Tanner v. State

• Decision Date: 28 August 2017
• Docket Number: S17A1024
• Citation: 804 S.E.2d 377
• Parties: TANNER v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 852

804 S.E.2d 377

TANNER

v.The STATE.

S17A1024

Supreme Court of Georgia.

Decided: August 28, 2017

Dawn M. Seibert, H. Bradford Morris, Jr., NORTHEASTERN CIRCUIT PUBLIC DEFENDER'S OFFICE, P. O. Box 390, Gainesville, Georgia 30503, for Appellant.

Juliet Aldridge, A.D.A., Lee Darragh, District Attorney, Laura Katherine Lukert, NORTHEASTERN CIRCUIT DISTRICT ATTORNEY'S OFFICE, P.O. Box 1690, Gainesville, Georgia 30503, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Elizabeth Michelle Haase, Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

HINES, Chief Justice.

Leshan Tremiele Tanner appeals his convictions for felony murder, conspiracy to commit robbery, and attempt to purchase marijuana all in connection with the fatal shooting of Cedric Huff. He challenges the admission into evidence of statements by the victim to the victim's mother and the sufficiency of the evidence of his guilt. We find the challenges to be without merit; however, we vacate in part because of an error in sentencing.¹

The evidence construed in favor of the verdicts showed the following. On the afternoon of June 5, 2014, a "loud smack" was heard coming from an apartment complex on West Avenue in Hall County. An African American man was seen running out of an apartment building and entering a white truck before it took off down West Avenue. A second man who was shirtless and carrying a colorful book bag ran out of the same building and in the same direction as the truck. A man in yellow shorts with "red" on them walked out of the building and said he had been shot. Paramedics found this man, Cedric Huff, lying outside bleeding from an apparent gunshot wound. Huff was stabilized and taken to the hospital. When asked what happened, Huff said he did not know what happened or who was responsible. He would not give the police permission to enter his apartment even though he had his key with him in the ambulance. As a result, a search warrant for Huff's apartment was requested and executed.

Police saw overturned furniture and blood throughout Huff's apartment, suggesting a struggle occurred; but, there were no signs of forced entry. Drug paraphernalia and varying amounts of marijuana were found. A total of three or four pounds of marijuana was found in the main bedroom, some of which was packaged individually. Given the amount of drugs found in the apartment, investigators did not find Huff's evasiveness unusual. Although no money was found inside the apartment, $922 was found in Huff's shorts. Two cell phones were found inside the apartment and one outside.

Huff's girlfriend, Michelle Watson, saw Huff four to five times a week and spoke with him daily. She was aware that he sold marijuana. He customarily locked his door every time someone entered or exited, and would not give Watson a spare key to his home. Instead of calling 911, Huff called Watson after he was shot. Watson had seen Tanner at his job at Denny's several months before the shooting when Huff took him "some." Tanner and Huff had grown up together and had gone to the same high school.

Huff was in the hospital's intensive care unit for sixteen days, mostly in an unconscious state due to a medically-induced coma. However, at one point he awoke, and had a conversation with his mother, Mary Huff, who was sitting by his side. She asked Huff if he knew who she was and where he was, and he replied, "yes, momma." She then asked him what happened, and "who did this" and he replied, "they robbed me." When asked who, he said "Leshan Tanner" twice and confirmed that Tanner worked at Denny's. He also mentioned "Oakwood" and when asked who else was involved in the shooting, he replied "Little Monster." Huff's mother was unfamiliar with either Tanner or "Little Monster," but implored her son to tell someone the truth as to what happened. However, before he could do so, the forty-one-year-old Huff died on June 21, 2014. The cause of death was a single gunshot wound to the chest.

Tanner had vacated his Oakwood apartment on June 12, 2014, a week following the shooting, after receiving an eviction notice due to the nonpayment of three months' rent and related charges, which amounted to over two thousand dollars. On June 21, 2014, the police found a white truck matching the description of the one at the crime scene at a house where Tanner's girlfriend was known to sometimes stay. It was parked under a shrub behind several vehicles with its tag obscured from street view.

A search warrant was obtained for Tanner's parents' home, and although Tanner had previously told police that he did not have a cell phone, his phone was found in his mother's underwear drawer. Text messages and contacts were deleted from the phone, including those involving Huff and Tanner's co-indictee Rodnie Maurice Stokes.² Police were able to retrieve these communications and pull the call log between Tanner and Stokes. The text messages indicated that Tanner and Stokes were involved in illegal business dealings, and cell phone records showed traffic between Tanner and Huff through May 2014, and at the beginning of June 2014. In fact, Tanner made contact with Huff two days before and on the day of the shooting, and there were contacts between Tanner and Stokes following the shooting. Investigators also discovered that, although Tanner did not have much of an internet search history prior to June 5, 2014, afterwards he searched, inter alia, for the Gainesville Times, the Hall County Sheriff's Office, obituaries, and the FBI's "Most Wanted" list.

Tanner was interviewed twice by the police. In the first interview, he said that he went alone to Huff's place to buy his usual quarter ounce of marijuana; that he and Huff were the only ones there; that he did not have a cell phone and just "popped up" at Huff's home; and that Huff was "fine" when he left his apartment that day. In the second interview, Tanner's story changed significantly. He said he went to Huff's residence with "Rebel," later identified as Stokes; that he had used his cell phone to speak to Huff to order a larger amount of marijuana than usual; that he used the same cell phone to communicate with Stokes before and after the encounter with Huff; and that he heard a shot while in Huff's home, but did not see any blood.

1. Tanner contends that the trial court committed reversible error in admitting Huff's hearsay statements pursuant to OCGA § 24–8–807 ("Rule 807")³ because they were not sufficiently reliable and were far less probative than the testimony of eyewitness Stokes, whose testimony the State had procured but chose not to present.⁴

It is certainly true that the residual hearsay exception contained in Rule 807 was designed to be used very rarely and only in exceptional circumstances, and only when there exists certain exceptional guarantees of trustworthiness and high degrees of probativeness and necessity. Smart v. State , 299 Ga. 414, 421 (3), 788 S.E.2d 442 (2016). In this case, during trial but outside the presence of the jury, the State made a proffer of the pertinent, anticipated testimony of Huff's mother, and following the proffer and argument by counsel, the trial court permitted the testimony, finding that the requirements of Rule 807 were met.⁵

In the proffer, Ms. Huff testified that her son called her after he had been shot, and told her only that he had been shot and was at home; she was unable to further speak with her son until twelve days after his surgery because he was in a coma; when Huff awakened at the hospital, she was by his side; that Huff then told her what happened; and that she implored him to tell the truth or that she would do so.⁶ Ms. Huff also testified that her son knew who she was in spite of having a fever; that she kept in touch with her son all of his life and lived around the corner from him; that they talked on a regular basis, with her son calling her every other day; and that her son had lived with her prior to moving into his home three years before his death. Under Rule 807, a trial court's decision to admit hearsay evidence is reviewed for an abuse of its discretion. See Rivers v. United States , 777 F.3d 1306, 1312 (11th Cir. 2015). And as noted, Rule 807 applies only when there are "certain exceptional guarantees of trustworthiness." Such categories of hearsay have attributes of trustworthiness over and above that possessed by the general run of hearsay statements, and the hearsay is considered sufficiently trustworthy because of the circumstances under which the hearsay statements were originally made. Smart v. State , supra at 421–422 (3), 788 S.E.2d 442.

In this case, exceptional guarantees of trustworthiness were established. The evidence showed that although Huff was in serious condition and intermittently in a medically-induced coma during the period of his hospitalization, he was lucid and oriented at the time of his statements to his mother. Huff was urged, essentially ordered, by his mother, with whom it was established that he had a close relationship, to tell the truth about who shot him. And, while Huff may not have wanted his mother to know about his drug dealings, he then had no apparent reason to lie to her about the identities of the men who caused his mortal injury. Furthermore, the statements were consistent with other evidence of Tanner's involvement in the crimes. It was within the trial court's discretion to find that the statements were more probative on the identities of the perpetrators than any other evidence, including that from co-indictee Stokes, as they were uttered by the victim himself who had no apparent bias or potential benefit in making such identifications; the testimony of accomplices in a felony prosecution, unlike that of victims, requires corroboration to sustain a conviction. OCGA § 24–14–8.⁷ The totality of the...