Moore v. State

• Decision Date: 11 April 2012
• Docket Number: No. S11A1503.,S11A1503.
• Citation: 725 S.E.2d 290,290 Ga. 805,12 FCDR 1116
• Parties: MOORE v. The STATE.
• Court: Georgia Supreme Court

290 Ga. 805

725 S.E.2d 290

12 FCDR 1116

MOORE

v.The STATE.

No. S11A1503.

Supreme Court of Georgia.

March 23, 2012.

Reconsideration Denied April 11, 2012.

Calvin Moore, pro se appellant.

C. Paul Bowden, Dist. Atty., Samuel S. Olens, Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Sara K. Sahni, Asst. Atty. Gen., for appellee.

NAHMIAS, Justice.

Calvin Moore appeals his conviction for malice murder in connection with the death of 63–year–old Lucius Harris, Jr. Although we conclude that the evidence was sufficient to support Appellant's conviction, the trial court erred in allowing the State to introduce similar transaction evidence without conducting the hearing required by Uniform Superior Court Rule 31.3(B) and making the necessary findings on the record. See Williams v. State, 261 Ga. 640, 642 & n. 3, 409 S.E.2d 649 (1991). Accordingly, we vacate the trial court's judgment and remand the case for a Rule 31.3 hearing and the entry of proper findings or, if need be, a new trial.¹

1. The evidence at trial, viewed in the light most favorable to the verdict, showed the following. Appellant moved in with the victim in June or July of 2003. On occasion, Appellant was seen slapping or hitting the victim. On the evening of June 10, 2004, the victim's cousin, Angela Horton, visited him at his house. Horton observed that the victim had a busted lip, his knees were skinned, he had blood on his boxer shorts, and he could barely talk. Appellant was home at the time and told Horton that he was tired of the victim stealing his money and smoking his dope and he was going to beat the victim to death and leave his body on the railroad track so that it could not be identified after a train ran over it. Not thinking that Appellant was serious, Horton left and went to work.

That night, Robert Cook, who was then homeless, was camping on an abandoned street by a railroad track. Sometime after 3:00 [290 Ga. 806]a.m., Cook saw a large man carrying a body on his shoulders emerge from the bushes. The man put the body down on the ground by a fence before walking over to Cook and asking him what he was doing there. The man then snatched Cook's backpack out of his hand, pulled Cook to the ground, and held Cook down with his hands around Cook's neck. The man let Cook go after Cook said that he “wouldn't say nothing” about what he had seen; when the man looked the other way, Cook ran to a nearby convenience store, where he called 911 at 3:54 a.m.

Cook led the responding officers back to his encampment and gave the officers a physical description of the man who had attacked him. The officers searched the area and found the victim's body lying on the railroad track. Identification found with the victim led the officers to his house, where they found Appellant standing in the yard. Appellant matched the physical description Cook had provided, but Appellant denied having ever been to the area where the victim's body was found. One neighbor had seen Appellant on a street corner at about 3:00 a.m., and another saw his car driving up the street at about 3:15 a.m. The police later found Appellant's latent thumb print on a metal fence rail near Cook's campsite and about 150 yards from where the victim's body was found. The medical examiner determined that the victim died from crushing chest injuries associated with manual strangulation.

Over Appellant's objection, the State presented evidence at trial regarding Appellant's involvement in the 1995 death of Robert Littrell, a man made frail by multiple sclerosis. Appellant had lived with Littrell as his caretaker for about five years, and they had financial and physical disputes. On November 2, 1995, Appellant called 911 to report that Littrell was not breathing. The chief medical examiner testified that Littrell had suffered crushing chest injuries and a throat injury consistent with manual strangulation, and a regional medical examiner testified that Littrell's injuries were similar to the injuries suffered by the victim in this case. Appellant claimed that he inflicted Littrell's injuries in an unsuccessful attempt to resuscitate him through CPR. Although Appellant was not charged at the time, he was apparently indicted for the murder of Littrell after the charges were filed in this case.

When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) ( “ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)).

[290 Ga. 807]2. Appellant contends that the trial court erred in admitting evidence about his involvement in Littrell's death as a similar transaction at his murder trial without holding a proper hearing on admissibility and making the required on-the-record findings. We agree.

Uniform Superior Court Rule 31.3(B) prohibits the State from introducing evidence of similar transactions or occurrences unless “specifically approved by the judge.” ² Where the State seeks to introduce similar transaction evidence, it must provide the defense with written notice and specified information and documents, and “[t]he judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury.” USCR 31.3(B). A Rule 31.3(B) hearing must be held even if not requested by the defendant. See Stewart v. State, 263 Ga. 843, 845, 440 S.E.2d 452 (1994) (describing compliance with Rule 31.3 as “mandatory”), overruled on other grounds by Wall v. State, 269 Ga. 506, 509, 500 S.E.2d 904 (1998); Cavender v. State, 208 Ga.App. 61, 63, 429 S.E.2d 711 (1993) ( “ ‘[T]he burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate this procedure.’ ” (citation omitted)).

The State bears the burden to show that: (1) it seeks to introduce the evidence “not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility”; (2) “there is sufficient evidence to establish that the accused committed the independent offense or act”; and (3) “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” Williams, 261 Ga. at 642, 409 S.E.2d 649. Before admitting similar transaction evidence, the trial court must make findings on the record as to these three issues. See id. at 642, n. 3, 409 S.E.2d 649.

On February 7, 2006, Appellant filed a motion in limine to prevent the State from admitting evidence regarding Littrell's death as a similar transaction or making any reference to it. The motion included a request for a hearing; in particular, Appellant wanted the State to produce the medical examiner who originally performed Littrell's autopsy and all pictures from the autopsies of Littrell and the victim and to show from the medical evidence how the two deaths were similar beyond being caused by blunt force trauma. Nine days before trial, on February 20, 2006, the trial court had a discussion about the motion in limine in chambers with counsel for Appellant and the State. Appellant was not present, and the discussion was not recorded. On February 22, the State sent the court a letter brief stating that the similar transaction evidence would be offered to show identity and bent of mind. On February 23, the trial court entered a written order authorizing the State “to enter into evidence in the trial of this case the facts and circumstances of the death and autopsy of Robert Littrell for the limited purposes of showing bent of mind and identity.”

Our review of the record confirms Appellant's claim that the trial court did not hold the similar transaction hearing that Rule 31.3 required and Appellant requested. We reject the State's contention that the in-chambers discussion on February 20 was a proper Rule 31.3 hearing. That discussion was off the record, without the defendant present, and not open to the public. That is not a “hearing” within the meaning of Rule 31.3(B) and our case law. ³

In addition, the trial court did not make all three on-the-record findings necessary to admit similar transaction evidence. Even if we construe the court's February 23 order as a finding that the State offered the similar transaction evidence for an appropriate purpose—namely, bent of mind and identity—the court made no explicit finding that there was sufficient evidence to establish that Appellant committed the independent offense or that there was sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. See Williams, 261 Ga. at 642 & n. 3, 409 S.E.2d 649. Moreover, in light of the circumstantial nature of the State's case against Appellant and the power of the similar transaction evidence that was admitted, we are unable to say that the trial court's errors were harmless. See Lindsey v. State, 282 Ga. 447, 450, 651 S.E.2d 66 (2007) (“The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.”).

The remedy that Georgia's appellate courts have applied in these circumstances is to remand the case to the trial court to conduct a proper Rule 31.3 hearing and, if the similar transaction evidence is determined to be admissible, to enter the findings required by Williams. See, e.g., Sheppard v. State, 294 Ga.App. 270, 273, 669 S.E.2d 152 (2008). See...