Cawthon v. the State.

• Citation: 289 Ga. 507,713 S.E.2d 388
• Decision Date: 08 July 2011
• Docket Number: No. S11A0319.,S11A0319.
• Parties: CAWTHONv.The STATE.
• Court: Supreme Court of Georgia

289 Ga. 507

713 S.E.2d 388

11 FCDR 2202

CAWTHON

v.The STATE.

No. S11A0319.

Supreme Court of Georgia.

July 8, 2011.

Lee William Fitzpatrick, Kennesaw, for appellant.Robert D. James, Jr., Dist. Atty., Leonora Grant, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Christopher Robert Johnson, Asst. Atty. Gen., for appellee.HINES, Justice.

Maurice Cawthon appeals his conviction for the felony murder of Bernard Sims.¹ For the reasons that follow, we affirm.

Construed to support the verdicts, the evidence showed that Bernard Sims was a homeless man who spent most of his time in downtown Decatur. His body was found on the morning of April 5, 2008, lying on the ground behind some benches; the benches were under a roof mounted on posts, and was an assembly point for those seeking to be employed in casual labor, which Sims frequented. Near Sims's body were some empty beer cans, bricks, and a tree branch. Investigation revealed that Sims died of blunt force trauma to the head. Lacerations caused by blunt objects had exposed his skull along the forehead, and to the bridge of his nose, cutting the bone. His nasal cavity had been exposed by laceration, the nasal bridge to the tip of his nose had been “opened” by his injuries, and the soft tissues of the bridge of the nose were missing. There were several other lacerations and abrasions on Sims's face. The medical examiner testified that a layperson would describe Sims's face as “split in half.” Sims's sternum was also broken, as was his larynx cartilage.

Cawthon gave a statement to police in which he related that: Cawthon had previously had an argument with Sims; Cawthon and other persons were in an apartment near the labor stand; Cawthon had been drinking; Cawthon left the apartment and, after a telephone call from one of the other persons, rejoined the group on the street; the group came upon Sims sleeping at the labor stand and began to beat him; Sims arose and struck one of his attackers, which angered Cawthon; one of the attackers forced Sims to the ground, and Cawthon kicked him; Cawthon and the others continued to beat Sims, took him behind the benches, and left; the group returned after a few minutes, and Cawthon began kicking Sims some more; he threw a brick down at Sims, ceasing to do so when he aggravated an injury to his own thumb; Cawthon did not know how many times Sims was struck with a brick, but knew it was many, as his face was “almost gone”; and, during the attack, he “probably did more than” he could recall.

1. The evidence was sufficient to enable a rational trier of fact to find Cawthon guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Cawthon contends that the trial court should have excluded testimony of three witnesses regarding prior difficulties between Cawthon and Sims, contending that the testimony was inadmissible hearsay.

Prior difficulty evidence may be admitted to show motive, intent, or bent of mind, but its admissibility is not dependent on a showing that it is sufficiently similar to the crime. The testimony of third parties about prior difficulties between the defendant and the victim may be admitted into evidence under the necessity exception to the hearsay rule if the testimony is necessary and trustworthy and when the statement is more probative of the material fact than other evidence that may be produced and offered. Whether the testimony has particularized guarantees of trustworthiness is a matter left to the trial court's discretion and is not disturbed absent a showing of an abuse of that discretion.

Wright v. State, 285 Ga. 57, 59–60(3), 673 S.E.2d 249 (2009) (Citations and punctuation omitted.) However, Cawthon's arguments are unavailing.²

(a) Presley testified that, two weeks before Sims was killed, she was on the porch near the scene of the attack with Cawthon and some other persons. One of the others said that “we beat [Sims] up before and we'll do it again if he keeps running his mouth,” to which Cawthon said “ yeah,” and nodded agreement. In its order on the motion for new trial, the trial court noted that counsel for Cawthon had stated that he saw no basis to exclude the testimony. Thus, the court ruled, correctly, that review of the issue was waived. See Nance v. State, 280 Ga. 125, 130–131(9), 623 S.E.2d 470 (2005); Roseberry v. State, 274 Ga. 301, 303–304(3), 553 S.E.2d 589 (2001). In any event, the evidence was admissible; by his response, Cawthon adopted as his own the statement that “we” beat up Sims, and would do so again. White v. State, 276 Ga. 583, 587(1)(b), 581 S.E.2d 18 (2003). See also Gordon v. State, 273 Ga. 373, 374(2)(a), 541 S.E.2d 376 (2001). Threats of violence regarding the victim but made to others are admissible to show motive and intent. Riley v. State, 278 Ga. 677, 687 (9), 604 S.E.2d 488 (2004).

(b) Smith testified that, two weeks before Sims was killed, Smith saw Sims with bruises on his face, and remarked that Sims looked like “somebody got a hold to” him; Sims responded by “laugh[ing] it off,” and “never did say what, who, or when....” There was no hearsay in Smith's testimony; he testified as to his observations, and what he related regarding Sims “laugh [ing] it off,” was not hearsay, as it “was not offered in order to establish ‘the truth of the matter asserted therein ... thus resting for its value upon the credibility of the out-of-court asserter.’ ” Head v. State, 276 Ga. 131, 134(4), 575 S.E.2d 883 (2003). See also Fugitt v. State, 256 Ga. 292, 295(1)(c), 348 S.E.2d 451 (1986) (“What the victim said simply does not fall under the hearsay rule, since it was not offered ‘as an assertion to show the truth of the matters asserted therein.’ [Cit.]”).

(c) Spencer testified that, one week before Sims was killed, he and Sims were together and Sims related that he had been “jumped” by some people, identifying one as “N–O.” ³ Later that day, Sims and Spencer were again together, saw some young men, and Sims indicated that Cawthon and another of the young men were two of the individuals who had previously attacked him. Although Cawthon asserts that the statement did not bear indicia of reliability, the circumstances of Sims's statements indicate otherwise; he had no apparent reason to lie to Spencer, his statements were part of spontaneous exchanges with Spencer, and at the time, Sims's face was visibly swollen. See Hayes v. State, 268 Ga. 809, 811–812(3), 493 S.E.2d 169 (1997).

3. Cawthon requested that the jury be instructed on the law regarding involuntary manslaughter and simple battery as lesser included offenses. The trial court did not give the instructions, and when the court asked if the defense had any exception to the jury instructions, counsel replied “[n]ot as read.” OCGA § 17–8–58(a) ⁴ states that “ [a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate....” Thus, under this Code section, unless a party “ ‘specifically object[s] ... at the conclusion of the jury charge, he has waived his right to urge error on appeal.’ [Cit.]” Madrigal v. State, 287 Ga. 121, 122–123(3), 694 S.E.2d 652 (2010). And, Cawthon does not assert that the failure to give the requested instructions constitutes plain error, see OCGA § 17–8–58(b), nor does any plain error appear. At the charge conference, Cawthon argued that the jury could find that his acts constituted only the misdemeanor of simple battery, so as to support a finding of involuntary manslaughter. The trial court, noting that the evidence was undisputed that Sims was seriously disfigured, concluded that only a charge on the greater offense of aggravated battery was warranted, see Lamb v. State, 273 Ga. 729, 732(2), 546 S.E.2d 465 (2001), and the plain error exception does not apply. See Hicks v. State, 287 Ga. 260, 264(4), 695 S.E.2d 195 (2010). See also Dolphy v. State, 288 Ga. 705, 710(3), 707 S.E.2d 56 (2011).

Judgment affirmed.

All the Justices concur, except NAHMIAS, J., who concurs specially.CARLEY, Presiding Justice, concurring.

I fully concur in the judgment of affirmance, but write separately to emphasize that, in Division 3, the majority has not adopted the special concurrence authored by Justice Nahmias in Collier v. State, 288 Ga. 756, 759, 707 S.E.2d 102 (2011). This is especially clear from its quotation of Madrigal v. State, 287 Ga. 121, 122–123(3), 694 S.E.2d 652 (2010) and from its citation to Dolphy v. State, 288 Ga. 705, 710(3), 707 S.E.2d 56 (2011). Indeed, because the majority approves the trial court's conclusion that the evidence did not warrant a charge on simple battery and involuntary manslaughter...