Thomas v. State
| Decision Date | 27 October 2008 |
| Docket Number | No. S08A1778.,S08A1778. |
| Citation | 284 Ga. 540,668 S.E.2d 711 |
| Parties | THOMAS v. The STATE. |
| Court | Georgia Supreme Court |
Charles Randolph Thomas was convicted of malice murder and possession of a firearm during the commission of a crime arising from the shooting death of his former wife, Annette Thomas.1 On appeal, Thomas asserts that the trial court erred in admitting into evidence hearsay statements made by the victim to several witnesses within minutes after the shooting. Finding no reversible error, we affirm.
The victim had obtained a divorce from Thomas in May 2006. Two months later, she was visiting a friend when she received a cell phone call from Thomas. Her friend recognized Thomas' voice and heard his end of the conversation because he was speaking in a loud angry manner. After Thomas informed the victim that he was at her home, she told her friend that she was going to drive home to see what he wanted, but that she would return later for dinner.
The victim arrived at her home at about 6:00 p.m. Minutes later, a passerby observed a man fitting Thomas' description sitting on a swing talking to a woman in a car in the driveway of the victim's home. Shortly after 6:00 p.m., the victim's neighbor, Jack Freese, drove by the residence and saw the victim's car parked at an angle with the rear of the vehicle against the side of the house. Freese stopped to investigate and he found the victim sitting up in the driver's seat. She was responsive and he asked her what had happened; she replied, "my ex-husband shot me." Freese immediately called 911 from his cell phone and told the operator that his friend had been shot. He also called neighbors Leon and Nancy Smith who arrived within minutes to assist. Nancy asked the victim what kind of vehicle the perpetrator was driving and the victim responded, a "black Ford ... pickup" truck. Freese acted as a conduit between the 911 operator, relaying questions from the operator to Leon Smith who in turn posed the questions to the victim; Leon obtained answers from her and repeated those responses to Freese who relayed them to the operator. When the operator asked the identity of the shooter, the victim replied, "Charles Thomas," my "ex-husband." The victim was also asked to describe Thomas' car; she replied that it was a black Ford truck.
Deputy Sheriff Tommy Haynes was the first law enforcement officer to arrive on the scene. He observed the victim sitting in the car bleeding profusely with a large hole in her left eye socket, "fad[ing] in and out" of consciousness. He asked her several times to identify the perpetrator; eventually she was able to reply, "Charles Thomas, my ex-husband."
Emergency medical personnel arrived several minutes later. Paramedics Lorraine Harrison and Darrell Rogers removed the victim from her vehicle and placed her in an ambulance. After an emergency procedure to clear her airway, she was able to speak and answer the paramedics' questions. Both Harrison and Rogers testified that she identified herself by name, and when asked "who did this to you," she replied "Charlie Thomas ... my ex-husband."
When police investigator Steve Smith arrived on the scene, the victim was being treated in the ambulance and he was unable to speak with her. Investigator Smith did, however, speak to Nancy and Leon Smith who told him that the victim had identified Charlie Thomas as her attacker; and he was told by Deputy Haynes that the perpetrator had been driving a black Ford truck.
A life-flight helicopter arrived and flight paramedic Derrick Moody asked the victim what happened. She stated that she had been shot by her ex-husband. She was intubated, sedation was administered, and she was transported to Grady Hospital.
Two days later, Investigator Smith visited with the victim at the hospital; she was on a ventilator and unable to communicate. Eventually life support was terminated and she died of complications from two gunshot wounds to the left side of the head.
Thomas turned himself in to the police the day after the shooting and surrendered his truck. Paint evidence found on the bumper of Thomas' vehicle was consistent with the paint on the victim's car.
1. The evidence was sufficient for a rational trier of fact to have found Thomas guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Thomas asserts that his Sixth Amendment right of confrontation was violated when the trial court considered the hearsay statements of seven witnesses (neighbors Jack Freese, Leon and Nancy Smith; paramedics Lorraine Harrison and Darrell Rogers; and police officers Tommy Haynes and Steve Smith) concerning the victim's identification of the shooter and his vehicle.
In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Because only testimonial statements "cause the declarant to be a `witness' within the meaning of the Confrontation Clause ... [i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis v. Washington, 547 U.S. 813, 821(III)(A), 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
In Davis, supra, 547 U.S. at 817, 126 S.Ct. at 2270, the Court was called upon "to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are `testimonial' and thus subject to the requirements of the Sixth Amendment's Confrontation Clause."
The facts in Davis are closely analogous to the case now before this Court. There, the victim of domestic violence reported to a 911 operator that her former boyfriend was at her home and was beating her. The operator obtained identifying information about the perpetrator, who was later charged with felony violation of a domestic no-contact order. The victim failed to appear at trial, and the police officers who responded to the 911 call had no knowledge of the cause of the victim's injuries. Over objection on Sixth Amendment grounds, the court admitted the recording of the 911 call. The Supreme Court affirmed the admission of that portion of the 911 conversation in which the victim identified her assailant, ruling that it was not testimonial and therefore not controlled by Crawford. The Court explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis, supra, 547 U.S. at 822, 126 S.Ct. at 2273-2274. The Court determined that "at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to `establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." Davis, supra, 547 U.S. at 827, 126 S.Ct. at 2276.
In the present case, the trial court followed the rationale of Davis in determining that the victim's statements to the neighbors were nontestimonial in that they were elicited as part of a 911 call and were made while the incident was still ongoing and the perpetrator was at large. We agree that the statements identifying Thomas as the assailant were nontestimonial and not subject to the Sixth Amendment's Confrontation Clause as the victim was speaking about events "as they were actually happening" (emphasis omitted), Davis, supra 547 U.S. at 827, 126 S.Ct. at 2276, and the primary purpose of the questioning "was to enable police assistance to meet an ongoing emergency." Id. at 828, 126 S.Ct. at 2277. See also Hester v. State, 283 Ga. 367(4), 659 S.E.2d 600 (2008) (...
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