Morris v. State

• Decision Date: 05 February 1988
• Docket Number: No. 44948,44948
• Citation: Morris v. State, 364 S.E.2d 571, 257 Ga. 781 (Ga. 1988)
• Parties: MORRIS v. The STATE.
• Court: Georgia Supreme Court

Page 571

364 S.E.2d 571

257 Ga. 781

MORRIS v.The STATE.

No. 44948.

Supreme Court of Georgia.

Feb. 5, 1988.

James Osborne, Vinson & Osborne, P.A., Dallas, for Dee Morris.

William A. Foster III, Dist. Atty., Dallas, Blanchette C. Holland, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Atlanta, for the State.

SMITH, Justice.

Dee Morris was found guilty of murdering his mother, Bertha Morris.We reverse.¹

Sometime after 2:30 a.m. on October 29, 1985, the appellant telephoned for an ambulance saying that his mother had shot herself.When the ambulance arrived, the attendants found the appellant on the phone attempting to call the police as his mother lay on a sofa in the living room with a fatal gunshot wound to her head.

The authorities initially viewed the death of the ailing 81-year-old as a suicide; however, the autopsy, while pointing to five factors which suggested a self-inflicted wound, nonetheless displayed eight other elements which indicated that the fatal wound had been caused by someone else firing the weapon.After attending the autopsy, the authorities asked the appellant to come to the station to give another statement, which he subsequently did without protest.After denying for approximately two hours that he shot his mother, he said, "Well, I know what you want me to say, so I'll tell you what you want to hear."The appellant stated that he had killed his mother, but that he did not know why he had done so.

The jury heard uncontradicted evidence that the appellant's mother had been suffering from various diseases, generally failing health, and depression.Claiming that his mother had killed herself because of her deteriorating condition, the appellant denied killing her.Family members testified also that the appellant was his mother's favorite son and that he had never physically threatened her.

There was a great deal of testimony by Dr. Burton, the medical examiner, regarding the amount of gun powder emitted upon discharge of the weapon.He additionally testified at length about the position of the victim's body and the gun powder residue on it as well as about the location and amount of blood on the gun and the victim's hands.Dr. Burton stated that based on "previous experience with other cases and with this case, it is improbable that she fired the gun, although I cannot rule that out as a remote possibility."He said that he had listed the cause of death as "undetermined" on his report.

During the Jackson-Denno hearing, the district attorney called a police officer, J.W. Moore, to testify for the state; his testimony was somewhat different than that of the other officers present during the appellant's interrogation.Because his wife was sick, Moore was excused, subject to recall, if needed.When appellant's counsel stated that he wanted to call the officer for cross-examination before the jury, the district attorney replied, "You definitely may."Later, the district attorney indicated that although Officer Moore was not on his list of witnesses, he had no objection to adding him as one of his witnesses to be called if appellant's counsel did not object.Appellant's counsel responded, "I have no objection to him adding Officer Moore to his list of witnesses and allowing me to cross-examine him before the jury."Thus, it was then agreed that the district attorney would add the officer to his list of witnesses.However, when appellant's counsel subsequently called Officer Moore to cross-examine him, the district attorney objected, contending that because the appellant had called the officer, he had therefore become the appellant's witness.The court ruled that the appellant could neither cross-examine Officer Moore nor attempt to impeach him.After appellant's counsel had finished questioning the officer, the district attorney, over the appellant's objection, cross-examined him.

Once jury deliberations had begun, the jury and the bailiffs had numerous conversations which the jury foreman initiated by knocking on the door and asking the bailiff questions.On several occasions, the bailiff went to the clerk and repeated those questions to her; she, in turn, repeated them to the judge.The judge then gave his answers to the clerk, who gave them to the bailiff, who ultimately transmitted them to the foreman.

At a post-trial hearing, testimony was given concerning various instances of this procedure.According to testimony, the foreman asked the bailiff at one point, "Could you see if somebody would let us see the towel that's got the blood and the residue all over it?"The bailiff responded, "I don't know, I'll see, but I don't think it was entered as evidence."She asked the clerk if the towel was entered into evidence.Though the bailiff opened the jury room door to report that the clerk had relayed a negative answer from the judge, the clerk, for her part, testified only that she had asked the judge questions about the gun and the testimony of Dr. Burton.Hence, the question regarding the towel apparently never reached the trial judge.

According to other post-trial testimony, another jury member at a later point asked the bailiff, "Could we have Dr. Burton's transcript and read it?"The bailiff responded, "I don't believe Cathy got it typed up yet.It will be at least a week or two, I believe, before she'll have it typed up."Although the clerk testified that she told the bailiff that the judge had said, "No," the bailiff testified that she, the...