Evans v. the State.

• Decision Date: 28 February 2011
• Docket Number: No. S10A2042.,S10A2042.
• Citation: 288 Ga. 571,707 S.E.2d 353
• Parties: EVANSv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 571
707 S.E.2d 353
11 FCDR 220
11 FCDR 440

EVANS
v.
The STATE.

No. S10A2042.

Supreme Court of Georgia.

Feb. 7, 2011.Reconsideration Denied Feb. 28, 2011.

[707 S.E.2d 355]

Daniel B. Kane, Atlanta, Gary W. Jones, Marietta, for appellant.Thurbert E. Baker, Attorney General, Department of Law, John Patrick H. Head, District Attorney, John R. Edwards, Ann B. Harris, Amelia G. Pray, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.MELTON, Justice.

[288 Ga. 571] Omar Evans was tried and found guilty by a jury of malice murder, felony murder, aggravated assault, and possession of a firearm by a convicted felon relating to the shooting death of Dharren Henderson.¹ Among other things, Evans contends on appeal that the trial court made a number of improper evidentiary rulings and that he received ineffective assistance of trial counsel. For the reasons set forth below, we affirm.

1. Viewed in the light most favorable to the verdict, the record shows that, on March 11, 2010, Dharren Henderson (the victim) and his brother, Darnell Henderson (Henderson), went to a shopping plaza off Six Flags Drive in Cobb County to eat lunch. As they were walking into a restaurant, Evans, whose nickname was “Tic,” gave them a dirty look. Evans and the victim exchanged words. Henderson and the victim went into the restaurant to order food, the victim briefly stepped outside, and when the victim returned, he told his brother that Evans had “tried him.” Henderson and the victim then went back to their car. After a moment, the victim got out of the car to smoke a cigarette. Henderson next heard the victim and Evans arguing loudly outside the car. When Henderson got out of the car to try to calm things down, he saw Evans “raise his hand up” and heard gunshots.² Henderson saw the victim fall to the ground. Fearing that Evans would also shoot him, Henderson jumped in his car and drove away. After realizing that Evans was not following him, Henderson returned to the parking lot. The victim had been shot five times and died

[707 S.E.2d 356]

from gunshot wounds to the head and torso. Henderson initially refused to cooperate with police, claiming that he intended to seek personal revenge against Evans. Henderson eventually capitulated, and he later informed the police that Evans was the shooter and identified Evans in a photo lineup.

Several witnesses testified to seeing Evans in the plaza the day [288 Ga. 572] of the shooting. Maurice Stephens, who was getting a haircut at the time of the shooting, saw Evans standing outside the barber shop shortly before the shooting. After the shooting, Stephens ran outside and heard Henderson's brother yelling “Tic shot [my] brother.”

Further evidence revealed that the victim and Evans knew each other before the fatal shooting. The night before the victim's murder, Alterick McCall, the victim's cousin, was hanging out at Henderson's girlfriend's apartment ³ when the victim came running in out of breath. The victim told McCall that some guys, including Evans, had tried to “jump” him in the park. The same evening, Corey Stroud, another witness, saw Evans and the victim engaged in an argument at a local football field.

This evidence was sufficient to enable a rational trier of fact to find Evans guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Evans contends that the trial court erred in allowing the State to introduce evidence about the altercation between Evans and the victim that happened on the night before the shooting. Specifically, Evans asserts that the trial court should have excluded McCall's testimony regarding the victim's statement that Evans had “jumped him,” arguing that this statement constituted inadmissible hearsay. The trial court held that the statements were admissible under the necessity exception to hearsay. See OCGA § 24–3–1(b).

“For hearsay to be admitted under the necessity exception, it must be established that the testimony is necessary and that it has particular guarantees of trustworthiness.” (Citation omitted.) Williams v. State, 279 Ga. 731, 733(5), 620 S.E.2d 816 (2005). This Court has defined three basic requirements for admission of hearsay under the necessity exception: (1) the declarant is unavailable, (2) the declarant's statement is relevant to a material fact and more probative on that material fact than other evidence that may be procured and offered, and (3) the statement exhibits particularized guarantees of trustworthiness. See Watson v. State, 278 Ga. 763(2), 604 S.E.2d 804 (2004). The victim's statement to McCall satisfies all three prerequisites. First, the victim had been murdered and was not available. Second, the statements had the appropriate indicia of trustworthiness because they were made when the victim was confiding in his cousin, whom he had known all his life and had lived with for some time. Ward v. State, 271 Ga. 648, 650(2), 520 S.E.2d 205 (1999) (where it is shown, under the totality of the circumstances that the statements were made to “one in whom the deceased declarant placed great confidence and to whom [he or] she [288 Ga. 573] turned for help with [his or] her problems,” statements are admissible under the necessity exception). Third, the victim's statement was highly probative of the combative nature of his relationship with Evans. The trial court did not abuse its discretion in admitting McCall's testimony.

3. Evans argues that the trial court erroneously allowed the State to introduce evidence of Evans' involvement in a prior shooting as a similar transaction. We review the trial court's decision for an abuse of discretion. See Moore v. State, 288 Ga. 187(3), 702 S.E.2d 176 (2010); Gunn v. State, 300 Ga.App. 229(3), 684 S.E.2d 380 (2009).

Evidence of an independent offense is admissible where the State shows: (1) that it seeks to introduce the evidence for an appropriate purpose, (2) there is sufficient evidence to establish that the defendant committed the independent offense, and (3) there is sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to

[707 S.E.2d 357]

prove the latter. Williams v. State, 261 Ga. 640(2)(b), 409 S.E.2d 649 (1991).

In addition to a certified copy of Evans' guilty plea to three counts of aggravated assault, other evidence showed that the prior shooting occurred in 1996 less than five miles away from the scene of the murder now in question. Further evidence shows that Maurice Stephens was confronted by a man who thought Stephens had stolen a radio, and they had an argument. On the night of the...