Smith v. State

• Decision Date: 28 May 1996
• Docket Number: No. S96A0165,S96A0165
• Citation: 266 Ga. 827,470 S.E.2d 674
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

Page 674

470 S.E.2d 674

266 Ga. 827

SMITH v. The STATE.

No. S96A0165.

Supreme Court of Georgia.

May 28, 1996.

Devon Orland, Public Defender's Office-Dekalb County, Decatur, for Smith.

Desiree Sutton Peagler, Asst. Dist. Atty., J. Tom Morgan, Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Dept. of Law, Atlanta, Barbara Blaine Conroy, Asst. Dist. Atty., Decatur, for State.

Wesley S. Horney, Asst. Atty. Gen., Dept. of Law, Atlanta.

SEARS, Justice.

Appellant Edward Smith appeals from his convictions for murder, first degree arson aggravated battery, and aggravated assault, alleging that the trial court erred in two of its dealings with the jury, and in admitting into evidence the hearsay statements of an unavailable witness. We conclude that the trial court's actions both in empaneling the jury and in seating an alternate juror were entirely appropriate and exercised within the sound discretion of the trial judge. While we conclude that the trial court's admission of hearsay testimony under the necessity exception was improper in this case, we find any resulting error to have been harmless. Therefore, we affirm.

The evidence introduced at trial showed that, late one night in November 1994, police and fire fighters responded to a fire at a vacant DeKalb County hotel known to be frequented by homeless people. Upon arriving at the scene, officers found Juan Perez, who had been injured by the fire, and the body of Hector Ortiz. An autopsy later revealed that Ortiz had died of heat exposure and smoke inhalation. Appellant Smith was indicted in connection with the fire, the death of Ortiz, and the injuries to Perez. ¹

At trial, a police officer testified that he had been approached by Appellant and Michael Scott on the night of the fire, before it began. The officer testified that Appellant and Scott told him that someone had tried to cut Appellant and that he should investigate the attack. Scott testified at trial that the alleged assailant was known as "McGee," and that Appellant claimed that McGee threatened to kill him. Scott also testified that shortly after he and Appellant spoke with the police officer, Scott observed Appellant walking toward the hotel carrying a soda bottle with a cloth hanging out of it. Appellant told Scott, in essence, that McGee would regret having crossed Appellant. ²

Lajuana Hogan testified at trial that she saw Appellant at a gas station before the fire with a soda bottle in his hand. He asked her to pay for some gasoline he wanted to purchase. After paying for the gasoline, she asked Appellant what he was planning to do with it. He responded that the less she knew, the better off she would be.

In addition, Michael Johnson testified at trial that shortly before the fire, Appellant told him to stay away from the hotel that night. Mr. Johnson did go to the hotel; however, he was able to escape the fire. Afterwards, Johnson testified that he asked Appellant, "[i]s that what you meant about not going into the hotel?" Appellant responded, "[y]es, that's exactly what I meant." Appellant also told Johnson about his earlier confrontation with McGee.

Officers investigating the fire testified that it appeared to have been deliberately set. In reaching this conclusion, the officers relied in part on statements made by Perez during interviews conducted immediately after the fire. In these interviews, Perez described his observations of the fire, which he made while inside of the burning building and while escaping the blaze.

1. The evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Appellant was guilty of the crimes of which he was convicted. ³

2. Appellant claims that the trial court erred in substituting an empaneled juror with an alternate without properly investigating the reason for the seated juror's absence. On the second day of trial, a seated juror informed the court that because she had to undergo emergency dental surgery, she would be unable to fulfill her duties as a juror. Over the objection of defense counsel, the trial court substituted the absent juror with one of the alternates. Appellant claims that the trial court judge should have further investigated and verified the reason for the juror's absence before seating an alternate.

A trial judge may, in exercising her discretion, remove a juror and seat an alternate whenever she is convinced that the removed juror's ability to perform his duties is impaired. ⁴ Excusing a juror because he is ill and replacing him with an alternate is proper, ⁵ and a trial judge is under no obligation to consult with a doctor in order to confirm the need to excuse an ill juror. ⁶ Accordingly, this enumeration has no merit.

3. Appellant also claims that the trial court erred in failing to excuse a juror for cause because the relevant juror summons was directed not to that particular juror, but rather to his son. Appellant claims that this error resulted in a denial of his constitutional right to a venire fairly representative of a cross section of the community. Over defense counsel's objection, the trial court seated the juror, finding that, based upon the testimony elicited during voir dire, there was insufficient evidence to show that he was not the juror summoned. Insofar as the record does not include any evidence to support Appellant's contention that the juror was not the intended recipient of the summons, Appellant has failed to satisfy his burden to show harmful error affirmatively by the record. Moreover, even if there was some evidence to indicate that the intended recipient of the summons was the empaneled juror's son, Appellant has made no showing that the composition of the jury that convicted him represented anything other than a cross section of the community. Accordingly, we we find that this enumeration also has no merit.

4. Finally, Appellant claims that the trial court erred in admitting over objection the hearsay testimony of an investigating police officer and an arson investigator concerning statements they took from Perez. Perez had been sleeping in the hotel, and seriously burned his feet when he ran down a hallway in order to escape the burning building. In the two days following the fire, while hospitalized for his injuries, Perez discussed his observations of the fire with the investigators, ⁷ who testified at trial that Perez's statements were consistent, and that they relied upon Perez's statements in concluding that the fire had been set deliberately. The arson investigator testified that he took special note of the burn injuries to Perez's feet, because they showed that the hallway floor was ablaze when Perez ran down it. That piece of information helped the investigator to establish that the fire had multiple points of origin, a classic sign of arson.

Perez did not testify at trial. The investigating police officer testified that, for several weeks, he had tried to locate Perez by searching at his last known place of residence, asking other police officers whether they had seen Perez, and checking with the Immigration and Naturalization Service. Over Appellant's objection, the trial court admitted the investigators' reiteration of Perez's statements...