Holmes v. State

• Decision Date: 03 May 1999
• Docket Number: No. S99A0337.,S99A0337.
• Citation: 271 Ga. 138,516 S.E.2d 61
• Parties: HOLMES v. The STATE.
• Court: Georgia Supreme Court

516 S.E.2d 61

271 Ga. 138

HOLMES v. The STATE.

No. S99A0337.

Supreme Court of Georgia.

May 3, 1999.

Reconsideration Denied May 28, 1999.

Alan J. Baverman, Atlanta, for Dornell Fabrian Holmes.

Patrick H. Head, District Attorney, Debra H. Bernes, Joel C. Pugh, Nancy I. Jordan, Assistant District Attorneys, Marietta, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Frank A. Ilardi, Assistant Attorney General, for the State.

CARLEY, Justice.

Dornell Fabrian Holmes and Michael Rhodes were tried jointly before a jury. Rhodes was acquitted, but Holmes was found guilty of the felony and malice murder of Dushun Hoggro, and the commission of an aggravated assault upon Troy Edwards. Since the felony murder verdict was vacated by operation of OCGA § 16-1-7, the trial court properly entered a judgment of conviction only on the malice murder and aggravated assault verdicts. Lowe v. State, 267 Ga. 410, 478 S.E.2d 762 (1996); Malcolm v. State, 263 Ga. 369, 372(4), 434 S.E.2d 479 (1993). The trial court sentenced Holmes to life imprisonment for the malice murder and to a term of years for the aggravated assault. The trial court denied his motion for new trial, and he appeals.¹

1. Construed in the light most favorable to the verdict, the evidence shows that Hoggro and Edwards tried to assist Donte Tanksley who was fighting with Dexter Gordon. Rhodes then fired two shots into the air. While Hoggro and Edwards were fleeing, Holmes grabbed the gun from Rhodes and fired four or five times. Hoggro was killed. We conclude that a rational trier of fact could have found Holmes guilty of malice murder and aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); McCord v. State, 268 Ga. 499(1), 491 S.E.2d 360 (1997); Love v. State, 268 Ga. 484, 485(1), 490 S.E.2d 88 (1997).

2. Holmes contends that the trial court erred in holding that Edwards' and Gordon's out-of-court statements were admissible under the "necessity" exception to the hearsay rule. OCGA § 24-3-1(b). Holmes concedes that Edwards was unavailable due to his death, but argues that there was insufficient evidence of Gordon's unavailability.

In order for a party to introduce testimony under the necessity exception, the Georgia courts have always required that the declarant be dead or unavailable and that there be particularized guarantees of trustworthiness. Roper v. State, 263 Ga. 201, 202(2), 429 S.E.2d 668 (1993); McKibbons v. State, 226 Ga.App. 452, 454(2), 486 S.E.2d 679 (1997). We recently added the requirements that the statement be relevant to a material fact and that it be more probative on that material fact than other evidence that may be procured and offered. Chapel v. State, 270 Ga. 151, 155(4), 510 S.E.2d 802 (1998). These requirements were borrowed from the "catch-all" hearsay exception in Federal Rule of Evidence 807 and similar state rules of evidence, because "death or unavailability of the declarant cannot alone satisfy the necessity component without allowing the exception to swallow the rule." Chapel v. State, supra at 155(4), 510 S.E.2d 802. With the safeguard of the new requirements in place, there is clearly no need, if there ever was, to restrict the meaning of "unavailability" to instances of death, privilege, and deliberate hiding, as urged by the special concurrence. Otherwise, the hearsay declaration of a missing witness could never be admitted unless the hard-to-prove circumstance of a deliberate hiding were shown, even if the proponent made a thorough search for the witness, met Chapel's additional requirements, and demonstrated sufficient indicia of reliability. Federal Rule 807 does not even require unavailability, and the majority of states which make unavailability a condition of certain hearsay exceptions permit the proponent of the evidence to show unavailability by demonstrating due diligence in procuring the declarant's attendance. 2 Wharton's Criminal Evidence § 6:28 (15th ed.1998); 23 CJS, Criminal Law, § 1129; 29 AmJur2d, Evidence, § 698. Indeed, we know of no jurisdiction which defines unavailability so narrowly as would the special concurrence. Consistent with the majority rule, the Court of Appeals has already held that, to meet the necessity exception, "[t]he State must show ... that the declarant is unavailable to testify and that it made reasonable efforts to locate the declarant and secure [his] presence. [Cits.]" Wilbourne v. State, 214 Ga.App. 371, 373(2), 448 S.E.2d 37 (1994). This test of unavailability is a strict one which the Court of Appeals borrowed from Confrontation Clause jurisprudence. Ohio v. Roberts, 448 U.S. 56, 74(IV)(A), 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Adams v. State, 191 Ga.App. 16, 17(2), 381 S.E.2d 69 (1989); 2 McCormick on Evidence § 253, p. 134 (4th ed.1992). This fact does not detract from the Court of Appeals' conclusion. To the contrary, the Court of Appeals has successfully avoided the disparate definitions of unavailability that exist in some jurisdictions which use a more lenient standard of unavailability in cases where confrontation requirements do not apply. See 2 McCormick, supra at § 253, pp. 134-135. Nothing in the language of OCGA § 24-3-1(b) requires that the test for unavailability be even more strict than that which the Confrontation Clause mandates. If constitutional requirements are met, the statutory requirements of OCGA § 24-3-1(b) are also satisfied since the statute does not specify any additional requirements. Use of the Confrontation Clause test has the added advantage of providing a uniform standard which applies equally to all hearsay exceptions which make unavailability a condition of admissibility. Thus, the test of unavailability or "inaccessibility" is the same for both the necessity exception and the "prior testimony" exception to the hearsay rule. Jones v. State, 250 Ga. 166, 168(2), 296 S.E.2d 598 (1982); Jay v. State, 232 Ga.App. 661, 663(2), 503 S.E.2d 563 (1998).

The evidence here showed that investigators for both the State and Rhodes could not locate Gordon after diligent and extensive efforts. Although Holmes urges that the State did not begin to look for Gordon until fourteen months after the murder, most of that delay is attributable to Holmes himself, who eluded police for nine to ten months before turning himself in. The State began its unsuccessful search for Gordon a month-and-a-half before trial. Compare Rosser v. State, 211 Ga.App. 402, 406(1), 439 S.E.2d 72 (1993). Under the circumstances, Holmes has not shown that the trial court abused its discretion in deeming Gordon to be unavailable. Jay v. State, supra. See also Jones v. State, supra at 168(2), 296 S.E.2d 598.

Holmes also argues that Edwards' and Gordon's statements have insufficient indicia of reliability. Although Edwards and Gordon were on opposing sides of the fight, they consistently identified Holmes as the one who shot at Hoggro and Edwards. Chapel v. State, supra at 155(4), 510 S.E.2d 802; McGee v. State, 267 Ga. 560, 566(5), 480 S.E.2d 577 (1997). Compare Carr v. State, 267 Ga. 701, 706(3), 482 S.E.2d 314 (1997). Both Edwards and Gordon gave their statements to detectives a few hours after the shooting and those statements were made in the course of an official investigation, before either had an opportunity to consult with any other witness. Perkins v. State, 269 Ga. 791, 796(4), 505 S.E.2d 16 (1998); White v. State, 268 Ga. 28, 30(2), 486 S.E.2d 338 (1997); Luallen v. State, 266 Ga. 174, 179(6), 465 S.E.2d 672 (1996); Drane v. State, 265 Ga. 663, 664(1), 461 S.E.2d 224 (1995); McKissick v. State, 263 Ga. 188, 189(3), 429 S.E.2d 655 (1993). Neither was a suspect in the murder and, thus, neither had a motive to fabricate a story regarding the murder. Chapel v. State, supra at 155(4), 510 S.E.2d 802. Compare Carr v. State, supra at 705-706(3), 482 S.E.2d 314. The statements were corroborated by the physical evidence and by other witnesses. Perkins v. State, supra at 796(4), 505 S.E.2d 16; Luallen v. State, supra at 179(5), 465 S.E.2d 672. Neither Edwards nor Gordon ever recanted or disavowed his statements. Perkins v. State, supra at 796(4), 505 S.E.2d 16; White v. State, supra at 31(2), 486 S.E.2d 338; Luallen v. State, supra at 179(5), 465 S.E.2d 672; Drane v. State, supra at 664(1), 461 S.E.2d 224; McKissick v. State, supra at 189(3), 429 S.E.2d 655. Thus, the State laid a sufficient foundation for the admission of each of the statements.

Accordingly, we find no error in the admission of Edwards' and Gordon's out-of-court statements. Moreover, any error would be harmless because other eyewitnesses also identified Holmes as the one who shot at Edwards and Hoggro. Suits v. State, 270 Ga. 362(2), 507 S.E.2d 751 (1998); Hayes v. State, 265 Ga. 1, 3(3), 453 S.E.2d 11 (1995).

Judgment affirmed.

All the Justices concur, except BENHAM, C.J., SEARS and THOMPSON, JJ., who concur specially, and FLETCHER, P J., who concurs in Division 1 and in the judgment.

BENHAM, Chief Justice, concurring specially.

While I agree with the affirmance of appellant's conviction, I cannot endorse the plurality's unnecessary expansion of the "necessity exception" to the rule against the admission of hearsay. In Smith v. State, 266 Ga. 827(4), 470 S.E.2d 674 (1996), we expressly declined to determine whether the inability of law enforcement officers to locate a missing witness made that witness "unavailable" for purposes of the necessity exception to the hearsay rule, and the plurality opinion in the case at bar does not convince me that the exception should be broadened to allow officers to testify to out-of-court statements made by missing witnesses. In addition, I take issue with the plurality's use of standards developed with regard to the "prior testimony" exception to the hearsay rule (OCGA § 24-3-10) to make it easier to admit hearsay under the "necessity" excepti...