Hawes v. State

• Decision Date: 28 May 1996
• Docket Number: No. S96A0605,S96A0605
• Citation: 470 S.E.2d 664,266 Ga. 731
• Parties: HAWES v. The STATE.
• Court: Georgia Supreme Court

Page 664

470 S.E.2d 664

266 Ga. 731

HAWES v. The STATE.

No. S96A0605.

Supreme Court of Georgia.

May 28, 1996.

Janet S. Willy, Athens, for Gary Anderson Hawes.

Harry N. Gordon, Dist. Atty., Athens, Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, Gerald W. Brown, Asst. Dist. Atty., Athens, Wesley S. Horney, Asst. Atty. Gen., Department of Law, Atlanta, for the State.

SEARS, Justice.

Gary Anderson Hawes appeals from his conviction for felony murder. We find no error in the trial court's denial of a special demurrer which sought to strike the use of Hawes' alias name from the indictment. Furthermore, assuming without deciding that the trial court erred by admitting a criminal contempt order into evidence for purposes of witness impeachment, we find any resulting error to have been harmless. We also find the trial court's recharge to the jury that it could consider a count charging felony murder after deadlocking on a count charging malice murder to be satisfactory under Edge v. State. ¹ Therefore, we affirm. ²

The evidence introduced at trial showed that while socializing at an apartment complex, Hawes accompanied a young woman, Ms. Howard, to an apartment in the complex so that she could retrieve her child. The child was in the apartment with his father, an African-American, who would become Hawes' victim. Hawes and the victim got into a fight, and Hawes' co-defendant eventually joined in the fray. While a number of onlookers stood by, some of them shouting encouragement to Hawes, Hawes struck the victim in the back of the head with an aluminum baseball bat, knocking him to the ground. Once the victim was on the ground, Hawes continued to hit him with the baseball bat, sometimes swinging it as if it were a golf club, while his co-defendant simultaneously beat and kicked the victim. The victim tried to get up off of the ground, and tried to crawl away, but his assailants' blows made it impossible. The beating stopped only when the victim's sister laid herself on top of the victim in order to ward off Hawes' blows. When emergency medical workers arrived, the victim only showed faint vital signs. He died a short time later of blunt force trauma to the head.

Before going to the apartment complex, Hawes and his co-defendant were each seen taking an aluminum baseball bat with them. Hawes commented at that time, "I am going to go and kill me a nigger." ³ After the beating, while fleeing the apartment complex, Hawes was asked why he had hit the victim with a baseball bat. Hawes responded that he was "going to kill him a nigger."

1. Viewed most favorably to the verdict, the facts introduced into evidence could enable a rational trier of fact to find Hawes guilty of felony murder. ⁴

2. Hawes claimed that the trial court erred by denying his special demurrer seeking to strike his alias name, "Stomper," from the indictment. Hawes argues that he was prejudiced by inclusion of the alias in the indictment because the victim in this case quite literally was beaten and stomped to death.

It is established in Georgia that an indictment may allege that a criminal defendant is known by an alias. ⁵ Insofar as it is uncontroverted that Hawes was well known by the alias of "Stomper," there was nothing presumptively improper about the State indicting Hawes under both his legal and alias names.

Hawes has not come forward with evidence to establish that the State indicted him under his alias in order to prejudice him in the eyes of the jury by conjuring images of the murder in this particular case. If anything, the record indicates that the State's inclusion of "Stomper" in the indictment helped significantly to identify Hawes as the individual charged under the indictment. Several witnesses testified that they knew Hawes only by his alias of "Stomper," and Hawes himself testified that most people know him as "Stomper." To the extent that the gruesome connection between Hawes' crime and his alias might possibly have raised questions in the mind of the jury, such questions were answered when Hawes testified under oath that he acquired the alias as a child, when he had a propensity to "run down the street stomping." Thus, the connection between the alias and the killing in this case appears to have been fortuitous, and we reject Hawes' first enumeration.

3. Hawes enumerates as error the trial court's admission into evidence of a contempt order issued against one of his witnesses, Ms. Howard, the young woman whom he accompanied when she went to retrieve her child just before Hawes fought with and killed the victim. Ms. Howard testified in the trial court that the victim had physically abused her on numerous occasions during their five-year relationship. Presumably, this testimony was intended to show the victim's propensity to behave violently, thereby justifying Hawes' actions.

On cross examination, the State questioned Ms. Howard regarding an earlier magistrate's court proceeding concerning a criminal warrant she had sworn out against the victim, accusing him of battery. As was explained by Ms. Howard during her trial testimony, a hearing had been held in magistrate's court concerning the battery warrant. At the hearing in magistrate's court, Ms. Howard had admitted on the stand that she had sworn out the warrant because she had been angry with the victim, and that she had fabricated part of the factual allegations asserted in support of the warrant. The magistrate's court had issued an order holding Ms. Howard in criminal contempt for her abuse of the criminal justice system. At Hawes' trial, the State introduced a certified copy of that contempt order into evidence over Hawes' hearsay objection, for purposes of impeaching Ms. Howard's testimony. ⁶

A witness's credibility may be impeached by evidence of conviction of a crime involving moral turpitude. ⁷ The concept of a crime involving moral turpitude, while nothing new, is not always susceptible to a clear and certain definition. ⁸ We have said that for purposes of witness impeachment, crimes involving moral turpitude are "restricted to the gravest offenses, constituting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind." ⁹ We have also indicated that moral turpitude is roughly the equivalent of infamy. ¹⁰ Likewise, the Court of Appeals has opined that a crime involving moral turpitude must be malum in se and not merely malum prohibitum, and involves "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." ¹¹ Also noteworthy is the Court of Appeals' recent holding that convictions for both criminal and civil contempt are neither felonies nor misdemeanors. ¹²

Assuming without deciding that a criminal contempt citation based upon the false swearing out of a warrant is not a crime malum in se, and therefore does not involve moral turpitude for purposes of witness impeachment, we find that in this case, any error resulting from the admission into evidence of the contempt order was harmless. The record discloses that Ms. Howard admitted under cross examination that she had lied in swearing out the warrant charging the victim with battery, and that she had been issued a contempt order by the magistrate's court for that misconduct. Hence, the evidence contained in the order was cumulative of other properly-admitted evidence, and therefore was harmless as a matter of law. ¹³

4. Finally, Hawes claims that the trial court erred when, after correctly charging the jury regarding malice murder, voluntary manslaughter, and felony murder, it recharged the jury that it could reach a verdict on felony murder without having first disposed of the malice murder charge.

The record reveals that the trial court properly charged the jury as to malice murder and voluntary manslaughter (Count I) and felony murder (Count II). As part of its charge, the court instructed the jury that if it found provocation and passion (as previously had been defined) with respect to the killing, it could find Hawes guilty of voluntary manslaughter, but it could not find him guilty of felony murder. The jury then asked for reinstruction regarding whether it had to reach a unanimous verdict as to all counts. The Court recharged the jury that there were three possible verdicts under Count I--guilty of malice murder, guilty of voluntary manslaughter, or not guilty--and if the jury found Hawes either guilty of malice murder or guilty of voluntary manslaughter, then it need not consider Count II, felony murder.

After two hours of deliberation, the jury asked whether it could deadlock as to Count I and still reach a verdict as to Count II, or whether that would result in a mistrial. Upon questioning the foreperson, the court learned that the jury believed itself to be deadlocked as to one of the counts of the indictment, but that it had not yet reached a verdict as to the other count.

After conferring with counsel, the trial court recharged the jury by reminding it of the possible verdicts on Count I that previously had been explained to it. The court instructed the jury that it was to continue deliberating with an eye toward a unanimous verdict as to each count, and that it was not to consider whether a mistrial might be declared as a result of its decisions. Then a juror asked whether Count I had to be disposed of before Count II could be considered, or, if the jury deadlocked on one...