Howard v. State

• Decision Date: 11 April 1991
• Docket Number: No. S91A0168,S91A0168
• Citation: 261 Ga. 251,403 S.E.2d 204
• Parties: HOWARD v. The STATE.
• Court: Georgia Supreme Court

Page 204

403 S.E.2d 204

261 Ga. 251

HOWARD v. The STATE.

No. S91A0168.

Supreme Court of Georgia.

April 11, 1991.

Reconsideration Denied May 13, 1991.

Richard E. Allen, Augusta, for Howard.

J. Lane Johnston, Dist. Atty., Statesboro, Michael J. Bowers, Atty. Gen., C.A. Benjamin Woolf, Atty., State Law Dept., Atlanta, for State.

SMITH, Presiding Justice.

The appellant, Debra Suzanne Murray Howard, shot and killed Linda W. McCorvey with a handgun. She claimed that the shooting was in self-defense. Following a jury trial, Ms. Howard was found guilty of murder and she received a sentence of life imprisonment. We affirm. ¹

At the time of the shooting, Ms. Howard occupied the driver's seat of her parked automobile, while Gene Grim, the victim's boyfriend, occupied the passenger's side. The victim stood outside the vehicle on the driver's side. Ms. Howard testified that the victim, who was large and jealous, approached the vehicle, reached through the partially open driver's side door window and began to pull her hair, pinning her against the window. Ms. Howard claimed that while still pinned she retrieved her pistol and fired a warning shot. When the victim continued pulling Ms. Howard's hair, she fired the second and fatal shot.

The only other surviving eyewitness, Mr. Grim, testified that he neither heard the victim threaten Ms. Howard, nor saw the victim pull Ms. Howard's hair. He went on to state that he did not see or feel the automobile shake from any bodily contact.

Before the victim died, she told Dr. Charles F. Cowart, about the incident, relating that Ms. Howard threatened to shoot if the victim "took another step" toward the automobile. The victim went on to say, "I did, and she did." At trial the doctor's testimony about that conversation was allowed into evidence, over the objection of the defense counsel.

Medical testimony indicated that the victim died as a result of a gunshot wound causing traumatic injury to several internal organs of her chest. State experts testified that the bullet recovered from the victim's body matched test bullets fired from Ms. Howard's pistol. The investigating police officers testified that no weapon, other than Ms. Howard's pistol, was recovered from the scene of the crime, and they found no signs of blood or hair and no indications of a struggle.

Ms. Howard's sole enumeration of error on appeal is that Dr. Cowart's testimony about the victim's statements concerning the circumstances of the shooting should have been excluded as hearsay. We agree. The State urges that Dr. Cowart's testimony falls under the statutory hearsay exception of OCGA § 24-3-4. That statute reads:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.

The victim's statements to Dr. Cowart regarding the circumstances and activity prior to the shooting did not fall within the statutory exception because they were not reasonably pertinent to Dr. Cowart's diagnosis or treatment.

Nevertheless, we find that the error was harmless because it is "highly...