Dailey v. State, 774 S.E.2d 672 (Ga. 2015). · Go Syfert
Dailey v. State, 774 S.E.2d 672 (Ga. 2015). Cases Citing This Book View Copy Cite
33 citation events (33 in the last 25 years) across 1 distinct court.
Strongest positive: Jones v. State (ga, 2018-10-22)
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
examined Cited as authority (quoted) Jones v. State (2×)
Ga. · 2018 · quote attribution · 2 verbatim quotes · confidence low
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 former ocga 17-8-57.
discussed Cited as authority (quoted) Jones v. State (2×) also: Cited as authority (rule)
Ga. · 2018 · quote attribution · 1 verbatim quote · confidence low
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 former ocga 17-8-57.
discussed Cited as authority (rule) CHAPMAN v. THE STATE (Two Cases) (2×) also: Cited "see"
Ga. · 2025 · confidence medium
Dailey v. State, 297 Ga. 442, 443 (2) ( 774 SE2d 672 ) (2015).
cited Cited as authority (rule) Allen v. State
Ga. · 2020 · confidence medium
Id. at 799-800 (3); Dailey v. State, 297 Ga. 442, 444 (4) ( 774 SE2d 672 ) (2015).
discussed Cited as authority (rule) State v. Orr
Ga. · 2019 · confidence medium
See, e.g., Moss v. State, 298 Ga. 613, 617-618 ( 783 SE2d 652 ) (2016); Dailey v. State, 297 Ga. 442, 444 ( 774 SE2d 672 ) (2015). 9 The trial court and the Court of Appeals applied Mallory’s rule in this case because, they said, they felt bound to follow this Court’s precedent.
examined Cited as authority (rule) Felton v. State (3×) also: Cited "see, e.g."
Ga. · 2018 · confidence medium
Appellant’s name became known to investigators because his phone number appeared in the phone records of D.J., whose phone had been stolen and whose phone number appeared in the victim’s cell phone in the 20 minutes prior to 6 See, e.g., Dailey v. State, supra, 297 Ga. at 444 (trial court’s “musing” was unnecessary and should have been avoided, but did not violate OCGA § 17-8-57). 14 the shooting.
discussed Cited as authority (rule) Smart v. State
Ga. · 2016 · confidence medium
Here, the record is clear that the judge was not commenting on the evidence but, instead, was merely explaining the nature of the case during voir dire to help potential jurors determine whether they had been exposed to the extensive media coverage; the trial court’s statement here was akin to referencing allegations in an indictment and “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.” Dailey v. State, 297 Ga. 442, 443 (2) ( 774 SE2d 672 ) (2015).
discussed Cited as authority (rule) Pyatt v. State (2×)
Ga. · 2016 · confidence medium
Although it might have been better for the judge to have avoided any agreement with the notion that Taylor’s statement was “critical evidence,” “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 [former] OCGA § 17-8-57.” Dailey v. State, 297 Ga. 442, 443 (2) ( 774 SE2d 672 ) (2015) (citation omitted).
discussed Cited as authority (rule) Fulcher v. State
Ga. · 2015 · confidence medium
Here, appellant has failed to show that the failure to give a charge on voluntary manslaughter affected the outcome below because there was no evidence that the shooting was “solely as the 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); Dailey v. State, 297 Ga. 442, 444 (5) ( 774 SE2d 672 ) (2015).
discussed Cited "see" Allaben v. State (2×)
Ga. · 2016 · signal: see · confidence high
See Dailey v. State, 297 Ga. 442, 444 ( 774 SE2d 672 ) (2015) (affirming the admission of autopsy photos over an OCGA § 24-4-403 objection, explaining that such photos are relevant when used by the medical examiner to show internal injuries that caused the victim’s death, even if the defendant did not dispute the cause of death).
examined Cited "see, e.g." Felton v. State (4×)
Ga. · 2018 · signal: see also · confidence low
See also Dailey v. State , 297 Ga. 442 (2), 774 S.E.2d 672 (2015).
discussed Cited "see, e.g." Davis v. State (2×)
Ga. · 2016 · signal: see, e.g. · confidence medium
See, e.g., Dailey v. State, 297 Ga. 442, 444 ( 774 SE2d 672 ) (2015) (affirming the admission of autopsy photos over an OCGA § 24-4-403 objection, explaining that such photos are relevant when used by the medical examiner to show internal injuries that caused the victim’s death, even if the defendant did not dispute the cause of death); United States v. Greatwalker, 356 F3d 908, 912-913 (8th Cir. 2004) (explaining that a trial court may admit autopsy photos to be “used as aids in the medical examiner’s testimony to explain the nature and extent of [the victim’s] injuries and the cause…
Retrieving the full opinion text from the archive…
Dailey
v.
the State
S15A0587.
Supreme Court of Georgia.
Jun 29, 2015.
774 S.E.2d 672
2015 Ga. LEXIS 498
Durham & Crane, Danny L. Durham; Charles R. Sheppard, for appellant., 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.
Hunstein.
Cited by 15 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #41,104 of 633,719
Citer courts: Supreme Court of Georgia (3)
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 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[*443] 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 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 ofthe 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[*444] 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 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 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[*445] 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.

Decided June 29, 2015. Durham & Crane, Danny L. Durham; Charles R. Sheppard, for appellant. 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.

Judgment affirmed.

All the Justices concur.
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.

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.