Kennebrew v. State

Phillip Kennebrew was convicted of malice murder and other crimes for his role in the 2011 beating and stabbing death of Breyon Alexander during a robbery in DeKalb County. His first conviction was overturned because of ineffective assistance of his trial lawyer, and after a second trial in 2019, a jury again found him guilty. On this appeal, Kennebrew argued that the trial judge wrongly allowed the jury to hear testimony from a witness, Erin Tew, who had died before the second trial but testified at the first trial, and that this violated Georgia's hearsay rules and his constitutional right to confront witnesses. He also challenged other hearsay statements, including a co-defendant's texted admissions and the victim's own statements about a dispute over a television. The Supreme Court of Georgia rejected all of these arguments, finding Tew's earlier testimony was properly admitted because Kennebrew's lawyer had a real chance to cross-examine her at the first trial, any errors regarding the other statements were harmless given strong evidence of guilt, and the victim's statements met the requirements for Georgia's residual hearsay exception. The conviction was affirmed.

The court held that a dead witness's prior sworn testimony was admissible because the defendant had an adequate opportunity and similar motive to cross-examine her at the first trial, satisfying both Georgia's prior-testimony hearsay exception and the Confrontation Clause, and that any errors in admitting other hearsay were harmless given the strong evidence of guilt.

The ruling clarifies that testimony from a witness who dies before a retrial can be used again if the defendant had a real chance to cross-examine that witness earlier, which matters for prosecutors and defense lawyers handling retrials and long-running Georgia murder cases.

Affirmed

1. The court applied Georgia's prior-testimony hearsay exception (OCGA § 24-8-804(b)(1)), which allows an unavailable witness's earlier sworn testimony if the defendant had an adequate opportunity and similar motive to cross-examine the witness before.
2. The court found the defense lawyer at the first trial meaningfully cross-examined the witness, Erin Tew, getting her to admit she never knew the defendant, showing an adequate opportunity to develop the testimony.
3. Because the same charges, the same prosecution theory that the defendant participated in the crimes, and a similar defense strategy of distancing the defendant from his co-defendants existed at both trials, the court concluded the similar-motive requirement was also satisfied.
4. Having found the hearsay exception satisfied, the court held the Confrontation Clause of the Sixth Amendment, which requires either live testimony or a prior chance to cross-examine an unavailable witness, was also satisfied for the same reasons.
5. On the claim about a co-defendant's texted statements relayed through Tew, the court assumed without deciding there was error but found it harmless because the statements did not name the defendant and the trial evidence of his guilt, including his own recorded interview, was strong.
6. On the victim's hearsay statements about a dispute with a co-defendant over a television, admitted under Georgia's residual hearsay exception (OCGA § 24-8-807) for trustworthy statements not covered by another rule, the court found the statements reliable because they were made to a close family member, were corroborated, and served the legitimate purpose of showing motive rather than harming the defendant's character.

• murder conviction
• hearsay exceptions
• Confrontation Clause
• retrial
• DeKalb County