¶1NOTICE: 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.
¶2In the Supreme Court of Georgia
¶3 Decided: November 29, 2022
¶4 S22A1068. CARTER v. THE STATE
¶5 COLVIN, Justice.
¶6 Appellant Jared Carter was convicted of malice murder and
¶7possession of a knife during the commission of a felony in connection
¶8with the death of his grandmother, 81-year-old Valeria Mann. 1 On
¶9appeal, Appellant alleges that the evidence presented at trial was
¶10 1 Mann was killed on June 9, 2018. On June 12, 2018, a Houston County grand jury indicted Appellant for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault (Count 3), and possession of a knife during the commission of a felony (Count 4). Appellant’s first jury trial was held on November 17 through November 19, 2020, but ended in a mistrial due to trial counsel becoming ill. A second jury trial was held on April 6 through April 9, 2021. The jury found Appellant guilty of all counts. Appellant was sentenced to serve life in prison for malice murder (Count 1) and five years consecutive in prison for possession of a knife during the commission of a felony (Count 4). All other counts were either merged for sentencing purposes or vacated by operation of law. On April 14, 2021, Appellant’s trial counsel timely filed a motion for new trial, which was amended through new counsel on December 15, 2021. The trial court denied the amended motion on February 23, 2022. Appellant filed a timely notice of appeal. The case was docketed in this Court to the August 2022 term and submitted for a decision on the briefs. insufficient to support his convictions, that he received ineffective
¶11assistance of counsel, and that the trial court improperly admitted
¶12hearsay testimony in violation of OCGA § 24-8-807 and the
¶13Confrontation Clause of the United States Constitution. For the
¶14reasons set forth below, we affirm.
¶15 1. Appellant argues that, as a matter of Georgia statutory law,
¶16the evidence presented at trial was insufficient to sustain his
¶17convictions under OCGA § 24-14-6, because the evidence was
¶18entirely circumstantial and did not exclude all reasonable
¶19hypotheses other than Carter’s guilt. We disagree.
¶20 The evidence presented at trial showed the following. Around
¶218:00 p.m. on June 9, 2018, Appellant, who was living with Mann,
¶22knocked on the door of their next-door neighbor, Bryan Martin.
¶23When Martin opened the door, he saw Appellant sitting on a bench
¶24with his elbows on his knees and his hands on his face. When Martin
¶25asked Appellant what was wrong, Appellant said that he believed
¶26Mann was dead because “she was laying on their floor and there was
¶27blood.” Martin suggested calling 911, but Appellant stated that he
¶28 2 could not because he had left his phone inside the house. Martin
¶29went inside to make the call, and Appellant followed briefly, but
¶30then left the residence and did not respond when Martin called out
¶31for him.
¶32 When officers arrived on the scene, they found Mann lying on
¶33the floor of her living room, unresponsive, with a knife nearby
¶34covered in blood. Mann had a stab wound to her chest and had
¶35lacerations on her head. Medical personnel pronounced Mann dead
¶36at the scene. The medical examiner later determined that the cause
¶37of Mann’s death was “multiple stab wounds, with other significant
¶38conditions being blunt force injuries of the head.”
¶39 Officers searched the home and found in the kitchen a plastic
¶40trash bag containing shards of a ceramic crock pot. Officers saw
¶41blood stains all around the living room and found in the living room
¶42trashcan paper towels with red stains and additional ceramic crock
¶43pot pieces. Officers collected the knife, crock pot pieces, and paper
¶44towels and sent them for forensic testing. Officers found no signs of
¶45forced entry and no evidence that anything of value was taken,
¶46 3 including Mann’s wallet, which was found near her body and
¶47contained $140 in cash. Officers also found blood stains on the
¶48bathroom floor and on bars of soap, indicating that someone had
¶49attempted to clean up after the stabbing.
¶50 Officers questioned Appellant, who was sitting on the sidewalk
¶51outside of the home, concerning his whereabouts during the day.
¶52Appellant stated that he ran errands with Mann in the morning and
¶53then drove her back home. Then, around 1:30 p.m., he “went for a
¶54ride to just get out of the house” in Mann’s Toyota Camry to “clear
¶55[his] mind” because he was frustrated he had not found a job since
¶56moving in with Mann. Appellant was unable to specify where he
¶57had driven. Appellant stated that he returned from his drive around
¶582:30 p.m. and stayed in the Camry, which did not have air
¶59conditioning, because he did not want to return inside the house.
¶60Appellant claimed that he was scrolling through Instagram and
¶61YouTube and then “dozed off,” sleeping through the evening
¶62thunderstorm that had occurred. When he woke up slightly before
¶638:00 p.m., Appellant went to the front door, but did not open it
¶64 4 because something was blocking the door. Appellant then entered
¶65the house through the back door and saw Mann on the floor covered
¶66in blood, at which point Appellant went to Martin for help. Officers
¶67noticed what appeared to be blood on Appellant’s shoes, which they
¶68collected as evidence and sent for testing.
¶69 At trial, Ann Camp, Mann’s across-the-street neighbor,
¶70testified that she was on her front porch from around 11:00 a.m.
¶71until around 7:00 p.m. on June 9, 2018. Camp testified that she saw
¶72Appellant and Mann leave the house that morning in Mann’s black
¶73SUV and return sometime around 11:00 a.m. Camp stated that
¶74Mann went directly inside the house and Appellant checked the
¶75mailbox and then went inside the house. Camp did not see
¶76Appellant leave the house again and did not see Appellant sitting in
¶77the Camry. Camp further testified that, around 6:00 p.m., she
¶78considered calling Mann because it looked like a bad storm was
¶79approaching and the windows of both the SUV and Camry were
¶80rolled down.
¶81 A DNA expert testified at trial that Mann’s blood was found on
¶82 5 the knife, paper towels, and crock pot pieces. The expert also
¶83testified that a mixture of DNA from at least two individuals, one of
¶84whom was Mann, was found on a paper towel. The expert further
¶85explained that the other contributor to the mixed DNA profile was
¶86male, but that the contributor’s identity could not be determined
¶87because the mixed profile contained mostly Mann’s DNA. Therefore,
¶88the expert testified that “[Appellant] was excluded as a contributor
¶89to the mixed DNA profile” but that she “would expect everyone in
¶90the general population with the exception of [an] identical twin [to
¶91Mann] to be excluded.” Forensic testing also confirmed that
¶92Appellant’s shoes contained traces of blood. Analysts did not obtain
¶93a DNA profile from the blood found on the shoes.
¶94 The State called numerous witnesses to testify to the nature of
¶95Mann and Appellant’s relationship prior to Mann’s death.
¶96Chaquana Carter, a social worker employed at Houston Medical
¶97Center, with no apparent relation to Appellant, testified that on May
¶9825, 2018, Mann visited the center to express her “concerns [and]
¶99emotions regarding her grandson.” Mann told Carter that she was
¶100 6 afraid of Appellant, wanted him out of her home, and that Appellant
¶101was verbally and emotionally abusive. Carter testified that Mann
¶102asked her not to contact the police because she did not want to
¶103involve law enforcement out of concern for Appellant’s safety.
¶104Carter further testified that Mann appeared frail, scared, and
¶105confused during the visit.
¶106 Detective Paul Peck testified that, on May 30, 2018, he had
¶107briefly spoken with Mann on the phone after he had received a
¶108referral from Adult Protective Services. Mann told Detective Peck
¶109that she had wanted Appellant out of her house because he was
¶110“argumentative,” “disrespectful,” and “hostile.” Mann also revealed
¶111to Detective Peck that Appellant would “bow up” at her and refused
¶112to leave her home. Mann requested that Detective Peck refrain from
¶113investigating the situation for at least a week because she hoped to
¶114resolve the situation on her own.
¶115 Annie Pearl Fox, a close friend of Mann’s, also testified at trial.
¶116Fox testified that, about six months before Mann’s death, Mann
¶117expressed that she was afraid of Appellant and that Appellant had
¶118 7 threatened to kill her. Mann also told Fox that if anything ever
¶119happened to her, “[Appellant] did it.” Fox further testified that she
¶120had asked Mann why Appellant was still staying with her and Mann
¶121replied, “I just don’t want to put him out because he ain’t got
¶122nowhere to go.” Fox also testified that on June 8, 2018, the day
¶123before Mann’s death, Fox arrived at Mann’s home to help her clean
¶124the house and run some errands. Fox recalled cleaning the ceramic
¶125crock pot and putting it on the counter in the kitchen.
¶126 Appellant elected to testify at trial. Throughout his testimony,
¶127Appellant maintained that he had been asleep in the car when Mann
¶128was attacked. Appellant’s counsel presented alternative theories on
¶129who had killed Mann—namely, that Mann was killed by an
¶130unknown assailant or by her boyfriend, Thomas Randall, who had
¶131planned to visit Mann from Connecticut the following day.
¶132 Appellant contends that the evidence at trial was insufficient
¶133to support his convictions because the circumstantial evidence
¶134presented failed to exclude every reasonable hypothesis other than
¶135his guilt. We disagree. “To warrant a conviction on circumstantial
¶136 8 evidence, the proved facts shall not only be consistent with the
¶137hypothesis of guilt, but shall exclude every other reasonable
¶138hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.
¶139However, “not every hypothesis is a reasonable one, and the
¶140evidence need not exclude every conceivable inference or
¶141hypothesis — only those that are reasonable.” Graves v. State, 306
¶142Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation and punctuation
¶143omitted; emphasis in original). “Whether alternative hypotheses are
¶144reasonable . . . is principally a question for the jury, and this Court
¶145will not disturb the jury’s finding unless it is insupportable as a
¶146matter of law.” Robinson v. State, 309 Ga. 729, 731 (1) (a) (848 SE2d
¶147441) (2020).2
¶148 2 Appellant appears to conflate the standard of review for a Georgia statutory claim of insufficient evidence pursuant to OCGA § 24-14-6 with an insufficient evidence claim as a matter of constitutional due process under Jackson v. Virginia, 443 U.S. 307 (99 SCt. 2781, 61 LE2d 560) (1979). To the extent that Appellant attempts to raise a constitutional due process sufficiency claim, however, the evidence was sufficient to support his convictions. See id. at 319 (explaining that the proper inquiry for a constitutional due process sufficiency claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”).
¶149 9 Here, reviewing all of the evidence presented at trial, we
¶150conclude that the jury was authorized to reject as unreasonable
¶151Appellant’s alternative hypotheses that an unknown assailant or
¶152Randall killed Mann. Appellant argues that no physical evidence
¶153tied him to the crime scene, focusing in particular on the DNA
¶154expert’s testimony that Appellant was “excluded” as a DNA
¶155contributor to the mixed profile located on the paper towel.
¶156However, as an initial matter, “the State was not required to
¶157produce any physical evidence, as the testimony of a single witness
¶158is generally sufficient to establish a fact, and the lack of
¶159corroboration with physical evidence only goes to the weight of the
¶160evidence and the credibility of the testifying witness, which is solely
¶161within the purview of the jury.” Johnson v. State, 296 Ga. 504, 505
¶162(1) (769 SE2d 87) (2015) (citation and punctuation omitted).
¶163Moreover, the record shows that the DNA expert testified that
¶164Mann’s blood overwhelmed the mixed DNA sample and masked the
¶165other contributor to the profile so significantly that no one, other
¶166than Mann, could be identified.
¶167 10 The record further shows that Carter, Detective Peck, and Fox
¶168all testified at trial that Mann had recently expressed being afraid
¶169of Appellant because he was verbally and emotionally abusive and
¶170that Mann had wanted Appellant out of her house. Camp testified
¶171that she witnessed Mann and Appellant enter the house around
¶17211:00 a.m., that she did not see Appellant leave the house again or
¶173sit in the Camry as he had claimed, and that she did not see anyone
¶174else enter or leave the house from approximately 11:00 a.m. through
¶1757:00 p.m.
¶176 Furthermore, officers found no signs of forced entry and noted
¶177that nothing of value had been taken from the home, making it
¶178unlikely that an unknown person broke into Mann’s home and killed
¶179her. Additionally, Detective Peck testified that, during their
¶180investigation, officers eliminated all other persons of interest in
¶181Mann’s killing. Consequently, the evidence was sufficient to
¶182authorize the jury “to exclude every other reasonable hypothesis
¶183save that of guilt.” OCGA § 24-14-6.
¶184 2. Appellant next asserts that he received constitutionally
¶185 11 ineffective assistance of counsel on the ground that his counsel failed
¶186to object to the improper hearsay testimony of Carter and Fox at
¶187trial. We are not persuaded. To succeed on a claim of ineffective
¶188assistance of counsel, a defendant must show both that “his counsel’s
¶189performance was professionally deficient and that he suffered
¶190prejudice as a result.” Washington v. State, 313 Ga. 771, 773 (3) (873
¶191SE2d 132) (2022) (citing Strickland v. Washington, 466 U.S. 668, 687
¶192(2) (104 SCt 2052, 80 LE2d 674) (1984)). To prevail on the deficiency
¶193prong, the defendant must overcome the “strong presumption that
¶194[his] counsel performed reasonably” by showing that “no reasonable
¶195lawyer would have done what his lawyer did, or would have failed
¶196to do what his lawyer did not.” Brown v. State, 302 Ga. 454, 457 (2)
¶197(807 SE2d 369) (2017) (citation and punctuation omitted). If a
¶198defendant “fails to meet his or her burden of proving either prong of
¶199the Strickland test, the reviewing court does not have to examine
¶200the other prong.” Lawrence v. State, 286 Ga. 533, 533-534 (2) (690
¶201SE2d 801) (2010).
¶202 Here, Appellant has failed to show that his trial counsel acted
¶203 12 deficiently. Before trial, counsel responded to the State’s notice of
¶204intent to present hearsay testimony by filing a motion in limine
¶205asserting, among other things, that Mann’s out of court statements
¶206to Carter and Fox did not satisfy OCGA § 24-8-807 (“Rule 807”), also
¶207known as the residual hearsay exception. At the pretrial hearing,
¶208the trial court ruled, over counsel’s objection, that Carter, Detective
¶209Peck, and Fox could testify to Mann’s out of court statements
¶210pursuant to Rule 807. Trial counsel objected to that ruling, thereby
¶211preserving the issue of improper hearsay for appeal.
¶212 Appellant argues that counsel was deficient for failing to renew
¶213her objection at trial. However, “[o]nce the court makes a definitive
¶214ruling on the record admitting or excluding any evidence, either at
¶215or before trial, a party need not renew an objection or offer of proof
¶216to preserve such claim of error for appeal.” OCGA § 24-1-103 (a) (2).
¶217Thus, any objection trial counsel made to the hearsay testimony at
¶218trial would have been unnecessary, because that objection was
¶219already preserved. Therefore, Appellant has failed to establish that
¶220his counsel’s performance was constitutionally deficient and that
¶221 13 she performed “in an objectively unreasonable way considering all
¶222the circumstances and in light of prevailing professional norms.”
¶223Broxton v. State, 306 Ga. 127, 132 (2) (829 SE2d 333) (2019).
¶224Accordingly, Appellant has failed to satisfy the deficiency prong of
¶225the Strickland test and his claim of ineffective assistance fails.
¶226 3. Finally, Appellant asserts that the trial court erred by
¶227allowing Carter and Fox to testify about Mann’s out of court
¶228statements pursuant to Rule 807. Appellant further argues that the
¶229testimony violated the Confrontation Clause contained in the Sixth
¶230Amendment to the United States Constitution. We are not
¶231persuaded.
¶232 (a) Rule 807
¶233 After a hearing, the trial court ruled that Mann’s out of court
¶234statements to Carter and Fox were admissible under the residual
¶235exception to the hearsay rule. 3 The trial court noted that Mann was
¶236unavailable to testify and found that Mann’s statements contained
¶237 3 Appellant does not challenge Mann’s out of court statements to Detective Peck. 14 circumstantial evidence of trustworthiness because the statements
¶238were consistent and made “to multiple people on different occasions
¶239in different settings.” Appellant argues that the record does not
¶240support the trial court’s finding because, Appellant contends, Mann
¶241did not discuss repeated violent incidents of abuse to various family
¶242and friends and because Mann exhibited possible signs of dementia
¶243and confusion. We see no abuse of discretion.
¶244 OCGA § 24-8-807 provides in pertinent part that “a statement
¶245not specifically covered by any law but having equivalent
¶246circumstantial guarantees of trustworthiness shall not be excluded
¶247by the hearsay rule” upon the trial court’s determination that the
¶248declarant is unavailable to testify and that “the interests of justice
¶249will best be served by admission of the statement into evidence.” Id.
¶250“Whether there are exceptional guarantees of trustworthiness is a
¶251determination that focuses on the declarant and the circumstances
¶252under which the declarant made the statement to the witness.”
¶253Miller v. State, 303 Ga. 1, 5 (2) (810 SE2d 123) (2018) (emphasis in
¶254original). Such guarantees of trustworthiness “must be equivalent
¶255 15 to cross-examined former testimony, statements under a belief of
¶256impending death, statements against interest, and statements of
¶257personal or family history” as “[t]hese categories of hearsay have
¶258attributes of trustworthiness not possessed by the general run of
¶259hearsay statements that tip the balance in favor of introducing the
¶260information if the declarant is unavailable to testify.” Jacobs v.
¶261State, 303 Ga. 245, 249 (2) (811 SE2d 372) (2018) (citations and
¶262punctuation omitted). We have previously upheld the introduction
¶263of out of court statements under the residual hearsay exception
¶264where the trial court determined that the statements were
¶265trustworthy because of the unavailable declarant’s “close
¶266relationship” with the witness, see Rawls v. State, 310 Ga. 209, 214-
¶267215 (3) (a) (i) (850 SE2d 90) (2020), because the unavailable
¶268declarant had “no reason to concoct . . . a story,” see Tyner v. State,
¶269305 Ga. 326, 330 (2) (825 SE2d 129) (2019), and because the
¶270unavailable declarant made consistent statements to multiple
¶271witnesses, see Lopez v. State, 311 Ga. 269, 274 (2) (a) (857 SE2d 467)
¶272(2021). Although Rule 807 is “to be used very rarely and only in
¶273 16 exceptional circumstances,” this Court will not overturn a trial
¶274court’s finding that the statement is admissible under the residual
¶275hearsay exception absent a finding that the trial court abused its
¶276discretion. Davenport v. State, 309 Ga. 385, 390 (3) (846 SE2d 83)
¶277(2020) (citation and punctuation omitted).
¶278 Here, we cannot say that the trial court abused its discretion
¶279in admitting Mann’s out of court statements. The record shows that
¶280Mann had a close relationship to Fox and revealed that she had no
¶281motive to lie to Fox and Carter about her issues with Appellant.
¶282Therefore, the trial court was authorized to conclude that there were
¶283circumstantial guarantees of trustworthiness such that it could
¶284admit Mann’s out of court statements under Rule 807. Although the
¶285trial court noted concern that Mann had appeared confused and was
¶286possibly suffering from dementia when she made the out of court
¶287statements to Carter and Fox, the trial court found that her mental
¶288state did not impair the trustworthiness of her statements and
¶289uncertainty about an unavailable declarant’s mental state alone is
¶290not sufficient for this Court to overturn the trial court’s admissibility
¶291 17 ruling when other factors of trustworthiness support the trial court’s
¶292exercise of discretion in applying Rule 807. See, e.g., Davenport, 309
¶293Ga. at 391 (declining to overturn the trial court’s admissibility ruling
¶294pursuant to the residual exception solely because the declarant had
¶295“substance abuse and mental illness issues”). Because we cannot
¶296say that the trial court abused its discretion in allowing Mann’s out
¶297of court statements into evidence pursuant to Rule 807, Appellant’s
¶298claim fails.
¶299 (b) Confrontation Clause
¶300 Appellant also contends that the trial court erred in admitting
¶301Mann’s statements because such statements were inadmissible
¶302under the Confrontation Clause in the Sixth Amendment to the
¶303United States Constitution. The Confrontation Clause provides that
¶304“[i]n all criminal prosecutions, the accused shall enjoy the right . . .
¶305to be confronted with the witnesses against him.” U.S. Const.
¶306Amend. VI. “The Confrontation Clause generally prohibits the
¶307admission of out-of-court testimonial statements made by a
¶308declarant who is unavailable for cross-examination.” Stafford v.
¶309 18 State, 312 Ga. 811, 824 (5) (b) (865 SE2d 116) (2021). “A statement
¶310is testimonial if its primary purpose was to establish evidence that
¶311could be used in a future prosecution.” Id. (citation omitted). This
¶312Court has held that nontestimonial statements include statements
¶313made to law enforcement that are “intended to describe current
¶314circumstances that required immediate police action.” McCord v.
¶315State, 305 Ga. 318, 323 (2) (a) (i) (825 SE2d 122) (2019).
¶316 Because Appellant did not object to the admission of the
¶317testimony on the ground of a Confrontation Clause violation at the
¶318trial level, we review Appellant’s claim only for plain error. See
¶319McKinney v. State, 307 Ga. 129, 133 (2) (834 SE2d 741) (2019)
¶320(explaining that, pursuant to OCGA § 24-1-103 (d), a claim of a
¶321Confrontation Clause violation is reviewed only for plain error if no
¶322such objection is made at trial). To establish plain error, Appellant
¶323 must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.
¶324 19 Kemp v. State, 303 Ga. 385, 397-398 (3) (810 SE2d 515) (2018)
¶325(citation and punctuation omitted).
¶326 Here, the trial court did not commit error—much less plain
¶327error—by admitting Mann’s statements into evidence, as her
¶328statements are nontestimonial and, therefore, do not trigger the
¶329protections of the Confrontation Clause. See Johnson v. State, 294
¶330Ga. 86, 91 (6) (750 SE2d 347) (2013) (holding that the admission of
¶331nontestimonial hearsay did not run afoul of the Confrontation
¶332Clause). Mann’s statements to Carter concerning Appellant’s
¶333emotional and verbal abuse and her desire to get Appellant out of
¶334her home were not testimonial, as they “were not made to assist a
¶335future prosecution.” Denson v. State, 307 Ga. 545, 548 (2) (837 SE2d
¶336261) (2019). Rather, the record shows that Mann specifically
¶337requested that Carter not contact law enforcement because she did
¶338not want to incriminate Appellant.
¶339 Similarly, Mann’s statement to Fox indicating that if anything
¶340ever happened to her, “[Appellant] did it,” was nontestimonial as the
¶341statement was made to a friend without any expectation that the
¶342 20 statement would be later used at a trial. See Turner v. State, 281
¶343Ga. 647, 651 (3) (b) (641 SE2d 527) (2007) (concluding the victim’s
¶344statements “indicating that he would not commit suicide and that
¶345his wife would probably have something to do with it if he died” were
¶346nontestimonial because he was speaking with close friends without
¶347any expectation the statements would later be used at a trial). See
¶348also Demons v. State, 277 Ga. 724, 727-728 (4) (595 SE2d 76) (2004)
¶349(explaining that the fact a statement is made to a friend without a
¶350reasonable expectation it will later be used at trial indicates the
¶351statement is nontestimonial). Thus, Mann’s statements were
¶352nontestimonial in nature. Therefore, the Confrontation Clause is
¶353inapplicable, and Appellant’s claim of a Confrontation Clause
¶354violation fails.
¶355 Judgment affirmed. All the Justices concur.
¶356 21