Givens v. State

• Decision Date: 07 May 2001
• Docket Number: No. S01A0509.,S01A0509.
• Citation: 546 S.E.2d 509,273 Ga. 818
• Parties: GIVENS v. The STATE.
• Court: Georgia Supreme Court

546 S.E.2d 509

273 Ga. 818

GIVENS v. The STATE.

No. S01A0509.

Supreme Court of Georgia.

May 7, 2001.

Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., Jon Hope, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee. CARLEY, Justice.

A jury found Linda Marie Hamilton Givens guilty of the malice murder of her husband, and the trial court entered a judgment of conviction and sentenced Ms. Givens to life imprisonment. The trial court denied the defendant's motion for new trial, and she appeals. ¹

1. Construed in the light most favorable to the verdict, the evidence shows that Ms. Givens and the victim had a history of violence and that she shot him in the head a number of years before the homicide. In the months prior to the murder, Appellant solicited Clarence Gardner to kill her husband. She met with Gardner numerous times, gave him money three times, and promised that she would pay him more. Near the time of the murder, Ms. Givens made numerous telephone calls from her home phone and cell phone, including several pages to Gardner. According to Gardner, when he eventually went to Appellant's house, he found the victim already dead in a chair. He helped Ms. Givens move the body to the victim's truck, and left the truck on the side of the road. The cause of the victim's death was two gunshot wounds to the head.

Appellant contends that the circumstantial evidence did not exclude every other reasonable hypothesis save that of her guilt.

However, questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law. [Cit.]

Robbins v. State, 269 Ga. 500, 501(1), 499 S.E.2d 323 (1998). Appellant also complains that Gardner, who was the key State's witness, had felony convictions and that there were numerous inconsistencies in his testimony. "However, resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. [Cit.]" Hampton v. State, 272 Ga. 284, 285(1), 527 S.E.2d 872 (2000). According to Gardner, the defendant indicated to him that she was tired of being beaten and was frustrated with waiting for him to kill the victim. The victim forced her to leave their home just three weeks before the murder. At some point after accompanying the victim home, Appellant took a bath and began phoning and paging Gardner to ask him to come to her house. Her then-future husband, Al Walker, Jr., told police that she also asked him to come over to the house. The phone activity involved not only Gardner and Walker, but also defendant's mother, Marjorie Hamilton, all of whom were close to Appellant. After Gardner arrived, Ms. Givens repeatedly told him that they needed to move the body. The only other resident of the house was Ms. Givens' son, who did not arrive home until after removal of the body. There was no sign of forced entry, and the sum of $20,000 in cash was left untouched. Peppers v. State, 261 Ga. 338, 339, 404 S.E.2d 788 (1991). Contrary to Appellant's assertion, the evidence showed far more than her mere presence near the time of the victim's death. In rendering its verdict, the jury found that the evidence excluded all reasonable hypotheses except that of guilt. Roper v. State, 263 Ga. 201, 202(1), 429 S.E.2d 668 (1993). Our conclusion as to the sufficiency of the evidence is not affected by the fact that the jury also returned verdicts of not guilty on the charges of felony murder and possession of a firearm during the commission of a felony because "the inconsistent verdict rule has long been abolished in criminal cases. [Cit.]" Walker v. State, 271 Ga. 328, 329(1), 519 S.E.2d 670 (1999). Viewing the evidence in the light most favorable to the verdict, the jury was authorized to reject the defense's explanation of events and determine that every reasonable hypothesis except defendant's guilt was excluded. Bagwell v. State, 270 Ga. 175, 179(2), 508 S.E.2d 385 (1998).

Appellant further contends that alibi testimony offered by her mother was unimpeached, direct, positive, and uncontradicted. To the contrary, that testimony was circumstantial in character, and was contradicted by both eyewitness testimony and other circumstantial evidence. Moreover, the testimony offered by Ms. Hamilton constituted an incomplete alibi. Therefore, her testimony "did not demand an acquittal since the jury is the judge of credibility of witnesses and was authorized to disbelieve the alibi testimony. [Cit.]" Roberts v. State, 267 Ga. 669, 671(1), 482 S.E.2d 245 (1997).

Ms. Givens urges that, although the evidence established that Gardner was an accomplice, it was not sufficient to corroborate his testimony as required by OCGA § 24-4-8. "[A] person cannot be both a party to a crime and an accessory after the fact. `At common law and under modern practice, an accessory after the fact is not considered an accomplice to the underlying crime itself....'" State v. Freeman, 272 Ga. 813, 815(2), 537 S.E.2d 92 (2000). Neither mere presence at the scene of the crime nor concealment of the crime makes one an accomplice. Collins v. State, 251 Ga. 521, 523(1)(a), 307 S.E.2d 496 (1983). The trial court submitted to the jury the question of whether Gardner acted as defendant's accomplice. Kelly v. State, 270 Ga. 523, 525(2), 511 S.E.2d 169 (1999). There was sufficient evidence for the jury to find that Gardner was guilty of concealing the murder, but the evidence did not demand a finding that he was a party to the crime. See Bullard v. State, 263 Ga. 682, 685 686(1), 436 S.E.2d 647 (1993). Because the jury was authorized to conclude that Gardner was not an accomplice, corroboration was not required. Kelly v. State, supra at 525(2), 511 S.E.2d 169. Even if Gardner were an accomplice, there was sufficient corroboration of his testimony, including the prior difficulties between the victim and the defendant, her relationship with and phone call to Walker, and the absence of the other resident and of any forced entry or theft. See Terrell v. State, 271 Ga. 783, 786(3), 523 S.E.2d 294 (1999).

Accordingly, the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the malice murder of her husband. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Bagwell v. State, supra at 179(2), 508 S.E.2d 385; Peppers v. State, supra at 339(1), 404 S.E.2d 788.

2. Appellant claims that the trial court erred by denying her motion in limine and allowing the State to present, without notice and a hearing, improper evidence of the independent crime of adultery between her and Walker. However, the prosecutor neither examined Walker about any adulterous relationship with Ms. Givens, nor presented any other evidence of adultery. The evidence actually admitted was clearly not traditional evidence of similar transactions which would require notice and a hearing under Uniform Superior Court Rule 31.3. Thomas v. State, 268 Ga. 135, 137(5), 485 S.E.2d 783 (1997); Fargason v. State, 266 Ga. 463, 465(3), 467 S.E.2d 551 (1996). Furthermore, the trial court is authorized to admit "evidence of a defendant's possible motive for committing a crime, [cit.], and such relevant evidence does not become inadmissible merely because it may incidentally place the defendant's character into evidence. [Cits.]" Allen v. State, 272 Ga. 513, 515(4), 530 S.E.2d 186 (2000). Evidence of the existence of a close relationship between Ms. Givens and Walker showed that the defendant had a motive to get out of a bad marriage so that she could be with Walker. Thomas v. State, 263 Ga. 85, 87(2), 428 S.E.2d 564 (1993). Because evidence of the relationship was relevant to the motive for the crimes charged, it was admissible. Thomas v. State, 268 Ga., supra at 137(5), 485 S.E.2d 783; Fargason v. State, supra at 465(3), 467 S.E.2d 551.

The Appellant also specifically complains of the admission of the hearsay testimony of the victim's sister that he told her, a week before his death, that he had seen Ms. Givens with Walker and that they were "dating" or "seeing" each other. According to the victim's sister, he also indicated that this was the reason why he evicted Ms. Givens from the house. Pretermitting whether this testimony is admissible as original evidence to explain conduct and ascertain motives, we conclude that the testimony was admissible under the necessity exception to the hearsay rule. OCGA § 24-3-1(b); Roper v. State, supra at 202(2), 429 S.E.2d 668. The "necessity" requirement is satisfied because the victim is deceased, the statements are relevant to show motive and, although other testimony revealed the existence of a friendship between Ms. Givens and Walker, there was no other evidence which was as probative of the closeness of their friendship and which revealed that the relationship was the cause of a prior difficulty between the defendant and the victim. See Azizi v. State, 270 Ga. 709, 711(2)(a), 512 S.E.2d 622 (1999); Suits v. State, 270 Ga. 362, 365(2), 507 S.E.2d 751 (1998). There was also evidence of particularized guarantees of trustworthiness in that the victim's sister testified that he entrusted her with keys to his truck, that she visited him at his home "all the time," and that she was very close even to Ms. Givens. See Ward v. State, 271 Ga. 648, 650-651(2), 520 S.E.2d 205 (1999). Compare McWilliams v. State, 271 Ga. 655, 656-657(2), 521 S.E.2d 824 (1999) ("no evidence that the victim and her sister had such a relationship"). There...