Lopez v. State ( 2021 )

In the Supreme Court of Georgia
Decided: April 5, 2021
S21A0322. LOPEZ v. THE STATE.
PETERSON, Justice.
Fernando Lopez appeals his conviction for malice murder for
the stabbing death of Corey Williams. 1 Lopez argues that the trial
court admitted improper hearsay evidence against him: Williams’s
dying statements describing the stabbing and his assailant and
Williams’s statements describing his previous and intended future
drug sales with Lopez. But the statements about the attack were
1 The crimes took place on January 26, 2012. On December 13, 2016, a
DeKalb County grand jury indicted Lopez, charging him with malice murder,
felony murder predicated on aggravated assault, and aggravated assault. The
aggravated assault count was ultimately dismissed as untimely under the four-
year statute of limitation. After a trial held on November 26 to 30, 2018, a jury
found Lopez guilty of malice murder and felony murder. The trial court
sentenced Lopez to life in prison with the possibility of parole for the malice
murder charge. The felony murder charge was vacated by operation of law. On
December 20, 2018, Lopez filed a motion for new trial, which he amended on
February 10, 2020. The trial court denied his motion in an order entered on
August 25, 2020. Lopez filed a timely notice of appeal, and the case was
docketed to this Court’s term beginning in December 2020 and submitted for
consideration on the briefs.
admissible under the excited utterance hearsay exception, most of
the statements about drug sales were admissible under the residual
hearsay exception, and the admission of the remaining statement
about drug sales was harmless. We affirm.
The evidence presented at trial showed the following. On
January 26, 2012, Corey Williams was sitting in the driver’s seat of
his car when he was stabbed by someone sitting in the passenger
seat area. Williams drove two streets over and pulled up to three
men: Dusty Smith, Aaron Bales, and Jacob Christmas. Williams
blew his horn and called to them, yelling repeatedly that “Migo” or
“Amigo” had stabbed him and asking them to call an ambulance. He
had wounds to his arms and chest and acted like he was in pain, and
there was a significant amount of blood on his chest and on the
driver’s side of the car. There also was a duffel bag in the rear
passenger seat that Williams said belonged to Migo.
The men called 911 at 3:02 p.m., and Officer Brandon Mitchell
arrived five to ten minutes later. Officer Mitchell rendered first aid
and tried to calm Williams to keep him from going into shock,
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because Williams was “breathing pretty heavy and was obviously
very [shaken] up,” and he was starting to wheeze. Williams
described his assailant to Officer Mitchell as a Hispanic male known
as “Amigo.” Williams told Officer Mitchell and the other men that
he had given his assailant a ride from the store for $40, but that as
his passenger was reaching into the back of the car to retrieve his
duffel bag, he stabbed Williams, screamed “mother f****r,” and ran
away. Williams died later that day from the stab wound to his chest.
Kenyatta Kitchen, a relative of Williams, identified Lopez in a
photographic lineup as the person he saw get into the front
passenger side of Williams’s car and place his bag in the back
passenger side approximately 20 minutes before Williams was
stabbed. Fingerprints on paperwork in the duffel bag left in
Williams’s car matched Lopez’s fingerprints, which were already on
file. No other person’s fingerprints were found on the paperwork.
Police obtained a warrant for Lopez but were unable to locate him
until September 2016, when he was arrested. DNA in buccal swabs
obtained from Lopez matched DNA samples taken from a pair of
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underwear and a comb found in the duffel bag.
At Lopez’s trial, Yolanda Sawyer, who had been friends with
Williams for approximately 20 years prior to his death, testified that
she and others, including Lopez, regularly used drugs in the
apartment of a man known as “Mr. Peewee.” Sawyer had known
Lopez for ten years prior to the stabbing, but only as “Migo” or
“Amigo.” Two days before Williams was killed, Lopez returned to the
area after a lengthy absence and used drugs in Peewee’s apartment.
Williams went in and out of Peewee’s apartment many times while
Lopez was there, and the day before the stabbing, Sawyer overheard
Williams say that Migo owed him money. Sawyer assumed the debt
was for drugs because Williams had previously sold drugs to both
her and Lopez. The same day, she saw Williams and Lopez talking
together as they entered Peewee’s apartment.
Kitchen had known Williams for 10 years and testified that he
and Williams typically saw each other every day. Kitchen testified
that he knew Lopez “on and off” for five or six years prior to the
stabbing, but only by the nicknames “Amigo” or “Migo.” Lopez had a
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pattern of returning to Williams’s area of town for a week or two
after being absent for months or more. Two days before Williams
died, Williams told Kitchen that Migo was back in town and
“spending money,” meaning that Lopez was buying drugs from
Williams, and Kitchen observed Lopez going in and out of Peewee’s
apartment.
D’Metri Johnson testified that he and Williams had known
each other for more than 10 years and were “very close” friends who
saw each other every day and sold cocaine in the same area. The day
before Williams’s death, Williams told Johnson that he had a
customer named “Migo” who spent a large amount of money on
drugs and that Williams significantly overcharged Migo for the
drugs. On the day Williams died, he called Johnson at
approximately 2:00 p.m., asked if Migo was outside, described what
Migo was wearing, and asked Johnson if he would drive Migo to
Williams’s house so that Migo could pay the money he owed
Williams and purchase more cocaine from him. Johnson saw a
person matching Williams’s description of Migo sitting on a stoop
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but said he was unable to drive Migo, so Williams told Johnson he
would pick up Migo himself. Johnson left his apartment, and when
he returned at approximately 2:40 p.m., Migo was no longer there.
Johnson also testified that Williams called him at 3:00 p.m.,
saying that “Migo stabbed me” or “tried to kill me.” Johnson asked
Williams where he was, but Williams was speaking with someone in
the background and did not respond. Johnson hung up and tried to
call back, but Williams did not answer. Williams’s cell phone log
revealed that on the day of the stabbing, he called Johnson at 2:08
p.m., Johnson called Williams at 2:16 p.m., Williams called Johnson
again at 3:00 p.m., and Williams later missed two calls from Johnson
at 3:07 and at 3:08 p.m.
1. The trial court did not abuse its discretion in admitting
Williams’s statements about the attack under the excited utterance
hearsay exception.
Lopez argues that the trial court erred in admitting Williams’s
statements regarding the stabbing under the excited utterance
hearsay exception. We disagree.
At a pre-trial motions hearing, the State argued for admission
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of the statements Williams made to Smith, Bales, Officer Mitchell,
and Johnson describing the circumstances of his stabbing and giving
the name and description of his attacker under the dying declaration
and excited utterance hearsay exceptions. Defense counsel objected.
The trial court ruled that the statements were admissible as excited
utterances.
The excited utterance hearsay exception provides that “[a]
statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition” will not be excluded by the hearsay rule. OCGA § 24-8-
803 (2). “The critical inquiry is whether the declarant is still in a
state of excitement resulting from that event when the declaration
is made.” Atkins v. State, 310 Ga. 246, 250 (2) (850 SE2d 103) (2020)
(citation and punctuation omitted). To determine this, courts should
consider the totality of the circumstances; it is not necessary that
the statement be made contemporaneously with the startling event
or condition. See Blackmon v. State, 306 Ga. 90, 94-95 (2) (829 SE2d
75) (2019) (trial court could reasonably conclude that declarant was
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still under the stress of her husband’s threat to shoot when she made
a statement indicating her belief that her husband would kill her,
although the threat occurred several minutes earlier); Robbins v.
State, 300 Ga. 387, 389-390 (2) (793 SE2d 62) (2016) (a hearsay
statement may be an excited utterance even when made hours after
the startling event, if the declarant was still under the stress or
excitement that the event caused). We review the trial court’s
admission of Williams’s statements for abuse of discretion. See
Lyons v. State, 309 Ga. 15, 21 (4) (843 SE2d 825) (2020).
Ample evidence in the record supports the trial court’s finding
that Williams was under the stress of excitement of a startling event
⸺ being stabbed ⸺ when he made the statements at issue.
Witnesses testified that Williams honked his horn, yelled repeatedly
that Migo stabbed him, and was so visibly shaken even after Officer
Mitchell arrived that the officer noted his agitated mental state and
tried to calm him down. Williams made the statements only a few
minutes after he was stabbed because Kitchen saw him alive and
uninjured a mere 20 minutes prior to Williams’s telephone call to
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Johnson and his conversation with Smith and Bales describing the
stabbing. Moreover, Williams recounted the stabbing to Johnson,
Smith, and Bales while seated in the car where the stabbing
occurred and surrounded by his own blood. See United States v.
Belfast, 611 F3d 783, 817-818 (11th Cir. 2010) (statement was an
excited utterance even when made four hours after the startling
event because the victim was unable to escape the location where
the event occurred and thus likely continued to experience trauma
from the incident).
Lopez argues that Williams’s statements are “narratives” and
thus inadmissible as excited utterances because Williams described
details related to the stabbing, including the assailant’s agreement
to pay Williams $40 for a ride and the fact that the assailant was
reaching into the back of the car to retrieve his bag when he stabbed
Williams. But the cases Lopez cites for support of his argument that
Williams’s statements constituted an inadmissible “narrative” were
decided under the former Evidence Code, which analyzed
admissibility under the “res gestae” exception to hearsay in the
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former code. See Priebe v. State, 250 Ga. App. 725, 727 (1) (553 SE2d
5) (2001) (narratives are generally the product of afterthought, and
“the law altogether distrusts . . . afterthought” (citation omitted));
Williams v. State, 144 Ga. App. 130, 132 (1) (240 SE2d 890) (1977)
(“[N]arrative statements of the history of the event, usually made
after the declarant has had time to reflect on the occurrence, are not
admissible.” (citation and punctuation omitted)). The current
Evidence Code does not use the term “res gestae”; instead, it
addresses the admission of an “excited utterance.” Hites v. State, 296
Ga. 528, 531 (3) n.6 (769 SE2d 364) (2015). We have explained in
cases decided under the current Evidence Code that the excited
utterance exception does not require a declarant to express any
particular emotion when making the statement, and that courts
“need not find that the declarant was completely incapable of
deliberative thought at the time [the declarant] uttered the
declaration.” Blackmon, 306 Ga. at 96 (2) (citation and punctuation
omitted). Williams’s statements easily fit the description of an
excited utterance under the current Evidence Code, so the trial court
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did not abuse its discretion in admitting them.
2. Admitting Williams’s statements regarding drug sales and
related debt was not reversible error.
Lopez argues that the trial court erred in admitting testimony
by Sawyer, Kitchen, and Johnson regarding statements Williams
made about his drug sales to Lopez and the debt Lopez owed him.
Again, we disagree.
Prior to Lopez’s trials, the State sought a ruling allowing it to
introduce hearsay evidence under the residual exception to the
hearsay rule found at OCGA § 24-8-807 (“Rule 807”): statements
made by Williams to Kitchen and Johnson regarding Williams’s
drug sales to Migo, Migo’s debt to Williams, and Williams’s intended
transactions with Migo on the day Williams was killed. Defense
counsel argued that the trial court should exclude the statements.
The court ruled in a pre-trial order that the statements were
admissible under Rule 807. But Sawyer’s testimony that she
overheard Williams say that Migo owed him money was not the
subject of a pre-trial hearing, and Lopez did not object to that
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testimony at trial. Therefore, we review the admission of Williams’s
statements to Kitchen and Johnson for an abuse of discretion but
review the statement to Sawyer only for plain error. See OCGA § 24-
1-103 (d); Rawls v. State, 310 Ga. 209, 213 (3) (850 SE2d 90) (2020)
(reviewing trial court’s overruling of defendant’s Rule 807 objections
for an abuse of discretion, while reviewing the trial court’s admission
of the testimony to which defendant did not object only for plain
error).
(a) The trial court did not abuse its discretion in admitting
Williams’s statements to Kitchen and Johnson under the
residual hearsay exception.
Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” OCGA § 24-8-801 (c). Generally,
hearsay is inadmissible unless an exception applies. See OCGA § 24-
8-802. The residual hearsay exception, Rule 807, states in part as
follows:
A statement not specifically covered by any law but
having equivalent circumstantial guarantees of
trustworthiness shall not be excluded by the hearsay rule,
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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.
OCGA § 24-8-807.
The residual exception is to be used “very rarely[,]” only in
“exceptional circumstances, and only when there exist[] certain
exceptional guarantees of trustworthiness and high degrees of
probativeness and necessity.” Atkins, 310 Ga. at 251 (2) (citation
omitted) (emphasis in original). Statements are considered
sufficiently trustworthy “not because of the credibility of the witness
reporting them in court, but because of the circumstances under
which they were originally made.” Id. (citation omitted); see also
Miller v. State, 303 Ga. 1, 5 (2) (810 SE2d 123) (2018) (“Whether
there are exceptional guarantees of trustworthiness is a
determination that focuses on the declarant and the circumstances
under which the declarant made the statement to the witness.”
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(citation omitted) (emphasis in original)).
In this case, the trial court determined that Williams’s
statements to Kitchen and Johnson were admissible under Rule 807
because the statements were offered as evidence of the material
facts that Lopez owed Williams money for drugs and that Lopez’s
moniker was Amigo or Migo, there was no other evidence to
establish these material facts, the statements were consistent,
Williams had no reason to lie about Lopez owing him money for
drugs, and the interest of justice would be best served by admitting
the statements. Lopez argues that Rule 807 does not apply because
non-hearsay testimony from multiple witnesses was sufficiently
probative of the material facts that the State sought to prove to
negate the State’s need to use the hearsay testimony.
As the trial court found, there was no evidence apart from
hearsay statements to show that Lopez owed Williams money for
drugs, that Williams was overcharging Lopez for the drugs, and that
20 minutes before he was stabbed, Williams planned to meet Lopez
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for Lopez to pay his debt and purchase more drugs. 2 These
statements were “material as evidence of the nature of the
relationship between [Lopez] and the victim that sheds light on
[Lopez’s] motive in committing the offenses charged.” Rawls, 310
Ga. at 215 (3) (a) (i) (citation and punctuation omitted). And Lopez
has not shown that the trial court erred in concluding that the
evidence was more probative in showing Lopez’s motive for stabbing
Williams than any other evidence the State could procure through
reasonable efforts.
The evidence also supports the trial court’s finding that
Williams’s statements to Kitchen and Johnson had the requisite
guarantees of trustworthiness. Testimony established that Williams
had a very close relationship with both Kitchen and Johnson: he had
2 As Lopez correctly contends, ample non-hearsay evidence existed
showing that Lopez went by the name of Amigo or Migo; both Kitchen and
Sawyer testified that they personally knew Lopez by those monikers. But to
the extent that Lopez challenges hearsay statements that he was known as
“Amigo” or “Migo,” we hold that any admission was harmless because it was
cumulative of the non-hearsay testimony of Kitchen and Sawyer. See Davis v.
State, 302 Ga. 576, 583-584 (4) (805 SE2d 859) (2017) (even if statement fell
outside of hearsay exception, its admission was harmless, because it was
merely cumulative of other evidence).
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known them for approximately ten years, spoke with them on a daily
basis, and was related to Kitchen by marriage. Moreover, both
Kitchen and Johnson knew that Williams sold drugs long before the
stabbing occurred; in fact, Johnson was a fellow drug dealer. See
Rawls, 310 Ga. at 215 (3) (a) (i) (victim’s close relationship with
witnesses gave her statements to them about her boyfriend’s abuse
sufficient guarantees of trustworthiness to be admissible under Rule
807); Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019) (trial
court did not abuse its discretion by admitting statements under
Rule 807 because the statements were made within the confines of
the close relationship between the victim and her close friend, and
the victim had no reason to lie to her friend regarding the issue). In
addition, Williams’s statements were consistent with non-hearsay
evidence, including Sawyer’s testimony that Williams sold drugs to
Lopez previously and that Lopez and Williams talked together in an
apartment where drug activity occurred regularly; Kitchen’s
testimony that he saw Migo get into Williams’s vehicle
approximately 20 minutes before Williams was stabbed; and
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Williams’s cell phone records, which corresponded with Johnson’s
description of the timing of his phone conversations with Williams.
The above factors support the trial court’s conclusion, and we
are “particularly hesitant to overturn a trial court’s admissibility
ruling under the residual hearsay exception absent a definite and
firm conviction that the court made a clear error of judgment in the
conclusion it reached based upon a weighing of the relevant factors.”
Davenport v. State, 309 Ga. 385, 390 (3) (846 SE2d 83) (2020)
(citation and punctuation omitted). Accordingly, we see no abuse of
discretion in the trial court’s decision to admit Williams’s
statements. See Reyes v. State, 309 Ga. 660, 668 (2) (b) (847 SE2d
194) (2020) (no abuse of trial court’s discretion in permitting
testimony under Rule 807 where the decision was based on a
number of factors that weighed in favor of finding declarant’s
statements to be trustworthy).
(b) The trial court did not commit plain error by admitting
Williams’s statement to Sawyer that Migo owed him
money because Lopez did not show that the admission
probably affected the outcome of his trial.
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To establish plain error, Lopez “must point to an error that was
not affirmatively waived, the error must have been clear and not
open to reasonable dispute, the error must have affected his
substantial rights, and the error must have seriously affected the
fairness, integrity, or public reputation of judicial proceedings.”
Denson v. State, 307 Ga. 545, 547-548 (2) (837 SE2d 261) (2019)
(citation and punctuation omitted). To show that his substantial
rights were affected, Lopez must make an “affirmative showing that
the error probably did affect the outcome below.” McKinney v. State,
307 Ga. 129, 135 (2) (b) (834 SE2d 741) (2019) (citation and
punctuation omitted). If Lopez fails to meet any one of the elements
of the plain error test, his claim fails. See Denson, 307 Ga. at 548 (2).
Lopez has not shown that Sawyer’s testimony regarding
Williams’s statement likely affected the outcome of his trial.
Sawyer’s passing statement that she overheard Williams say that
Migo owed him money was cumulative of much more extensive
testimony to that effect from Kitchen and Johnson. “[T]he erroneous
admission of hearsay is harmless where substantial, cumulative,
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legally admissible evidence of the same fact is introduced.” Anglin v.
State, 302 Ga. 333, 336 (2) (806 SE2d 573) (2017); see also Davis v.
State, 302 Ga. 576, 584 (4) (805 SE2d 859) (2017). Also, the overall
case against Lopez was strong: eyewitness testimony established
that Lopez got into Williams’s car approximately 20 minutes before
the stabbing, and the bag found in Williams’s car contained
fingerprints and DNA that matched Lopez’s. And ample evidence
was presented that Lopez was the “Migo” that Williams identified
as his assailant to multiple individuals. In the light of all the
evidence, Lopez has failed to show that any error likely affected the
outcome. See Rawls, 310 Ga. at 216 (3) (a) (ii) (defendant failed to
show that hearsay testimony admitted under Rule 807 likely
affected the outcome of his trial because the testimony was
cumulative of properly admitted testimony and the overall case
against the defendant was strong).
Judgment affirmed. All the Justices concur.
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