LOPEZ v. THE STATE
S21A0322
In the Supreme Court of Georgia
Decided: April 5, 2021
PETERSON, Justice.
Fernando Lopez appeals his conviction for malice murder for the stabbing death of Corey Williams.1 Lopez argues that the trial court admitted improper hearsay evidence against him: Williams‘s dying statements describing the stabbing and his assailant and Williams‘s statements describing his previous and intended future drug sales with Lopez.
admissible under the excited utterance hearsay exception, most of the statements about drug sales were admissible under the residual hearsay exception, and the admission of the remaining statement about drug sales was harmless. We affirm.
The evidence presented at trial showed the following. On January 26, 2012, Corey Williams was sitting in the driver‘s seat of his car when he was stabbed by someone sitting in the passenger seat area. Williams drove two streets over and pulled up to three men: Dusty Smith, Aaron Bales, and Jacob Christmas. Williams blew his horn and called to them, yelling repeatedly that “Migo” or “Amigo” had stabbed him and asking them to call an ambulance. He had wounds to his arms and chest and acted like he was in pain, and there was a significant amount of blood on his chest and on the driver‘s side of the car. There also was a duffel bag in the rear passenger seat that Williams said belonged to Migo.
The men called 911 at 3:02 p.m., and Officer Brandon Mitchell arrived five to ten minutes later. Officer Mitchell rendered first aid and tried to calm Williams to keep him from going into shock, because Williams was “breathing pretty heavy and was obviously very [shaken] up,” and he was starting to wheeze. Williams described his assailant to Officer Mitchell as a Hispanic male known as “Amigo.” Williams told Officer Mitchell and the other men that he had given his assailant a ride from the store for $40, but that as his passenger was reaching into the back of the car to retrieve his duffel bag, he stabbed Williams, screamed “mother f****r,” and ran away. Williams died later that day from the stab wound to his chest.
Kenyatta Kitchen, a relative of Williams, identified Lopez in a photographic lineup as the person he saw get into the front passenger side of Williams‘s car and place his bag in the back passenger side approximately 20 minutes before Williams was stabbed. Fingerprints on paperwork in the duffel bag left in Williams‘s car matched Lopez‘s fingerprints, which were already on file. No other person‘s fingerprints were found on the paperwork. Police obtained a warrant for Lopez but were unable to locate him until September 2016, when he was arrested. DNA in buccal swabs obtained from Lopez matched DNA samples taken from a pair of underwear and a comb found in the duffel bag.
At Lopez‘s trial, Yolanda Sawyer, who had been friends with Williams for approximately 20 years prior to his death, testified that she and others, including Lopez, regularly used drugs in the apartment of a man known as “Mr. Peewee.” Sawyer had known Lopez for ten years prior to the stabbing, but only as “Migo” or “Amigo.” Two days before Williams was killed, Lopez returned to the area after a lengthy absence and used drugs in Peewee‘s apartment. Williams went in and out of Peewee‘s apartment many times while Lopez was there, and the day before the stabbing, Sawyer overheard Williams say that Migo owed him money. Sawyer assumed the debt was for drugs because Williams had previously sold drugs to both her and Lopez. The same day, she saw Williams and Lopez talking together as they entered Peewee‘s apartment.
Kitchen had known Williams for 10 years and testified that he and Williams typically saw each other every day. Kitchen testified that he knew Lopez “on and off” for five or six years prior to the stabbing, but only by the nicknames “Amigo” or “Migo.” Lopez had a pattern of returning to Williams‘s area of town for a week or two after being absent for months or more. Two days before Williams died, Williams told Kitchen that Migo was back in town and “spending money,” meaning that Lopez was buying drugs from Williams, and Kitchen observed Lopez going in and out of Peewee‘s apartment.
D‘Metri Johnson testified that he and Williams had known each other for more than 10 years and were “very close” friends who saw each other every day and sold cocaine in the same area. The day before Williams‘s death, Williams told Johnson that he had a customer named “Migo” who spent a large amount of money on drugs and that Williams significantly overcharged Migo for the drugs. On the day Williams died, he called Johnson at approximately 2:00 p.m., asked if Migo was outside, described what Migo was wearing, and asked Johnson if he
Johnson also testified that Williams called him at 3:00 p.m., saying that “Migo stabbed me” or “tried to kill me.” Johnson asked Williams where he was, but Williams was speaking with someone in the background and did not respond. Johnson hung up and tried to call back, but Williams did not answer. Williams‘s cell phone log revealed that on the day of the stabbing, he called Johnson at 2:08 p.m., Johnson called Williams at 2:16 p.m., Williams called Johnson again at 3:00 p.m., and Williams later missed two calls from Johnson at 3:07 and at 3:08 p.m.
1. The trial court did not abuse its discretion in admitting Williams‘s statements about the attack under the excited utterance hearsay exception.
Lopez argues that the trial court erred in admitting Williams‘s statements regarding the stabbing under the excited utterance hearsay exception. We disagree.
At a pre-trial motions hearing, the State argued for admission of the statements Williams made to Smith, Bales, Officer Mitchell, and Johnson describing the circumstances of his stabbing and giving the name and description of his attacker under the dying declaration and excited utterance hearsay exceptions. Defense counsel objected. The trial court ruled that the statements were admissible as excited utterances.
The excited utterance hearsay exception provides that “[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” will not be excluded by the hearsay rule.
Ample evidence in the record supports the trial court‘s finding that Williams was under the stress of excitement of a startling event — being stabbed — when he made the statements at issue. Witnesses testified that Williams honked his horn, yelled repeatedly that Migo stabbed him, and was so visibly shaken even after Officer Mitchell arrived that the officer noted his agitated mental state and tried to calm him down. Williams made the statements only a few minutes after he was stabbed because Kitchen saw him alive and uninjured a mere 20 minutes prior to Williams‘s telephone call to Johnson and his conversation with Smith and Bales describing the stabbing. Moreover, Williams recounted the stabbing to Johnson, Smith, and Bales while seated in the car where the stabbing occurred and surrounded by his own blood. See United States v. Belfast, 611 F3d 783, 817-818 (11th Cir. 2010) (statement was an excited utterance even when made four hours after the startling event because the victim was unable to escape the location where the event occurred and thus likely continued to experience trauma from the incident).
Lopez argues that Williams‘s statements are “narratives” and thus inadmissible as
2. Admitting Williams‘s statements regarding drug sales and related debt was not reversible error.
Lopez argues that the trial court erred in admitting testimony by Sawyer, Kitchen, and Johnson regarding statements Williams made about his drug sales to Lopez and the debt Lopez owed him. Again, we disagree.
Prior to Lopez‘s trials, the State sought a ruling allowing it to introduce hearsay evidence under the residual exception to the hearsay rule found at
(a) The trial court did not abuse its discretion in admitting Williams‘s statements to Kitchen and Johnson under the residual hearsay exception.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
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.
The residual exception is to be used “very rarely[,]” only in “exceptional circumstances, and only when there exist[] certain exceptional guarantees of trustworthiness and high degrees of probativeness and necessity.” Atkins, 310 Ga. at 251 (2) (citation omitted) (emphasis in original). Statements are considered sufficiently trustworthy “not because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made.” Id. (citation omitted); see also Miller v. State, 303 Ga. 1, 5 (2) (810 SE2d 123) (2018) (“Whether there are exceptional guarantees of trustworthiness is a determination that focuses on the declarant and the circumstances under which the declarant made the statement to the witness.” (citation omitted) (emphasis in original)).
In this case, the trial court determined that Williams‘s statements to Kitchen and Johnson were admissible under Rule 807 because the statements were offered as evidence of the material facts that Lopez owed Williams money for drugs and that Lopez‘s moniker was Amigo or Migo, there was no other evidence to establish these material facts, the statements were consistent, Williams had no reason to lie about Lopez owing him money for drugs, and the interest of justice would be best served by admitting the statements. Lopez argues that Rule 807 does not apply because non-hearsay testimony from multiple witnesses was sufficiently probative of the material facts that the State sought to prove to negate the State‘s need to use the hearsay testimony.
As the trial court found, there was no evidence apart from hearsay statements to show that Lopez owed Williams money for drugs, that Williams was overcharging Lopez for the drugs, and that 20 minutes before he was stabbed, Williams planned to meet Lopez for Lopez to pay his debt and purchase more drugs.2 These statements were “material as evidence of the nature of the relationship between [Lopez] and the victim that sheds light on [Lopez‘s] motive in committing the offenses charged.” Rawls, 310 Ga. at 215 (3) (a) (i) (citation and punctuation omitted). And Lopez has not shown that the trial court erred in concluding that the evidence was more probative in showing Lopez‘s motive for stabbing Williams than any other evidence the State could procure through reasonable efforts.
The evidence also supports the trial court‘s finding that Williams‘s statements to Kitchen and Johnson had the requisite guarantees of trustworthiness. Testimony established that Williams had a very close relationship with both Kitchen and Johnson: he had
known them for approximately ten years, spoke with them on a daily basis, and was related to Kitchen by marriage. Moreover, both Kitchen and Johnson knew that Williams sold drugs long before the stabbing occurred; in fact, Johnson was a fellow drug dealer. See Rawls, 310 Ga. at 215 (3) (a) (i) (victim‘s close relationship with witnesses gave her statements to them about her boyfriend‘s abuse sufficient guarantees of trustworthiness to be admissible under Rule 807); Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019) (trial court did not abuse its discretion by admitting statements under Rule 807 because the statements were made within the confines of the close relationship between the victim and her close friend, and the victim had no reason to lie to her friend regarding the issue). In addition, Williams‘s statements were consistent with non-hearsay evidence, including Sawyer‘s testimony that Williams sold drugs to Lopez previously and that Lopez and Williams talked together in an apartment where drug activity occurred
The above factors support the trial court‘s conclusion, and we are “particularly hesitant to overturn a trial court‘s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” Davenport v. State, 309 Ga. 385, 390 (3) (846 SE2d 83) (2020) (citation and punctuation omitted). Accordingly, we see no abuse of discretion in the trial court‘s decision to admit Williams‘s statements. See Reyes v. State, 309 Ga. 660, 668 (2) (b) (847 SE2d 194) (2020) (no abuse of trial court‘s discretion in permitting testimony under Rule 807 where the decision was based on a number of factors that weighed in favor of finding declarant‘s statements to be trustworthy).
(b) The trial court did not commit plain error by admitting Williams‘s statement to Sawyer that Migo owed him money because Lopez did not show that the admission probably affected the outcome of his trial.
To establish plain error, Lopez “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.” Denson v. State, 307 Ga. 545, 547-548 (2) (837 SE2d 261) (2019) (citation and punctuation omitted). To show that his substantial rights were affected, Lopez must make an “affirmative showing that the error probably did affect the outcome below.” McKinney v. State, 307 Ga. 129, 135 (2) (b) (834 SE2d 741) (2019) (citation and punctuation omitted). If Lopez fails to meet any one of the elements of the plain error test, his claim fails. See Denson, 307 Ga. at 548 (2).
Lopez has not shown that Sawyer‘s testimony regarding Williams‘s statement likely affected the outcome of his trial. Sawyer‘s passing statement that she overheard Williams say that Migo owed him money was cumulative of much more extensive testimony to that effect from Kitchen and Johnson. “[T]he erroneous admission of hearsay is harmless where substantial, cumulative, legally admissible evidence of the same fact is introduced.” Anglin v. State, 302 Ga. 333, 336 (2) (806 SE2d 573) (2017); see also Davis v. State, 302 Ga. 576, 584 (4) (805 SE2d 859) (2017). Also, the overall case against Lopez was strong: eyewitness testimony established that Lopez got into Williams‘s car approximately 20 minutes before the stabbing, and the bag found in Williams‘s car contained fingerprints and DNA that matched Lopez‘s. And ample evidence was presented that Lopez was the “Migo” that Williams identified as his assailant to multiple individuals. In the light of all the evidence, Lopez has failed to show that any error likely affected the outcome. See Rawls, 310 Ga. at 216 (3) (a) (ii) (defendant failed to show that hearsay testimony admitted under Rule 807 likely affected the outcome of his trial because the testimony was cumulative of properly admitted testimony and the overall case against the defendant was strong).
Judgment affirmed. All the Justices concur.