In the Supreme Court of Georgia

Decided: September 19, 2023

S23A0530. KENNEBREW v. THE STATE

 COLVIN, Justice.

Following a reversal of his convictions on appeal and a retrial, 

Appellant Phillip Kennebrew was convicted of malice murder and 

related crimes in connection with the October 2011 beating and 

stabbing death of Breyon Alexander.1 On appeal, Appellant argues 

1 This is the third time Appellant has appeared before this Court 

concerning these criminal proceedings against him. The crimes occurred on 

October 18, 2011, and Alexander died the next day. On December 20, 2011, a 

DeKalb County grand jury indicted Appellant, Mason Babbage, and Samuel 

Hall for malice murder (Count 1), felony murder (Count 2), aggravated assault 

(Count 3), armed robbery (Count 4), false imprisonment (Count 5), and 

possession of a knife during the commission of a felony (Count 8). Hall was 

also charged with possession of a firearm during the commission of a felony 

(Count 6) and possession of a firearm by a convicted felon (Count 7). Appellant 

was jointly tried with Babbage and Hall from August 13 through 17, 2012. The 

jury found the three defendants guilty of all counts. After sentencing and the 

denial of his motion for new trial, Appellant filed his first appeal to this Court.

On October 31, 2016, we reversed Appellant’s convictions on the ground 

that he received constitutionally ineffective assistance of trial counsel based 

on counsel’s failure to object to an improper argument made by the State in 

closing arguments and counsel’s failure to seek suppression of evidence 
2

that the trial court erred in allowing the State to introduce into 

evidence testimony from a witness who testified at Appellant’s first 

trial but was unavailable to testify at his second trial. Appellant 

contends that the witness’s testimony was inadmissible hearsay 

that did not fall within the prior testimony hearsay exception, 

OCGA § 24-8-804 (b) (1), and that violated his rights under the 

Confrontation Clause of the Sixth Amendment to the United States 

Constitution. Appellant further argues that, even if the witness’s 

obtained through an improper search of Appellant’s backpacks. See 

Kennebrew v. State, 299 Ga. 864, 868-874 (2) (792 SE2d 695) (2016). 

Prior to Appellant’s retrial, the knife charge (Count 8) was nolle prossed 

and new counsel filed a motion to suppress the evidence recovered from the 

backpacks. The trial court denied the motion to suppress on the ground that 

the evidence “would have inevitably been discovered through a lawful 

inventory search.” Appellant then sought interlocutory review of the trial 

court’s ruling in this Court. We granted Appellant’s interlocutory appeal and 

reversed the trial court’s ruling. See Kennebrew v. State, 304 Ga. 406, 406 (819 

SE2d 37) (2018).

Appellant was then re-tried by a jury from February 5 through 11, 2019. 

The jury found Appellant guilty of all counts, and the trial court sentenced 

Appellant to life in prison for malice murder (Count 1), 25 years consecutive 

for armed robbery (Count 4), and five years consecutive for false imprisonment 

(Count 5). All remaining counts were either vacated by operation of law or 

merged for sentencing purposes. Appellant timely filed a motion for new trial 

on February 11, 2019, which was amended through new counsel on March 23, 

2022. After a hearing, the trial court denied the motion as amended on August 

31, 2022. Appellant filed a timely notice of appeal. The case was docketed to 

this Court’s April 2023 term and submitted for a decision on the briefs. 
3

prior testimony was not altogether inadmissible, the trial court 

abused its discretion in failing to exclude double hearsay within that 

testimony. Appellant also challenges the trial court’s admission of 

hearsay statements made by the victim, which were admitted under 

the residual hearsay exception, OCGA § 24-8-807. We affirm for the 

reasons set out below.

1. The evidence at trial showed the following. In October 2011, 

Alexander lived with his friend, Darrious Oliver, in a one-bedroom 

apartment at the Wellington Court Apartments in DeKalb County. 

Alexander frequently sold marijuana at the apartment, and the men 

kept large amounts of cash and “a lot” of weapons, including several 

pistols, a rifle, and a sawed-off shotgun, hidden throughout the 

apartment. They also had several electronic devices, including a 

MacBook laptop, an HP laptop, two PlayStation 3s, an Xbox, and a 

42-inch television. In addition, they had a 50-inch television that, 

according to Oliver, Alexander had recently bought from Mason 
4

Babbage.2

Alexander’s sister, LaShonda Hiley, testified that, a few days 

before October 18, she overheard Alexander having a heated 

discussion on the phone with someone. Hiley stated that, after 

Alexander hung up the phone, he told her that Babbage “wanted his 

TV back,” but that he “ain’t selling his TV back” to Babbage.

Cell phone records introduced at trial revealed that, on October 

17, Appellant sent a text message to his roommate, Joseph Torres, 

who was also Babbage’s brother. The text message stated, “Find out 

when Dough Boy work.” Oliver, who was known as “Dough Boy,” 

later testified that he knew Babbage but did not know Appellant, 

and that Appellant would not have any legitimate reason to need to 

know his work schedule. That same day, according to the testimony 

of Erin Tew, who was Samuel Hall’s girlfriend, Tew overheard Hall 

talking on speaker phone to Babbage about “[h]itting a lick.”3

2 Appellant was originally tried along with Babbage and another codefendant, Samuel Hall. 

3 Tew testified at Appellant’s first trial. Because she had died before 

Appellant was retried, her testimony from the first trial was read to the jury 

during Appellant’s retrial.
5

According to the cell phone records, in the early morning hours 

of October 18, Babbage’s phone sent text messages to both 

Appellant’s and Samuel Hall’s phones and received responses from 

both phones. Shortly after, Appellant’s girlfriend, Durriyyah 

Mullins, dropped off Appellant at his apartment on Boundary 

Boulevard in Suwanee. Around 10:00 a.m., according to cell-phone 

location data, Babbage’s and Hall’s phones traveled from the area of 

Hall’s residence to the area of Appellant’s apartment.

At 11:36 a.m., Babbage’s phone sent a text message to 

Alexander’s phone. Cell-phone location data showed that, minutes 

later, Appellant’s, Babbage’s, and Hall’s phones traveled from the 

area of Appellant’s apartment to the area of Alexander’s apartment 

complex. The phones stayed in that area until approximately 12:25

p.m., when Alexander’s neighbor called 911 to report a home 

invasion. The cell-phone location data indicated that their phones

then traveled to the area of Hall’s residence.

Officers were dispatched to Alexander’s apartment. Upon 

arrival, officers found that the apartment had been “ransacked” with 
6

“stuff flipped over like someone had been searching for something.”

Officers saw Alexander, who was “unresponsive” but breathing, 

“l[y]ing facedown” in the living room with “his face . . . in a pool of 

blood.” Alexander was “hogtied” with “his hands . . . tied behind his 

back with a black cord” and “[h]is feet . . . tied together with a white 

cord.” Officers also observed Alexander’s teeth had come out and 

were “around [his] body” and “a piece of [his] ear . . . on the floor.” 

An autopsy later revealed that Alexander had “a mixture of sharpforce and blunt-force injuries,” as well as a “profuse amount of 

hemorrhage” beneath his scalp, and that his cause of death was 

“stab wounds [to] the neck” with “blunt force head trauma” 

contributing to his death. 

Tew’s testimony indicated that Hall contacted her shortly after 

leaving the crime scene. According to Tew, around 12:30 p.m., Tew 

received two text messages from Hall, which stated, “I think we 

f**ked up,” and “I think we killed somebody.” 

Later that afternoon, Jazmine Tew White, who was Tew’s 

daughter and lived at Hall’s apartment, came home from school and 
7

saw Hall and Babbage with “[an]other person.” She testified that 

the men had with them several electronics that she had never seen 

before, including “two flat screen TVs” and “an Xbox.” White further 

testified that the men were “smoking,” that everyone seemed “laid 

back” and “really chill,” and that the men were “shaving their hair.” 

According to Tew, sometime that afternoon, Hall sent her a 

picture of “[a] sink full of dreads” and a picture of himself “with a 

bald head.” She further testified that, when she got home from work 

that night, Hall was “really out of it” and “didn’t say anything” other 

than that “it wasn’t even worth it.” According to Tew, the next day, 

Hall mentioned that Babbage and some “other boy” tried to “leav[e]” 

him, that Hall “had to run after the car,” and that Babbage was 

worried that “he had been seen” by someone. 

Mullins testified that, although she and Appellant generally 

would text “[f]requently . . . [t]hroughout the . . . entire day,”

Appellant had been unresponsive to her text messages on October 

18, which worried her “because [she] never liked [Torres] or 

[Babbage].” Mullins further testified that she saw Appellant around 
8

10:30 in the evening of October 18, and that she noticed “[h]e had on 

different clothes” than when she had dropped him off at his 

apartment that morning. According to Mullins, on the evening of 

October 18, Appellant did not mention anything about the incident 

or being afraid of anyone.

On October 19, Babbage voluntarily entered a DeKalb County 

Police Department precinct and submitted to an interview. 

Following the interview, Babbage was arrested. Appellant and Hall

were arrested soon after.

Appellant waived his Miranda rights4 and spoke to a detective 

in a video-recorded interview that was played for the jury. During 

the interview, Appellant told the following story. On the morning of 

October 18, Appellant’s girlfriend drove him to his apartment, where

he had planned to meet Babbage because Babbage knew someone 

who was interested in buying Appellant’s PlayStation. After 

meeting Babbage at Appellant’s apartment, Babbage drove 

Appellant to the Wellington Court Apartments, where Alexander 

4 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
9

lived.

Upon arriving, Babbage went into the apartment building

while Appellant stayed in the car. Babbage then returned to the car 

with Alexander, who invited Appellant inside. Appellant was 

“chillin[g]” with the other men in the apartment, smoking a cigarette 

on Alexander’s sofa, when a man, whom he believed was named 

“Sammy,” entered the apartment, pulled out a pistol, and used the 

pistol to hit Alexander. Later in the interview, however, Appellant 

admitted that Sammy, whom officers identified as Hall, had ridden 

in the car with Appellant and Babbage to Alexander’s apartment. 

After Hall hit Alexander with the pistol, Alexander “f[ell] to the 

ground.”

Hall then “cock[ed] the gun,” pointed it toward Babbage, and 

told Babbage to “tie [Alexander] up.” When Babbage refused, Hall

told Appellant to hand him the black computer charging cable next 

to the sofa. Appellant claimed he felt threatened by Hall, so he

“tossed” Hall the cable. Hall then tied Alexander’s wrists together 

with “his hands behind his back.” When Alexander started “making 
10

a moaning noise,” Hall told him to “shut up” and then started 

“stomping on [Alexander]” and hitting him “a bunch of times” with 

the butt of the gun. Alexander told Hall, “Man, you can have it,” and 

Hall responded, “I know.” 

Hall then “pointed [his] gun” at Appellant, handed Appellant a 

large duffle bag, and told Appellant to “look for some money in some 

shoeboxes or something” in the bedroom. When Appellant was 

unable to find any money, Hall “started getting mad” and “just 

started telling [Appellant] to put different stuff inside the bag.” 

Appellant then “loaded the bag up” with “a bunch of stuff,” including 

“a couple PlayStations,” “a[n] Xbox,” and “a very old MacBook.” 

After loading the bag, Hall told Appellant “to go pull the car around 

back,” and Appellant followed Hall’s instruction. 

After parking the car and returning to the apartment,

Appellant observed Hall “kicking [Alexander] in the head again” and

saw that the living room carpet was “saturated with blood.” 

Appellant and Babbage then left Hall with Alexander and brought 

the duffle bag, along with “two brown pillowcases” filled with 
11

electronics and guns, to the car. Appellant then went back to the 

apartment to get the 42-inch television, and Hall carried the 50-inch 

television to the car himself. 

Hall went back inside the apartment while Appellant and 

Babbage waited in the car. Appellant and Babbage started driving 

away without Hall after waiting “a couple minutes” for Hall to 

return. After pulling out of the apartment complex, they saw Hall 

running toward the car. Hall then jumped inside the car, telling 

them, “I thought you left me. I was going to have to bust you,” and 

directed Babbage to drive to Hall’s house. 

After arriving at Hall’s house, Appellant, Babbage, and Hall 

started “pull[ing] the stuff out of the car” and “tak[ing] it in the 

house.” Hall told Appellant and Babbage to use his barbeque grill 

to “burn [their] shoes” and said they needed to shave their heads. 

However, after Hall and Babbage shaved their heads, “the clippers 

stopped working,” and the men “all sat around” at Hall’s apartment. 

When the detective asked Appellant whether it felt like Hall 

was keeping Appellant and Babbage hostage, Appellant responded, 
12

“Almost.” But he said that Hall became “super laid-back” after he 

“dr[a]nk,” “smoked a couple of blunts,” and “popped some pill.” 

Appellant said that he later drove with Babbage to drop off the car, 

and that the men then “g[ot] something to eat.” 

A search of Hall’s residence pursuant to a search warrant 

uncovered several items that Oliver later identified as belonging to 

him and Alexander, including a .380-caliber handgun and the 12-

gauge sawed-off shotgun. Officers also found “a black burnt piece of 

cloth.” Upon searching Babbage’s home, officers found a pair of 

blood-stained pants, which revealed the presence of Alexander’s 

DNA. Further, a DNA sample taken from a cigarette butt on the 

sofa at the crime scene was later determined to contain Appellant’s 

DNA.

2. Appellant first contends that the trial court abused its 

discretion in admitting into evidence the prior sworn testimony of 

Tew, who testified at Appellant’s first trial but had died and was 

therefore unavailable to testify during Appellant’s retrial. We 

disagree. 
13

Prior to Appellant’s second trial, the State filed a motion to 

admit Tew’s testimony from the first trial under OCGA § 24-8-804 

(b) (1) (“Rule 804 (b) (1)”), the hearsay exception for prior sworn 

testimony of an unavailable witness. At a hearing on the motion,

Appellant objected to the admission of Tew’s testimony on several 

grounds, including that the testimony was inadmissible hearsay not 

falling within Rule 804 (b) (1)’s exception and that the testimony 

violated Appellant’s confrontation rights under the United States 

Constitution. Over Appellant’s objections, the trial court granted 

the State’s motion to admit the testimony. 

At trial, the jury heard Tew’s testimony from Appellant’s first 

trial, including her direct examination and her cross-examination by 

Appellant’s trial counsel. Specifically, on direct examination, Tew 

was asked whether Hall ever explained to her “what actually 

happened.” Tew responded, “No,” but that “[h]e said that they tried 

to leave him.” Tew was then asked whether Hall “name[d] who the 

they were,” and Tew responded that she knew Babbage was one of 

them, but that she “d[idn’t] know the other boy.” Further, during 
14

Tew’s cross-examination, Appellant’s trial counsel elicited 

admissions that Tew did not know Appellant and that she had never 

heard his name mentioned by Hall or Babbage.5

On appeal, Appellant argues that the admission of Tew’s 

testimony was hearsay that did not fall within Rule 804 (b) (1)’s 

exception for prior testimony of an unavailable witness. He also 

argues that the testimony violated his rights under the 

Confrontation Clause of the Sixth Amendment to the United States 

Constitution. In support of both of these arguments, Appellant 

5 Specifically, the following exchange occurred between Appellant’s trial

counsel and Tew on cross-examination: 

DEFENSE COUNSEL: [D]o you know Phillip Kennebrew? 

TEW: No. 

DEFENSE COUNSEL: Have you ever seen Phillip Kennebrew?

TEW: No. 

DEFENSE COUNSEL: Have you ever heard his voice on a 

telephone? 

TEW: No. 

DEFENSE COUNSEL: Have you ever heard his name mentioned 

by Samuel Hall? 

TEW: No. 

DEFENSE COUNSEL: Have you ever heard his name mentioned 

by Mason Babbage? 

TEW: No. 

DEFENSE COUNSEL: During the conversation with – that you 

overheard with Samuel and Mason, did you ever hear his name? 

TEW: No. 
15

argues that he did not have an “opportunity and similar motive” to 

develop Tew’s testimony at his first trial because Tew’s testimony 

served primarily as evidence against his co-defendants at his first 

trial, and because his original trial counsel failed to adequately 

challenge Tew’s credibility and her testimony about a third, 

unknown person having participated in the crimes. As explained 

below, we are unpersuaded by Appellant’s arguments.

(a) First, Appellant argues that Tew’s prior testimony was not 

admissible under Rule 804 (b) (1), which provides that the hearsay 

rule does not exclude the testimony of an “unavailable” witness if 

the “[t]estimony [was] given as a witness at another hearing of the 

same or a different proceeding” and “the party against whom the 

testimony is now offered . . . had an opportunity and similar motive 

to develop the testimony by direct, cross, or redirect examination.” 

OCGA § 24-8-804 (b) (1). To satisfy the opportunity requirement 

imposed by Rule 804 (b) (1), the defendant must have had an 

“adequate or meaningful” opportunity to cross-examine the witness. 

United States v. King, 713 F2d 627, 630 (II) (11th Cir. 1983) (citation 
16

and punctuation omitted). When assessing whether the similar 

motive requirement is met, the motive in the two proceedings does 

not need to be identical. See United States v. Miles, 290 F3d 1341, 

1353 (II) (C) (2) (11th Cir. 2002) (“similar motive does not mean [an] 

identical motive”).6 Instead, whether a similar motive is present 

“depend[s] in part on the similarity of the underlying issues and on 

the context of the questioning.” Id. In assessing similar motive 

under Federal Rule of Evidence 804 (b) (1) and Georgia’s Rule 804 

(b) (1), courts have looked to factors including whether the defendant 

faces the same charges in both trials, see id., whether the party 

opposing the testimony had “at a prior proceeding an interest of 

substantially similar intensity to prove (or disprove) the same side 

of a substantially similar issue,” United States v. Jackson, 335 F3d 

170, 178 (I) (C) (2) (2nd Cir. 2003), whether the party opposing the 

6 OCGA § 24-8-804 (b) (1) is materially identical to Federal Rule of 

Evidence 804 (b) (1). See State v. Hamilton, 308 Ga. 116, 121 (3) (a) (839 SE2d 

560) (2020). “And when we consider the meaning of a rule in Georgia’s current 

Evidence Code that is materially identical to a Federal Rule of Evidence, we 

look to decisions of the federal appellate courts construing and applying the 

Federal Rules, especially the decisions of the United States Supreme Court 

and the Eleventh Circuit for guidance.” Id. (citation and punctuation omitted). 
17

testimony had a similar “trial strategy” in both proceedings, United 

States v. Reed, 227 F3d 763, 768 (I) (A) (7th Cir. 2000) (citation and 

punctuation omitted), and the type of proceeding in which the 

testimony was first presented, see Shealey v. State, 308 Ga. 847, 853 

(2) (b) (843 SE2d 864) (2020).

Here, Appellant had an adequate opportunity and similar 

motive to develop Tew’s testimony at his first trial. The record 

shows that Appellant’s original trial counsel had an adequate 

opportunity to cross-examine Tew and meaningfully did so, 

distancing Appellant from the actions of Hall and Babbage by 

getting Tew to admit that she had never met Appellant or heard Hall 

or Babbage mention Appellant’s name. Additionally, although the 

evidence presented at the two trials was not identical, the same 

charges against Appellant were litigated in the same type of 

proceeding, the State’s theory that Appellant was a party to the 

crimes remained consistent, and the State’s reason for introducing 

Tew’s testimony was the same, namely, to tie Hall, Babbage, and

Appellant to the murder and robbery. See Miles, 290 F3d at 1353 
18

(II) (C) (2) (similar motive to develop witness’s testimony on crossexamination existed where, “[a]t both trials, the government offered 

[the witness’s] testimony to prove [the defendant’s] involvement in 

a methamphetamine conspiracy”). Additionally, although 

Appellant’s defense at the first trial was focused on mere presence 

and Appellant’s defense at the second trial was “a combination of” 

mere presence and coercion, Appellant employed similar trial 

strategies in both proceedings, attempting to distance himself from 

Babbage and Hall by asking Tew whether she had ever heard of 

Appellant or heard Hall or Babbage mention Appellant’s name. See 

Reed, 227 F3d at 768 (I) (A) (similar motive to develop witness’s 

testimony on cross-examination existed in part because defendant’s 

“principal strategy” at both proceedings was to impeach the 

witness); United States v. Avants, 367 F3d 433, 444 (II) (B) (1) (a) 

(5th Cir. 2004) (defendant had a similar motive to cross-examine 

witness because, in both proceedings, the defendant’s goal “was to 

discredit a witness . . . whose testimony could, if believed, convict 

him”). Accordingly, the trial court did not abuse its discretion in 
19

admitting Tew’s prior testimony under Rule 804 (b) (1).

(b) Appellant also contends that the trial court erred in 

admitting Tew’s prior testimony from Appellant’s first trial because 

her testimony was inadmissible under the Confrontation Clause of 

the Sixth Amendment to the United States Constitution. The 

Confrontation Clause provides that, “[i]n all criminal prosecutions, 

the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.” U.S. Const. Amend. VI. “With respect to 

the right to confrontation, the Sixth Amendment provides two types 

of protections for a criminal defendant: the right physically to face 

those who testify against him, and the right to conduct crossexamination.” Burney v. State, 309 Ga. 273, 282 (3) (a) (845 SE2d 

625) (2020) (citation and punctuation omitted). As the United States 

Supreme Court has made clear, the Confrontation Clause “prohibits 

the introduction of testimonial statements by a nontestifying 

witness, unless the witness is ‘unavailable to testify, and the 

defendant had had a prior opportunity for cross-examination.’” Ohio 

v. Clark, 576 U.S. 237, 243 (II) (A) (135 SCt 2173, 192 LE2d 306)
20

(2015) (quoting Crawford v. Washington, 541 U.S. 36, 54 (II) (B) (124 

SCt 1354, 158 LE2d 177) (2004)).

As discussed above with respect to Appellant’s Rule 804 (b) (1) 

argument, Tew was unavailable and Appellant had a prior 

opportunity for cross-examination. Accordingly, because the 

requirements of Crawford’s Confrontation Clause test are met, 

Appellant’s constitutional argument fails. See Avants, 367 F3d at 

445 (II) (B) (1) (b) (“The qualities that made [the prior] testimony 

admissible under 804 (b) (1) make it meet Crawford’s Confrontation 

Clause test: unavailability and prior opportunity for crossexamination.”)

3. Appellant next contends that, even if Tew’s prior testimony 

was not altogether barred, the portion of Tew’s testimony in which 

she recounted Hall’s hearsay statements that “I think we f**ked up,” 

and “I think we killed somebody,” should have been excluded under 

Georgia’s Evidence Code.7 Appellant’s claim fails.

7 Based on our review of Appellant’s brief, Appellant does not challenge 

the admissibility of these statements under the Confrontation Clause. 
21

At the hearing on the State’s motion to admit Tew’s prior sworn 

testimony, defense counsel argued that Hall’s statements were 

inadmissible hearsay, and the State responded that Hall’s 

statements were admissible as “statement[s] by a coconspirator”

under OCGA § 24-8-801 (d) (2) (E) (“Rule 801 (d) (2) (E)”). Without 

expressly ruling on the admissibility of Hall’s statements, the trial 

court admitted the entirety of Tew’s prior sworn testimony. 

However, in its order denying Appellant’s motion for new trial, the 

trial court clarified that Hall’s statements were admissible under 

both Rule 801 (d) (2) (E) and as “statement[s] against interest” under 

OCGA § 24-8-804 (b) (3). 

Assuming without deciding that the trial court abused its 

discretion in admitting Hall’s statements through Tew’s testimony,

Appellant’s claim fails because it is highly probable that any error 

in admitting Hall’s statements did not contribute to the verdict. See

Kitchens v. State, 310 Ga. 698, 702 (2) (854 SE2d 518) (2021) (“The 

test for determining nonconstitutional harmless error is whether it 

is highly probable that the error did not contribute to the verdict.”
22

(citation and punctuation omitted)).

As an initial matter, Hall’s statements were not particularly 

prejudicial to Appellant, as they did not directly implicate him in the 

charged offenses. See Stafford v. State, 312 Ga. 811, 823 (5) (a) (865 

SE2d 116) (2021) (any error in admitting hearsay evidence was 

harmless where the “statements were not especially prejudicial” 

because they “did not directly implicate Appellant in any crime”). 

Although Hall used the word “we,” his statements did not mention 

Appellant by name. Further, Tew, who recounted Hall’s statements, 

stated on cross-examination that she did not know Appellant and 

had never heard his name mentioned. 

Moreover, the evidence against Appellant was strong. The jury 

watched Appellant’s interview, in which he stated that he “tossed” 

Hall the computer charger used to tie up Alexander; helped 

transport the electronics and guns into Babbage’s car, even after he 

had an opportunity to leave the crime scene; stayed at Hall’s house 

for several hours following the crimes, despite his assertion that he 

felt threatened by Hall; and that he “almost” felt held hostage. 
23

Additionally, the jury heard testimony from White that, after the 

crimes occurred, the men appeared “laid back” and “chill”; testimony 

from Mullins that Appellant never mentioned feeling threatened or 

being afraid of anyone; and evidence that, on the day before the 

incident, Appellant’s phone sent a text message seeking to find out 

when Alexander’s roommate, Oliver, would be working, despite 

never having met Oliver and having no apparent legitimate reason 

for inquiring into when Oliver would be absent from the apartment.

See Kitchens, 310 Ga. at 702 (2) (any error in admitting hearsay 

statement harmless “[i]n light of the strong evidence of Appellant’s 

guilt”). Given the ample evidence that Appellant participated in the 

crimes and that he appeared comfortable around Hall and not under 

coercion, it is highly probable that Hall’s double hearsay statement 

did not contribute to the verdict. 

4. Finally, Appellant contends that the trial court erred in

admitting into evidence Alexander’s hearsay statements through 

Hiley’s testimony. Specifically, Hiley testified that, about one month 

before the incident, she overheard Alexander on the phone telling 
24

someone, “You don’t get the TV back. That’s not how the streets 

work.” Hiley further testified that she asked Alexander who he was 

speaking with, and “[h]e said [Babbage]; he want his TV back, but I 

ain’t selling his TV back.” We discern no error in the court’s decision 

to admit these statements. 

Prior to Appellant’s retrial, the State filed a notice of intent to 

introduce evidence under the residual hearsay exception, OCGA 

§ 24-8-807 (“Rule 807”), which provides in relevant part: 

A statement not specifically covered by any law but 

having equivalent circumstantial guarantees of 

trustworthiness shall not be excluded by the hearsay rule, 

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. At a hearing on the admissibility of Alexander’s

statements, the State argued that the statements had “particular 
25

guarantees of trustworthiness” because the statements were

corroborated by Oliver’s testimony that Alexander had recently 

purchased a television from Babbage, and because Hiley would 

testify that, before his death, Alexander was “one of [her] closest 

siblings,” that she saw him “every day,” and that she talked to him 

“[t]wo to three times a day.” The trial court found that the 

statements had particular guarantees of trustworthiness and 

admitted the statements. In its order denying Appellant’s motion 

for new trial, the trial court further clarified that the testimony was 

offered as evidence of the material fact that Babbage and Alexander 

were “having a disagreement prior to Alexander’s death,” that the 

testimony “was more probative on that point than any other 

evidence reasonably procurable because the speaker was deceased,” 

and that “the interests of justice were best served by admission of 

the statement.”

On appeal, Appellant argues that Alexander’s statements were 

improperly admitted under Rule 807. He contends that the 

statements did not have sufficient guarantees of trustworthiness, 
26

the statements did not directly implicate Appellant and therefore 

had little probative value, and the interests of justice were not best 

served by the admission of the statements because they could have 

led the jury to question Appellant’s character as someone associated 

with a person who “killed the victim in cold blood over a minor 

disagreement.” Appellant’s arguments fail. 

 “Under Rule 807, a trial court’s decision to admit hearsay 

evidence is reviewed for an abuse of its discretion.” Tanner v. State, 

301 Ga. 852, 856 (1) (804 SE2d 377) (2017). A trial court does not 

abuse its discretion in admitting hearsay evidence not specifically 

covered by any law where the requirements listed in OCGA § 24-8-

807 (1)-(3) are met and the trial court finds that the statements have 

sufficient guarantees of trustworthiness “because of the 

circumstances under which they were originally made.” Rawls v. 

State, 310 Ga. 209, 214 (3) (a) (850 SE2d 90) (2020) (citation and 

punctuation omitted).8

8 Appellant does not contend on appeal that Alexander’s statements were 

inadmissible under Rule 807 because they were “specifically covered” by 

another law. OCGA § 24-8-807.
27

Here, we cannot say that the trial court abused its discretion 

in concluding that Alexander’s statements had sufficient guarantees 

of trustworthiness. The record shows that Alexander made the 

statements to his sister, with whom he had a close relationship; 

there was no evidence presented indicating that he had any motive 

to fabricate his statements; and his statements were corroborated 

by Oliver’s testimony that Alexander had recently purchased a 

television from Babbage. See Ash v. State, 312 Ga. 771, 786 (3) (b) 

(865 SE2d 150) (2021) (statements had sufficient guarantees of

trustworthiness where the witness and declarant had a “close 

relationship” and “talked to each other daily”); Jones v. State, 311 

Ga. 455, 460, 460 (858 SE2d 462) (2) (b) (2021) (statements had 

sufficient guarantees of trustworthiness where “there was no 

evidence indicating that [the declarant] had a motive to fabricate 

her statements”); Tanner, 301 Ga. at 856 (1) (statements had 

sufficient guarantees of trustworthiness where witness and 

declarant “had a close relationship,” declarant had “no apparent 

reason to lie,” and the “statements were consistent with other 
28

evidence”). 

The trial court also did not abuse its discretion in concluding 

that the statements met the requirements of OCGA § 24-8-807 (1)-

(3). The trial court acted within its discretion to conclude that the 

statements met Rule 807’s materiality requirement because they 

were offered as evidence that the men had a motive to commit the 

crimes against Alexander based on Alexander’s prior disagreement 

with Babbage. The trial court also exercised its discretion to 

conclude that the State could not have procured other evidence 

establishing a motive, particularly because Alexander was deceased

and Babbage had a Fifth Amendment right against selfincrimination under the United States Constitution. See Jones, 311 

Ga. at 461 (2) (b) (statements met the materiality and probative 

requirements of Rule 807 because the statements were “material as 

evidence of the nature of the relationship” between the parties and 

“shed[ ] light on [a] motive in committing the offenses charged,” and 

because the defendant failed to show the State could have procured 

other evidence “that would have been more probative to show . . . 
29

motive” (citation and punctuation omitted)). Nor has Appellant 

shown that the interests of justice were not best served by the 

admission of the statements. Contrary to Appellant’s arguments, 

the statements were probative of motive and did not concern

Appellant’s character. Accordingly, we conclude that the trial court

did not abuse its discretion in admitting Alexander’s statements. 

Judgment affirmed. All the Justices concur.