Lopez v. State

¶1In the Supreme Court of Georgia

¶2 Decided: April 5, 2021

¶3 S21A0322. LOPEZ v. THE STATE.

¶4 PETERSON, Justice.

¶5 Fernando Lopez appeals his conviction for malice murder for

¶6the stabbing death of Corey Williams. 1 Lopez argues that the trial

¶7court admitted improper hearsay evidence against him: Williams’s

¶8dying statements describing the stabbing and his assailant and

¶9Williams’s statements describing his previous and intended future

¶10drug sales with Lopez. But the statements about the attack were

¶11 1 The crimes took place on January 26, 2012. On December 13, 2016, a DeKalb County grand jury indicted Lopez, charging him with malice murder, felony murder predicated on aggravated assault, and aggravated assault. The aggravated assault count was ultimately dismissed as untimely under the fouryear statute of limitation. After a trial held on November 26 to 30, 2018, a jury found Lopez guilty of malice murder and felony murder. The trial court sentenced Lopez to life in prison with the possibility of parole for the malice murder charge. The felony murder charge was vacated by operation of law. On December 20, 2018, Lopez filed a motion for new trial, which he amended on February 10, 2020. The trial court denied his motion in an order entered on August 25, 2020. Lopez filed a timely notice of appeal, and the case was docketed to this Court’s term beginning in December 2020 and submitted for consideration on the briefs. admissible under the excited utterance hearsay exception, most of

¶12the statements about drug sales were admissible under the residual

¶13hearsay exception, and the admission of the remaining statement

¶14about drug sales was harmless. We affirm.

¶15 The evidence presented at trial showed the following. On

¶16January 26, 2012, Corey Williams was sitting in the driver’s seat of

¶17his car when he was stabbed by someone sitting in the passenger

¶18seat area. Williams drove two streets over and pulled up to three

¶19men: Dusty Smith, Aaron Bales, and Jacob Christmas. Williams

¶20blew his horn and called to them, yelling repeatedly that “Migo” or

¶21“Amigo” had stabbed him and asking them to call an ambulance. He

¶22had wounds to his arms and chest and acted like he was in pain, and

¶23there was a significant amount of blood on his chest and on the

¶24driver’s side of the car. There also was a duffel bag in the rear

¶25passenger seat that Williams said belonged to Migo.

¶26 The men called 911 at 3:02 p.m., and Officer Brandon Mitchell

¶27arrived five to ten minutes later. Officer Mitchell rendered first aid

¶28and tried to calm Williams to keep him from going into shock,

¶29 2 because Williams was “breathing pretty heavy and was obviously

¶30very [shaken] up,” and he was starting to wheeze. Williams

¶31described his assailant to Officer Mitchell as a Hispanic male known

¶32as “Amigo.” Williams told Officer Mitchell and the other men that

¶33he had given his assailant a ride from the store for $40, but that as

¶34his passenger was reaching into the back of the car to retrieve his

¶35duffel bag, he stabbed Williams, screamed “mother f****r,” and ran

¶36away. Williams died later that day from the stab wound to his chest.

¶37 Kenyatta Kitchen, a relative of Williams, identified Lopez in a

¶38photographic lineup as the person he saw get into the front

¶39passenger side of Williams’s car and place his bag in the back

¶40passenger side approximately 20 minutes before Williams was

¶41stabbed. Fingerprints on paperwork in the duffel bag left in

¶42Williams’s car matched Lopez’s fingerprints, which were already on

¶43file. No other person’s fingerprints were found on the paperwork.

¶44Police obtained a warrant for Lopez but were unable to locate him

¶45until September 2016, when he was arrested. DNA in buccal swabs

¶46obtained from Lopez matched DNA samples taken from a pair of

¶47 3 underwear and a comb found in the duffel bag.

¶48 At Lopez’s trial, Yolanda Sawyer, who had been friends with

¶49Williams for approximately 20 years prior to his death, testified that

¶50she and others, including Lopez, regularly used drugs in the

¶51apartment of a man known as “Mr. Peewee.” Sawyer had known

¶52Lopez for ten years prior to the stabbing, but only as “Migo” or

¶53“Amigo.” Two days before Williams was killed, Lopez returned to the

¶54area after a lengthy absence and used drugs in Peewee’s apartment.

¶55Williams went in and out of Peewee’s apartment many times while

¶56Lopez was there, and the day before the stabbing, Sawyer overheard

¶57Williams say that Migo owed him money. Sawyer assumed the debt

¶58was for drugs because Williams had previously sold drugs to both

¶59her and Lopez. The same day, she saw Williams and Lopez talking

¶60together as they entered Peewee’s apartment.

¶61 Kitchen had known Williams for 10 years and testified that he

¶62and Williams typically saw each other every day. Kitchen testified

¶63that he knew Lopez “on and off” for five or six years prior to the

¶64stabbing, but only by the nicknames “Amigo” or “Migo.” Lopez had a

¶65 4 pattern of returning to Williams’s area of town for a week or two

¶66after being absent for months or more. Two days before Williams

¶67died, Williams told Kitchen that Migo was back in town and

¶68“spending money,” meaning that Lopez was buying drugs from

¶69Williams, and Kitchen observed Lopez going in and out of Peewee’s

¶70apartment.

¶71 D’Metri Johnson testified that he and Williams had known

¶72each other for more than 10 years and were “very close” friends who

¶73saw each other every day and sold cocaine in the same area. The day

¶74before Williams’s death, Williams told Johnson that he had a

¶75customer named “Migo” who spent a large amount of money on

¶76drugs and that Williams significantly overcharged Migo for the

¶77drugs. On the day Williams died, he called Johnson at

¶78approximately 2:00 p.m., asked if Migo was outside, described what

¶79Migo was wearing, and asked Johnson if he would drive Migo to

¶80Williams’s house so that Migo could pay the money he owed

¶81Williams and purchase more cocaine from him. Johnson saw a

¶82person matching Williams’s description of Migo sitting on a stoop

¶83 5 but said he was unable to drive Migo, so Williams told Johnson he

¶84would pick up Migo himself. Johnson left his apartment, and when

¶85he returned at approximately 2:40 p.m., Migo was no longer there.

¶86 Johnson also testified that Williams called him at 3:00 p.m.,

¶87saying that “Migo stabbed me” or “tried to kill me.” Johnson asked

¶88Williams where he was, but Williams was speaking with someone in

¶89the background and did not respond. Johnson hung up and tried to

¶90call back, but Williams did not answer. Williams’s cell phone log

¶91revealed that on the day of the stabbing, he called Johnson at 2:08

¶92p.m., Johnson called Williams at 2:16 p.m., Williams called Johnson

¶93again at 3:00 p.m., and Williams later missed two calls from Johnson

¶94at 3:07 and at 3:08 p.m.

¶95 1. The trial court did not abuse its discretion in admitting Williams’s statements about the attack under the excited utterance hearsay exception.

¶96 Lopez argues that the trial court erred in admitting Williams’s

¶97statements regarding the stabbing under the excited utterance

¶98hearsay exception. We disagree.

¶99 At a pre-trial motions hearing, the State argued for admission

¶100 6 of the statements Williams made to Smith, Bales, Officer Mitchell,

¶101and Johnson describing the circumstances of his stabbing and giving

¶102the name and description of his attacker under the dying declaration

¶103and excited utterance hearsay exceptions. Defense counsel objected.

¶104The trial court ruled that the statements were admissible as excited

¶105utterances.

¶106 The excited utterance hearsay exception provides that “[a]

¶107statement relating to a startling event or condition made while the

¶108declarant was under the stress of excitement caused by the event or

¶109condition” will not be excluded by the hearsay rule. OCGA § 24-8-

¶110803 (2). “The critical inquiry is whether the declarant is still in a

¶111state of excitement resulting from that event when the declaration

¶112is made.” Atkins v. State, 310 Ga. 246, 250 (2) (850 SE2d 103) (2020)

¶113(citation and punctuation omitted). To determine this, courts should

¶114consider the totality of the circumstances; it is not necessary that

¶115the statement be made contemporaneously with the startling event

¶116or condition. See Blackmon v. State, 306 Ga. 90, 94-95 (2) (829 SE2d

¶11775) (2019) (trial court could reasonably conclude that declarant was

¶118 7 still under the stress of her husband’s threat to shoot when she made

¶119a statement indicating her belief that her husband would kill her,

¶120although the threat occurred several minutes earlier); Robbins v.

¶121State, 300 Ga. 387, 389-390 (2) (793 SE2d 62) (2016) (a hearsay

¶122statement may be an excited utterance even when made hours after

¶123the startling event, if the declarant was still under the stress or

¶124excitement that the event caused). We review the trial court’s

¶125admission of Williams’s statements for abuse of discretion. See

¶126Lyons v. State, 309 Ga. 15, 21 (4) (843 SE2d 825) (2020).

¶127 Ample evidence in the record supports the trial court’s finding

¶128that Williams was under the stress of excitement of a startling event

¶129⸺ being stabbed ⸺ when he made the statements at issue.

¶130Witnesses testified that Williams honked his horn, yelled repeatedly

¶131that Migo stabbed him, and was so visibly shaken even after Officer

¶132Mitchell arrived that the officer noted his agitated mental state and

¶133tried to calm him down. Williams made the statements only a few

¶134minutes after he was stabbed because Kitchen saw him alive and

¶135uninjured a mere 20 minutes prior to Williams’s telephone call to

¶136 8 Johnson and his conversation with Smith and Bales describing the

¶137stabbing. Moreover, Williams recounted the stabbing to Johnson,

¶138Smith, and Bales while seated in the car where the stabbing

¶139occurred and surrounded by his own blood. See United States v.

¶140Belfast, 611 F3d 783, 817-818 (11th Cir. 2010) (statement was an

¶141excited utterance even when made four hours after the startling

¶142event because the victim was unable to escape the location where

¶143the event occurred and thus likely continued to experience trauma

¶144from the incident).

¶145 Lopez argues that Williams’s statements are “narratives” and

¶146thus inadmissible as excited utterances because Williams described

¶147details related to the stabbing, including the assailant’s agreement

¶148to pay Williams $40 for a ride and the fact that the assailant was

¶149reaching into the back of the car to retrieve his bag when he stabbed

¶150Williams. But the cases Lopez cites for support of his argument that

¶151Williams’s statements constituted an inadmissible “narrative” were

¶152decided under the former Evidence Code, which analyzed

¶153admissibility under the “res gestae” exception to hearsay in the

¶154 9 former code. See Priebe v. State, 250 Ga. App. 725, 727 (1) (553 SE2d

¶1555) (2001) (narratives are generally the product of afterthought, and

¶156“the law altogether distrusts . . . afterthought” (citation omitted));

¶157Williams v. State, 144 Ga. App. 130, 132 (1) (240 SE2d 890) (1977)

¶158(“[N]arrative statements of the history of the event, usually made

¶159after the declarant has had time to reflect on the occurrence, are not

¶160admissible.” (citation and punctuation omitted)). The current

¶161Evidence Code does not use the term “res gestae”; instead, it

¶162addresses the admission of an “excited utterance.” Hites v. State, 296

¶163Ga. 528, 531 (3) n.6 (769 SE2d 364) (2015). We have explained in

¶164cases decided under the current Evidence Code that the excited

¶165utterance exception does not require a declarant to express any

¶166particular emotion when making the statement, and that courts

¶167“need not find that the declarant was completely incapable of

¶168deliberative thought at the time [the declarant] uttered the

¶169declaration.” Blackmon, 306 Ga. at 96 (2) (citation and punctuation

¶170omitted). Williams’s statements easily fit the description of an

¶171excited utterance under the current Evidence Code, so the trial court

¶172 10 did not abuse its discretion in admitting them.

¶173 2. Admitting Williams’s statements regarding drug sales and related debt was not reversible error.

¶174 Lopez argues that the trial court erred in admitting testimony

¶175by Sawyer, Kitchen, and Johnson regarding statements Williams

¶176made about his drug sales to Lopez and the debt Lopez owed him.

¶177Again, we disagree.

¶178 Prior to Lopez’s trials, the State sought a ruling allowing it to

¶179introduce hearsay evidence under the residual exception to the

¶180hearsay rule found at OCGA § 24-8-807 (“Rule 807”): statements

¶181made by Williams to Kitchen and Johnson regarding Williams’s

¶182drug sales to Migo, Migo’s debt to Williams, and Williams’s intended

¶183transactions with Migo on the day Williams was killed. Defense

¶184counsel argued that the trial court should exclude the statements.

¶185The court ruled in a pre-trial order that the statements were

¶186admissible under Rule 807. But Sawyer’s testimony that she

¶187overheard Williams say that Migo owed him money was not the

¶188subject of a pre-trial hearing, and Lopez did not object to that

¶189 11 testimony at trial. Therefore, we review the admission of Williams’s

¶190statements to Kitchen and Johnson for an abuse of discretion but

¶191review the statement to Sawyer only for plain error. See OCGA § 24-

¶1921-103 (d); Rawls v. State, 310 Ga. 209, 213 (3) (850 SE2d 90) (2020)

¶193(reviewing trial court’s overruling of defendant’s Rule 807 objections

¶194for an abuse of discretion, while reviewing the trial court’s admission

¶195of the testimony to which defendant did not object only for plain

¶196error).

¶197 (a) The trial court did not abuse its discretion in admitting Williams’s statements to Kitchen and Johnson under the residual hearsay exception.

¶198 Hearsay is “a statement, other than one made by the declarant

¶199while testifying at the trial or hearing, offered in evidence to prove

¶200the truth of the matter asserted.” OCGA § 24-8-801 (c). Generally,

¶201hearsay is inadmissible unless an exception applies. See OCGA § 24-

¶2028-802. The residual hearsay exception, Rule 807, states in part as

¶203follows:

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

¶205 12  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.

¶206OCGA § 24-8-807.

¶207 The residual exception is to be used “very rarely[,]” only in

¶208“exceptional circumstances, and only when there exist[] certain

¶209exceptional guarantees of trustworthiness and high degrees of

¶210probativeness and necessity.” Atkins, 310 Ga. at 251 (2) (citation

¶211omitted) (emphasis in original). Statements are considered

¶212sufficiently trustworthy “not because of the credibility of the witness

¶213reporting them in court, but because of the circumstances under

¶214which they were originally made.” Id. (citation omitted); see also

¶215Miller v. State, 303 Ga. 1, 5 (2) (810 SE2d 123) (2018) (“Whether

¶216there are exceptional guarantees of trustworthiness is a

¶217determination that focuses on the declarant and the circumstances

¶218under which the declarant made the statement to the witness.”

¶219 13 (citation omitted) (emphasis in original)).

¶220 In this case, the trial court determined that Williams’s

¶221statements to Kitchen and Johnson were admissible under Rule 807

¶222because the statements were offered as evidence of the material

¶223facts that Lopez owed Williams money for drugs and that Lopez’s

¶224moniker was Amigo or Migo, there was no other evidence to

¶225establish these material facts, the statements were consistent,

¶226Williams had no reason to lie about Lopez owing him money for

¶227drugs, and the interest of justice would be best served by admitting

¶228the statements. Lopez argues that Rule 807 does not apply because

¶229non-hearsay testimony from multiple witnesses was sufficiently

¶230probative of the material facts that the State sought to prove to

¶231negate the State’s need to use the hearsay testimony.

¶232 As the trial court found, there was no evidence apart from

¶233hearsay statements to show that Lopez owed Williams money for

¶234drugs, that Williams was overcharging Lopez for the drugs, and that

¶23520 minutes before he was stabbed, Williams planned to meet Lopez

¶236 14 for Lopez to pay his debt and purchase more drugs. 2 These

¶237statements were “material as evidence of the nature of the

¶238relationship between [Lopez] and the victim that sheds light on

¶239[Lopez’s] motive in committing the offenses charged.” Rawls, 310

¶240Ga. at 215 (3) (a) (i) (citation and punctuation omitted). And Lopez

¶241has not shown that the trial court erred in concluding that the

¶242evidence was more probative in showing Lopez’s motive for stabbing

¶243Williams than any other evidence the State could procure through

¶244reasonable efforts.

¶245 The evidence also supports the trial court’s finding that

¶246Williams’s statements to Kitchen and Johnson had the requisite

¶247guarantees of trustworthiness. Testimony established that Williams

¶248had a very close relationship with both Kitchen and Johnson: he had

¶249 2 As Lopez correctly contends, ample non-hearsay evidence existed showing that Lopez went by the name of Amigo or Migo; both Kitchen and Sawyer testified that they personally knew Lopez by those monikers. But to the extent that Lopez challenges hearsay statements that he was known as “Amigo” or “Migo,” we hold that any admission was harmless because it was cumulative of the non-hearsay testimony of Kitchen and Sawyer. See Davis v. State, 302 Ga. 576, 583-584 (4) (805 SE2d 859) (2017) (even if statement fell outside of hearsay exception, its admission was harmless, because it was merely cumulative of other evidence).

¶250 15 known them for approximately ten years, spoke with them on a daily

¶251basis, and was related to Kitchen by marriage. Moreover, both

¶252Kitchen and Johnson knew that Williams sold drugs long before the

¶253stabbing occurred; in fact, Johnson was a fellow drug dealer. See

¶254Rawls, 310 Ga. at 215 (3) (a) (i) (victim’s close relationship with

¶255witnesses gave her statements to them about her boyfriend’s abuse

¶256sufficient guarantees of trustworthiness to be admissible under Rule

¶257807); Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019) (trial

¶258court did not abuse its discretion by admitting statements under

¶259Rule 807 because the statements were made within the confines of

¶260the close relationship between the victim and her close friend, and

¶261the victim had no reason to lie to her friend regarding the issue). In

¶262addition, Williams’s statements were consistent with non-hearsay

¶263evidence, including Sawyer’s testimony that Williams sold drugs to

¶264Lopez previously and that Lopez and Williams talked together in an

¶265apartment where drug activity occurred regularly; Kitchen’s

¶266testimony that he saw Migo get into Williams’s vehicle

¶267approximately 20 minutes before Williams was stabbed; and

¶268 16 Williams’s cell phone records, which corresponded with Johnson’s

¶269description of the timing of his phone conversations with Williams.

¶270 The above factors support the trial court’s conclusion, and we

¶271are “particularly hesitant to overturn a trial court’s admissibility

¶272ruling under the residual hearsay exception absent a definite and

¶273firm conviction that the court made a clear error of judgment in the

¶274conclusion it reached based upon a weighing of the relevant factors.”

¶275Davenport v. State, 309 Ga. 385, 390 (3) (846 SE2d 83) (2020)

¶276(citation and punctuation omitted). Accordingly, we see no abuse of

¶277discretion in the trial court’s decision to admit Williams’s

¶278statements. See Reyes v. State, 309 Ga. 660, 668 (2) (b) (847 SE2d

¶279194) (2020) (no abuse of trial court’s discretion in permitting

¶280testimony under Rule 807 where the decision was based on a

¶281number of factors that weighed in favor of finding declarant’s

¶282statements to be trustworthy).

¶283 (b) The trial court did not commit plain error by admitting Williams’s statement to Sawyer that Migo owed him money because Lopez did not show that the admission probably affected the outcome of his trial.

¶284 17  To establish plain error, Lopez “must point to an error that was

¶285not affirmatively waived, the error must have been clear and not

¶286open to reasonable dispute, the error must have affected his

¶287substantial rights, and the error must have seriously affected the

¶288fairness, integrity, or public reputation of judicial proceedings.”

¶289Denson v. State, 307 Ga. 545, 547-548 (2) (837 SE2d 261) (2019)

¶290(citation and punctuation omitted). To show that his substantial

¶291rights were affected, Lopez must make an “affirmative showing that

¶292the error probably did affect the outcome below.” McKinney v. State,

¶293307 Ga. 129, 135 (2) (b) (834 SE2d 741) (2019) (citation and

¶294punctuation omitted). If Lopez fails to meet any one of the elements

¶295of the plain error test, his claim fails. See Denson, 307 Ga. at 548 (2).

¶296 Lopez has not shown that Sawyer’s testimony regarding

¶297Williams’s statement likely affected the outcome of his trial.

¶298Sawyer’s passing statement that she overheard Williams say that

¶299Migo owed him money was cumulative of much more extensive

¶300testimony to that effect from Kitchen and Johnson. “[T]he erroneous

¶301admission of hearsay is harmless where substantial, cumulative,

¶302 18 legally admissible evidence of the same fact is introduced.” Anglin v.

¶303State, 302 Ga. 333, 336 (2) (806 SE2d 573) (2017); see also Davis v.

¶304State, 302 Ga. 576, 584 (4) (805 SE2d 859) (2017). Also, the overall

¶305case against Lopez was strong: eyewitness testimony established

¶306that Lopez got into Williams’s car approximately 20 minutes before

¶307the stabbing, and the bag found in Williams’s car contained

¶308fingerprints and DNA that matched Lopez’s. And ample evidence

¶309was presented that Lopez was the “Migo” that Williams identified

¶310as his assailant to multiple individuals. In the light of all the

¶311evidence, Lopez has failed to show that any error likely affected the

¶312outcome. See Rawls, 310 Ga. at 216 (3) (a) (ii) (defendant failed to

¶313show that hearsay testimony admitted under Rule 807 likely

¶314affected the outcome of his trial because the testimony was

¶315cumulative of properly admitted testimony and the overall case

¶316against the defendant was strong).

¶317 Judgment affirmed. All the Justices concur.

¶318 19