

circumstances, “[t]estimony given as a witness at another hearing of

the same or a different proceeding” “shall not be excluded by the

                                12
hearsay rule,” but only “if the declarant is unavailable as a witness.”

OCGA § 24-8-804 (b) (1) (emphasis supplied).

     Georgia Rule 804 (b) (1) is materially identical to Federal Rule

of Evidence 804 (b) (1). 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,” State v. Almanza, 

 (

) (2018), “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. Glenn v. State, 

 (

) (2017)

(citation and punctuation omitted); see also Davis v. State, 

 (

) (2016); Bolling, 

 (“When we

consider the meaning of Rule 804, we may consider the decisions of

federal appellate courts, particularly the decisions of the United

States Supreme Court and the Eleventh Circuit, construing and

applying our rule’s federal counterpart.”). We review a trial court’s

evidentiary rulings for an abuse of discretion. See Venturino v.

State, 

 (

) (2019).

                                  13
      (b) Rule 804 Analysis.

      By its plain terms, OCGA § 24-8-804 (b) requires that a

declarant be “unavailable” for his or her former testimony to be

admissible under subsection (b) (1)’s exception to the hearsay rule.

OCGA § 24-8-804 (b) (1) (excluding from the hearsay rule

“[t]estimony given [by] witness[es] at another hearing of the same

or a different proceeding” “if the declarant is unavailable as a

witness”).6 Indeed, the Eleventh Circuit has explained that “‘Rule

804 establishes a two-step inquiry.            First, a witness must be

“unavailable” as that term is defined in section 804 (a).[7] . . . Second,


      6 For the hearsay exception under OCGA § 24-8-804 (b) (1) to apply, “the

party against whom the testimony is now offered” must also have “had an
opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.” Neither party disputes that aspect of the statute was
satisfied here.

      7 Georgia law, much like the Federal Rules of Evidence, statutorily
defines “the term ‘unavailable as a witness’ [to] include[ ] situations in which
the declarant:
         (1) Is exempted by ruling of the court on the ground of privilege
         from testifying concerning the subject matter of the declarant’s
         statement;
         (2) Persists in refusing to testify concerning the subject matter
         of the declarant’s statement despite an order of the court to do
         so;
         (3) Testifies to a lack of memory of the subject matter of the

                                      14
the testimony of the unavailable witness must fall within one of the

categories of admissible evidence enumerated in section 804 (b).’”

United States v. Acosta, 769 F2d 721, 722 (11th Cir. 1985) (quoting

United States v. King, 713 F2d 627, 630 (11th Cir. 1983)); cf. United

States v. Munoz, 

 (11th Cir. 1994) (addressing

whether the witness was unavailable before analyzing whether the

evidence met the admissibility requirements of Rule 804 (b) (5));

United States v. Elkins, 885 F2d 775, 785 n.7 (11th Cir. 1989)

(noting, in analyzing the admissibility of a statement under Rule

804 (b) (5), that “[a] preliminary requirement is that the declarant



        declarant’s statement;
        (4) Is unable to be present or to testify at the hearing because
        of death or then existing physical or mental illness or infirmity;
        or
        (5) Is absent from the hearing and the proponent of the
        statement has been unable to procure the declarant’s
        attendance or, in the case of exceptions under paragraph (2),
        (3), or (4) of subsection (b) of this Code section, the declarant’s
        attendance or testimony, by process or other reasonable means.

       A declarant shall not be deemed unavailable as a witness if the
       declarant’s exemption, refusal, claim of lack of memory,
       inability, or absence is due to the procurement or wrongdoing
       of the proponent of a statement for the purpose of preventing
       the witness from attending or testifying.
OCGA § 24-8-804 (a).
                                      15
be unavailable”). The unavailability of a witness, therefore, is a

statutory prerequisite that a proponent of hearsay evidence has the

burden of proving, and that the trial court must evaluate, before a

witness’s former testimony may be admitted under Rule 804 (b) (1).

Acosta, 769 F2d at 722-723 (under Federal Rule 804, “a witness

must be ‘unavailable’”; “[t]he burden of proving the unavailability of

a witness under Rule 804 (a) rests with the proponent of the hearsay

evidence”; and “the determination as to the ‘unavailability’ of a

witness whose prior testimony is sought to be introduced into

evidence is also the responsibility of the trial judge”) (citation

omitted). See also Bolling, 

 (“[T]he trial court did not

abuse its discretion in admitting [a witness’s] prior trial testimony

[under Rule 804 (b) (1)] after concluding that the State made a

reasonable effort to locate him” — i.e., after concluding that a

witness was “unavailable” under Rule 804 (a) (5)) (emphasis

supplied).

     In light of these requirements, the trial court’s reliance on Rule

804 (b) (1) to admit prior transcripts into evidence was an abuse of

                                  16
discretion, because the trial court did not make any findings about

the availability of the witnesses who testified at Hamilton’s trial or

at the hearing on her motion for new trial. To the contrary, the trial

court found that “hav[ing] to determine that each of the above

mentioned witnesses were unavailable before considering their trial

testimony . . . does not lead to the discovery of truth.” In making

that finding, the trial court focused on the general objectives set

forth at the beginning of the Evidence Code, such as “the discovery

of truth” and “secur[ing] fairness in administration, eliminat[ing]

unjustifiable expense and delay, and promot[ing] the growth and

development of the law of evidence.” OCGA § 24-1-1. But it did so

to the exclusion of the specific statutory requirements plainly set

forth in OCGA § 24-8-804 (b).

     To be sure, Hamilton had the burden of proving that the

witnesses from her trial and from the hearing on her motion for new

trial were unavailable, Lamonica v. Safe Hurricane Shutters, Inc.,

 (11th Cir. 2013); Acosta, 769 F2d at 723, and she

did not meet that burden here.        Indeed, Hamilton offered no

                                 17
evidence about the unavailability of any of the dozens of witnesses

(including Hamilton herself) whose testimony was contained in the

transcripts she sought to introduce at her immunity hearing;

instead, she focused entirely on the reliability and convenience of

using the transcripts as compared to re-calling witnesses for live

testimony.8

      But courts cannot ignore the plain text of specific rules of

evidence — even when they purport to do so in the name of

“secur[ing] fairness in administration” or avoiding “unjustifiable

expense and delay.”9 See OCGA § 24-1-1. As applied here, that

means that the general purpose of the Evidence Code or the

interpretive principles stated in OCGA § 24-1-1 cannot override


      8 The record shows that Hamilton made one reference to one witness

being “unavailable” when, at the beginning of a May 7, 2018 motion hearing,
she announced that a witness who testified for the defense at trial was
“unavailable” at that time because he was in jail and had not been transported
to the Dougherty County Jail. But Hamilton did not present any evidence to
support that assertion, and the trial court made no findings as to that or any
other declarant.

      9 It appears from the trial court’s order that it was also trying to heed

this Court’s admonition from Hamilton I to “proceed with dispatch” in
resolving Hamilton’s case. 299 Ga. at 671. But an attempt to act expeditiously,
however admirable, does not justify misapplication of the rules of evidence.
                                      18
OCGA § 24-8-804 (b) (1)’s specific and plain prerequisite that a

declarant be “unavailable” for his or her former testimony to be

admissible under that exception to Georgia’s hearsay rule. Cf. Green

v. Bock Laundry Machine Co., 

 (

, 104

LE2d 557) (1989) (noting that Federal Rule of Evidence 403 does not

override the specific evidentiary requirements in Federal Rule of

Evidence 609 because “[a] general statutory rule usually does not

govern unless there is no more specific rule”); Williams v. State, 

 (

) (2016) (“[A] specific statute will prevail

over a general statute, absent any indication of a contrary legislative

intent.”) (citation and punctuation omitted). Therefore, because the

trial court did not find that the witnesses whose testimony was

contained in the transcripts Hamilton offered were unavailable, it

abused its discretion by admitting those transcripts into evidence

under Rule 804 (b) (1).      See Acosta, 769 F2d at 723 (because

proponent of former testimony “failed to carry [his] burden” of

proving unavailability, “offer[ing] no evidence that he had requested

the witness to testify or that she had refused to do so,” proponent

                                  19
“failed to satisfy the first prong of Rule 804, unavailability of the

witness”); cf. United States v. Robinson, 

(11th Cir. 2007) (prior statement of one witness to another was

inadmissible under Federal Rule 804 (b) in part because proponent

of statement “did not demonstrate that the witnesses were

unavailable to testify”).

      But that conclusion does not end our review. That is because

after conducting its Rule 804 (b) (1) analysis, the trial court made an

alternate holding under Rule 807, also known as the residual

exception to hearsay.10 We now turn to that ruling.

     4. The Trial Court Did Not Abuse its Discretion in Evaluating
the Admissibility of Prior Transcripts Under Rule 807.

      OCGA § 24-8-807 provides:

         A statement not specifically covered by any law but
      having equivalent circumstantial guarantees of
      trustworthiness shall not be excluded by the hearsay rule,

      10 We caution that because “[t]he residual exception applies . . . only to

‘statement(s) not specifically covered by any law,’” Blackmon v. State, 

, 94 n.3 (

) (2019) (emphasis supplied), trial courts should
consider whether a specific exception to the hearsay rule applies before
applying Rule 807. Indeed, Rule 807’s residual hearsay exception is designed
to be used “‘very rarely, and only in exceptional circumstances.’” Smart v. State,

 (

) (2016) (quoting Rivers v. United States, 

 (11th Cir. 2015)).
                                       20
      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.
      However, a statement may not be admitted under this
      Code section unless the proponent of it makes known to
      the adverse party, sufficiently in advance of the trial or
      hearing to provide the adverse party with a fair
      opportunity to prepare to meet it, the proponent’s
      intention to offer the statement and the particulars of it,
      including the name and address of the declarant.

OCGA § 24-8-807.11

      Like Rule 804, Georgia’s Rule 807 is based on the Federal Rules

of Evidence (in this case Federal Rule 807), so when construing our

Rule 807, we “look to decisions of the federal appeals courts

construing and applying the Federal Rules, especially the decisions

of the Eleventh Circuit.” Jacobs v. State, 

 (

) (2018) (citation and punctuation omitted). We review a trial


      11 The residual exception in the federal rules formerly existed as Rules

803 (24) and 804 (b) (5), but in 1997 the contents of those rules were “combined
and transferred to a new Rule 807. . . . No change in meaning [was] intended.”
Fed. R. Evid. 807, Advisory Committee Note.
                                      21
court’s decision to admit hearsay under Rule 807 for an abuse of

discretion, considering the totality of the circumstances. Tanner v.

State, 

 (

) (2017).            We are

“particularly hesitant to overturn a trial court’s admissibility ruling

under the residual hearsay exception 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.”

State v. Holmes, 

 (

) (2018) (citation and

punctuation omitted).

     (a) The Trial Court’s Alternate Holding Under Rule 807

     Here, the trial court found that the witness statements

contained in the prior transcripts were “not specifically covered by

any law” and that Hamilton met the Rule 807 notice requirement.

The trial court also found that “it is undisputed that th[e] testimony”

contained in the prior transcripts “is trustworthy” and noted that

the “statements should be deemed as the most trustworthy” because

they “were procured under oath and subject to cross-examination,

and subject to a prosecution for perjury for being dishonest.”

                                  22
(Emphasis supplied.)      It found that there was “no doubt the

testimony in question was offered in evidence of a material fact.”

And it found that the testimony was the most probative evidence

that could be procured through reasonable means, rhetorically

questioning “how much more probative testimony could be solicited

than testimony solicited during Hamilton’s original trial[?]” and

concluding that it would be “entirely unreasonable to subpoena the

nearly thirty witnesses to re-testify to the same material.” Finally,

it found that “the interests of justice will be best served by admission

of the prior testimony.” After conducting an analysis of each of the

Rule 807 requirements, the trial court concluded that “even if the

nearly thirty witnesses that testified at Hamilton’s trial were indeed

available, requiring Hamilton to subpoena each of them to testify

again at her immunity hearing, and discarding the eight days of

testimony already given during her trial, would clearly be

unreasonable,” and admitted the prior transcripts under Rule 807

on that alternative basis. (Emphasis in original.)



                                  23
      (b) Rule 807 Analysis.

      Unlike Rule 804 (b) (1), Rule 807 does not by its text require a

declarant to be unavailable to admit the declarant’s statement into

evidence. Compare OCGA § 24-8-804 with § 24-8-807. But Rule 807

is not indifferent to availability. Indeed, availability “re-enters the

analysis of whether or not to admit statements into evidence . . .

because of the requirement that the proponent use reasonable

efforts to procure the most probative evidence on the points sought

to be proved.” United States v. Mathis, 559 F2d 294, 299 (5th Cir.

1977).12 Rule 807 “thus[ ] has a built-in requirement of necessity,”

id., and its probativeness requirement necessitates, by its plain

terms, some determination by the court that the statement at issue



      12 We acknowledge that the availability inquiry relevant to a Rule 807

analysis is not identical to the textual requirements for showing unavailability
under Rule 804. Under Rule 804, a trial court must make a threshold showing
that the statutory definition of “unavailable” in subsection (a) is met for the
exceptions of subsection (b) to apply, whereas a Rule 807 analysis necessitates
a trial court more broadly considering availability as part of its analysis of
whether a statement is “more probative on the point for which it is offered than
any other evidence which the proponent can procure through reasonable
efforts[.]” OCGA § 24-8-807 (2). In essence, trial courts have somewhat more
leeway in assessing availability under Rule 807 than under Rule 804 — but
nonetheless must consider availability as part of its Rule 807 analysis.
                                      24
is “more probative on the point for which it is offered than any other

evidence which the proponent can procure through reasonable

efforts.” OCGA § 24-8-807 (2). See United States v. Parker, 749 F2d

628, 633 (11th Cir. 1984) (testimony admissible under residual

exception where evidence showed, among other things, that the

testimony was more probative than any other evidence proponent

could have procured through reasonable efforts); cf. Noble v. Ala.

Dept. of Envtl. Mgmt., 872 F2d 361, 366 (11th Cir. 1989). And it is

that aspect of Rule 807’s text that is critical to the trial court’s

alternate holding in this case.

     Having concluded that it was “undisputed” that the transcripts

at issue were trustworthy — a finding that many federal courts

consider the “lodestar of the residual hearsay exception analysis,”

30B Charles Alan Wright, Arthur R. Miller & Jeffrey Bellin, Federal

Practice and Procedure § 7063 (2018 ed.) (citation and punctuation

omitted) — the trial court focused its Rule 807 analysis on the

probativeness of the prior transcripts relative to whether Hamilton

could “offer[ ] any other evidence which” she could “produce through

                                  25
reasonable efforts.” And under the unique circumstances presented

in this case, we conclude that the trial court did not abuse its

discretion when it concluded that it would be “unreasonable” for

Hamilton to “subpoena each of” the “nearly thirty witnesses that

testified at [her] trial . . . and discard[ ] the eight days of testimony

already given during her trial” and admitted the transcripts into

evidence under Rule 807.13 See United States v. Loalza-Vasquez, 735

F2d 153, 158 (5th Cir. 1984) (no clear error in admitting hearsay

evidence because, considering the reliability and probativeness of

the evidence, the appellate court was “unable to see how live

testimony . . . could have been more probative”); see also United

States v. Deeb, 

 (11th Cir. 1994) (affirming trial

court’s    admission of former testimony into evidence under the

residual    exception     where     the     testimony      had     sufficient




     13 We note, however, that the notion that a trial court may aggregate all

of the witnesses who testified previously and perform a group analysis under
Rule 807 is misguided. Generally speaking, hearsay statements should be
analyzed on a declarant-by-declarant basis, assessing which (if any) hearsay
exceptions might apply to a given statement based on the facts and
circumstances supported by the record.
                                     26
“circumstantial guarantees of trustworthiness”).

      A number of factors lead us to that conclusion. First, there is

no dispute that Hamilton’s criminal case was fully litigated over the

course of an eight-day trial, and that the same judge who presided

over that — and who observed the demeanor of witnesses being

examined and cross-examined — also presided over Hamilton’s

motion for new trial and immunity hearings.14 Cf. Mathis, 559 F2d

at 298-299 (reasoning that live testimony is generally favored and

considered more probative, at least in part, because the factfinder is

able to observe a witness’s demeanor, including during cross-

examination). Second, the witnesses’ prior testimony would have

been considered one way or the other at the immunity hearing if

they were called to testify, whether that was because a witness was

re-subpoenaed and testified in a way that was materially similar to

his or her prior testimony, or because a witness was re-subpoenaed

and contradicted his or her prior testimony, thus allowing the prior



      14 The State claims that this somehow proves the trial court’s bias.   But
as explained more below in Division 6, that claim is meritless.
                                      27
testimony’s admission as a prior inconsistent statement.         See

generally OCGA §§ 24-6-613, 24-8-801 (d) (1) (A). Third, the trial

court accounted for the potential for additional or inconsistent

testimony by giving both Hamilton and the State an opportunity to

“hear testimony from any additional witnesses and from witnesses

that did testify at trial if the witnesses had any additional newly

discovered evidence,” yet the State declined to present any such

witnesses or evidence.    Finally, and perhaps most importantly,

Hamilton’s 2011 trial — where many witnesses recounted the events

of the many years leading up to Donaldson’s death, as well as the

events on the day of his death less than a year before the witnesses

testified — was conducted more than eight years before the hearing

on her motion for immunity was held in 2019. See Fed. Trade

Comm. v. Figgie Intl., Inc., 994 F2d 595, 609 (9th Cir. 1993)

(concluding that although proponent could bring declarants to court

to testify, “such efforts would not be reasonable” and “not likely to

be any more reliable than” their hearsay statements) (citing Dallas

County v. Commercial Union Assur. Co., 286 F2d 388, 397 (5th Cir.

                                 28
1961) (noting that, under the circumstances, a contemporary report

was ‘more reliable, more trustworthy, more competent evidence

than the testimony of a witness called to the stand fifty-eight years

later’)). Given this unusual procedural posture, and considering the

totality of the circumstances, we cannot say that the trial court

abused its discretion by admitting the transcripts from Hamilton’s

trial and the hearing on her motion for new trial into evidence.

     5. The Trial Court Did Not Err in Granting Hamilton’s Motion
for Immunity From Prosecution.

     The State also argues that even considering the prior

transcripts, the evidence was not legally sufficient for the trial court

to grant Hamilton immunity from prosecution. We disagree.

     To prevail on her motion for pretrial immunity under OCGA

§ 16-3-24.2, Hamilton was required to establish a justification

defense under OCGA § 16-3-21 by a preponderance of the evidence.

State v. Sutton, 

 (

) (2015). “On appeal

of an order granting or denying immunity under OCGA § 16-3-24.2,

‘we review the evidence in the light most favorable to the trial court’s


                                  29
ruling, and we accept the trial court’s findings with regard to

questions of fact and credibility if there is any evidence to support

them.’” Id. (quoting Hipp v. State, 

 (

)

(2013)) (emphasis supplied).

     The State specifically argues that Hamilton’s own “self-

serving,” “[un]corroborated,” and “inconsistent” statements that

“conflict[ed]” with evidence offered by the State were insufficient to

support the trial court’s grant of immunity, especially considering

that the jury heard and rejected her claim of self-defense at

Hamilton’s initial trial. But the State cites no authority to support

this argument, and a trial court is free to consider a defendant’s

testimony when deciding a motion for immunity from prosecution

and to make credibility determinations and factual findings based

on all of the evidence before it — findings that this Court will accept

so long as they are supported by any evidence. See, e.g., Ogunsuyi,

 (affirming trial court’s grant of immunity from

prosecution based on defendant’s testimony, which trial court found

credible, and other corroborating evidence presented at her

                                  30
immunity hearing); Hipp, 

 (in same term of

court, trial court may revisit previously denied motion for pretrial

immunity and grant immunity from prosecution based on

defendant’s testimony that he acted in self-defense, despite the

jury’s rejection of defendant’s self-defense claim based on other

evidence at trial); State v. Bunn, 

 (

)

(2010) (evidence that defendant fatally shot a person who was

driving toward him, although conflicting with other evidence,

supported trial court’s ruling that defendant met his burden of

showing that by a preponderance of the evidence he was entitled to

immunity from prosecution based on defense of self and others).

     Here, the trial court correctly noted that Hamilton bore the

burden of proving immunity by a preponderance of the evidence and

set forth a detailed summary of the relevant evidence.           That

summary included more than just Hamilton’s own statements that

Donaldson had physically abused her for years, that he was

attacking her at the time she shot him, and that she shot him

because she “felt like he was going to kill [her] that night”; it also

                                 31
included, among other things, the testimony of several witnesses

about Donaldson’s routine and ongoing physical abuse of Hamilton.

Based on that evidence, the trial court found that “Donaldson’s

threat to use deadly force against Hamilton on the night in question

was, in fact, imminent under the circumstances. And Hamilton was

justified in defending herself.” This enumeration of error therefore

fails. See Sutton, 

 (trial court did not err in

finding that a preponderance of the evidence showed that the

defendant shot his brother-in-law in self-defense, thus entitling

defendant to immunity from prosecution, where evidence showed

that defendant retrieved his gun from the sofa as his brother-in-law

advanced into home of defendant’s mother, and defendant was

aware of brother-in-law’s prior acts of violence).

     6. The State’s Recusal Argument Has No Merit.

     The State also argues on appeal that the trial court erred by

declining to recuse itself from this case on remand from Hamilton I.

The State’s theory is that the trial court’s “disregard for the jury’s

verdict” by granting a new trial and “the detailed content of the

                                  32
order of the trial court granting a new trial, inclusive of specific

references to the trial transcripts,” particularly in its analysis of

trial counsel’s ineffectiveness in failing to seek pretrial immunity —

a specific claim raised by Hamilton in her motion for new trial —

“has the appearance of being a part of the trial court’s ‘personal

agenda’ as to how this trial should have turned out.”

     But it is not uncommon for a trial judge to preside over the new

trial he granted after having presided over the initial trial. See, e.g.,

Texas v. McCullough, 

 (

, 89 LE2d 104)

(1986) (defendant’s increased sentence upheld where he was retried

by the same judge who presided over first trial and who granted

motion for new trial); Adams v. State, 

 (

) (2010) (affirming under McCullough the new sentence imposed

by the trial court after a motion for new trial because it was

permissible for “the trial court itself [to] order[ ] a new sentencing

hearing upon a partial grant of the motion for new trial filed by [the

defendant]”); see also Patel v. State, 

 (

)

(2011) (rejecting argument that “because a trial judge presiding in

                                   33
an action issues a ruling that implicates the merits of the case, that

judge must be recused from acting further in the case. . . . Simply

because the judge had approved a prior order in a connected case

would not show bias or prejudice . . . .”) (citation and punctuation

omitted). Dissatisfaction with a trial court’s decision to grant a new

trial does not amount to an “appearance of impropriety” that

requires recusal, and the State raises no other legitimate legal

grounds warranting the trial court’s recusal. We will waste no more

time entertaining the State’s borderline-frivolous contention —

unsupported by evidence or relevant legal citation — that the trial

court erred by rejecting the State’s request for recusal and reject

that contention outright.

     Judgment affirmed. All the Justices concur.




                   DECIDED FEBRUARY 28, 2020.

                                 34
     Murder. Dougherty Superior Court. Before Judge Lockette.
     Gregory W. Edwards, District Attorney, Jeremy R. Hager,
Harold R. Moroz, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellant.
     William J. Godfrey, for appellee.




                                35