Mallory v. State

Citation261 Ga. 625,409 S.E.2d 839
Decision Date01 November 1991
Docket NumberNo. S91A0656,S91A0656
PartiesMALLORY v. STATE.
CourtSupreme Court of Georgia

John R. Martin, Martin Brothers, P.C., Atlanta, Carl A. Bryant, Albany, for the State.

Edward D. Lukemire, Dist. Atty., Perry, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Atlanta, for Mallory.

CLARKE, Chief Justice.

Dr. Vincent Mallory was convicted of malice murder and arson. He was sentenced to life imprisonment for the malice murder and to 20 years to run consecutively with the life sentence for the arson. 1 Dr. Mallory, a black male, was convicted of the murder of Shelby Fields, a white woman who was his patient. The state contended that he had a romantic relationship with the victim. The charred body of the victim, who had been shot in the head before being burned, was found in the home of Dr. George Fuller. Dr. Fuller, Ms. Fields' dentist and neighbor with whom she sold a nutritional product called "Shakelee," was out of town when his house burned. Ms. Fields had a key to his house. Ms. Fields told her son that she was going to get some "Shakelee" from Dr. Fuller's house and left her house at approximately 11:15 p.m. on the night of February 26, 1987. Police received a report that Dr. Fuller's house was on fire at approximately 1:00 a.m. February 27. Ms. Fields' car was found February 27 in the parking lot of a Kroger store in Warner Robbins, Georgia.

Ms. Lucille Dodds, a friend of Ms. Fields, testified that in a telephone conversation at about 9:30 p.m. on February 26, 1987, Ms. Fields told her that she was going to have coffee with Dr. Mallory.

There was testimony that Dr. Mallory had attended a business fraternity meeting on the night of the fire. In a statement to police on April 4, Dr. Mallory said that he had gone straight home at approximately midnight after a party following the meeting. He admitted at trial that he had lied to police and that he visited the home of a former girlfriend at 9:30 p.m. before going home. There was testimony at trial, however, that he had visited the house of Ms. Sherman Whitfield, his former girlfriend, two times that night. She was not at home the first time, but she testified that he returned after midnight smelling of kerosene and took a shower. She also testified that on a previous occasion he indicated that he would shoot her and burn her house down around her if she ever "crossed" him.

The wife of one of the fire fighters testified that Dr. Mallory drove up to the scene of the fire on February 27 and asked "if they had found anybody in there yet."

In Dr. Mallory's statement to police on April 4, 1987, he said that he had owned three .22 caliber handguns in the last six months. There was testimony that Dr. Mallory traded a .22 caliber pistol on the day after the fire, February 27. This gun was not one of the three described to police. At the time that he traded the gun, Dr. Mallory backdated a form which he filled out to show that the sale occurred February 26. However, a computerized invoice showed that the transaction occurred February 27. In his statement to police on April 4, Dr. Mallory said that he traded the gun on February 26 and worked in his office all day February 27. At trial, however, he testified that the trade occurred February 27.

Although the head wound of the victim was made by a .22 caliber bullet, only a portion of the bullet was recovered. The gun which was traded was not specifically tied to the murder. There was testimony that Dr. Mallory was a gun collector who had guns of many different kinds and that he had attempted to sell the .22 caliber pistol on previous occasions.

In his statement to police Dr. Mallory said that Shelby Fields had never been in his car or pick-up truck. However, vacuum sweepings of his truck yielded hairs which were found to be consistent with the hair of the victim.

1. Reviewing the evidence in the light most favorable to the jury's verdict, we hold that a rational trier of fact could have found appellant guilty of the crime for which he was convicted beyond a reasonable doubt even without the prejudicial hearsay evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. We consider first the enumeration of error that the court allowed the hearsay testimony as to the contents of the telephone conversation of Lucille Dodds with the victim. The state contends that this conversation was admissible under OCGA § 24-3-1(b), which provides that "hearsay evidence is admissible in specified cases from necessity." There are two prerequisites for admission of hearsay because of necessity: "1) necessity; 2) particularized guarantees of trustworthiness." Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Higgs v. State, 256 Ga. 606, 351 S.E.2d 448 (1987).

The first prerequisite is met since the statements in question were made by the victim, who is now unavailable as a witness because she is deceased. In Higgs v. State, supra, the issue was admissibility of statements made to police by defendant's former wife who was not available at trial because she had remarried the defendant. The following indicia of trustworthiness were found: 1) declarant consulted an attorney before giving a statement to police; 2) the statement was given within hours of the event in the course of an official investigation; 3) the witness never retracted the statement or testified contrary to the statement; 4) the witness testified prior to trial that she refused to testify because she loved her husband. In Adams v. State, 191 Ga.App. 16, 381 S.E.2d 69 (1989), the issue was the admissibility of the statement of the defendant's twelve-year-old niece who was apprehended after filling a forged prescription for the defendant. The witness was unavailable because she was hidden by family members. The Court of Appeals found that the necessity for the admission of the statement had been shown and that the following indicia of trustworthiness were present: 1) the statement was given in the course of an official investigation immediately after the child was apprehended; 2) she never recanted her statement or sought to change it; 3) parts of her statement were corroborated by other evidence.

None of these indicia of reliability is present here. The most persuasive of the state's arguments that the statement is reliable is that there was testimony that the women were "best friends" and confided in one another. The state also argues that Ms. Dodds had no reason to lie. The truthfulness of Ms. Dodds is only part of the issue here. Equally important is the truthfulness of Ms. Fields' statements. According to Ms. Dodds, Ms. Fields said that she had hurt the feelings of Dr. Mallory, a "dear friend" and that while she had said she would not meet him for breakfast, she had agreed to make coffee at her house or somewhere else. Beyond the fact that there was no reason for Ms. Fields to lie about meeting Dr. Mallory, there are no particular indicia of trustworthiness. Rather, the fact that the victim made a contradictory statement to her son as to where she was going on the night she was killed persuades us that her statement to Ms. Dodds is not sufficiently trustworthy to be admissible under the "necessity" exception to the hearsay rule.

Even without the admission the evidence adduced at trial is sufficient to support the verdict of guilty under the standard announced in Jackson v. Virginia, supra. Nevertheless, we cannot say that this inadmissible hearsay evidence did not influence the jury in reaching its verdict. Therefore, its admission was harmful error, and the judgment must be reversed.

3. Because the judgment is reversed, we need not deal with trial errors which may not arise on retrial. Specifically, the issues raised by appellant in enumerations of error one and two need not be dealt with here. These enumerations raise Batson errors and errors regarding the failure of the trial court to dismiss jurors for cause on the basis of racial prejudice.

4. Appellant contends that the state violated appellant's due process rights by deliberately interjecting race into the trial. According to appellant, the evidence did not support the state's contention that appellant was romantically involved with the victim and this fact, combined with the state's striking of black jurors, prejudiced the appellant. The state responds that this state has never recognized the principle of cumulative error and that each error must be separately shown, citing Eady v. State, 182 Ga.App. 293, 355 S.E.2d 778 (1987), and Campbell v. State, 181 Ga.App. 1, 351 S.E.2d 209 (1986). The state contends that this enumeration involves cumulative error and may be disregarded.

The cases cited by the appellant deal with an enumeration of error in which an appellant argues that a trial was unfair under the totality of the circumstances. The Court of Appeals in both cases found that an enumeration based on the "totality of the circumstances" must fail when appellant has not presented argument on each point. The enumeration of error at issue here is slightly different. Appellant contends 1) that race was unfairly interjected into the trial by the unsubstantiated allegation of a romantic relationship between appellant and the victim and 2) that the prejudice was exacerbated because of Batson errors. The appellant argued the Batson issue strenuously in his first enumeration of error which we have not found it necessary to address. Since both parts of the present enumeration have been argued by appellant, it does not fall into the category of cumulative error.

The question presented is that of relevance. A romantic involvement between a defendant and a victim is often relevant to the question of motive whether the couple is of the same or different races, religious groups, nationalities, or sexes. Therefore, without a particular showing that the alleged involvement was introduced merely...

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