Gay v. State

• Decision Date: 28 March 2005
• Docket Number: No. S05A0401.,S05A0401.
• Citation: Gay v. State, 611 S.E.2d 31, 279 Ga. 180 (Ga. 2005)
• Parties: GAY v. The STATE.
• Court: Georgia Supreme Court

611 S.E.2d 31

279 Ga. 180

GAY v.The STATE.

No. S05A0401.

Supreme Court of Georgia.

March 28, 2005.

John Kendall Gross, Metter, for appellant.

William Steven Askew, Dist. Atty., Charles David Howard, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Raina Jeager Nadler, Asst. Atty. Gen., for appellee.

THOMPSON, Justice.

Charles "Metro" Gay was convicted of malice murder in connection with the shooting death of Shakela Jones.¹On appeal, Gay asserts that the trial court improperly admitted certain hearsay testimony under the necessity exception to the hearsay rule and in violation of the confrontation clauses of the federal and state constitutions.Finding no reversible error, we affirm.

Eight-year-old Shakela Jones died from a gunshot wound to her abdomen.Viewed in a light favorable to the verdict, the evidence reveals that, in the weeks leading up to her murder, Shakela's stepfather, Manvester "Gator" Evans, was suspected of shooting Charles "Metro" Gay.

On the day in question, Gay attempted to punch Evans through an open car window, after which Evans sped away and gave Gay's description to the police.A few hours later, Gay reappeared in front of Evans' home, waving a gun and looking for Evans.When Evans' wife saw Gay running toward the house, she ran inside and dialed 911.Gay kicked down the front door, entered the living room, and shot at Evans' three stepchildren, killing Shakela and wounding her brother.Gay fled in the direction of a trailer park behind Evans' home, where police apprehended him and recovered the murder weapon from a nearby rooftop.

1.The evidence was sufficient to enable a rational trier of fact to find Gay guilty beyond a reasonable doubt of malice murder.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.At trial, Evans refused to testify and was held in contempt.As a result, the trial judge allowed Georgia Bureau of Investigation Agent Lynn to testify as to certain statements that Evans had made to her shortly after Shakela's murder.Specifically, at the hospital to which authorities rushed Shakela immediately after the shooting, Evans told Lynn that (1)he had seen Gay outside his home with a gun immediately before the murder; (2)he and Gay had been involved in an altercation on the day of the murder, where Gay tried to punch him through a car window; and (3) Evans had heard that Gay thought Evans had shot him.Gay asserts that the trial court improperly admitted Evans' statements in violation of the confrontation clauses of the federal and state constitutions.We find that though the trial judge erred in admitting Evans' statements, any such error was harmless.

The confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant.Crawford v. Washington,541 U.S. 36 40, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004).²This Court has recently held that "statements made to police officers during an investigation qualify as testimonial."Watson v. State278 Ga. 763, 768(2), 604 S.E.2d 804(2004);Bell v. State,supra at 72, 597 S.E.2d 350;Moody v. State,277 Ga. 676, 679-680, 594 S.E.2d 350(2004).Evans' statements to Agent Lynn during the course of Shakela's murder clearly fall within this category.In addition, Gay did not have the opportunity to cross-examine Evans because Evans refused to testify.Livingston v. State,268 Ga. 205, 206, 486 S.E.2d 845(1997).

It follows that Evans' statements to Agent Lynn do not meet the constitutional burden of admissibility as set out in Crawford, and that the trial judge should have excluded them without engaging in a hearsay or reliability analysis.We hold, however, that any such error was harmless beyond a reasonable doubt, because the hearsay portion of Agent Lynn's testimony was cumulative of other admissible evidence.Moody v. State,supra at 679, 594 S.E.2d 350.First, Shakela's mother and two brothers also identified Gay as the shooter.Secondly, Evans' cousin by marriage, Cheryl Wright, testified that she witnessed an altercation between Gay and Evans on the day of Shakela's murder, during which Gay attempted to punch Evans through a car window and Evans attempted to run Gay over.Finally, Lyons Police Chief Marcus Reid testified that Gay was shot and that, though he was not charged, Evans was developed as the suspect in Gay's shooting.Cheryl Wright also testified that she saw Evans and Gay in the same alleyway immediately before Gay was shot, and that Gay came running out of the alleyway with a gunshot wound.In light of this evidence, which provided the substance of Evans' hearsay statements, any error in admitting Agent Lynn's testimony was harmless beyond a reasonable doubt.³Johnson v. State,238 Ga. 59, 60-61, 230 S.E.2d 869(1976).

3.Gay also contends that the trial court improperly admitted Evans' statements to Agent Lynn under the necessity exception to the hearsay rule.We find that though Evans' statements do not properly fall within the necessity exception, any error in admitting...