Dailey v. State, 297 Ga. 442

On Feb. 1, 2012, Earnest Earl Dailey, Jr. struck Jermaine Little outside a grocery store with an object; Little later died from internal injuries and Dailey was charged with malice murder and felony murder.
A jury convicted Dailey of felony murder; he was sentenced to life in prison and filed a timely appeal challenging several trial rulings and the jury charge.
At trial, defense counsel cross-examined investigating officers; the prosecutor objected to some questions as hearsay and the judge made a brief critical remark about defense counsel’s questioning in the jury’s presence.
The trial court excluded testimony by an officer about a non-testifying witness’s failure to identify Dailey from a photo array, sustained hearsay objections, and admitted autopsy photographs after weighing relevance and prejudice.
Dailey requested a jury instruction on voluntary manslaughter based on provocation; the trial court refused, finding no evidence of the requisite serious provocation.

Issue	Dailey's Argument	State's Argument	Held
Sufficiency of the evidence for felony murder	Evidence insufficient to prove felony murder beyond a reasonable doubt	Evidence (blunt-force blow, collapse, death) supports conviction	Affirmed — evidence sufficient under Jackson v. Virginia
Trial judge’s comment to defense counsel (alleged comment on evidence)	Comment intimated judge’s view of guilt; violated OCGA § 17-8-57	Comment was explanation of ruling, not a comment on evidence	No reversible error; explanation permissible, offhand remark not the kind of prohibited comment
Exclusion of officer’s testimony about non-testifying witness failing to ID defendant	Testimony admissible under prior-identification hearsay exception and was exculpatory	Hearsay; the declarant would not testify so exception inapplicable	Properly excluded; exception requires declarant to testify and be subject to cross-examination
Admission of autopsy photographs	Photos prejudicial and unnecessary because cause of death undisputed	Photos relevant to internal injuries not visible pre-incision; court balanced probative value vs. prejudice	No abuse of discretion; photos relevant and admissible after OCGA § 24-4-403 analysis
Refusal to charge voluntary manslaughter	Requested instruction warranted by provocation during argument	Evidence showed only brief argument; not sufficient serious provocation	No error; provocation was insufficient as a matter of law to support the instruction

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
Johnson v. State, 246 Ga. 126 (1980) (judge’s explanation for ruling is not an impermissible comment on evidence)
Murphy v. State, 290 Ga. 459 (2012) (certain judge comments about a witness violated prohibition on commenting on evidence)
United States v. Brewer, 36 F.3d 266 (2d Cir. 1994) (permitting exclusion of testimony about non-testifying witnesses’ inability to identify defendant)
Brown v. State, 250 Ga. 862 (1983) (autopsy photos showing internal injuries admissible when necessary to show material facts)
Browner v. State, 296 Ga. 138 (2014) (undisputed cause of death does not automatically render autopsy photos unnecessary)
Merritt v. State, 292 Ga. 327 (2013) (angry words alone generally do not constitute serious provocation)
Riggins v. State, 279 Ga. 407 (2005) (argument between defendant and victim insufficient to authorize voluntary manslaughter charge)