297 Ga. 442
FINAL COPY


                      S15A0587. DAILEY v. THE STATE.

      HUNSTEIN, Justice.

      Appellant Earnest Earl Dailey, Jr., was convicted of felony murder in

connection with the death of Jermaine Little. Dailey appeals, contending that

the trial court impermissibly commented on the evidence and erred in

evidentiary rulings and in refusing to instruct the jury on voluntary

manslaughter. We find no merit in these contentions and affirm.1

      1. Viewed in the light most favorable to the verdict, the evidence

presented at trial showed that, on the afternoon of February 1, 2012, Little

walked to Paul’s IGA grocery store to purchase cigarettes. While Little was

outside the store, Dailey approached Little and argued with him briefly. Dailey

then struck Little on the back of the head with an object that resembled a

      1
          The crime occurred on February 1, 2012. On May 29, 2012, Dailey was
indicted by a Richmond County grand jury for malice murder and felony murder. On
February 27, 2013, the trial jury found Dailey guilty of felony murder. That same
day, the trial court sentenced Dailey to life in prison. On March 5, 2013, Dailey filed
a motion for new trial, which he amended on August 6, 2014. Following a hearing,
the trial court entered an order on August 12, 2014, denying the motion as amended.
Dailey filed a timely notice of appeal, and the appeal was docketed to the January
2015 term of this Court and submitted for decision on the briefs.
wooden table leg. Little collapsed on the sidewalk and, after being transported

to a hospital, died several days later. Although Dailey does not contest the

sufficiency of the evidence, we conclude that, viewed in the light most favorable

to the verdict, the evidence presented at trial was sufficient to authorize a

rational jury to find him guilty beyond a reasonable doubt of the felony murder

of Little. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d

560) (1979).

      2. Dailey contends that the trial court impermissibly commented on the

evidence when he disparaged trial counsel in the presence of the jury. During

trial counsel’s cross-examination of Sergeant William Leisey, the supervising

investigator, the prosecutor objected that “pretty much everything [trial counsel]

is asking Investigator Leisey is all hearsay.” The trial court responded:

            Well, I mean at some point Sergeant Leisey indicated that he
      was ultimately responsible for the investigation. However, I think
      he has made it clear what he did and did not do. So if [trial counsel]
      wants to meander through this I think [he] has the right to. How
      effective it is[,] is another question. So I’ll overrule the objection.

      Dailey argues that the comment violated OCGA § 17-8-57, which provided

that “[i]t is error for any judge in any criminal case, during its progress or in his

charge to the jury, to express or intimate his opinion as to what has or has not

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been proved or as to the guilt of the accused.”2 He asserts that this comment was

a clear intimation of the judge’s view that trial counsel was wasting his and the

jury’s time because the evidence was clearly sufficient to support the charges.

However, the overall import of the judge’s comment was an explanation of the

ruling on the State’s objection, and such explanations clearly do not run afoul of

OCGA § 17-8-57. See Johnson v. State, 246 Ga. 126, 128 (V) (269 SE2d 18)

(1980) (“remarks of a judge assigning a reason for his ruling are neither an

expression of opinion nor a comment on the evidence”). The judge’s brief

musing about defense counsel’s strategy was unnecessary, and such comments

should be avoided, but the judge’s comment here in no way constituted the type

of direct comment on the substance or weight of the evidence that we have held

to violate OCGA § 17-8-57.3 Compare Murphy v. State, 290 Ga. 459, 460-461

(2) (722 SE2d 51) (2012) (trial judge’s comments that witness was a “good

detective” and that through “his good efforts we’re going to find the truth of the


      2
       This Code section was amended subsequent to the trial herein. See Ga. L.
2015, p. 1050, § 1.
      3
        The record reflects that immediately after the judge made this comment, trial
counsel, after the jury had been excused, asked the judge not to comment on counsel’s
method of cross-examination. No similar comments by the trial judge appear in the
record.
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matter” violated OCGA § 17-8-57). Therefore, we discern no error.

      3. Dailey challenges the trial court’s exclusion of testimony from Sergeant

Chris Langford, one of the investigating officers, that one person had failed to

identify Dailey from a photographic lineup, asserting that the testimony was

admissible under OCGA § 24-8-801 (d) (1) (C) (prior statement of witness is not

hearsay if declarant testifies and is subject to cross-examination, and if the

statement is one of identification of a person). He also argues that the testimony

had indicia of reliability and that it was exculpatory evidence that the jury was

entitled to hear. The trial court, however, properly sustained the State’s hearsay

objection to the detective’s testimony where it was clear that the individual in

question was not going to be called to testify. See, e.g., United States v. Brewer,

36 F3d 266 (C) (2d Cir. 1994) (no error to preclude cross-examination of officer

regarding non-testifying witnesses’ inability to identify defendant from a photo

array). To the extent that Dailey seeks to argue that the testimony was admissible

under OCGA § 24-8-807 (residual exception to hearsay rule), he failed to make

this argument below, instead arguing that the testimony was admissible to

explain the officer’s conduct, an argument not made on appeal.

      4.   Dailey contends that the trial court erred in admitting autopsy

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photographs. However, the medical examiner testified that the photographs

showed the internal injuries that caused the victim’s death and that were not

evident from the pre-incision photographs. This testimony established the

relevance of the photographs. See OCGA § 24-4-401; see also Brown v. State,

250 Ga. 862, 867 (5) (302 SE2d 347) (1983) (holding, under former Evidence

Code, that “[a] photograph which depicts the victim after autopsy incisions are

made . . . will not be admissible unless necessary to show some material fact

which becomes apparent only because of the autopsy”). The fact that Dailey

may not have disputed the cause of death did not diminish the relevance of the

photographs. See Browner v. State, 296 Ga. 138 (3) (765 SE2d 348) (2014) (fact

that cause of death was undisputed did not render autopsy photographs

unnecessary). Additionally, prior to admitting the photographs, the trial court

considered whether the probative value of the photographs was substantially

outweighed by the danger of unfair prejudice.          See OCGA § 24-4-403.

Therefore, the trial court did not abuse its discretion in admitting the

photographs.



      5. Finally, Dailey challenges the trial court’s refusal to give his requested

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charge on voluntary manslaughter. However, a review of the record supports the

trial court’s conclusion that there was no evidence that the attack was “solely as

a result of a sudden, violent, and irresistible passion resulting from serious

provocation sufficient to excite such passion in a reasonable person,” OCGA §

16-5-2 (a). At most, the evidence showed that Dailey and the victim argued

briefly after Dailey accused the victim of being a thief. It is well settled that such

angry words alone generally are insufficient to incite “serious provocation”

within the meaning of OCGA § 16-5-2 (a). See Merritt v. State, 292 Ga. 327,

331 (2) (737 SE2d 673) (2013) (“[a]s a matter of law, angry statements alone

ordinarily do not amount to ‘serious provocation’”); Riggins v. State, 279 Ga.

407 (2) (614 SE2d 70) (2005) (evidence that defendant and victim argued was

insufficient to authorize a charge on voluntary manslaughter). Therefore, the

trial court did not err in declining to give the requested instruction.

      Judgment affirmed. All the Justices concur.



                              Decided June 29, 2015.

      Murder. Richmond Superior Court. Before Judge Padgett.

      Durham & Crane, Danny L. Durham; Charles R. Sheppard, for appellant.

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     Ashley Wright, District Attorney, Madonna M. Little, Joshua B. Smith,

Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Jason M. Rea, Assistant Attorney General, for appellee.




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