Harris v. State

• Decision Date: 30 June 2005
• Docket Number: No. S05A0614.,S05A0614.
• Citation: 615 S.E.2d 532
• Parties: HARRIS v. The STATE.
• Court: Georgia Supreme Court

615 S.E.2d 532

HARRIS v. The STATE.

No. S05A0614.

Supreme Court of Georgia.

June 30, 2005.

COPYRIGHT MATERIAL OMITTED

Martin Gregory Hilliard, Savannah, for Appellant.

Spencer Lawton, Jr., Dist. Atty., Ronald M. Adams, Asst. Dist. Atty., Savannah, Thurbert E. Baker, Atty. Gen., Raina Jeager Nadler, Asst. Atty. Gen., Dept. of Law, Atlanta, for Appellee.

BENHAM, Justice.

Appellant Selma Harris was convicted of malice murder, burglary, two counts of theft by taking, six counts of forgery in the first degree, and concealing a death of another in connection with the death of Sylvia Kathleen Wells in July 2000 in Chatham County.¹ She appeals the judgment of conviction entered against her and we affirm, finding no reversible error among those appellant enumerates.

1. The victim was found in a locked freezer in her home in which she kept frozen meat and seafood on July 23, 2000. The GBI forensic pathologist who performed the autopsy estimated the body had been in the freezer for several days, and found the cause of death to be manual strangulation. In response to questions about the strength needed to strangle someone, the pathologist testified that any adult was capable of strangling another adult because a victim could be rendered unconscious by 10-15 seconds of eleven pounds of pressure on the victim's carotid artery. A pest control service technician testified she saw the victim, whom she described as distraught, when the technician did the annual inspection and treatment of the victim's home on July 17. A neighbor who testified she normally saw the victim on a daily basis, grew concerned when she had not seen the victim for over a week, had not seen her car, the victim's answering machine was full, and the witness saw people removing furniture and personal belongings from the victim's home in the middle of the night on July 22. A pawnshop owner testified appellant had pawned several items of jewelry on July 18 and 22, and appellant's son had pawned several pieces of jewelry worth over $500 on July 18 and 19. The victim's son identified the jewelry as belonging to his mother. Appellant's husband testified appellant and her son brought frozen food to their home during the week of July 15-22, and a long-time friend of appellant testified she purchased from appellant clothing, housewares, cookware, linens, and furniture at the victim's home on July 22, after being told by appellant that appellant was conducting a garage sale on behalf of the victim who appellant said had been placed in a rehabilitation center in Oklahoma by her parents.

The victim's father and son, residents of Oklahoma, her son-in-law, a resident of Texas, and her sister, a resident of Americus, Georgia, testified about their unsuccessful attempts to contact the victim from July 19-July 22. A woman named Selma answered the phone at the victim's home and reported the victim was not at home or did not wish to speak with the caller. Selma also reported to family members that the victim had been staying with a man in a local motel and had returned home in need of her family's assistance, but did not wish to answer the telephone.

A young man who provided lawn maintenance and pet care for the victim testified appellant wrote a check on the victim's checking account, signing the victim's name, to pay for his services on July 20. The victim's father testified that the check written to the young man and five other checks written on the victim's checking account and made payable to appellant's son, to "cash," to a discount store, and to a pizza establishment were not written by the victim.

The evidence presented was sufficient to authorize a rational trier of fact to find appellant guilty of murder, burglary, theft by taking, forgery, and concealing a death. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To the extent circumstantial evidence was presented, the jury's determination that the circumstantial evidence was sufficient to exclude every reasonable hypothesis save that of the guilt of appellant is supported by the evidence and therefore may not be disturbed. Eckman v. State, 274 Ga. 63(1), 548 S.E.2d 310 (2001).

2. Appellant contends the trial court erred when it granted the State's motion in limine prohibiting appellant, her counsel, or any defense witness from mentioning that appellant's son, Jerrell Lee Howard, had told police he had killed the victim, until Howard testified. Evidence that another person confessed to the crime for which the defendant is being tried is generally inadmissible hearsay, but it may be admitted in the guilt-innocence phase of a trial "under exceptional circumstances that show a considerable guaranty of the hearsay declarant's trustworthiness." Drane v. State, 271 Ga. 849(2), 523 S.E.2d 301 (1999). No showing of trustworthiness was made in the case at bar-indeed, in light of evidence that Howard recanted his confession, it is unlikely such a showing could be made. Furthermore, any error must be harmful to be reversible error and, in the case at bar, the testimony trial counsel was prevented from eliciting from the police detective was presented to the jury when Howard was called as a defense witness and testified he had told police he had choked the victim and placed her in the freezer because he was angry the victim was helping his mother get drugs. Accordingly, we conclude the trial court did not commit reversible error when it granted the motion in limine.

3. Appellant next takes issue with the trial court's overruling of a hearsay objection made by defense counsel during the State's examination of the police officer who discovered the victim's body. The officer testified he had examined the freezer because he had "a weird feeling" and because the victim's neighbor and a friend of the victim had told him they had not seen the victim for several weeks. The trial court overruled the objection on the ground that the hearsay explained the officer's conduct. See OCGA § 24-3-2. To prevent an overly broad interpretation of OCGA § 24-3-2, this Court has ruled the statute is applicable only when "the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial)...." Momon v. State, 249 Ga. 865, 867, 294 S.E.2d 482 (1982). "[O]nly in rare instances will the `conduct' of an investigating officer need to be `explained,' as in practically every case the motive, intent, or state of mind of such an officer will not be `matters concerning which the truth must be found.'" Teague v. State, 252 Ga. 534(1), 314 S.E.2d 910 (1984). See also Render v. State, 267 Ga. 848(2), 483 S.E.2d 570 (1997). Neither the conduct nor the motive of the officer in the case at bar in examining the freezer was a matter concerning which the truth must be found, and the trial court erred when it permitted the officer to testify to hearsay to explain his conduct. However, in light of the fact that one of the two hearsay declarants subsequently testified to the fact that she had not seen the victim for two weeks prior to the discovery of her body, the officer's testimony is merely cumulative and it is highly probable its admission did not contribute to the guilty verdicts. Teague v. State, supra, 252 Ga. 534(2), 314 S.E.2d 910. Compare Render v. State, supra, 267 Ga. 848(2), 483 S.E.2d 570 (Court could not say that it was highly probably that the admission of the hearsay to explain the investigating officer's conduct did not contribute to the verdict).

4. Appellant complains the assistant district attorney prosecuting the case impermissibly placed her character in issue when he referred to her as "totally evil" in his opening statement. The failure to object at trial to the remark now challenged results in a waiver of the issue on appeal. Burgeson v. State, 267 Ga. 102(4), 475 S.E.2d 580 (1996). Because appellant cites trial counsel's failure to object as an example of ineffective assistance of counsel (Div. 6, infra), we note that a prosecutor's flights of oratory and figurative speech in opening statements and closing arguments are not reversible error. Simmons v. State, 266 Ga. 223(6b), 466 S.E.2d 205 (1996), overruled on other grounds, Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (1998).

5. Appellant testified at her trial and when asked by defense counsel if she had ever been convicted of a felony, replied she had not. Over the objection of defense counsel, the trial court permitted the State to cross-examine appellant about her prior convictions for misdemeanor deposit account fraud (OCGA § 16-9-20) and misdemeanor theft by taking that resulted from her having written personal checks knowing she did not have sufficient funds to honor the checks. On appeal, appellant contends the trial court's action violated OCGA § 24-9-20(b), which states that "no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put [her] character in issue." This statutory rule endorses the statutory declaration that "[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." OCGA § 24-2-2.

In Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988), this Court outlined the situations in which the State could present evidence of a defendant's prior convictions and not violate OCGA § 24-9-20(b). The statutory language clearly authorizes the State to present evidence of prior convictions when a defendant makes her good character an issue at trial. A defendant makes her good character an issue by offering testimony of a witness as to the defendant's general good reputation in the community, or by testifying to her own general good reputation or to specific acts of past good conduct. Jones v. State, 257 Ga. at 758, 363 S.E.2d 529; State v....