THE STATE v. HAMILTON.
S19A1363
Supreme Court of Georgia
308 Ga. 116
WARREN, Justice.
FINAL COPY
This case, which involves Marlina Hamilton‘s indictment for the murder of her ex-husband, Christopher Donaldson, has been appealed to our Court three times. As explained in more detail below, after Hamilton was convicted of felony murder and other crimes in connection with Donaldson‘s death in 2010, the trial court granted a motion for new trial on the general grounds. The State then brought its first appeal, and this Court affirmed the trial court‘s order. State v. Hamilton, 299 Ga. 667, 671 (791 SE2d 51) (2016) (Hamilton I). After the State elected to retry Hamilton, she moved for immunity from criminal prosecution based on self-defense under
The trial court granted that request, over the State‘s objection, by written order. The State appealed that order under
In April 2019, the trial court held a hearing on Hamilton‘s immunity motion, and, consistent with its earlier order, admitted into evidence the transcripts from Hamilton‘s first trial and her motion for new trial. Later that month, the trial court entered an order granting Hamilton‘s motion for immunity from criminal prosecution under
1. Case History.
(a) Background.
Hamilton and Christopher Donaldson had been in a multi-year, tumultuous relationship — including a marriage and a divorce — before Hamilton killed Donaldson in 2010. On February 23, 2011, a Dougherty County grand jury indicted Hamilton for the malice murder of Donaldson, felony murder based on aggravated assault with a deadly weapon, aggravated assault (family violence), aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. A comprehensive summary of the evidence presented at Hamilton‘s 2011 trial can be found in Hamilton I, 299 Ga. at 667-669, but for purposes of this appeal, we summarize the following: The evidence presented at trial included evidence that Donaldson physically abused Hamilton, including instances of severe abuse, over a period of many years. At trial, Hamilton testified on her own behalf and specifically testified that on the night of Donaldson‘s death, Donaldson was in the midst of attacking Hamilton with his fists in Hamilton‘s own home when Hamilton grabbed a gun that she kept under a sofa and fatally shot him. The evidence also included Hamilton‘s earlier statement to police that she shot Donaldson because she “felt like he was going to kill [her] that night.”
In March 2011, a jury found Hamilton not guilty of malice murder but guilty of the remaining counts, and the trial court sentenced Hamilton to life in prison for felony murder with five consecutive years in prison for the firearm charge.1 Hamilton then filed a motion for a new trial. After an evidentiary hearing, the trial court granted Hamilton‘s motion on the general grounds, see
The State sought to retry Hamilton. At that point, Hamilton, through new counsel, filed a motion for immunity from prosecution under
(c) Trial Court Orders.
On June 1, 2018, the trial court entered an оrder granting Hamilton‘s “motion to use witnesses’ prior sworn testimony to determine if defendant is immune from prosecution pursuant to
In the alternative, the trial court ruled that it could consider the trial transcript under
On April 10, 2019, the trial court conducted a hearing on Hamilton‘s motion for immunity. Hamilton introduced into evidence the transcripts from her 2011 trial and from the hearing on her motion for new trial, without further objection from the State. Both Hamilton and the State relied on the transcripts during the hearing, and neither presented additional testimony or evidence. On April 26, 2019, the trial court entered an order granting Hamilton‘s motion for immunity from prosecution. The State timely appealed that ruling to this Court.
2. It Was Not Procedurally Improper for Hamilton to Mоve for Immunity From Prosecution Under OCGA § 16-3-24.2 Before a New Trial.
As an initial matter, the State makes the strange argument that because immunity from criminal prosecution under
3. The Trial Court Abused its Discretion By Relying on Rule 804 to Admit Prior Transcripts Into Evidence at Hamilton‘s Immunity Hearing.
The State contends that the trial court erred in admitting into evidence, under Rule 804 (b) (1), (and over objection)4 the transcripts from Hamilton‘s previous jury trial and motion for new trial hearing in considering Hamilton‘s motion for immunity from prosecution under
(a) Legal Background.
Our current Evidence Code‘s hearsay rules, and specifically Rule 804 (b) (1), govern the admissibility of former testimony — which was presented in the form of transcripts in this case. See
Georgia Rule 804 (b) (1) is materially identical to Federal Rule of Evidence 804 (b) (1). And when we consider the meaning of a rule in Georgia‘s current Evidence Code that “is materially identical to a Federal Rule of Evidence,” State v. Almanza, 304 Ga. 553, 556 (820 SE2d 1) (2018), “we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit,” for guidance. Glenn v. State, 302 Ga. 276, 280 (806 SE2d 564) (2017) (citation and punctuation omitted); see also Davis v. State, 299 Ga. 180, 185 (787 SE2d 221) (2016); Bolling, 300 Ga. at 698 (“When we consider the meaning of Rule 804, we may consider the decisions of federal appellate courts, particularly the decisions of the United States Supreme Court and the Eleventh Circuit, construing and applying our rule‘s federal counterpart.“). We review a trial court‘s evidentiary rulings for an abuse of discretion. See Venturino v. State, 306 Ga. 391, 393 (830 SE2d 110) (2019).
(b) Rule 804 Analysis.
By its plain terms,
the testimony of the unavailable witness must fall within one of the categories of admissible evidence enumerated in section 804 (b).” United States v. Acosta, 769 F2d 721, 722 (11th Cir. 1985) (quoting United States v. King, 713 F2d 627, 630 (11th Cir. 1983)); cf. United States v. Munoz, 16 F3d 1116, 1121 (11th Cir. 1994) (addressing whether the witness was unavailable before analyzing whether the evidence met the admissibility requirements of Rule 804 (b) (5)); United States v. Elkins, 885 F2d 775, 785 n.7 (11th Cir. 1989) (noting, in analyzing the admissibility of a statement under Rule 804 (b) (5), that “[a] preliminary requirement is that the declarant be unavailable“). The unavailability of a witness, therefore, is a statutory prerequisite that a proponent of hearsay evidence has the burden of proving, and that the trial court must evaluate, before a witness‘s former testimony may be admitted under Rule 804 (b) (1). Acosta, 769 F2d at 722-723 (under Federal Rule 804, “a witness must be ‘unavailable‘“; “[t]he burden of proving the unavailability of a witness under Rule 804 (a) rests with the proponent of the hearsay evidence“; and “the determination as to the ‘unavailability’ of a witness whose prior testimony is sought to be introduced into
In light of these requirements, the trial court‘s reliance on Rule 804 (b) (1) to admit prior transcripts into evidence was an abuse of discretion, because the trial court did not make any findings about the availability of the witnesses who testified at Hamilton‘s trial or at the hearing on her motion for new trial. To the contrary, the trial court found that “hav[ing] to determine that each of the above mentioned witnesses were unavailable before considering their trial testimony . . . does not lead to the discovery of truth.” In making that finding, the trial court focused on the general objectives set forth at the beginning of the Evidence Code, such as “the discovery of truth” and “secur[ing] fairness in administration, eliminat[ing] unjustifiable expense and delay, and promot[ing] the growth and development of the law of evidence.”
To be sure, Hamilton had the burden of proving that the witnesses from her trial and from the hearing on her motion for new trial were unavailable, Lamonica v. Safe Hurricane Shutters, Inc., 711 F3d 1299, 1317 (11th Cir. 2013); Acosta, 769 F2d at 723, and she did not meet that burden here. Indeed, Hamilton offered no evidence about the unavailability of any of the dozens of witnesses (including Hamilton herself) whose testimony was contained in the transcripts she sought to introduce at her immunity hearing; instead, she focused entirely on the reliability and convenience of using the transcripts as compared to re-calling witnesses for live testimony.8
But courts cannot ignore the plain text of specific rules of evidence — even when they purport to do so in the name of “secur[ing] fairness in administration” or avoiding “unjustifiable expense and delay.”9 See
But that conclusion does not end our review. That is because after conducting its Rule 804 (b) (1) analysis, the trial court made an alternate holding under Rule 807, also known as the residual exception to hearsay.10 We now turn to that ruling.
4. The Trial Court Did Not Abuse its Discretion in Evaluating the Admissibility of Prior Transcripts Under Rule 807.
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 genеral purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this Code section unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent‘s intention to offer the statement and the particulars of it, including the name and address of the declarant.
Like
(a) The Trial Court‘s Alternate Holding Under Rule 807
Here, the trial court found that the witness statements contained in the prior transcripts were “not specifically covered by any law” and that Hamilton met the
(b) Rule 807 Analysis.
Unlike
Having concluded that it was “undisputed” that the transcripts at issue were trustworthy — a finding that many federal courts consider the “lodestar of the residual hearsay exception analysis,” 30B Charles Alan Wright, Arthur R. Miller & Jeffrey Bellin, Federal Practice and Procedure § 7063 (2018 ed.) (citation and punctuation omitted) — the trial court focused its
A number of factors lead us to that conclusion. First, there is nо dispute that Hamilton‘s criminal case was fully litigated over the course of an eight-day trial, and that the same judge who presided over that — and who observed the demeanor of witnesses being examined and cross-examined — also presided over Hamilton‘s motion for new trial and immunity hearings.14 Cf. Mathis, 559 F2d at 298-299 (reasoning that live testimony is generally favored and considered more probative, at least in part, because the factfinder is able to observe a witness‘s demeanor, including during cross-examination). Second, the witnesses’ prior testimony would have been considered one way or the other at the immunity hearing if they were called to testify, whether that was because a witness was re-subpoenaed and testified in a way that was materially similar to his or her prior testimony, or because a witness was re-subpoenaed and contradicted his or her prior testimony, thus allowing the prior testimony‘s admission as a prior inconsistent statement. See generally
5. The Trial Court Did Not Err in Granting Hamilton‘s Motion for Immunity From Prosecution.
The State also argues that even considering the prior transcripts, the evidence was not legally sufficient for the trial court to grant Hamilton immunity from prosecution. We disagree.
To prevail on her motion for pretrial immunity under
The State specifically argues that Hamilton‘s own “self-serving,” “[un]corroborated,”
Here, the trial court correctly noted that Hamilton bore thе burden of proving immunity by a preponderance of the evidence and set forth a detailed summary of the relevant evidence. That summary included more than just Hamilton‘s own statements that Donaldson had physically abused her for years, that he was attacking her at the time she shot him, and that she shot him because she “felt like he was going to kill [her] that night“; it also included, among other things, the testimony of several witnesses about Donaldson‘s routine and ongoing physical abuse of Hamilton. Based on that evidence, the trial court found that “Donaldson‘s threat to use deadly force against Hamilton on the night in question was, in fact, imminent under the circumstances. And Hamilton was justified in defending herself.” This enumeration of error thereforе fails. See Sutton, 297 Ga. at 223-225 (trial court did not err in finding that a preponderance of the evidence showed that the defendant shot his brother-in-law in self-defense, thus entitling defendant to immunity from prosecution, where evidence showed that defendant retrieved his gun from the sofa as his brother-in-law advanced into home of defendant‘s mother, and defendant was aware of brother-in-law‘s prior acts of violence).
6. The State‘s Recusal Argument Has No Merit.
The State also argues on appeal that the trial court erred by declining to recuse itself from this case on remand from Hamilton I. The State‘s theory is that the trial court‘s “disregard for the jury‘s verdict” by granting a new trial and “the detailed content of the order of the trial court granting a new trial, inclusive of specific references to the trial transcripts,” particularly in its analysis of trial counsel‘s ineffectiveness in failing to seek pretrial immunity — a specific claim raised by Hamilton in her motion for new trial — “has the appearance of being a part of the trial court‘s ‘personal agenda’ as to how this trial should have turned out.”
But it is not uncommon for a trial judge to preside over the new trial he granted after having presided over the initial trial. See, e.g., Texas v. McCullough, 475 U.S. 134 (106 SCt 976, 89 LE2d 104) (1986) (defendant‘s increased sentence upheld where he was retried by the same judge who presided over first trial and who granted motion for new trial); Adams v. State, 287 Ga. 513, 516 (696 SE2d 676) (2010) (affirming under McCullough the new sentence imposed by the trial court after a motion for new trial because it was permissible for “the triаl court itself [to] order[ ] a new sentencing hearing upon a partial grant of the motion for new trial filed by [the defendant]“); see also Patel v. State, 289 Ga. 479, 486 (713 SE2d 381) (2011) (rejecting argument that “because a trial judge presiding in an action issues a ruling that implicates the merits of the case, that judge must be recused from acting further
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 28, 2020.
Murder. Dougherty Superior Court. Before Judge Lockette.
Gregory W. Edwards, District Attorney, Jeremy R. Hager, Harold R. Moroz, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant.
William J. Godfrey, for appellee.