¶1In the Supreme Court of Georgia
¶2 Decided: June 1, 2021
¶3 S21A0132. JACKSON v. THE STATE.
¶4 LAGRUA, Justice.
¶5 Appellant Philemon Shark Jackson was convicted of malice
¶6murder and other crimes in connection with the shooting death of
¶7Clyde Weeks. On appeal, Appellant contends that the evidence was
¶8legally insufficient to support his convictions; that the trial court
¶9erred in allowing an unredacted 911 call containing hearsay
¶10testimony into evidence; and that the trial court erred in refusing to
¶11charge the jury on sympathy, despite a request by the defense. 1 For
¶12 1 The crimes occurred on February 15, 2017. In September 2017, a Liberty County grand jury indicted Appellant for malice murder, felony murder, three counts of aggravated assault, and three counts of possession of a firearm during the commission of a felony in connection with Appellant’s crimes against Weeks, Garrett Champion, and Vincent Smith. Appellant was tried in July 2018, and a jury found him guilty of malice murder (as to Weeks), two counts of aggravated assault (as to Weeks and Champion), and two counts of possession of a firearm during the commission of a felony (as to Weeks and Champion). The jury found Appellant not guilty of the remaining charges of felony murder (as to Weeks) and aggravated assault and possession of a 1 the reasons set forth below, we affirm.
¶13 1. Viewed in the light most favorable to the verdicts, the
¶14evidence presented at trial showed the following. On February 15,
¶152017, at around 5:00 p.m., Weeks went to visit his friend Elijah
¶16Ferguson, who lived in Hinesville with his mother, Cynthia
¶17Williams. Weeks rode to Ferguson’s house with two other friends,
¶18Garrett Champion and Vincent Smith, in Champion’s car. After
¶19arriving and backing into the driveway, Weeks, Champion, and
¶20Smith saw Appellant exit a house across the street and also noticed
¶21Appellant’s car, a blue Dodge Dart, parked nearby. Around this
¶22time, Ferguson came out of his house. According to Champion, he
¶23then summoned Appellant over because Appellant had tried to rob
¶24firearm during the commission of a felony (as to Smith). The trial court sentenced Appellant to serve life in prison for the malice murder count, 20 years in prison to run concurrent for the aggravated assault count (as to Champion), and consecutive five-year terms for each of the two firearm possession counts. The other aggravated assault count merged for sentencing purposes into the malice murder count. Appellant filed a timely motion for new trial on July 23, 2018, which he amended on June 17, 2019. On July 15, 2019, the trial court held an evidentiary hearing and denied Appellant’s motion in open court. On December 23, 2019, the trial court issued a written order, denying the motion for new trial. Appellant filed a timely notice of appeal to this Court on August 1, 2019, and the case was docketed to this Court’s term beginning in December 2020 and submitted for a decision on the briefs. 2 Champion a few months earlier, and Champion wanted to talk about
¶25the incident. Appellant walked over to Champion’s car. According
¶26to Champion and Smith, when Appellant approached, Champion
¶27asked if Appellant remembered him, and Appellant pulled a small
¶28semi-automatic pistol2 out of his pants and aimed the gun at
¶29Champion’s head, asking, “[W]hy should I know you?” Champion
¶30then accused Appellant of trying to rob him, and Appellant asked
¶31“what [Champion] was going to do about it.” Weeks and Smith tried
¶32to de-escalate the situation, and Weeks said to Appellant, “[G]o put
¶33the gun up and let’s just fight in the street.” Appellant went back to
¶34his car and put the gun inside the vehicle. Weeks and Appellant
¶35then engaged in a fist fight in the cul-de-sac by Ferguson’s house.
¶36After losing the fight, Appellant returned to his car, at which point
¶37Champion and Smith shouted, “[H]e’s going for the gun!” Weeks told
¶38them to run, and Weeks, Champion, and Smith started running
¶39 2At trial, Smith testified that Appellant’s gun looked like a .22-caliber, but on cross-examination, he admitted that he “didn’t know exactly what the gun was,” but “everyone else [was] saying it was like a .22.”
¶40 3 away towards the back of Ferguson’s house. While running,
¶41Champion and Smith heard multiple gunshots behind them. Smith
¶42then heard what sounded like Appellant’s car leaving the
¶43neighborhood, and Champion saw a blue Dodge Dart “flying down
¶44the road.” Champion and Smith then came back around the side of
¶45Ferguson’s house and saw Weeks lying on the ground between
¶46Ferguson’s yard and the neighbor’s yard, having been shot several
¶47times.
¶48 Meanwhile, Ferguson’s mother, Williams, was inside the
¶49house. When Champion’s car pulled into the driveway around 5:00
¶50p.m., Williams asked Ferguson to tell Champion to leave. Ferguson
¶51went outside, but a few minutes later, he ran back inside the house,
¶52telling Williams there was a fight and Appellant had a gun.
¶53Williams looked outside and saw Weeks and Appellant “boxing” in
¶54the cul-de-sac. Ferguson tried to go back outside, but Williams stood
¶55in front of the door to block his exit. Williams then heard a “gun go
¶56off,” firing “at least three, maybe three or four” times. She did not
¶57see who fired the weapon because she was “tussling” with Ferguson
¶58 4 at the time, attempting to keep him inside the house. Right after
¶59hearing the gunshots, at approximately 5:25 p.m., Williams called
¶60911. While Williams was on the phone with the 911 operator, she
¶61saw Weeks lying on the ground on his back beside her car, trying to
¶62breathe. During the 911 call, Williams stated that she had heard
¶63three gunshots and “somebody got shot” in front of her house.
¶64Williams asked for an ambulance and provided Weeks’s name and
¶65age. The 911 operator asked who did it, and Williams asked
¶66Ferguson the same question. Ferguson responded, “Philemon.” The
¶67911 operator then asked if Williams had a description “to help the
¶68police out,” and Williams asked Ferguson, “Do you have a
¶69description of who did this?” Ferguson again responded, “Philemon.”
¶70Williams told the 911 operator, “He, they know who did it,
¶71Philemon.”
¶72 John O’Brock, a neighbor who lived one house over, heard four
¶73or five gunshots between 5:00 and 5:30 p.m. He looked out the
¶74window and saw a blue Dodge Dart driving away, slowly at first and
¶75then speeding down the street.
¶76 5 At approximately 5:30 p.m., police officers arrived at the scene
¶77of the shooting. They found Weeks, who was still alive, lying on his
¶78back in the side yard of Ferguson’s house. Champion was attending
¶79to Weeks, holding a makeshift compress against his abdomen to try
¶80to stop the bleeding. Emergency medical personnel soon arrived and
¶81transported Weeks to the hospital. Upon Weeks’s arrival at the
¶82hospital, he was pronounced dead. The medical examiner
¶83determined that the cause of death was internal injuries from a
¶84gunshot wound to the back.
¶85 Police officers spoke to several witnesses, including Champion,
¶86Smith, Ferguson, and O’Brock, at the crime scene. Based upon these
¶87statements, officers went to Appellant’s residence that night.
¶88Appellant was detained and taken to the police department to be
¶89interviewed. Appellant agreed to waive his Miranda 3 rights and
¶90gave a statement to police officers. During the interview, Appellant
¶91stated that he did not know about the shooting, had been with his
¶92mother in Savannah all day, and did not return to Hinesville until
¶93 3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 6 about 4:45 or 5:00 p.m. Appellant denied being anywhere near
¶94Ferguson’s house or the surrounding neighborhood that day and
¶95stated that after he returned from Savannah, he did not leave his
¶96home again. The police noted that Appellant had a bruise under his
¶97right eye, and when asked about it, Appellant stated that it
¶98happened a week or so earlier. At the conclusion of the interview,
¶99Appellant was arrested.
¶100 The next day, February 16, police officers returned to the scene
¶101and found a .22-caliber shell casing in the yard next to Ferguson’s
¶102house, about ten feet from where Weeks was shot. Police officers
¶103also obtained a video recording from a security camera located on a
¶104house nearby. The recording showed a blue Dodge Dart, matching
¶105the description of Appellant’s vehicle, driving into the neighborhood
¶106toward the cul-de-sac at approximately 5:19 p.m. on February 15.
¶107Six minutes later, the recording showed the same blue Dodge Dart
¶108leaving the neighborhood. After obtaining search warrants, police
¶109officers went to Appellant’s residence to photograph and search
¶110Appellant’s vehicle. Appellant’s vehicle matched the vehicle shown
¶111 7 in the video recording because, among other similarities, both had a
¶112broken right tail light. Police officers also recovered a cell phone
¶113registered to Appellant inside the car. The cell phone records
¶114showed that Appellant’s phone transmitted signals exclusively in
¶115Hinesville throughout the day of February 15, demonstrating that
¶116Appellant did not travel to Savannah.
¶117 2. Appellant contends that the evidence presented at trial
¶118was insufficient to support his convictions under the standard set
¶119forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d
¶120560) (1979), because the only person who identified Appellant as the
¶121shooter was Ferguson, who was not outside when the shooting
¶122occurred and disappeared soon after the shooting. 4 Appellant also
¶123asserts that Ferguson’s statements were hearsay and were admitted
¶124over his objection at trial (which will be addressed in Division 3
¶125below).
¶126 4 At trial, Williams, Ferguson’s mother, testified that Ferguson left her house shortly after the shooting occurred, and she did not have contact with him for several months. Additionally, neither party could locate Ferguson prior to trial. 8 When evaluating challenges to the sufficiency of the evidence
¶127as a matter of constitutional due process, “we view the evidence
¶128presented at trial in the light most favorable to the verdicts and ask
¶129whether any rational trier of fact could have found the defendant
¶130guilty beyond a reasonable doubt of the crimes of which he was
¶131convicted.” Boyd v. State, 306 Ga. 204, 207 (1) (830 SE2d 160) (2019)
¶132(citing Jackson, 443 U. S. at 319, and Jones v. State, 304 Ga. 594,
¶133598 (820 SE2d 696) (2018)). “It is the jury’s role to resolve conflicts
¶134in the evidence and determine the credibility of witnesses.” Smith
¶135v. State, 280 Ga. 161, 162 (1) (625 SE2d 766) (2006). “This Court
¶136does not reweigh evidence or resolve conflicts in testimony; instead,
¶137evidence is reviewed in a light most favorable to the verdict, with
¶138deference to the jury’s assessment of the weight and credibility of
¶139the evidence.” Harris v. State, 304 Ga. 276, 278 (1) (818 SE2d 530)
¶140(2018) (citations and punctuation omitted). Thus, when we consider
¶141the sufficiency of evidence, we “consider all of the evidence admitted
¶142by the trial court, regardless of whether that evidence was admitted
¶143erroneously.” Dublin v. State, 302 Ga. 60, 67-68 (805 SE2d 27)
¶144 9 (2017). Pursuant to the standard set forth in Jackson v. Virginia,
¶145we conclude that the evidence was sufficient for a jury to find
¶146Appellant guilty beyond a reasonable doubt of the crimes of which
¶147he was convicted. See Jackson, 443 U. S. at 319.
¶148 Appellant further contends that all of the evidence presented
¶149by the State was circumstantial, with the exception of the hearsay
¶150testimony of Ferguson. See OCGA § 24-14-6 (“To warrant a
¶151conviction on circumstantial evidence, the proved facts shall not only
¶152be consistent with the hypothesis of guilt, but shall exclude every
¶153other reasonable hypothesis save that of the guilt of the accused.”).
¶154 Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
¶155Smith, 280 Ga. at 162 (citations and punctuation omitted) (holding
¶156that the evidence, which included statements from several witnesses
¶157who saw the defendant with a gun prior to the shooting and then
¶158heard gunshots fired from the location where the victim’s body was
¶159 10 ultimately found, was sufficient to support the jury’s finding of
¶160guilt). Moreover, if there is any direct evidence presented by the
¶161State, the circumstantial evidence statute does not apply to a
¶162sufficiency analysis. See OCGA § 24-14-6. See also Jackson v.
¶163State, 310 Ga. 224, 228 (2) (b) (850 SE2d 131) (2020).
¶164 In this case, the evidence against Appellant was not wholly
¶165circumstantial, as the State presented direct evidence in the form of
¶166Ferguson’s statements during the 911 call, identifying Appellant as
¶167the person who shot Weeks. However, even if this were a wholly
¶168circumstantial case, the evidence was sufficient to authorize the
¶169jury “to exclude every other reasonable hypothesis save that of
¶170guilt.” OCGA § 24-14-6. This evidence included the testimony of
¶171several witnesses who saw Appellant with a handgun in the location
¶172where the shooting occurred on February 15; saw Appellant’s blue
¶173Dodge Dart parked nearby; saw Appellant and Weeks in a fist fight
¶174just before hearing gunshots; and saw a blue Dodge Dart speeding
¶175out of the neighborhood immediately after Weeks was shot. A video
¶176recording from a neighbor’s home security camera also established
¶177 11 that Appellant’s car was in the neighborhood prior to the shooting
¶178and left the neighborhood immediately afterward. In addition,
¶179Appellant’s cell phone records confirmed that he was in Hinesville
¶180the entire day of the shooting, undermining his alibi. Thus, this
¶181enumeration of error fails.
¶182 3. Appellant contends that the trial court erred in allowing,
¶183over objection, the recording of Williams’s 911 call to be played in its
¶184entirety during trial. We disagree.
¶185 Prior to trial, Appellant filed a motion in limine seeking to
¶186exclude certain portions of the 911 recording. Specifically, Appellant
¶187objected to the admission of the statements Ferguson made during
¶188the 911 call in response to Williams’s questions from the 911
¶189operator because Ferguson was not available to testify at trial.5 The
¶190State argued that Ferguson’s statements were admissible under the
¶191hearsay exceptions for excited utterances and present sense
¶192impressions. See OCGA § 24-8-803 (1) and (2). The trial court
¶193 5 Ferguson’s whereabouts were unknown when the trial began in July 2018, and the trial court found Ferguson was unavailable to testify under OCGA § 24-8-804 (a) (5). 12 denied Appellant’s motion, ruling that it would admit the 911
¶194recording in its entirety because Ferguson’s statements were
¶195admissible under a hearsay exception, without specifying which
¶196exception applied.
¶197 Subsequently, in the trial court’s order denying Appellant’s
¶198motion for new trial, the court ruled that Ferguson’s statements
¶199during the 911 call were admissible under the hearsay exceptions
¶200for excited utterances and present sense impressions in OCGA § 24-
¶2018-803 (1) and (2).
¶202 OCGA § 24-8-803 (1) and (2) provide:
¶203 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[.]
¶204 Although Appellant raised both hearsay and Confrontation
¶205Clause claims in his motion for new trial, he raises only hearsay
¶206arguments on appeal, and thus, we address only those arguments.
¶207 13 Appellant contends that the trial court erred in finding that the
¶208statements made by Ferguson during the 911 call were admissible
¶209under either the present sense impression or excited utterance
¶210hearsay exceptions. Specifically, Appellant asserts that Ferguson’s
¶211statements could not constitute a present sense impression because
¶212Ferguson was not outside when the shooting took place, and he could
¶213not have witnessed or “personally perceived” the shooting.
¶214Appellant further asserts that Ferguson’s statements were not
¶215admissible as excited utterances because no circumstances existed
¶216to suggest that any of the statements Ferguson made to Williams
¶217were excited or spontaneous, and there was no indication that
¶218Ferguson was nervous, excited, in shock, or in a distraught state of
¶219mind so as to render him incapable of normal reflective thought. On
¶220this basis, Appellant asserts that Ferguson’s statements were
¶221inadmissible hearsay and should have been redacted from the 911
¶222call, and the trial court erred in failing to redact them, resulting in
¶223harm to Appellant. We conclude that the trial court did not abuse
¶224its discretion in admitting the 911 recording into evidence at trial
¶225 14 under the excited utterance exception. See McCord v. State, 305 Ga.
¶226318, 324 (2) (a) (ii) (825 SE2d 122) (2019).
¶227 “The excited utterance exception provides that ‘[a] statement
¶228relating to a startling event or condition made while the declarant
¶229was under the stress of excitement caused by the event or condition’
¶230shall not be excluded by the hearsay rule.” Atkins v. State, 310 Ga.
¶231246, 250 (2) (850 SE2d 103) (2020) (quoting OCGA § 24-8-803 (2)).
¶232“The basis for the excited utterance exception to the hearsay rule is
¶233that such statements are given under circumstances that eliminate
¶234the possibility of fabrication, coaching, or confabulation, and that
¶235therefore the circumstances surrounding the making of the
¶236statement provide sufficient assurance that the statement is
¶237trustworthy and that cross-examination would be superfluous.” Id.
¶238“Whether a hearsay statement was an excited utterance is
¶239determined by the totality of the circumstances,” and in this regard,
¶240“[t]he critical inquiry is whether the declarant is still in a state of
¶241excitement resulting from that event when the declaration is made.”
¶242Id. (citations and punctuation omitted).
¶243 15 In this case, the trial court did not abuse its discretion in
¶244determining that Ferguson’s statements during the 911 call were
¶245admissible under the excited utterance hearsay exception. The
¶246statements Ferguson made during the 911 call identifying Appellant
¶247as the shooter related “to a startling event or condition” – namely,
¶248the shooting of his friend Weeks, and these statements were made
¶249moments after gunshots were heard – a circumstance providing
¶250“sufficient assurance” that the statements were “trustworthy.”
¶251OCGA § 24-8-803 (2). See Atkins, 310 Ga. at 250. Accordingly, we
¶252conclude that the trial court did not abuse its discretion in admitting
¶253the entire 911 recording at trial.
¶254 4. Appellant contends that the trial court abused its
¶255discretion in refusing to charge the jury on sympathy. Appellant
¶256asserts that he requested the sympathy charge during the charge
¶257conference; the trial court advised that it did not intend to give this
¶258charge; and Appellant objected after the final charge was given,
¶259preserving the issue for review. We conclude this contention is
¶260without merit.
¶261 16 The decision over whether to give a cautionary charge to the jurors, informing them that they should not be influenced by sympathy or prejudice in reaching a verdict, is a matter generally addressed to the sound discretion of the trial judge. Cautionary instructions are not favored since in most instances they are productive of confusion and tend to restrict the jury’s untrammeled consideration of the case. Where nothing in the record indicates that any improper circumstance was injected into the case, and the charge of the court fully and accurately instructed the jury on the issues involved, a new trial will not be granted because of the refusal of the court to give a cautionary request.
¶262Fincher v. State, 289 Ga. App. 64, 68 (3) (656 SE2d 216) (2007)
¶263(citation and punctuation omitted).
¶264 Given that Appellant failed to point to any specific evidence in
¶265the record or to any incidents that arose during trial to support
¶266giving the requested cautionary sympathy charge, we cannot say
¶267that the trial court abused its discretion in declining to give the
¶268cautionary charge Appellant requested. See Favors v. State, 305 Ga.
¶269366, 369-370 (3) (825 SE2d 164) (2019). Accordingly, this final
¶270enumeration of error fails.
¶271 Judgment affirmed. All the Justices concur.
¶272 17