Hester v. State, S08A0353.

• Decision Date: 31 March 2008
• Docket Number: No. S08A0353.,S08A0353.
• Citation: 659 S.E.2d 600,283 Ga. 367
• Parties: HESTER v. The STATE.
• Court: Georgia Supreme Court

659 S.E.2d 600

283 Ga. 367

HESTER v. The STATE.

No. S08A0353.

Supreme Court of Georgia.

March 31, 2008.

Mary Erickson, Decatur, for Appellant.

Penny Alane Penn, Dist. Atty., Decatur, Sandra Ann Partridge, Asst. Dist. Atty., Cumming, Christopher Robert Johnson, Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., Dept. of Law, Atlanta, for Appellee.

CARLEY, Justice.

On the evening of August 7, 2003, Appellant Edna Irene Hester threw a glass-jug lamp which struck both her boyfriend, Eddie Phillips, and her sister, Donna Parris. Appellant had been fighting with Ms. Parris and, while throwing the lamp, cursed Mr. Phillips. Ms. Parris suffered a severe scalp laceration, which caused massive blood loss resulting in her death hours later. Mr. Phillips was also struck in the head, losing consciousness and requiring seven stitches. Appellant was charged with alternative counts of malice murder and felony murder, and two counts of aggravated assault. She filed demurrers to the indictment, which the trial court overruled.

Thereafter, a jury found against a special plea of incompetence to stand trial. Appellant was tried before a jury and found guilty of felony murder and both counts of aggravated assault. The trial court entered judgments of conviction for felony murder and one count of aggravated assault, merged the other aggravated assault count into the felony murder, and sentenced Appellant to life imprisonment for the murder and to a concurrent term of years for aggravated assault. A motion for new trial was denied, and Appellant appeals.^*

1. When construed most strongly in support of the verdicts, the evidence was sufficient to enable a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which she was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The felony murder count alleged that Appellant, while in the commission of aggravated assault, caused Ms. Parris' death "by striking her on and about the head with a lamp...." The aggravated assault counts alleged that Appellant "did unlawfully make an assault ... with a lamp, an object which when used offensively against a person, is likely to and actually does result in serious bodily injury...." Appellant contends that all counts of the indictment were deficient due to their failure to specify how the lamp was used. This contention was included in timely filed demurrers and, because Appellant sought greater specificity, it must be classified as a special demurrer. Stinson v. State, 279 Ga. 177, 180(2), 611 S.E.2d 52 (2005); Lowe v. State, 276 Ga. 538, 539(2), 579 S.E.2d 728 (2003); Carter v. State, 155 Ga.App. 49, 50(1), 270 S.E.2d 233 (1980).

Citing Smith v. Hardrick, 266 Ga. 54, 464 S.E.2d 198 (1995), Appellant argues that, because a lamp is not a deadly weapon per se, its specific use in an assault is not readily apparent and, thus, must be specifically alleged. However, Hardrick does not support this argument. "[T]he proper reading of [Hardrick] is `that an indictment charging aggravated assault is fundamentally flawed when the essential elements of aggravation and intent to assault are not contained therein.' [Cit.]" Pye v. State, 274 Ga. 839, 841(4), 561 S.E.2d 109 (2002). Thus, because the indictment alleged that the lamp is "an object which when used offensively against a person, is likely to and actually does result in serious bodily injury," an allegation that it is a deadly weapon was not required. State v. English, 276 Ga. 343, 345(1), 578 S.E.2d 413 (2003); Pye v. State, supra.

An indictment alleging an assault by use of an instrument which is not a deadly weapon per se is not required to be more specific regarding its use than indictments charging assault with an instrument which is a deadly weapon per se, as even the latter type of weapon, including guns, can be used in more than one way to commit an assault. See Arthur v. State, 275 Ga. 790, 791(2), 573 S.E.2d 44 (2002).

The true test of the sufficiency of an indictment is not whether it could be made more certain and definite, but whether it contains the elements of the offense charged, apprises the accused of what he must be prepared to defend against, and protects against double jeopardy. [Cit.]

Arthur v. State, supra. Each count of the indictment contained the necessary elements of the offense charged. The rule relied upon by Appellant that, with certain exceptions, each count must be wholly complete within itself applies only to the essential elements of the crime, and not to the form of the indictment or to factual details alleged therein. State v. Jones, 274 Ga. 287, 288-289(1), 553 S.E.2d 612 (2001); Smith v. Hardrick, supra at 54(1), 464 S.E.2d 198. The indictment must be read as a whole. State v. Jones, supra at 289(1), 553 S.E.2d 612. Appellant clearly was apprised that she would have to defend against the allegation that she struck Ms. Parris on and about the head with the lamp. Furthermore, she admitted to a law enforcement officer that she had thrown the lamp at Mr. Phillips. In these circumstances, the language of the indictment "`is not too vague to inform (Appellant) of the charges against [her]. (Cit.)' [Cit.] Therefore, the trial court correctly overruled the demurrer." Arthur v. State, supra. See also Pye v. State, supra; Moyer v. State, 275 Ga.App. 366, 374(5)(c), 620 S.E.2d 837 (2005). Moreover, Appellant has not shown "how [s]he was misled to [her] prejudice by any alleged imperfection in the indictment and we can discern no prejudice in [the] record. Any error in failing to try [her] upon a `perfect' indictment was, thus, manifestly harmless. [Cit.]" Mitchell v. State, 282 Ga. 416, 419(4), 651 S.E.2d 49 (2007).

3. Appellant further contends that the evidence was not sufficient to sustain the special jury's finding that she was competent to stand trial.

In a competency proceeding, the defendant has the burden of proving incompetency by a preponderance of the evidence. [Cit.] A criminal defendant is competent to stand trial if he is capable of understanding the nature and object of the criminal proceedings and of assisting his attorney with his defense. [Cit.].... The special jury having found [Appellant] competent for trial, this Court's role is to determine, after reviewing the evidence in the light most favorable to the State, whether a rational trier of fact could have found that [she] failed to prove by a preponderance of the evidence that [she] was incompetent to stand trial. [Cit.]

Velazquez v. State, 282 Ga. 871, 872-873(1), 655 S.E.2d 806 (2008). See also Sims v. State, 279 Ga. 389, 391(1), 614 S.E.2d 73 (2005). Appellant "and the State offered opposing expert opinions on the issue of [her] competency." Velazquez v. State, supra at 873(1), 655 S.E.2d 806. There was expert medical testimony that Appellant was suffering from a psychotic disorder, not otherwise specified, and dementia, not otherwise specified, and that she did not understand the charges as they relate to her condition. However, extensive testimony of doctors and staff from Northwest Georgia Regional Hospital showed that Appellant is a longtime alcoholic, does not have a major mental illness, understood the nature and object of the legal proceedings, and could assist her attorney at trial. Construing the evidence most strongly in support of the special jury's verdict, we conclude "that a rational trier of fact could have found that [Appellant] failed to prove by a preponderance of the evidence that [she] was incompetent to stand trial. [Cits.]" Velazquez v. State, supra at 873(1), 655 S.E.2d 806.

4. Police Officer John Kaufman testified that, pursuant to a request by Emergency Medical Services (EMS), he was the first person to arrive at the crime scene. Appellant was running from one house towards another house and, when he asked her to come, she returned to the first house. Officer Kaufman followed and saw her standing over Ms. Parris, who had a large bloody rag on her head. Appellant was yelling that she was trying to see if Ms. Parris was alright. The police officer asked Appellant to step back outside in order to make room for EMS. He asked her what happened, and she said that Ms. Parris had fallen and hit her head. Another officer arrived and stayed with Appellant, while Officer Kaufman went back into the house to check on Ms. Parris. He "asked her what happened, and she told [him], `That bitch hit me in the head with a big piece of glass.'" Appellant was then taken into custody. After waiting for police to clear and secure the scene, a paramedic entered the house. He testified that he asked Appellant what was her name and then what had happened. "She said there had been an altercation, she and her sister had been fighting, and she hit her in the head with some sort of glass." Appellant urges that the admission into evidence of Ms. Parris' statements to Officer Kaufman and to the paramedic was in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In Crawford, the Supreme Court of the United States "held that the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. [Cit.]" Pitts v. State, 280 Ga. 288, 627 S.E.2d 17 (2006). We have held that testimonial statements generally "include statements made by witnesses to government officers investigating a crime. [Cits.]" Lindsey v. State, 282 Ga. 447, 452(4), 651 S.E.2d 66 (2007). The Supreme Court "refused to define `testimonial,' but expressly stated that the term did apply, inter alia, to `police interrogations.' [Cit.]" Watson v. State, 278 Ga. 763, 768(2)(b), 604 S.E.2d 804 (2004). Since Crawford, however, the Supreme Court has given somewhat more precise guidance as to which police interrogations produce testimony:

Statements are nontestimonial when made in the course...