¶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: January 18, 2023
¶4 S22A0891. THE STATE v. KENNEY.
¶5 COLVIN, Justice.
¶6 A Fulton County grand jury indicted Michael Jerome Kenney
¶7for malice murder and related offenses in connection with the
¶8shooting death of Laquitta Brown (“Laquitta”).1 Before trial,
¶9Kenney moved in limine to exclude hearsay statements that Sharrie
¶10Dixon, a witness present during the shooting who was unavailable
¶11to testify at trial, allegedly made to Aisha Brown (“Aisha”),
¶12Laquitta’s partner. 2 In response, the State filed a notice of intent to
¶13admit Dixon’s statements to Aisha under OCGA § 24-8-807, also
¶14 Laquitta died on February 10, 2018. The grand jury returned an 1
¶15indictment on July 20, 2018, charging Kenney with malice murder (Count 1), felony murder (Counts 2, 3, and 4), aggravated assault (Count 5), possession of a firearm during the commission of a felony (Count 6), and possession of a firearm by a convicted felon (Counts 7 and 8). 2 Dixon died in an unrelated incident several weeks after Laquitta’s
¶16shooting. known as “the residual exception” or “Rule 807,” which provides
¶17that, if certain conditions apply, “[a] statement not specifically
¶18covered by any law but having equivalent circumstantial guarantees
¶19of trustworthiness shall not be excluded by the hearsay rule.” The
¶20court construed the State’s notice as a motion to admit Dixon’s
¶21statements. Then, finding that the State had failed to establish
¶22exceptional guarantees of trustworthiness, the court granted
¶23Kenney’s motion in limine and denied the State’s construed motion
¶24to admit Dixon’s statements. The State timely appealed under
¶25OCGA § 5-7-1 (a) (5) (permitting the State to appeal “[f]rom an order
¶26. . . excluding any other evidence to be used by the state at trial”).
¶27 On appeal, the State argues that the trial court abused its
¶28discretion in excluding Dixon’s statements because the statements
¶29were admissible under OCGA §§ 24-8-803 (1) (present sense
¶30impression), 24-8-803 (2) (excited utterance), and 24-8-807 (the
¶31residual exception). We conclude, however, that the State
¶32affirmatively waived its present-sense-impression and excited-
¶33utterance arguments and that the court was authorized to conclude
¶34 2 that Dixon’s statements were inadmissible under the residual
¶35exception. Accordingly, we affirm.
¶36 1. At a hearing on Kenney’s motion in limine, the trial court
¶37reviewed two recorded statements Aisha gave to investigators after
¶38Laquitta’s death, in which Aisha provided the following description
¶39of events. 3 On Friday, February 9, 2018, Dixon and Kenney were
¶40hanging out at the Browns’ townhome in East Point, Georgia. 4
¶41Dixon had been staying with the Browns since the day before, when
¶42she called Aisha saying she had just returned from Florida and
¶43needed somewhere to stay for the night. 5 Laquitta, who had known
¶44Kenney for over 15 years, had invited Kenney to stay with them that
¶45night because he was having relationship problems with the mother
¶46of his children.
¶47 3 Aisha’s interviews occurred on February 10 and July 12, 2018. 4 Aisha and Dixon knew Kenney as “Jones.” For clarity, references to “Jones” in this opinion, including references to “Jones” that appear within quotations from Aisha and Dixon, have been replaced with “Kenney.” 5 An investigator’s written summary of Aisha’s first recorded interview
¶48stated: “Ms. Brown stated that [Dixon] was someone who stayed in the area and sometimes she hung out in the apartment or stayed a few days when she was in the area. Ms. Brown said she considered [Dixon] a friend who liked to have a good time.” 3 While the four of them were drinking, dancing, and playing
¶49cards in Aisha’s upstairs bedroom, Aisha and Dixon saw that
¶50Kenney had a gun in his waistband. Dixon, who had lost her son to
¶51gun violence, asked Kenney to put the gun away. Kenney complied,
¶52sliding it under the bed.
¶53 Around 1:00 or 2:00 a.m. on February 10, Aisha took pain
¶54medication for a sprained ankle. The medication “knocked [her]
¶55out,” and she fell asleep. Sometime after 5:00 a.m., however, a loud
¶56argument between Laquitta and a “gentleman” downstairs
¶57awakened Aisha, who found Dixon sitting on her bed.
¶58 As relevant to Kenney’s motion in limine, Dixon told Aisha
¶59that, while Aisha was sleeping, Dixon and Kenney had driven to
¶60Kenney’s mother’s house.6 Dixon further said that Kenney had been
¶61crying, had loaded his gun, and had said that he was going to kill
¶62the mother of his children and the kids. Aisha, who could hear
¶63Laquitta telling Kenney “it’s not worth it” and “calm down,” asked
¶64 6According to the State’s factual proffer, Kenney and Dixon had gone out to buy more beer, and unopened beer cans were later found in Aisha’s bedroom. 4 Dixon to check on Laquitta for her, since Aisha’s ankle was injured.
¶65But Dixon refused, saying that Kenney had a loaded gun and had
¶66been talking about killing his family. Aisha then heard three
¶67gunshots.
¶68 Aisha ran downstairs and found Laquitta lying dead on the
¶69ground with a gunshot wound to her head. She called 911. While
¶70speaking to dispatch, Aisha said she heard “[Kenney], the guy who
¶71shot and killed [her] girl,” outside yelling obscenities.
¶72 In addition to Aisha’s recorded statements, the trial court
¶73considered additional evidence, which showed the following. An
¶74officer who responded to the scene spoke with Aisha and prepared a
¶75report documenting her statements. As relevant to Kenney’s motion
¶76in limine, the officer’s report stated that Aisha told the officer that
¶77she heard gunshots and then heard Dixon shout, “[Kenney]! Just
¶78shot Laquitta!”
¶79 Although Dixon was too intoxicated to give a statement at the
¶80scene, she provided a recorded statement to law enforcement officers
¶81 5 several hours later. 7 In her statement, Dixon said that she
¶82sometimes stayed with the Browns when she was in the area. She
¶83further said that she had left the apartment to get more beer with
¶84Kenney that night and that, while out, Kenney had loaded a gun and
¶85said he was going to kill the mother of his children and the kids.
¶86According to Dixon, when they returned to the apartment, Laquitta
¶87grabbed the keys from Kenney’s hand and the two of them argued
¶88in the kitchen while Dixon went upstairs. After hearing three shots,
¶89Dixon said, she went downstairs with Aisha and found Laquitta
¶90dead on the floor.
¶91 Sometime later, an officer presented Aisha and Dixon with
¶92photo lineups that included Kenney. Although Aisha identified
¶93Kenney, Dixon was unsure if she knew anyone in the lineup.
¶94 About three weeks after Laquitta’s death, Dixon was stabbed
¶95to death in an unrelated incident. When asked during her second
¶96 7 The record includes only an investigator’s summary of Dixon’s interview, and the State conceded that Dixon’s statements to the investigator were inadmissible under the Confrontation Clause to the Sixth Amendment to the United State Constitution. 6 recorded interview what she knew about Dixon’s death, Aisha said
¶97only that Dixon had been at her house the day before she died and
¶98that Dixon’s daughter had called her on the morning of Dixon’s
¶99death to see if Aisha knew Dixon’s whereabouts.
¶100 Kenney argued that the court should exclude the statements
¶101Dixon allegedly made to Aisha just before the shooting. Specifically,
¶102Kenney sought to exclude Dixon’s statements that Dixon and
¶103Kenney had temporarily left the Browns’ townhome; that, while
¶104they were out, Kenney had loaded a gun and threatened to kill the
¶105mother of his children and the kids; and that Dixon did not want to
¶106go downstairs to check on Laquitta because Kenney had a loaded
¶107gun and had been talking about killing his family. Kenney also
¶108argued that the court should exclude the statement Dixon allegedly
¶109made to Aisha after hearing the gunshots, namely, that “[Kenney]!
¶110Just shot Laquitta!”
¶111 The court granted Kenney’s motion in limine and denied the
¶112State’s construed motion to admit Dixon’s statements to Aisha,
¶113finding that “the State fail[ed] to show that there [were] exceptional
¶114 7 guarantees of trustworthiness surrounding [Dixon’s] declaration[s]”
¶115and thus that Dixon’s statements were inadmissible under the
¶116residual exception to the hearsay rule. The court found “no evidence
¶117that a close relationship between Ms. Dixon and Ms. Aisha Brown
¶118existed that would guarantee the trustworthiness of the statements”
¶119because “there was no evidence presented as to how Ms. Aisha
¶120Brown, or any of the other parties involved that evening, knew Ms.
¶121Dixon, how long they had known her, or the closeness of her
¶122relationship to any of the residents,” and “Ms. Aisha Brown’s
¶123recorded interviews did not indicate that Ms. Dixon was anything
¶124more than a passing acquaintance.” The court further found that
¶125there were no circumstantial guarantees of trustworthiness
¶126“equivalent to cross-examined former testimony, statements under
¶127a belief of impending death, statements against interest, and
¶128statements of personal or family history.” Finally, the court noted
¶129that Dixon was “under the influence of alcohol and/or other
¶130substances” when she made the statements to Aisha, that officers
¶131had to “delay[ ] getting Ms. Dixon’s statement due to her state of
¶132 8 inebriation,” and that, “despite having spent an entire night in
¶133[Kenney’s] company, Ms. Dixon had difficulty identifying him in a
¶134line up.”
¶135 2. The State argues that the trial court abused its discretion
¶136in excluding Dixon’s hearsay statements because they were
¶137admissible as present sense impressions, under OCGA § 24-8-803
¶138(1) (“Rule 803 (1)”), and excited utterances, under OCGA § 24-8-803
¶139(2) (“Rule 803 (2)”).8 This claim of error fails, however, because, as
¶140explained below, the State affirmatively waived admission of
¶141Dixon’s hearsay statements under those exceptions. See Dukes v.
¶142State, 311 Ga. 561, 569 (3) (858 SE2d 510) (2021)
¶143(“[A]ffirmative waiver . . . prevents reversal.” (citation and
¶144punctuation omitted)).
¶145 8 Although OCGA § 24-8-802 (“the hearsay rule”) provides that hearsay statements are generally inadmissible, present sense impressions and excited utterances “shall not be excluded by the hearsay rule.” OCGA §§ 24-8-803 (1) (defining a present sense impression as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter”); 24-8-803 (2) (defining an excited utterance as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”). 9 After Kenney filed the pretrial motion in limine to exclude
¶146Dixon’s statements to Aisha, the State filed a notice of intent to
¶147admit Dixon’s statements under the residual exception to the
¶148hearsay rule (Rule 807), which provides in relevant part:
¶149 A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
¶150OCGA § 24-8-807. In its notice, the State indicated that “[t]he State
¶151will offer this evidence pursuant to the Residual Exception to the
¶152Hearsay Rule” and argued that “[t]he [s]tatements made by Dixon
¶153to Aisha Brown meet the certainties of reliability required of
¶154residual hears[a]y admission under OCGA § 24-8-807.”
¶155 Likewise, at the motion-in-limine hearing, the State argued
¶156that Dixon’s statements were admissible under the residual
¶157exception (Rule 807). Citing our decision in State v. Holmes, 304 Ga.
¶158 10 524 (820 SE2d 26) (2018), the State argued that, in assessing
¶159whether Dixon’s statements were trustworthy under Rule 807, the
¶160court needed “to look to the other reasons for admissibility of
¶161hearsay under [the Rule] 803 [exceptions],” including the present-
¶162sense-impression and excited-utterance exceptions. See Holmes,
¶163304 Ga. at 530 (2) (a) (holding that the trial court abused its
¶164discretion in admitting a hearsay statement “under the residual
¶165exception without considering whether this was an exceptional
¶166circumstance in which the guarantees of trustworthiness were the
¶167equivalent to those found in the other statutory exceptions to
¶168hearsay set forth in Rules 803 and 804 of Georgia’s Evidence Code”).
¶169The State further said that, under Holmes, “you need to look at both,
¶170you know, the [Rule] 804 exceptions [where] the declarant was
¶171unavailable, as well as [Rule] 803. I believe I cited those: the present
¶172sense, [and] the excited utterance [under Rules 803 (1) and (2)].”
¶173 Assuming without deciding that the State’s references to Rules
¶174803 (1) and (2) constituted arguments that Dixon’s hearsay
¶175statements were independently admissible as present sense
¶176 11 impressions and excited utterances, the State affirmatively waived
¶177admission of Dixon’s statements under those exceptions later in the
¶178hearing. 9 See Davis v. State, 311 Ga. 225, 230 (2) (857 SE2d 207)
¶179(2021) (“To constitute an affirmative waiver, [a claim of] error must
¶180have been intentionally relinquished or abandoned.” (citation and
¶181punctuation omitted)).10 Specifically, in explaining why Dixon’s
¶182statements were admissible under the residual exception (Rule 807),
¶183the State argued:
¶184 In fact, what the case law shows is that these statements come in quite frequently. But compared to other exceptions and other avenues for the admission of this evidence, it’s quite rare. It is rare. And I think what you have to look at making it rare is that you’ve got to exhaust
¶185 9 To the extent that the logic of the special concurrence suggests that a party’s statement cannot constitute an affirmative waiver of an argument if the statement was “part and parcel of,” or was “made only in service of,” another argument, we disagree. See, e.g., Dukes, 311 Ga. at 569 (3) (holding that defense counsel’s statement that a witness was not qualified to give further testimony on an issue, which defense counsel only made in service of an argument that the court should not strike other testimony from the witness, affirmatively waived an argument on appeal that the court should have permitted further testimony). 10 “[W]e have contrasted [an affirmative] waiver—the intentional
¶186relinquishment of a known right—with ‘forfeiture,’ which is the mere ‘failure to make the timely assertion of the right.’” Grullon v. State, 313 Ga. 40, 46 (2) (a) (867 SE2d 95) (2021) (citations and punctuation omitted). Whereas affirmative waiver precludes appellate review, we ordinarily review forfeited evidentiary arguments for plain error under OCGA § 24-1-103 (d). See Griffin v. State, 309 Ga. 860, 864-865 (849 SE2d 191) (2020). 12 all other options of admissibility. And we’ve done that here. We can’t use, you know, [Rule] 803 by itself because obviously the declarant in this is deceased, so she’d be unavailable [to] testify.
¶187(Emphasis supplied.) The State then argued that the statements
¶188were inadmissible under the hearsay exceptions contained in OCGA
¶189§ 24-8-804 (“Rule 804”), stating, “The defendant didn’t cause the
¶190death [of Dixon], . . . [s]o that really takes us out of the realm of 804
¶191exceptions.” See OCGA § 24-8-804 (b) (5) (providing that “[a]
¶192statement offered against a party that has engaged or acquiesced in
¶193wrongdoing that was intended to, and did, procure the
¶194unavailability of the declarant as a witness” is excepted from the
¶195rule against hearsay). Finally, the State concluded by saying, “And
¶196so we’ve exhausted everything.”
¶197 In context, then, the statement that “[w]e can’t use . . . [Rule]
¶198803 by itself” showed not only that the State was aware of Rules 803
¶199(1) and (2) but that the State intentionally conceded, perhaps
¶200unwisely, 11 that Dixon’s hearsay statements were inadmissible
¶201 11 We note that the State’s representation that Dixon’s hearsay
¶202 13 under those exceptions in an effort to show that they were
¶203“statement[s] not specifically covered by any law.” OCGA § 24-8-
¶204807. See Blackmon v. State, 306 Ga. 90, 94 (2) n.3 (829 SE2d 75)
¶205(2019) (noting that the trial court erred in concluding that hearsay
¶206statements “were admissible under both the excited utterance
¶207exception and the residual exception” because “[t]he residual
¶208exception applies . . . only to statements not specifically covered by
¶209any law,” and “[t]hus, if the hearsay statements at issue were
¶210admissible under the excited utterance law, they were not
¶211admissible under the residual exception” (citations and punctuation
¶212omitted)). By conceding that the State “can’t use . . . [Rule] 803 by
¶213itself” to admit Dixon’s statements, the State affirmatively waived
¶214any argument that Dixon’s statements were independently
¶215admissible as present sense impressions or excited utterances.12 See
¶216statements could not be admitted under Rule 803 because she was unavailable to testify reflects an apparent misunderstanding of Rule 803, which identifies hearsay exceptions that apply “regardless of whether the declarant is available as a witness.” Grier v. State, 313 Ga. 236, 244 (3) (d) (869 SE2d 423) (2022) (discussing the excited utterance exception). 12 Although it did not do so, the State could have preserved an argument
¶217 14 Heade v. State, 312 Ga. 19, 28 (4) (a) (860 SE2d 509) (2021)
¶218(evidentiary arguments are affirmatively waived if “conceded”
¶219below). See also Dukes, 311 Ga. at 569 (3) (defense counsel
¶220affirmatively waived a claim that the trial court erred “by
¶221prohibiting counsel from further cross-examining the medical
¶222examiner about the effects of amphetamines on a person” because
¶223defense counsel stated at trial that the medical examiner “was not
¶224qualified to give any additional testimony on the topic”). Cf. Vasquez
¶225v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019) (withdrawn
¶226arguments are affirmatively waived).
¶227 The State contends that, even if it waived admission of Dixon’s
¶228hearsay statements under Rules 803 (1) and (2), its arguments on
¶229appeal that the statements were admissible as present sense
¶230that the hearsay statements were admissible under Rule 803 if, rather than conceding that Rule 803 did not apply, it had argued in the alternative that the statements were either admissible under Rule 803 or, if they were not admissible under Rule 803, then they were admissible under Rule 807. See Atkins v. State, 310 Ga. 246, 249-252 (2) (850 SE2d 103) (2020) (considering on appeal whether the trial court had abused its discretion in concluding that hearsay statements were inadmissible under both the excited-utterance exception and the residual-hearsay exception, where the defendant had argued both exceptions “[i]n the alternative”). 15 impressions and excited utterances are properly before this Court.
¶231This is so, the State argues, because a court cannot determine
¶232whether evidence is admissible under the residual exception (Rule
¶233807) without “first determin[ing] the evidence’s admissibility under
¶234other law.” For this proposition, the State cites our decisions in
¶235Holmes, Hickman v. State, 299 Ga. 267 (787 SE2d 700) (2016), and
¶236State v. Hamilton, 308 Ga. 116 (839 SE2d 560) (2020). We are
¶237unpersuaded.
¶238 Neither Holmes nor Hickman held that a court must first
¶239determine whether hearsay statements are admissible under
¶240another hearsay exception before concluding they are otherwise
¶241inadmissible under the residual exception. Holmes clarified that a
¶242court must find that hearsay statements have “guarantees of
¶243trustworthiness [that are] equivalent to those found in the other
¶244statutory exceptions to hearsay set forth in Rules 803 and 804”
¶245before they can be admitted under the residual exception. Holmes,
¶246304 Ga. at 529-530 (2) (a). As for Hickman, we held only that Rule
¶247807’s requirements for admitting statements under the residual
¶248 16 exception were irrelevant to whether evidence could be admitted
¶249under another exception because, “[b]y its own terms, OCGA § 24-8-
¶250807 does not apply to evidence which is admissible under another
¶251exception to the hearsay rule.” Hickman, 299 Ga. at 272 (4).
¶252Neither case required a trial court to perform a specific analysis
¶253before concluding that hearsay statements are inadmissible under
¶254the residual exception.
¶255 The same can be said of Hamilton. 13 According to the State,
¶256because Hamilton said that “trial courts should consider whether a
¶257specific exception to the hearsay rule applies before applying Rule
¶258807,” Hamilton, 308 Ga. at 124 (3) (b) n.10 (emphasis supplied), a
¶259trial court must “first determine that a statement is inadmissible
¶260under other law prior to considering admissibility under Rule 807.”
¶261(Emphasis supplied.) This argument, however, misconstrues
¶262Hamilton.
¶263 13 Notably, Hamilton could not have held that a trial court must perform a specific analysis before concluding that hearsay statements are inadmissible under the residual exception because Hamilton concluded that the statements at issue were admissible under the residual exception. See Hamilton, 308 Ga. at 127 (4) (b). 17 In Hamilton, we noted that the trial court had concluded that
¶264hearsay statements were alternatively admissible under either
¶265OCGA § 24-8-804 (b) (1) (“Rule 804 (b) (1)”) or Rule 807. See
¶266Hamilton, 308 Ga. at 124 (3) (b). Then, after concluding that Rule
¶267804 (b) (1) did not apply, “[w]e caution[ed] that[,] because the
¶268residual exception applies only to statements not specifically
¶269covered by any law, trial courts should consider whether a specific
¶270exception to the hearsay rule applies before applying Rule 807.” Id.
¶271at 124 (3) (b) n.10 (citation and punctuation omitted; emphasis in
¶272original). The context surrounding this statement clarifies that we
¶273were not saying a court should determine that no other hearsay
¶274exception might apply before even considering Rule 807, as the State
¶275contends. Rather, in context, our statement that “trial courts should
¶276consider whether a specific exception to the hearsay rule applies
¶277before applying Rule 807,” id. (emphasis supplied), suggested that,
¶278when a party argues in the alternative that hearsay statements are
¶279admissible under either Rule 807 or another specific hearsay
¶280exception, the court should not admit the statements under Rule 807
¶281 18 without first determining that the other hearsay exception does not
¶282apply.
¶283 To summarize, neither Holmes nor Hickman nor Hamilton
¶284purported to hold that a trial court must determine that other
¶285hearsay exceptions do not apply before concluding for an
¶286independent reason that hearsay statements are inadmissible under
¶287the residual exception. To the contrary, a court may conclude that
¶288statements are inadmissible under the residual exception if the
¶289proponent of the evidence fails to establish any one of the
¶290preconditions for admitting a statement under Rule 807. See OCGA
¶291§ 24-8-807 (identifying several preconditions for admission,
¶292including that the statement has “circumstantial guarantees of
¶293trustworthiness”; “[t]he statement is offered as evidence of a
¶294material fact”; “[t]he statement is more probative on the point for
¶295which it is offered than any other evidence which the proponent can
¶296procure through reasonable efforts”; “[t]he general purposes of the
¶297rules of evidence and the interests of justice will best be served by
¶298admission of the statement into evidence”; and the proponent of the
¶299 19 evidence provides adequate notice of intent to admit the statement).
¶300This enumeration of error therefore fails.
¶301 3. The State argues that the trial court abused its discretion
¶302in concluding that Dixon’s statements were inadmissible under the
¶303residual exception to the hearsay rule (Rule 807) because, according
¶304to the State, the trial court (a) improperly relied on case law
¶305applying the former Evidence Code, and (b) made several clearly
¶306erroneous factual findings. As explained below, although the court
¶307should not have relied upon cases applying the former Evidence
¶308Code, that error was harmless under the circumstances, and the
¶309court did not abuse its discretion in excluding Dixon’s statements.
¶310See State v. Stephens, 307 Ga. 615, 616 (837 SE2d 830) (2020) (“We
¶311review the trial court’s grant or denial of a motion in limine for abuse
¶312of discretion.”).
¶313 (a) The residual exception to the hearsay rule applies only
¶314when “the circumstances under which [the statements] were
¶315originally made” establish “exceptional guarantees of
¶316trustworthiness.” Rawls v. State, 310 Ga. 209, 214 (3) (a) (850 SE2d
¶317 20 90) (2020) (citations and punctuation omitted). In assessing
¶318whether exceptional guarantees of trustworthiness exist, relevant
¶319factors include “the trustworthiness of the original declarant” and
¶320whether the circumstantial guarantees of trustworthiness “are
¶321equivalent in significance to the specific hearsay exceptions
¶322enumerated in Federal Rules of Evidence 803 and 804.” Holmes,
¶323304 Ga. at 529 (2) (a) (citation, punctuation and emphasis omitted).
¶324“[S]uch guarantees must be equivalent to cross-examined former
¶325testimony, statements under a belief of impending death,
¶326statements against interest, and statements of personal or family
¶327history.” Id. (citation and punctuation omitted). “A trial court
¶328should consider the totality of the circumstances in determining
¶329whether to admit evidence pursuant to OCGA § 24-8-807.” Reyes,
¶330309 Ga. at 668 (2) (b).
¶331 Although the trial court correctly set out these legal principles
¶332governing the admission of hearsay statements under the residual
¶333exception, the State contends that the court abused its discretion
¶334because, in ruling on whether Dixon’s statements were admissible
¶335 21 under the exception, it improperly relied on Georgia cases applying
¶336the former Evidence Code’s “necessity exception” to the hearsay
¶337rule. 14 Specifically, the State notes that the trial court cited
¶338Slakman v. State, 272 Ga. 662 (533 SE2d 383) (2000), and Navarrete,
¶339283 Ga. 156, both of which addressed the former necessity exception.
¶340 We agree that, by citing Slackman and Navarrete in the
¶341context of addressing the residual exception (Rule 807), the trial
¶342court violated our admonition in Reyes that “[c]ases decided under
¶343the ‘necessity’ exception to the hearsay rule in Georgia’s former
¶344Evidence Code are . . . not applicable to the interpretation of OCGA
¶345§ 24-8-807 and should not be relied on by trial courts in determining
¶346whether to admit evidence.” Reyes, 309 Ga. at 666 (2) (a). The
¶347court’s error was harmless, however, because it was clear from the
¶348court’s order that the court “ultimately applied the appropriate
¶349 14Admitting statements under the former necessity exception required the proponent of the evidence to show both “necessity” and “particularized guarantees of trustworthiness.” Navarrete v. State, 283 Ga. 156, 159 (2) (656 SE2d 814) (2008) (citation and punctuation omitted). The necessity exception “was not carried over into the current Evidence Code” and was instead replaced by Rule 807, which was “modeled . . . on Rule 807 of the Federal Rules of Evidence.” Reyes, 309 Ga. at 666 (2) (a). 22 evidentiary standard.” Id. at 667 (2) (a).
¶350 The trial court cited Slakman and Navarrete only after
¶351correctly describing Rule 807’s requirements based on controlling
¶352authority and after expressly acknowledging that, because “the
¶353[Rule] 807 Residual Exception replaced the necessity exception of
¶354the old code,” former necessity-exception cases no longer controlled.
¶355It is true that the trial court erroneously relied on Slackman and
¶356Navarrete to identify relevant factors in assessing the
¶357trustworthiness of a statement under Rule 807—specifically, the
¶358closeness of a relationship between a declarant and a hearsay
¶359witness, and the intoxication of a hearsay declarant when the
¶360statement was made. But because our precedent applying Rule 807
¶361and federal case law applying Rule 807’s federal counterpart have
¶362likewise identified such factors as relevant to the Rule 807
¶363trustworthiness inquiry, the court’s error did not result in the
¶364application of an incorrect legal standard. Compare Slakman, 272
¶365Ga. at 667-668 (3) (b) (1), (2) (closeness of relationships between the
¶366declarant and the hearsay witnesses was relevant to
¶367 23 trustworthiness under the former necessity exception), with Rawls,
¶368310 Ga. at 215 (3) (a) (i) (close relationships provided sufficient
¶369guarantees of trustworthiness under Rule 807). Compare
¶370Navarrete, 283 Ga. at 159-160 (2) (intoxication of declarant when he
¶371allegedly made the hearsay statement was relevant to
¶372trustworthiness under the former necessity exception), with United
¶373States v. Two Shields, 497 F3d 789, 794-795 (8th Cir. 2007) (“The
¶374district court acted entirely within its discretion in treating Buffalo
¶375Boy’s extreme intoxication as one consideration in the totality of the
¶376circumstances” and “concluding that Buffalo Boy’s intoxication
¶377diminished the trustworthiness of his statement for purposes of the
¶378residual exception to the hearsay rule.”). “Because the trial court
¶379ultimately applied the appropriate evidentiary standard despite its
¶380citation to . . . case[s] construing the former Evidence Code, it is
¶381unnecessary for us to vacate the trial court’s [order] on this ground.”
¶382Reyes, 309 Ga. at 667 (2) (a).
¶383 (b) The State also argues that the trial court clearly erred in
¶384making several findings of fact. First, the State challenges the
¶385 24 court’s finding that there was “no evidence [of] a close relationship
¶386between Ms. Dixon and Ms. Aisha Brown . . . that would guarantee
¶387the trustworthiness of the statements.” According to the State, this
¶388finding was clearly erroneous because Aisha called Dixon a friend
¶389and a regular houseguest, Dixon had been staying with the Browns
¶390for several days when the homicide occurred, Aisha saw Dixon
¶391shortly before she died, and Dixon’s daughter knew to call Aisha to
¶392inquire about Dixon’s whereabouts around the time of her death.
¶393This argument fails.
¶394 The record supports the trial court’s finding that “there was no
¶395evidence presented as to how Ms. Aisha Brown, or any of the other
¶396parties involved that evening, knew Ms. Dixon, how long they had
¶397known her, or the closeness of her relationship to any of the
¶398residents.” Although an investigator’s written summary of Aisha’s
¶399recorded interview stated that Aisha had called Dixon a friend and
¶400a regular houseguest, the recording itself does not support these
¶401details. The interview recording reveals that Aisha repeatedly
¶402described Dixon only as “the lady downstairs,” referring to the
¶403 25 downstairs of the police department. She never referred to Dixon as
¶404a friend or a regular houseguest, and the trial court was entitled to
¶405discredit the investigator’s written summary of the recording. See
¶406Daniels v. State, 313 Ga. 400, 407 (2) (b) (i) (870 SE2d 409) (2022)
¶407(noting that courts can “consider facts that definitely can be
¶408ascertained exclusively by reference to evidence that is
¶409uncontradicted and presents no questions of credibility, such as facts
¶410indisputably discernible from audio- or video-recordings” (citation
¶411and punctuation omitted)). See also State v. Rosenbaum, 305 Ga.
¶412442, 449 (2) (826 SE2d 18) (2019) (noting that, when reviewing a
¶413motion-to-suppress ruling, a trial court’s “findings based
¶414upon conflicting evidence . . . should not be disturbed by a reviewing
¶415court if there is any evidence to support them,” and “the trial court’s
¶416decision with regard to questions of fact and credibility must be
¶417accepted unless clearly erroneous” (citation and punctuation
¶418omitted)).
¶419 The other evidence on which the State relies to argue that
¶420Dixon and Aisha clearly had a close relationship was sparse, in
¶421 26 contrast with cases where we have recognized that a close
¶422relationship provided circumstantial guarantees of trustworthiness
¶423under Rule 807. See, e.g., Lopez v. State, 311 Ga. 269, 275 (2) (a)
¶424(857 SE2d 467) (2021) (hearsay statements “had the requisite
¶425guarantees of trustworthiness” under Rule 807, where the declarant
¶426“had a very close relationship with both [witnesses],” as the
¶427declarant “had known them for approximately ten years, spoke with
¶428them on a daily basis, and was related to [one of the witnesses] by
¶429marriage”).15 We therefore cannot say that the trial court clearly
¶430 15 See also Ward v. State, 313 Ga. 265, 269-271 (3) (a), (b) (869 SE2d 470) (2022) (statements “made to close friends and family, demonstrate[d] sufficient guarantees of trustworthiness under Rule 807,” where the hearsay witnesses included a “good friend[ ]” who was “like a brother to [the declarant],” a “real good friend from college” who “considered [the declarant] like a big sister,” the declarant’s “best friend,” a cousin who was “more like [the declarant’s] sister[ ]” and “talked [to the declarant] almost daily,” a family member by marriage who “saw [the declarant] at least every other day,” and a friend who “grew up in church” with the declarant and had continued to be in a friendship even after college (punctuation omitted)); Ash v. State, 312 Ga. 771, 786 (3) (b) (865 SE2d 150) (2021) (circumstantial guarantees of trustworthiness existed under Rule 807 based on a “long and close friendship,” where the witness was the declarant’s “lifelong” and “best” friend, and “[t]he pair talked to each other daily and shared the personal details of their lives with each other”); Rawls, 310 Ga. at 214-215 (concluding that the declarant’s “close relationship with each of the[ ] witnesses gave [the declarant’s] statements . . . sufficient guarantees of trustworthiness to be admissible under Rule 807,” where the witnesses were the declarant’s “best friend[ ],” cousin, and sister, and the
¶431 27 erred in finding that the evidence failed to establish a close
¶432relationship between Aisha and Dixon.
¶433 Further, the State’s argument that the trial court clearly erred
¶434in finding that Aisha and Dixon were “passing acquaintance[s]” is
¶435misguided. The court did not find that the women were “passing
¶436acquaintances” but rather that the State failed to prove that they
¶437had “a close relationship” and that “Ms. Aisha Brown’s recorded
¶438interviews did not indicate that Ms. Dixon was anything more than
¶439a passing acquaintance.” (Emphasis supplied.) Aisha’s recorded
¶440interviews and the record as a whole support the court’s findings.
¶441 The State also argues that the trial court clearly erred in
¶442finding that Dixon’s intoxication weighed in favor of finding her
¶443declarant and witnesses “often confided” in each other); Reyes, 309 Ga. at 668 (2) (b) (statements were adequately trustworthy under Rule 807 where the declarant and witness “had a close relationship in which they regularly shared with each other what was happening in their lives”); Miller v. State, 303 Ga. 1, 5 (2) (810 SE2d 123) (2018) (“statement made to a close personal friend” was sufficiently trustworthy under Rule 807 where the witness and declarant “had known [each other] for three decades” and “maintained a close relationship”); Smart, 299 Ga. at 422 (3) (“We cannot say that statements from a wife to her friends or family, or her own writings, which describe acts of domestic violence, do not, in fact, bear an increased level of trustworthiness [for purposes of Rule 807].”). 28 statements insufficiently trustworthy. Citing United States v. Two
¶444Shields, 435 FSupp.2d 973 (D.N.D. 2006), where a federal district
¶445court found that statements made by a declarant with a blood-
¶446alcohol level “nearly five (5) times the legal limit” did not have
¶447sufficient guarantees of trustworthiness, id. at 979, the State argues
¶448that “mere intoxication is not determinative” of admissibility and
¶449that “a declarant’s intoxication alone” does not support denying
¶450admission of hearsay evidence under Rule 807. This argument,
¶451however, misconstrues the trial court’s analysis. The trial court
¶452considered Dixon’s intoxication as a relevant factor, not a dispositive
¶453factor, in analyzing whether her statements were sufficiently
¶454trustworthy. The record supported the court’s finding that Dixon
¶455was intoxicated when she made the statements at issue, and the
¶456court did not abuse its discretion in weighing that fact in its Rule
¶457807 analysis. See Two Shields, 497 F3d at 794-795.16
¶458 16 We are unpersuaded by the State’s argument that the court clearly erred “in commenting [on] Aisha Brown’s supposed impairment at the time Sh[a]rrie Dixon made her statement.” See Rawls, 310 Ga. at 214 (3) (a) (noting that statements are “considered sufficiently trustworthy” under Rule 807 “not
¶459 29 In addition, the State challenges the trial court’s decision to
¶460weigh Dixon’s inability to identify Kenney in a photo lineup when
¶461assessing the trustworthiness of her statements under Rule 807.
¶462The State contends that this fact was “not probative of Dixon’s
¶463capacity to discuss with Aisha Brown the cause of the yelling and
¶464shots both women overheard.” But the trial court was authorized to
¶465conclude that Dixon’s inability to remember what Kenney looked
¶466like, despite having spent hours with him on the night of Laquitta’s
¶467death, showed that, when she spoke to Aisha shortly before and after
¶468the homicide, she had an impaired ability to accurately perceive,
¶469comprehend, and speak about the events surrounding the homicide.
¶470Accordingly, the trial court did not clearly err in finding that Dixon’s
¶471inability to identify Kenney in a photo lineup weighed in favor of
¶472finding that her statements describing the circumstances
¶473because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made” (citation and punctuation omitted)). Here, there is no indication in the trial court’s order that Aisha’s credibility factored into the court’s Rule 807 analysis, as the court quoted the relevant language from our decision in Rawls and focused its intoxication analysis on Dixon’s inebriation, rather than Aisha’s. 30 surrounding Laquitta’s shooting were insufficiently trustworthy
¶475 Finally, the State contends that a “number of other
¶476circumstantial guarantees of trustworthiness,” such as the lack of a
¶477“discernable reason [for] Dixon [to] lie to [Aisha],” support admission
¶478of Dixon’s statements under the residual exception. But we cannot
¶479say that the trial court clearly erred in weighing more heavily other
¶480factors—such as the lack of a close relationship between Dixon and
¶481Aisha and Dixon’s intoxication when she made the statements—in
¶482concluding that exceptional guarantees of trustworthiness were
¶483lacking, and therefore that Dixon’s statements were inadmissible
¶484under Rule 807. See Holmes, 304 Ga. at 529 (2) (a) (noting that we
¶485will not overturn a trial court’s residual-hearsay ruling “absent a
¶486definite and firm conviction that the court made a clear error of
¶487judgment in the conclusion it reached based upon a weighing of the
¶488relevant factors.” (citation and punctuation omitted)). Accordingly,
¶489we affirm.
¶490 Judgment affirmed. All the Justices concur, except Warren, J.,
¶491 31 who concurs specially, and LaGrua, J., disqualified.
¶492 32 WARREN, J., concurring specially.
¶493 I concur in the judgment in this case, because I agree that the
¶494trial court did not abuse its discretion in excluding the evidence at
¶495issue under OCGA § 24-8-807. And I agree with the majority insofar
¶496as it concludes that the State’s arguments on appeal—that certain
¶497out-of-court statements should have been admitted under Rule 803
¶498or Rule 807—fail. But because I arrive at that conclusion by
¶499applying a different legal analysis, I concur specially.
¶500 As an initial matter, I am skeptical of a major premise of
¶501Division 2 in the majority opinion: that the State “affirmatively
¶502waived” arguments under Rule 803 that certain out-of-court
¶503statements were admissible as present-sense impressions or excited
¶504utterances. I view the record differently: rather than affirmatively
¶505waiving arguments under Rule 803, the State simply failed to raise
¶506a free-standing argument that the evidence at issue was admissible
¶507under Rule 803. Any mention the State made about Rule 803,
¶508including its statement, “[w]e can’t use . . . 803 by itself,” was part
¶509and parcel of an argument that the evidence was instead admissible
¶510 33 under Rule 807. In other words, the State’s arguments about Rule
¶511803 were made only in service of its Rule 807 argument, to show that
¶512the evidence at issue had “equivalent circumstantial guarantees of
¶513trustworthiness” as hearsay admitted under Rule 803 and to show
¶514that the evidence was not admissible under other hearsay
¶515exceptions. See OCGA § 24-8-807 (“A statement not specifically
¶516covered by any law but having equivalent circumstantial guarantees
¶517of trustworthiness shall not be excluded by the hearsay rule[.]”).
¶518What makes the State’s argument difficult to decipher is that it
¶519appears to have misunderstood the requirements of Rule 803,
¶520apparently believing that a declarant’s availability was a
¶521prerequisite for admission of her out-of-court statements, even
¶522though Rule 803 identifies hearsay exceptions that apply
¶523“regardless of whether the declarant is available as a witness.” Grier
¶524v. State, 313 Ga. 236, 244 (3) (d) (869 SE2d 423) (2022) (excited-
¶525utterance exception). Because the State did not make a free-
¶526standing Rule 803 argument before the trial court, it did not
¶527preserve that issue for ordinary appellate review.
¶528 34 With respect to the State’s contention that the trial court was
¶529required to determine the admissibility of the evidence at issue
¶530under Rule 803 before deciding to deny its admission under Rule
¶531807, I agree with the majority opinion’s conclusion that the trial
¶532court was not required to do so. However, I note that the parties
¶533may have been able to avoid this appeal altogether if the trial court
¶534had followed this Court’s admonition in Hamilton: “We caution that
¶535because the residual exception applies . . . only to statements not
¶536specifically covered by any law, trial courts should consider whether
¶537a specific exception to the hearsay rule applies before applying Rule
¶538807.” State v. Hamilton, 308 Ga. 116, 124 n.10 (839 SE2d 560)
¶539(2020) (citation and punctuation omitted). To be sure, the text of
¶540Rule 807 does not require trial courts to determine whether other
¶541hearsay exceptions apply before denying a party’s request to admit
¶542evidence under the rule. But Hamilton indicates that trial courts
¶543should nonetheless consider doing so.17 This case illustrates why
¶544 By contrast, the text of Rule 807 does require trial courts to determine 17
¶545whether hearsay exceptions apply before admitting evidence under that rule.
¶546 35 that approach is a best practice: had the trial court considered
¶547whether the out-of-court statements at issue in this case constituted
¶548present-sense impressions or excited utterances under Rule 803, it
¶549likely would have concluded that the State was incorrect when it
¶550said that it “could not use” Rule 803 to admit at least some of those
¶551statements. See OCGA § 24-8-803 (1) & (2) (“The following shall not
¶552be excluded by the hearsay rule, even though the declarant is
¶553available as a witness: (1) Present sense impression. A statement
¶554describing or explaining an event or condition made while the
¶555declarant was perceiving the event or condition or immediately
¶556thereafter; (2) Excited utterance. A statement relating to a startling
¶557event or condition made while the declarant was under the stress of
¶558excitement caused by the event or condition[.]”). And this conclusion
¶559could have presented a more straightforward basis for the trial court
¶560to deny the State’s motion to admit the evidence under Rule 807 in
¶561this case. For this reason, I write to highlight once again the
¶562See OCGA § 24-8-807 (applying to “statement[s] not specifically covered by any law”). 36 prudence of trial courts evaluating as a threshold matter in any Rule
¶563807 analysis whether other hearsay exceptions could apply to the
¶564evidence at issue.
¶565 37