March 27, 2015
Murder. Fulton Superior Court. Before Judge Adams.
James C. Bonner, Jr., Tyler R. Conklin, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
Travius Taylor appeals from his convictions and sentences for malice murder and possession of a firearm during the commission of a crime, all in connection with the death of Kasey Cogburn. For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that Cogburn and Desmick Shivers had a history of selling marijuana together. On October 21, 2008, Shivers asked Cogburn if he knew anyone who wanted to buy some marijuana. Cogburn telephoned Taylor, who expressed an interest in so doing. After a first attempt to meet for the sale was forestalled due to law enforcement activity, Cogburn arranged for the parties to meet, and accompanied them to the place where the transaction would occur. After the sale, Cogburn telephoned Olivia Gagne, his fiancé e, and told her that he and Taylor were going to another location to get some additional marijuana for Cogburn to sell. Cogburn, Taylor, and Taylor's friend LaForrest Rush went to an apartment that Rush leased. There, Cogburn telephoned Gagne and told her that Taylor believed that Shivers " set him up," thought that he might have had something to do with it, and that Taylor was holding a gun to his head; Cogburn also said that he loved her. Frantic, Gagne placed several calls to Cogburn's cell phone; he eventually answered, told Gagne that he loved her, began to cry, and terminated the telephone call.
Rush's neighbors heard gunshots, and shortly thereafter, saw Rush and Taylor exit the apartment, stepping over Cogburn's body. [296 Ga. 762] Police found Cogburn's body in the doorway; his cell phone was nearby. He had died of three gunshot wounds, two in the torso and one in the leg.
1. The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Taylor was guilty of
the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. During jury selection, the trial court read the indictment, which also named Rush as a co-indictee as to most of the crimes charged, although the court did not read the count of the indictment that charged Taylor with possession of a firearm by a convicted felon, or the count charging him with felony murder based upon that crime. The court read the count of the indictment which charged Rush with possession of a firearm by a convicted felon. Two potential jurors indicated that this information caused them to form an opinion about Taylor's guilt or innocence, even when it was made clear that the charge pertained only to Rush; both potential jurors were excused for cause.
Taylor now asserts that it was incumbent upon the court to inquire specifically of all the remaining potential jurors as to whether they held similar views. However, at trial, Taylor made no such assertion or otherwise suggested error in the court's action, and told the court that he was satisfied with the jury selection process and had no " issues" concerning it. Accordingly, Taylor is procedurally barred from raising this issue on appeal. See Solomon v. State, 293 Ga. 605, 606 (2) (748 S.E.2d 865) (2013). To the extent that Taylor argues that this Court should consider the asserted error to constitute " plain error,"
[i]n appeals of criminal cases, plain error review is currently limited to alleged error in three circumstances: the sentencing phase of a trial resulting in the death penalty, a trial judge's expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b). [Cit.]
Durham v. State, 292 Ga. 239, 240 (2) (734 S.E.2d 377) (2012). Taylor's asserted error does not fall under any of these categories.
[296 Ga. 763] 3. The trial court admitted the testimony of Gagne as to what Cogburn told her during the telephone calls shortly before his death under the necessity exception to the hearsay rule. See former OCGA § 24-3-1 (b).
Hearsay statements may be admissible under the necessity exception of former OCGA § 24-3-1 (b) if the proponent of the evidence can show the declarant is unavailable, the statement is relevant and more probative of a material fact than other available evidence, and the statement exhibits particular guarantees of trustworthiness. [Cit.] Whether a statement is trustworthy is a matter for the trial court's discretion which will not be disturbed on appeal absent an abuse of discretion. [Cit.]
Johnson v. State, 294 Ga. 86, 88 (2) (750 S.E.2d 347) (2013) (Footnote omitted.)
There is no question that Cogburn's statements about Taylor's actions were relevant, and that, as he was deceased, Cogburn was unavailable. Azizi v. State, 270 Ga. 709, 711 (2) (512 S.E.2d 622) (1999). At trial, Taylor challenged the particular guarantees of trustworthiness surrounding the statements, and a hearing was held at which Gagne testified that: she was Cogburn's fiancé e; they had known each other for ten years, began dating a year before Cogburn's death, and had been living together for eleven months; they talked regularly during the day when not together; Gagne knew of Cogburn's marijuana sales, but he had committed to pursuing lawful activities, and told her that this was to be his last marijuana sale; Gagne had secured a job for him that was scheduled to begin the day after Cogburn was killed; and Gagne never knew Cogburn to lie to her, and she knew both Taylor and Rush. " This Court has consistently held that hearsay testimony by close, personal friends of the unavailable declarant is admissible under the necessity exception." Devega v. State, 286 Ga. 448, 449 (3) (689 S.E.2d 293) (2010) (Citation and punctuation omitted).
Although Taylor posits that Cogburn was under a great deal of stress when he made the statements to Gagne, this does not create on Cogburn's part any motive to lie or the likelihood that he would be mistaken about who had threatened him. The trial court did not err in finding the necessary guarantees of trustworthiness. See Gibson v. State, 290 Ga. 6, 8-9 (3) (717 S.E.2d 447) (2011).
[296 Ga. 764] Taylor also argues in this Court, as he did in his motion for new trial, that other available evidence would have been more probative than the hearsay that was admitted, although he did not raise any such issue at trial. Assuming that this objection to the admission of the evidence is preserved for appellate review, see Moore v. State, 295 Ga. 709, 714 (3) (763 S.E.2d 670) (2014), Taylor fails to show an abuse of the trial court's discretion. See Johnson, supra. Although Taylor speculates that co-indictee Rush could have testified to the same facts as were admitted through Gagne's testimony, there is no showing that any testimony of Rush might have been available, see Brown v. State, 291 Ga. 892, 896 (2) (734 S.E.2d 23) (2012), nor does Taylor explain why any testimony from Rush that it was Taylor who held a pistol to Cogburn's head, rather than himself, should be considered to be more probative than the statements related by Gagne. The trial court did not err in concluding that " [t]he statements admitted were more probative of the[ ] facts [related] than evidence that could otherwise be produced and offered. [Cit.]" Watson v. State, 278 Ga. 763, 765 (2) (a) (604 S.E.2d 804) (2004).
Judgments affirmed. All the Justices concur.