Moody v. State
| Decision Date | 25 September 1979 |
| Docket Number | No. 34750,34750 |
| Citation | 244 Ga. 247,260 S.E.2d 11 |
| Parties | MOODY v. The STATE. |
| Court | Georgia Supreme Court |
Neil Wester, Dalton, for appellant.
Charles A. Pannell, Jr., Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Asst. Atty. Gen., for appellee.
On November 19, 1977, Barbara Lee Moody, hereinafter the defendant, shot and killed the victim, a twelve-year-old boy, as he was leaning against her car. She was charged with murder. At trial she defended the charge on the ground of insanity. Defendant was a former mental patient and had been previously institutionalized for her mental problems. Expert evidence at trial concerning defendant's ability to distinguish between right and wrong at the time of the shooting was conflicting. Defendant was convicted of murder and sentenced to life imprisonment. She brings seven enumerations of error to this court. We affirm.
1. In her first enumeration of error, defendant contends that the trial court erred in refusing to charge the jury the law as to involuntary manslaughter. Although defendant did not testify in her own behalf, in her statement to the police shortly after the incident she stated that she had only intended to shoot close to the victim to scare him and not to hit him.
The court did not err in refusing to charge on involuntary manslaughter. This fatal shooting was neither the result of the commission of an unlawful act other than a felony (Code Ann. § 26-1103(a)) nor was it the result of the commission of a lawful act in an unlawful manner (Code Ann. § 26-1103(b)). It was unlawful for defendant to shoot at the victim in this case and shooting at him was a felony. See in this regard Braxton v. State, 240 Ga. 10, 239 S.E.2d 339 (1977).
2. In her second enumeration of error, defendant contends that the trial court erred in refusing to charge the jury the law as to accident. Defendant argues, as in Division 1 above, that her statement itself justifies such a charge.
Code Ann. § 26-602 states: "A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, or intention, or criminal negligence." Defendant's act of shooting "close to" the victim in order to scare him was criminally negligent, consequently a charge on accident was not authorized. DeBerry v. State, 241 Ga. 204, 243 S.E.2d 864 (1978) is a case very similar to the case at bar wherein this court held that a charge on accident should have been given, although the court went on to hold the failure to so charge was harmless error. The facts in that case, though, are sufficiently different from the facts here so that a different result on the issue of error is authorized. In DeBerry, the defendant did not deliberately shoot At the victim. Rather, according to him, he fired while maneuvering his truck in an effort to escape the victim. On the contrary, defendant Moody in the case at bar deliberately fired At the victim although hoping to shoot close to him. Furthermore, even if we were to hold that the trial court erred in failing to charge on accident in this case, such error would have been harmless under the reasoning in DeBerry, supra.
3. In her third enumeration of error, defendant contends that the trial court erred in failing to charge the jury that the state had the burden of proving beyond a reasonable doubt that she had the mental capacity to be convicted of murder. Defendant points out that the trial court did, however, charge on the presumption of sanity. We find no error. All reference to burden of proof in the court's general charge placed that burden on the state to prove all elements of the crime beyond a reasonable doubt. In fact, the charge as given was more favorable to defendant than it could have been. See Grace v. Hopper, 234 Ga. 669, 217 S.E.2d 267 (1975), ruling upheld in Grace v. Hopper, 566 F.2d 507 (5 Cir. 1978). See also Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (1978); Durham v. State, 239 Ga. 697, 698, 238 S.E.2d 334 (1977); State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975).
4. In her fourth enumeration of error, defendant asserts that the trial court erred in refusing to admit into evidence the certified hospital records of Central State Hospital. She contends that such records are admissible under Code Ann. § 38-712, et seq. Defendant misconstrues this law. Code Ann. §§ 38-712-38-716 deal with the method of authenticating records which are otherwise admissible and are not new rules of admissibility eliminating the hearsay rule. See Dennis v. Adcock, 138 Ga.App. 425(1), 226 S.E.2d 292 (1976) in this regard. Records which contain diagnostic opinions, conclusions and other statements of third parties not before the court are still not admissible if tendered in toto though relevant portions of such records not subject to such defects may be. Dennis v. Adcock, supra; Martin v. Baldwin, 215 Ga. 293(2c), 110 S.E.2d 344 (1959); Hurt v. State, 239 Ga. 665(10), 238 S.E.2d 542 (1977). Therefore, the trial court in the case at bar correctly excluded from evidence defendant's entire hospital record from Central State Hospital since it was tendered in toto. Subsequently, defendant's counsel removed certain portions from the record, referred to them extensively in cross-examination of one of the state's expert witnesses, and then attempted to tender those documents into evidence. The trial court excluded those documents as well and properly so. As stated above, evaluations, opinions, diagnoses, conclusions and statements of third parties not before the court are inadmissible.
Defendant, in her brief, cites a 1946 Court of Appeals case which appears to be directly on point and support her argument that her hospital records should have been admitted in the defense of her case. The accused in Rowland v. State, 73 Ga.App. 729, 37 S.E.2d 923 (1946) was convicted of assault with intent to murder. He attempted to introduce into evidence his clinical record from an army hospital which tended to support his testimony about his mental problems. The Court of Appeals reversed his conviction stating that the record should have been admitted. No citation of authority appears in the opinion nor does it appear that the case has ever been cited in any subsequent opinion. The case is clearly a solitary aberration from the otherwise uncontroverted rule in Georgia that records containing opinions, diagnoses, and other hearsay are inadmissible. Rowland v. State, Supra, is hereby expressly overruled.
5. In her fifth enumeration of error, defendant contends that the trial court erred in permitting the state to call a Dr. Perez as an expert witness to rebut defendant's insanity defense. Dr. Perez was defendant's psychiatrist at Central State Hospital where she had been sent to determine her competency to stand trial. The contention is that Dr. Perez's testimony is a violation of the rule of privileged communications between psychiatrist and patient (Code Ann. § 38-418(5)).
Dr. Perez examined defendant pursuant to a court order. She was not at Central State for treatment nor does the record reflect that she received any. 1 The psychiatrist-patient privilege does not apply in such case. Pierce v. State, 243 Ga. 454, 254 S.E.2d 838 (1979); Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970). See also Kimble v. Kimble, 240 Ga. 100, 239 S.E.2d 676 (1977). Plummer v. State, 229 Ga. 749, 194 S.E.2d 419 (1972), cited by defendant does not require a different result.
6. In her sixth enumeration of error, defendant contends that the trial court erred in denying her motion to suppress the murder weapon as it was found as the result of an illegal search. She also argues that her later statement to the...
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