¶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: March 19, 2024
¶4 S24A0026. HASSAN v. THE STATE.
¶5 ELLINGTON, Justice.
¶6 A Fulton County jury found Muhammad Hassan guilty of
¶7participation in street gang activity, murder, six counts of
¶8aggravated assault, and firearms charges in connection with a drive-
¶9by shooting that resulted in the death of Amira Cameron.1 Hassan
¶10 1 The shooting occurred on October 4, 2015. On March 18, 2016, a Fulton
¶11County grand jury returned an indictment charging Hassan and Jamaris Zinnerman with participation in criminal street gang activity through commission of the offenses of murder and aggravated assault with a deadly weapon (Count 1); malice murder (Count 2); felony murder predicated on aggravated assault with a deadly weapon (Count 3); aggravated assault with a deadly weapon against Amira Cameron (Count 5); and possession of a firearm during the commission of a felony (Count 13). The grand jury also indicted Hassan and Zinnerman with aggravated assault with a deadly weapon against Myles Cameron (Count 6), Jeremecia Perry (Count 7), Jamario Calloway (Count 8), Aquantis Hillman (Count 9), Dujuan Terry (Count 10), Terrene Ja’Quan Perry (Count 11), and Josiah Wade (Count 12), and possession of a firearm during the commission of a felony (Count 13). The grand jury indicted Hassan individually with possession of a firearm by a first offender probationer (Count 14) and an additional count of felony murder of Amira Cameron (Count 4) predicated on the weapons charge. Hassan and contends that the trial court committed plain error by allowing
¶12hearsay evidence regarding a prior drive-by shooting. In addition,
¶13Hassan contends that the trial court committed plain error in failing
¶14to instruct the jury about the State’s “heightened burden of proof
¶15under OCGA § 24-14-6,” which requires the exclusion of every
¶16reasonable hypothesis other than guilt when the case against the
¶17accused rests entirely on circumstantial evidence. For the reasons
¶18explained below, we affirm.
¶19 Pertinent to Hassan’s arguments on appeal, the evidence
¶20presented at trial showed the following. At approximately 8:20 p.m.
¶21on October 4, 2015, a gold- or champagne-colored Chevrolet Malibu
¶22entered the parking lot of the Oakley Shoals Apartments in Fulton
¶23Zinnerman were tried jointly in May 2019. The jury found Hassan guilty on Counts 1 through 7, 9 through 11, 13, and 14; the State entered nolle prosequi on Counts 8 and 12. The jury also found Zinnerman guilty of Counts 1 through 3, 5 through 7, 9 through 11, and 13. On May 28, 2019, the trial court sentenced Hassan to serve life in prison plus 25 years in prison. The trial court determined that Count 5 merged for purposes of sentencing. The trial court also declared that Counts 3 and 4 were vacated as a matter of law. Hassan filed a timely motion for a new trial, which he amended on July 15, 2021, June 1, 2022, and March 27, 2023. After a hearing on March 29, 2023, the trial court denied Hassan’s motion for a new trial on April 7, 2023. Hassan filed a timely notice of appeal, and the case was docketed in this Court to the term beginning in December 2023 and submitted for a decision on the briefs. 2 County. Quin Vann, a resident of the complex, testified that she
¶24heard gunfire outside of her apartment that night. She ran out to
¶25see what had happened and saw a champagne-colored Chevy Malibu
¶26with all its windows down drive past and then exit the parking lot.
¶27Vann called 911 to report the shooting at 8:21 p.m.
¶28 When the Malibu entered the parking lot, several teenagers
¶29who were friends and acquaintances from around the neighborhood
¶30were standing near the entrance. The group included Aquantis
¶31Hillman, Amira Cameron, Myles Cameron, Ja’Quan Perry,
¶32Jeremecia Perry, Dujuan Terry, and others. Five members of the
¶33group testified at Hassan’s trial.
¶34 Myles Cameron testified that there were four or five people in
¶35the Malibu, all of whom appeared to be staring at his group through
¶36the passenger-side windows as the car drove slowly by. Terry and
¶37Hillman also testified that they saw four or five people in the car,
¶38and all of them had their heads turned in the group’s direction as
¶39they drove by. Uneasy, the group of teens crossed to the other side
¶40of the street. Myles Cameron testified that Terry retrieved a “.38
¶41 3 revolver” from Perry’s bookbag and held it at his side, although
¶42Terry testified that he did not have a gun and Perry testified that
¶43she did not have a bookbag or a gun with her that night. Myles
¶44Cameron, Perry, and Hillman testified that the driver of the Malibu
¶45turned around at the far end of the parking lot, turned off the
¶46headlights, and drove back towards the group. Hillman testified that
¶47the Malibu’s windows were open and at least two occupants of the
¶48car were holding guns out of the front and rear passenger-side
¶49windows. The car’s occupants then started shooting in the teenagers’
¶50direction. Myles Cameron’s 15-year-old sister, Amira Cameron,
¶51received a fatal gunshot wound to the right side of her head;
¶52everyone else in the group escaped injury.
¶53 At the time of the shooting, Jamaris Zinnerman, a member of
¶54the Smash Krew Billy Gang (“SKBG”), was under court supervision
¶55and wore an ankle monitor that included a GPS transmitter.
¶56Records from that transmitter showed that at 8:19 p.m. Zinnerman’s
¶57monitor was at the entrance of the Oakley Shoals Apartments and
¶58then was in the parking lot where the shooting occurred at 8:20 p.m.
¶59 4 The transmitter records showed that the monitor was on a nearby
¶60parkway leaving the scene at 8:22 p.m.; was at South Fulton
¶61Hospital on Cleveland Avenue at 8:34 p.m.; left that hospital at 9:40
¶62p.m.; and arrived at Atlanta Medical Center at 9:56 p.m.
¶63 Hassan testified that he drove his mother’s Malibu to the
¶64Oakley Shoals Apartments on the night of the shooting and that
¶65Zinnerman rode in the rear passenger seat. Hassan testified that
¶66three “acquaintances,” who had been at a party that he had attended
¶67that night and had asked him for a ride home, were also in the car;
¶68one passenger asked to be dropped off at the Oakley Shoals
¶69Apartments. Hassan testified that before beginning the drive, he
¶70asked his passengers whether anyone was carrying a gun, because
¶71“[b]efore [he] even let anybody in [his] car [he would] make sure”
¶72they did not have a gun. Hassan admitted that he passed a group of
¶73people who were standing right in front of the entrance to the
¶74complex and testified that they were “looking crazy” at the
¶75occupants of the car and some seemed to be “clutching,” which he
¶76defined as reaching for weapons. Hassan testified that, based on
¶77 5 that behavior, he decided not to stop to drop off his passenger and
¶78instead turned around, and again passed the group, which had
¶79crossed the street. Then, Hassan heard gunshots and sped away. He
¶80testified that he was certain that no one was shooting out of his car.
¶81In particular, Hassan testified that he did not have a gun that night
¶82and that he did not shoot anyone. He testified that, after they left
¶83the Oakley Shoals Apartments, Zinnerman told him he had been
¶84shot. Hassan saw that Zinnerman was bleeding. Hassan drove to the
¶85nearest hospital and carried Zinnerman inside. Hassan denied being
¶86a gang member at the time of trial but admitted he had previously
¶87been in a Bloods gang, the Nine Trey Bloods, from age 14 until some
¶88unspecified point in 2015. Hassan testified that Zinnerman had been
¶89in the Nine Trey Bloods gang and had tattoos that represented the
¶90Nine Trey Bloods. Hassan testified that SKBG is not part of the
¶91Bloods.
¶92 A .38-caliber bullet was removed from Amira Cameron’s brain,
¶93and a .38-caliber bullet was removed from Zinnerman’s body during
¶94surgery. Another .38-caliber bullet was found in the Malibu. An
¶95 6 expert firearms and tool mark examiner testified that the bullet
¶96found in the Malibu and the bullet removed from Zinnerman’s body
¶97were fired by the same gun, but the bullet that fatally wounded
¶98Amira Cameron was fired by a different gun. DNA testing of blood
¶99that had soaked into the Malibu’s rear seat cushion matched
¶100Zinnerman’s DNA profile.
¶101 In addition to Hillman’s testimony about the October 4, 2015
¶102shooting, Hillman testified that he was a member of the Crips gang,
¶103a rival of the Bloods gang, and that a person being a “Billy” means
¶104he is a Blood. Hillman testified that, days before the shooting at the
¶105Oakley Shoals Apartments, members of the Billy Bloods yelled an
¶106insult that referred to the rivalry between the Bloods and the Crips
¶107and then shot at him. Hillman testified that, in gang culture, one
¶108member’s having a problem with someone means that the entire
¶109gang has a problem with that person, regardless of whether the
¶110other members know that person.
¶111 An assistant district attorney testified as a criminal street
¶112gang expert about the Bloods criminal gang, which has west-coast-
¶113 7 affiliated and east-coast-affiliated subsets, and explained that the
¶114Smash Krew Billy Gang is a branch of the Nine Trey Billy Bad-ass
¶115Bloods, one of the east-coast-affiliated Bloods groups that are
¶116predominant in Georgia. The assistant district attorney testified
¶117that there is a rivalry and widespread hostility between Bloods
¶118gangs and Crips gangs. In particular, at the time of the shooting at
¶119the Oakley Shoals Apartments there was hostility locally between
¶120the Crips and SKBG members, who blamed the Crips for the
¶121unsolved drive-by shooting death of SKBG member Carlton Ramey
¶122earlier in 2015. The assistant district attorney testified that, “even
¶123to this day,” at the time of Hassan’s trial in May 2019, “members of
¶124the Smash Krew Billy Gang post[ ] pictures of Carlton Ramey or [his
¶125nickname] ‘Cash’ [on social media] as an homage to him because he
¶126was killed.” The assistant district attorney testified that, around the
¶127time of the shooting at the Oakley Shoals Apartments, Zinnerman
¶128identified himself as a member of SKBG through photos and
¶129captions he posted on social media. A detective testified that Hassan
¶130has a five-pointed star tattooed on the right side of his face, which is
¶131 8 a common marker of the Bloods, and he had a red bandana in his
¶132pocket when he was arrested, which members of the Bloods
¶133commonly wear or carry as “a flag of identification” with the gang.
¶134The detective testified that Hillman, a self-identified Crips gang
¶135member, was a person of interest in Ramey’s death.
¶136 In closing argument, the State did not argue that there was
¶137any evidence that Hassan fired a weapon that night. The State
¶138argued that Hassan was guilty of the murder and the aggravated
¶139assaults either as a party to the crime of the actual shooters, by
¶140being the driver in the drive-by shooting, or as having participated
¶141in a conspiracy to commit the crimes.
¶142 1. Hassan contends that all of the evidence about Ramey’s
¶143murder constituted inadmissible hearsay and that the superior
¶144court plainly erred by allowing the evidence. Hassan argues that the
¶145State’s proposed nexus between his alleged participation in a gang
¶146and the offenses arising out of the drive-by shooting at the Oakley
¶147Shoals Apartments was that the occupants of his car shot at the
¶148group that included Hillman because they blamed Hillman’s gang,
¶149 9 the Crips, for the murder of Ramey, a fellow member of the shooters’
¶150gang, SKBG. See Overstreet v. State, 312 Ga. 565, 574 (1) (b) (864
¶151SE2d 14) (2021) (To establish participation in criminal street gang
¶152activity in violation of OCGA § 16-15-4, the State must show “some
¶153nexus” between the alleged predicate acts and an intent to further
¶154the interests of the gang.). Hassan argues that the State “offered no
¶155first-hand witness to that other shooting” and that all of the State’s
¶156evidence about the Ramey murder was elicited during the testimony
¶157of the assistant district attorney, who testified as a gang expert, and
¶158the detective. Hassan argues that neither witness “was a percipient
¶159witness to the drive-by shooting [of Ramey] that they testified about.
¶160Both learned about the incident through their investigations, which
¶161inevitably comprised the statements of others.” Hassan concedes
¶162that he did not object to the evidence at trial on the basis that it
¶163constituted inadmissible hearsay, but he argues that admitting the
¶164evidence constituted plain error.
¶165 A trial court’s ruling that admits evidence is ordinarily
¶166reviewable only where “a timely objection or motion to strike
¶167 10 appears of record, stating the specific ground of objection, if the
¶168specific ground was not apparent from the context[.]” OGGA § 24-1-
¶169103 (a) (1). See Middlebrooks v. State, 315 Ga. 671, 687 (2) (a) (884
¶170SE2d 318) (2023). Without preservation of error as provided in
¶171OCGA § 24-1-103, an appellate court reviews an evidentiary ruling
¶172only for plain error pursuant to OCGA § 24-1-103 (d), which provides
¶173that “nothing in [that] Code section shall preclude a court from
¶174taking notice of plain errors affecting substantial rights although
¶175such errors were not brought to the attention of the court.” See
¶176Middlebrooks, 315 Ga. at 687 (2) (a).
¶177 To establish plain error, [the appellant] must point to an error that was not affirmatively waived, and that error must have been clear and not open to reasonable dispute, must have affected [the appellant’s] substantial rights, and must have seriously affected the fairness, integrity or public reputation of judicial proceedings.
¶178Id. (citation and punctuation omitted). If the appellant fails to meet
¶179one element of the plain error test, his claim fails. See Allen v. State,
¶180310 Ga. 411, 416 (3) (851 SE2d 541) (2020). “Satisfying all four
¶181prongs of [the plain-error] standard is difficult, as it should be.”
¶182 11 Williams v. State, 315 Ga. 490, 495 (2) (883 SE2d 733) (2023)
¶183(citation and punctuation omitted). In this case, Hassan failed to
¶184meet the second prong, showing an error that was clear and not open
¶185to reasonable dispute, because it is not clear that the testimony he
¶186challenges was hearsay.
¶187 “Hearsay is an out-of-court statement that a party offers into
¶188evidence to prove the truth of the matter asserted therein, and such
¶189a statement generally is inadmissible at trial.” See OCGA §§ 24-8-
¶190801 (c); 24-8-802; see also Smith v. State, 309 Ga. 240, 245 (2) (b)
¶191(845 SE2d 598) (2020). In his appellate brief, Hassan characterizes
¶192as inadmissible hearsay portions of the testimony of the assistant
¶193district attorney in which the witness testified that he was “familiar
¶194with” the Ramey murder, that Ramey had been a SKBG member,
¶195and that there were persons of interest in the investigation but not
¶196yet any indictment. As to the other witness, the detective, Hassan
¶197characterizes as inadmissible hearsay portions of the detective’s
¶198testimony in which he testified that Ramey had been a SKBG
¶199member, that Ramey was killed in a drive-by shooting prior to the
¶200 12 shooting at the Oakland Shoals Apartments, that Hillman identifies
¶201himself as a member of the Crips, and that Hillman is a person of
¶202interest in the Ramey murder investigation. The detective testified
¶203that he “spoke with the detective that was working on [the Ramey
¶204case] at the time,” but he did not testify about any statement made
¶205by that other detective or by any other person.
¶206 Neither witness expressly repeated the out-of-court statements
¶207of any other person. Although the detective testified that he was
¶208“familiar” with the Ramey investigation and referred to speaking
¶209with another detective who worked on that investigation, the
¶210detective did not specify what that other detective told him or how
¶211he developed familiarity with the investigation. Given that, it was
¶212not so obvious that the evidence was hearsay such that the trial
¶213court should have intervened sua sponte to exclude the testimony.
¶214Because Hassan has not shown that allowing the testimony at issue
¶215was a clear error that was not open to reasonable dispute, his claim
¶216of plain error fails. See Carter v. State, 317 Ga. 689, 694 (2) (895
¶217SE2d 295) (2023); Stafford v. State, 312 Ga. 811, 820 (3) (b) (865
¶218 13 SE2d 116) (2021); Strother v. State, 305 Ga. 838, 848 (4) (d) (828
¶219SE2d 327) (2019).
¶220 2. Hassan contends that the trial court erred in failing to
¶221instruct the jury regarding the State’s “heightened burden of proof”
¶222under OCGA § 24-14-6, which provides: “To warrant a conviction on
¶223circumstantial evidence, the proved facts shall not only be consistent
¶224with the hypothesis of guilt, but shall exclude every other reasonable
¶225hypothesis save that of the guilt of the accused.” Again, Hassan
¶226concedes that he did not object at trial to the instruction regarding
¶227convictions based on circumstantial evidence but argues that the
¶228instruction as given constituted plain error. See OCGA § 17-8-58 (b).
¶229 The plain error standard with regard to jury instructions, like
¶230the standard regarding evidentiary rulings discussed in Division 1,
¶231supra, has four requirements: an error that has not been
¶232affirmatively waived by the appellant, that is “clear or obvious,
¶233rather than subject to reasonable dispute,” that affected the
¶234appellant’s “substantial rights,” and that merits a remedy, in the
¶235discretion of the appellate court, on the basis that “the error
¶236 14 seriously affects the fairness, integrity or public reputation of
¶237judicial proceedings.” Beard v. State, 317 Ga. 842, 844 (2) (893 SE2d
¶238893) (2023) (citation and punctuation omitted). “An error is plain if
¶239it is clear or obvious under current law. An error cannot be plain
¶240where there is no controlling authority on point.” Hill v. State, 310
¶241Ga. 180, 194 (11) (a) (850 SE2d 110) (2020) (citations and
¶242punctuation omitted). And the appellate court “need not analyze all
¶243of the elements of the plain error test when the appellant fails to
¶244establish one of them.” Id.
¶245 Regarding evidence, the trial court instructed the jury:
¶246 Now, your oath requires that you will decide this case based on the evidence. Evidence is the means by which any fact that is put in issue is established or disproved. Evidence includes all of the testimony of the witnesses, any exhibits admitted during the trial and stipulations of the attorneys; that is, any fact to which the attorneys have agreed with the approval by the Court. Evidence does not include the indictment, the plea of not guilty, the opening and closing remarks of the attorneys or questions asked by the attorneys. Evidence may be direct, circumstantial or both. In considering the evidence you may use reasoning and common sense to make deductions and reach
¶247 15 conclusions. You should not be concerned about whether the evidence is direct or circumstantial. Direct evidence is the testimony of a person who asserts that he or she has actual knowledge of a fact such as by personally observing or otherwise witnessing that fact. Circumstantial evidence is proof of a set of facts and circumstances that tend to prove or disprove another fact by inference; that is, by consistency with such fact or elimination of other facts. There’s no legal difference in the weight you may give to either direct or circumstantial evidence. You would be authorized to convict only if the evidence, whether direct or circumstantial or both, excludes all reasonable theories of innocence and proves the guilt of the accused beyond a reasonable doubt.
¶248 In Hill, we considered a plain-error challenge to jury
¶249instructions “regarding the level of proof required for conviction”
¶250and held that the appellant failed to show that giving the
¶251instructions at issue constituted clear or obvious error where the
¶252instructions at issue had been upheld by this Court and the
¶253appellant cited no controlling authority for the proposition that the
¶254instructions were erroneous. See Hill, 310 Ga. at 194-195 (11) (a).
¶255This Court has upheld a jury instruction that, like the evidence
¶256instruction in this case, informed the jurors that they “would be
¶257 16 authorized to convict only if the evidence, whether direct,
¶258circumstantial, or both, excludes all reasonable theories of innocence
¶259and proves the guilt of the accused beyond a reasonable doubt.”
¶260Eubanks v. State, 317 Ga. 563, 580 (3) (a) (894 SE2d 27) (2023). See
¶261Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal
¶262Cases (4th ed. 2007, updated Jan. 2023) § 1.30.20. Noting that,
¶263“[w]hen a requested jury instruction adds no essential point of law
¶264to the existing instructions, it is not error for the trial court to
¶265decline to give it[,]” we held that the instructions at issue “effectively
¶266conveyed the point that the State was required to disprove
¶267reasonable hypotheses of [the appellant’s] innocence.” Eubanks, 317
¶268Ga. at 580 (3) (a). Because the instructions at issue in this case have
¶269been upheld by this Court and Hassan has cited no controlling
¶270authority for the proposition that the instructions were erroneous,
¶271Hassan cannot show plain error. See id.; Hill, 310 Ga. at 194-195
¶272(11) (a).
¶273 We note that Hassan contends that this Court can consider the
¶274harmful effect of the alleged evidentiary error discussed in Division
¶275 17 1 and the alleged instructional error discussed in Division 2 “in the
¶276aggregate.” Because Hassan has not established clear error in either
¶277instance, we do not reach the issue of whether failing to exclude sua
¶278sponte the alleged hearsay or failing to give a jury instruction in
¶279language identical to OCGA § 24-14-6 affected Hassan’s substantial
¶280rights, either individually or in the aggregate.
¶281 Judgment affirmed. All the Justices concur.
¶282 18