Fetty v. State
| Decision Date | 15 September 1997 |
| Docket Number | No. S97A0835,S97A0835 |
| Citation | 489 S.E.2d 813,268 Ga. 365 |
| Parties | , 97 FCDR 3428 FETTY v. The STATE. |
| Court | Georgia Supreme Court |
Anthony L. Harrison, Harrison & Harrison, Brunswick, for Jason Michael Fetty.
George Cobb Turner, Jr., Asst. Dist. Atty., Woodbine, Deborah Lynn Gale, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
Appellant Jason Fetty alleges that numerous purported instances of error concerning the procedural and evidentiary aspects of his criminal trial mandate the reversal of his convictions for malice murder, aggravated assault, and burglary. Upon review of the record, we find that the trial court erred by failing to merge Fetty's conviction for aggravated assault with his conviction for malice murder, and thus the conviction and sentence for the assault must be set aside as a matter of law. We need not decide whether the trial court erred by admitting certain hearsay testimony propounded by a State's witness, as any conceivable error associated with such admission was entirely harmless. Finding no merit associated with Fetty's other enumerations, we affirm and reverse in part.
The facts introduced at trial show that Fetty and Amanda McCraig were teenaged lovers. Following the last in a series of arguments between the couple, Amanda ended the relationship. Thereafter, Fetty issued several threats against Amanda and continually harassed her. On February 14, 1995, Fetty and his co-defendant Carper drove to the home where Amanda lived with her mother. Seeing that Amanda was alone at the residence, they rang the front doorbell. When Amanda refused to speak with him, Fetty became enraged and went to the back of the house, where he kicked the door in, entered the home, and shot and killed Amanda. He then fled in Carper's automobile to Florida, where he led police officers on a high speed chase before being apprehended. The murder weapon was recovered from the automobile Fetty was driving at the time of his arrest. 1
1. Having reviewed the record, we conclude that the evidence introduced at trial, construed most favorably to the verdict, was sufficient to enable a rational trier of fact to find beyond any reasonable doubt that Fetty was guilty of the crimes for which he was convicted. 2
2. If, in establishing the commission of a crime, the State relies entirely upon the same evidence used to establish a separate crime charged in the same indictment, as a matter of law the former charge is included in the latter charge. 3 As alleged in the indictment, the charges against Fetty for malice murder and aggravated assault both stem from his having shot and killed Amanda. In this situation, an independent aggravated assault is shown only if supported by evidence that was not shown to establish the murder. 4 Because the evidence in this case does not support a conviction for aggravated assault that is independent of the acts that caused Amanda's death, the conviction and sentence for the aggravated assault of Amanda must be set aside as a matter of law. 5
3. Fetty claims that the trial court erred by admitting into evidence a tape recording of a telephone conversation between him and a friend of Amanda's made several days before the murder, in which he admitted having gone to Amanda's house with a gun, intending to kill her. The recording was made independently by the friend with whom Fetty had the conversation, and was turned over to the police after Amanda's murder.
OCGA § 16-11-62 prohibits the clandestine intentional recording of another's private phone conversations. However, it is established that § 16-11-62 does not apply to one who is a party to such conversations, 6 and thus it is inapplicable to this case.
OCGA § 16-11-66(b) provides that after the proper consent is obtained by judicial order, a telephone conversation to which a minor is a party may be recorded and divulged by a citizen, prosecutor, or law enforcement officer, but that such a recording cannot be used "in any prosecution of the consenting child." Because he was a minor when the recording was made, and the recording was made without his consent or the approval of a judge, Fetty claims that it was improperly used against him at trial in violation of the statute. However, we have held that § 16-11-66 applies only to a third party's interception of telephone conversations, and does not prohibit the actual parties to such conversations from recording and divulging them. 7 Hence,s 16-11-66(b) also is inapplicable to case, and this enumeration is rejected.
4. Fetty claims that the trial court erred by admitting several hearsay statements under the necessity exception to the rule prohibiting hearsay evidence. The first of these hearsay statements was recounted by Amanda's mother, who testified about a conversation she held with Amanda on the day before the murder, in which Amanda told her mother that Fetty had threatened to kill her. Fetty claims that the trial court erred by admitting that hearsay testimony.
OCGA § 24-3-1(b) permits the admission of hearsay evidence in "specified cases of necessity," so long as (1) the declarant is unavailable, and (2) there is a circumstantial guarantee of trustworthiness inherent in the statement. 8 This exception to the rule against hearsay, like others, is intended to accommodate situations where " 'a sincere and accurate statement would naturally be uttered and no plan of falsification be formed.' " 9 Here, we will look to the totality of the circumstances surrounding the making of Amanda's hearsay statement to her mother in order to determine whether it was characterized by sufficient evidence of trustworthiness to make it admissible under the necessity exception. 10
While testifying, Amanda's mother conceded that, in the period of time preceding the subject conversation, her relationship with Amanda was quite strained. Amanda had been forbidden by her mother from seeing Fetty, yet she nonetheless was continuing the relationship without her mother's knowledge. Amanda recently had suffered the loss of her father to illness, and habitually isolated herself from her mother and her family. Several months before the murder, Amanda's mother had committed her against her will to a residential counseling center, in part to relieve tensions in their mother-daughter relationship. On the other hand, Amanda's mother also testified that in the weeks preceding the murder, she and Amanda had attended group therapy sessions that had greatly improved their relationship. Despite the improved status of their relationship, however, Amanda's mother testified that at the time of the subject conversation, it was entirely possible Amanda was "doing things behind [her mother's] back," and against her wishes, especially with regard to Amanda's relationship with Fetty.
In light of these circumstances, Fetty urges that there was insufficient indicia of reliability associated with Amanda's hearsay statement to her mother to warrant its admission into evidence under the necessity exception. We need not, however, make that determination, because the admission of the hearsay testimony, even if it was erroneous, was altogether harmless, as the substance of the testimony was duplicated by other evidence that was properly introduced, including Fetty's handwritten threats against Amanda's life. 11
For this same reason, we reject Fetty's argument that the trial court erred by admitting Amanda's hearsay statements, made on the day of the murder and recounted by her high school guidance counselor, that Fetty had been harassing, stalking, and threatening her. Amanda had spoken to the guidance counselor at the behest of both her mother and law enforcement officers who had been contacted about Fetty's harassment of Amanda. Fetty contends that the hearsay statements made to the counselor lacked sufficient indicia of reliability to warrant their admission, and therefore should have been excluded. Pretermitting that argument, the substance of the counselor's hearsay testimony was duplicated in its entirety by other evidence that was properly introduced, and thus admission of the hearsay, even if it was erroneous, could not have been harmful. 12
We also reject Fetty's contention that the trial court erred by admitting the hearsay testimony of Amanda's close friend, Ms. Bonds, with whom Amanda was speaking on the telephone immediately before Fetty killed her. Ms. Bonds testified that Amanda told her that, as they were speaking on the telephone, Fetty was standing outside the front door and would not leave Amanda alone, and that she had put some of his things on the front porch and shut the door in his face. Within minutes of making this statement, Amanda was killed. Ms. Bonds and Amanda were close confidants, 13 and Amanda's statements to Ms. Bonds were made immediately before the assault and murder took place, and were not disavowed. 14 Thus, there was sufficient indicia of reliability to warrant the admission of Ms. Bond's hearsay testimony.
5. Fetty insists that the trial court erred by admitting evidence of several prior difficulties between him and Amanda. Following a hearing held pursuant to Uniform Superior Court Rule 31.3(B), evidence was admitted that ten days before the murder, Fetty and Amanda had fought, and that he had locked her in a motel bathroom and refused to let her out. Evidence also was admitted to show that, after the motel incident, while in Amanda's presence, Fetty pointed a gun at a male friend of Amanda's who had warned him to stop following Amanda. Finally, evidence was introduced that approximately one week before the murder, Fetty had publicly confronted Amanda and verbally threatened her. Fetty claims that this evidence was both prejudicial and irrelevant, and improperly placed his character before the jury.
With respect to each prior difficulty sought to be introduced, the State was required to show that: (1) there...
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