State v. Kenney

Michael Kenney was charged with murder in the shooting death of Laquitta Brown. Before trial, Kenney asked the court to block testimony from Laquitta's partner, Aisha, about things a third woman, Sharrie Dixon, allegedly told her the night of the killing. Dixon witnessed events that night but died in an unrelated incident weeks later, so she could not testify herself. The State wanted Aisha to repeat Dixon's out-of-court statements at trial, arguing they fit exceptions to Georgia's rule against hearsay (secondhand statements offered to prove what happened). The trial court excluded the statements, and the State appealed. The Supreme Court of Georgia found the State had given up its arguments that the statements qualified under two specific hearsay exceptions by conceding at the hearing that those exceptions could not apply. As for the remaining argument, a catch-all 'residual exception,' the court found the trial judge reasonably concluded the statements lacked strong enough guarantees of trustworthiness, given Dixon's intoxication and her thin relationship with Aisha.

The court held that the State affirmatively gave up its arguments that Dixon's statements qualified as present sense impressions or excited utterances, and that the trial judge did not abuse his discretion in finding the statements lacked the exceptional trustworthiness needed to qualify under the residual hearsay exception, given Dixon's intoxication and lack of a shown close relationship with Aisha.

The ruling reinforces that Fulton County prosecutors and others must fully preserve every hearsay argument at trial hearings, since conceding a point can permanently waive it on appeal, and it shows how closely courts scrutinize claims that secondhand statements from unavailable witnesses are trustworthy enough for a jury to hear.

Affirmed

1. The court explained that Georgia's hearsay rule generally bars secondhand statements from being used as evidence, but recognizes exceptions, including for present sense impressions and excited utterances (statements made right as or right after something startling happens) and a catch-all 'residual exception' (O.C.G.A. § 24-8-807) for statements with strong guarantees of trustworthiness.
2. Reviewing the hearing transcript, the court found the prosecutor had told the trial judge that the State 'can't use' the present-sense-impression and excited-utterance exceptions by themselves, which the court treated as an intentional concession, meaning the State affirmatively gave up (waived) those arguments and could not raise them again on appeal.
3. Turning to the residual exception, the court applied the rule that a statement can only be admitted if the circumstances show exceptional guarantees of trustworthiness, similar to those found in other established hearsay exceptions.
4. The court found the trial judge reasonably relied on the lack of evidence showing a close relationship between Dixon and Aisha, Dixon's intoxication when she spoke, and Dixon's inability to identify Kenney in a photo lineup despite spending hours with him, all of which supported doubting the reliability of her statements.
5. Although the trial judge mistakenly cited old cases from Georgia's former evidence rules that no longer apply to the residual exception, the Supreme Court of Georgia found this error harmless because the judge still applied the correct legal standard overall.
6. Because the trial judge's factual findings were supported by the record and the legal standard was properly applied in the end, the court concluded there was no abuse of discretion and upheld the exclusion of the statements.

• murder case
• hearsay exception
• witness statements
• Fulton County
• evidentiary waiver