McEady v. State

• Decision Date: 25 June 2020
• Docket Number: A20A0185
• Parties: MCEADY v. The STATE.
• Court: Georgia Court of Appeals

355 Ga.App. 820

846 S.E.2d 94

MCEADY

v.The STATE.

A20A0185

Court of Appeals of Georgia.

June 25, 2020

Kathleen Strang, for Appellant.

Bradfield M. Shealy, District Attorney, Michelle T. Harrison, Assistant District Attorney, for appellee.

Doyle, Presiding Judge.

Following a jury trial, Armaster McEady was convicted of burglary,¹ rape,² and aggravated battery.³ He appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support the guilty verdict; (2) the trial court erred by admitting hearsay statements from the victim under OCGA § 24-8-807 (the residual hearsay exception); and (3) the trial court erred by admitting certain other hearsay statements by the victim under OCGA § 24-8-803 (4) (the medical treatment hearsay exception). For the reasons that follow, we conclude that the evidence was sufficient, but there were potential errors in admitting the hearsay evidence. Nevertheless, based on the record before us, including the strong forensic evidence identifying McEady and the cumulative nature of the challenged hearsay, we affirm.

Construed in favor of the verdict,⁴ the evidence shows that 74-year-old E. A. lived with her adult daughter, Sheila Matchett, in Valdosta, Georgia. E. A. was physically and mentally infirm and required help conducting basic daily tasks. In April 2015, Matchett arrived home one evening and found that her mother had been beaten and raped. Police responded to the scene, and E. A. was transported by ambulance to the emergency room where she was examined by hospital medical staff. E. A. suffered injuries to her eyes, jaw, and face, and she had two broken ribs

. Based on E. A.’s presentation and complaints, hospital staff called in an outside sexual assault nurse examiner ("SANE") to perform a sexual assault exam and interview. The SANE collected biological samples from E. A.’s clothing and body, and E. A. told the SANE that she had been raped, but she did not identify her attacker at that time. At trial, Matchett gave hearsay testimony that on the day after the attack, E. A. said that she recognized her attacker's voice as McEady's. McEady had dated Matchett off and on for several years, and E. A. was familiar with him. Matchett had just ended their relationship the previous month.

Police approached McEady, who agreed to speak to them after being Mirandized .⁵ McEady denied being at the residence and gave an alibi, which later did not check out. McEady admitted that he knew E. A. from his time dating Matchett. McEady also agreed to give a DNA sample from a cheek swab.

The Georgia Bureau of Investigation performed a DNA analysis on the biological and clothing samples taken from the SANE's exam. The analysis revealed the presence of seminal fluid on E. A.’s underwear and the presence of DNA from E. A. and from McEady on her underwear. No other individual's DNA was detected.

Based on this evidence, McEady was charged with burglary, rape, and aggravated battery. Following a trial, a jury found him guilty on each count, and his motion for new trial was denied. He now appeals.

1. McEady first argues that the evidence was insufficient to support the guilty verdict. We disagree.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.⁶

Here, the evidence is undisputed as to the fact that E. A. was attacked and raped. Her injuries were obvious and clearly caused by an assailant. E. A. was bedridden due to her age and other infirmities, and she was at home alone. The main issue at trial was the identity of her attacker. McEady argues that E. A. told police and the SANE that she could not identify her attacker, and only identified McEady the next day, when she told Matchett. McEady also relies on the lack of physical evidence gathered from the residence that tied him to the scene.

Nevertheless, the record also shows that E. A. was frightened when she gave the conflicting statements, and the jury was authorized to infer that she only felt comfortable discussing the attack with her daughter. Most importantly, the record shows that seminal fluid and McEady's DNA were found in E. A.’s underwear; no other foreign DNA was found in the samples. Further, McEady's alibi did not check out when police attempted to verify it, and it is undisputed that McEady had knowledge of how to enter the house through a broken door without a key. "Resolving evidentiary conflicts and inconsistences and assessing witness credibility are the province of the fact finder, not the appellate court."⁷ Accordingly, the evidence amply authorized the jury to find that McEady committed the crimes alleged.⁸

2. McEady also contends that the trial court erred by admitting certain hearsay testimony from Matchett that E. A. told her one day after the attack that McEady was the perpetrator. We conclude that the trial court did not follow the proper test in admitting the evidence, but in light of the strong and uncontroverted DNA evidence identifying McEady, this error does not warrant a retrial.

At trial, Matchett testified about a visit with E. A. the day after the rape. On direct, the State asked Matchett, "Who brought up the topic of the rape?" and after Matchett replied that E. A. had, McEady's counsel objected. The jury was excused, and counsel was allowed to make a record of his objection, which renewed a pre-trial objection to this testimony. The court previously had overruled McEady's challenge following a pre-trial hearing, which ruling was memorialized in a written order by another judge, and the trial judge again overruled the objection at trial. After the jury was brought back in, Matchett testified that E. A. told her that she recognized McEady's voice and identified him as the attacker.

Both the pretrial ruling and contemporaneous ruling purported to admit the evidence under a "necessity exception" but cited the current "residual exception" to hearsay under OCGA § 24-8-807.

OCGA § 24-8-807 provides, in relevant part:

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.

This Code section "is borrowed from the Federal Rules of Evidence and is not a rule that was carried over from Georgia's former Evidence Code."⁹ Thus, unlike the necessity exception, which no longer applies,¹⁰ the residual exception contains new requirements not already in our case law before Georgia adopted the new Evidence Code in 2013.¹¹

These factors include a consideration of the trustworthiness of the original declarant, given the circumstances in which they were first made, and whether guarantees of trustworthiness exist that are equivalent in significance to the specific hearsay exceptions enumerated in Federal Rules of Evidence 803 and 804. Therefore, such guarantees must be equivalent to cross-examined former testimony, statements under a belief of impending death, statements against interest, and statements of personal or family history.¹²

Here, the trial court did not engage in this analysis, nor do the parties cite to current case law elucidating its application. Nevertheless, pretermitting whether the hearsay could be admissible under a proper Rule 807 analysis, "even where an abuse of discretion is shown, there are no grounds for reversal if the error did not affect a ‘substantial right,’ and thus harm, the defendant."¹³ To make this determination, "we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done ..., and we assess whether it is highly probable that the error did not contribute to the verdict."¹⁴

As noted above, the hearsay testimony McEady challenges was E. A.’s identification of McEady as her attacker. In light of the uncontroverted and unexplained evidence that seminal fluid and McEady's DNA were found in E. A.’s underwear immediately after the rape, it is highly probable that an erroneous admission of E. A.’s hearsay identification did not contribute to the verdict.

Moreover, E. A.’s identification was cumulative of the unrebutted DNA evidence identifying McEady. In other similar cases, Georgia courts have held that the improper admission of hearsay testimony was harmless when it was cumulative of other properly admitted evidence.¹⁵ In light of the record before us, we conclude that the DNA evidence of McEady's identity rendered harmless any error in the admission of E. A.’s hearsay identification.

3. Last, McEady challenges the admission of the statements E. A. made to the SANE during the sexual assault examination. He characterizes these statements as an "alleged identification of" McEady, but the SANE testified that E. A. did not identify anyone in particular.¹⁶ Rather, according to the SANE, E. A. only "told me that it was an unknown black male." The SANE proceeded to testify, without objection, as to some of E. A.’s descriptions of the attack, such as that...