Ward v. State

• Decision Date: 13 September 1999
• Docket Number: No. S99A0990.,S99A0990.
• Parties: WARD v. The STATE.
• Court: Georgia Supreme Court

520 S.E.2d 205

271 Ga. 648

WARD v. The STATE.

No. S99A0990.

Supreme Court of Georgia.

September 13, 1999.

Reconsideration Denied November 15, 1999.

Brown & Romeo, Robert T. Romeo, Jonesboro, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, Thurbert E. Baker, Attorney General, Angelica M. Woo, Assistant Attorney General, for appellee. BENHAM, Chief Justice.

Pamela Mann was struck by a vehicle driven by appellant John Coy Ward on November 19, 1997, and died without regaining consciousness a month later from pneumonia she developed while comatose. Appellant was convicted of felony murder/aggravated assault in connection with Ms. Mann's death, and appeals from the judgment entered on the verdict.¹

A Butts County deputy sheriff responding to a call that a man and woman with a red pickup truck were arguing in the middle of a specified road found the victim lying on the dirt road with her arms above her head, appellant leaning over her, and the truck nearby. Appellant told the deputy that the victim had jumped out of appellant's moving vehicle during an argument. He further stated that the victim had re-entered the vehicle and had demanded to return home, and that appellant had felt a bump as he backed his vehicle, but that he had not run over the victim. Medical testimony established that the victim had suffered severe brain injuries, a broken shoulder blade, nerve damage that rendered her left arm useless, and a broken jaw. Both her treating physician and the medical examiner testified that her injuries were consistent with having been run over by a motor vehicle, and were not consistent with the victim having jumped from a moving vehicle. A photo of the leather jacket the victim was wearing when she was injured showed a tire track across it.

The State also presented evidence that appellant and the victim had lived together for two years and that their relationship was turbulent, with appellant frequently accusing the victim of having affairs with other men. A co-worker of the victim testified that she had visited the victim at the victim's home about two hours before the victim was injured, that the victim and appellant had argued during that visit, and that the victim had told the visitor that she was scared for her life. Another witness who had been friends with the victim for twenty-one years testified that she had been with the victim five days before the victim was injured; that the victim had left with appellant for thirty-forty minutes; and that, upon her return, the victim, described as crying, terrified and in a rage, had told the witness that appellant had told her he was going to kill her.

1. Appellant contends the State did not present sufficient evidence from which a rational trier of fact could find appellant guilty of felony murder beyond a reasonable doubt. Specifically, appellant contends that the State did not prove he intended to kill the victim or that he used his truck as a deadly weapon by intentionally running over the victim. Because appellant was convicted of felony murder which does not require proof of intent to kill, the State had only to establish that the defendant had the requisite criminal intent to commit the underlying felony, aggravated assault. Franklin v. State, 268 Ga. 865(1), 494 S.E.2d 327 (1998). Criminal intent is a question for the jury and may be inferred from conduct before, during and after the commission of the crime. Peterson v. State, 204 Ga.App. 532(1), 419 S.E.2d 757 (1992). See also Burks v. State, 268 Ga. 504, 505, 491 S.E.2d 368 (1997). The evidence was sufficient to authorize a rational trier of fact to conclude that appellant possessed the requisite intent and was guilty beyond a reasonable doubt of felony murder/aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 2. Appellant contends the trial court erroneously admitted hearsay testimony under the "necessity" exception to the rule against the use of hearsay when it permitted the victim's co-worker to testify that the victim had told her, hours before she was run over, that she was "scared for her life," and when the court permitted the victim's friend to testify that the victim had told her that appellant had threatened to kill the victim.

The two requirements for the admission of hearsay under the "necessity" exception are "necessity" and "particularized guarantees of trustworthiness." Jordan v. State, 266 Ga. 499(3), 467 S.E.2d 568 (1996), overruled on other grounds in Clark v. State, 271 Ga. 6, 10, 515 S.E.2d 155 (1999)

. In order to satisfy the first requirement, the proponent of the hearsay must show that "the declarant is deceased or unavailable, that the statement is relevant to a material fact, and that the statement is more probative than other evidence which may be offered. Chapel v. State, 270 Ga. 151(4), 510 S.E.2d 802 (1998). The second requirement is satisfied when the declaration is coupled with circumstances which attribute verity to it. [Cit.]" Azizi v. State, 270 Ga. 709(2), 512 S.E.2d 622 (1999). In the case at bar, the first requirement is satisfied since the declarant is deceased, the statements are relevant in that one shows appellant's state of mind and the other the victim's fear for her personal safety (see id.), and the statements are more probative than other evidence.

As is usually the case, the more difficult issue is whether the deceased declarant's statements were made under circumstances which offer particularized guarantees of trustworthiness to authorize their use at trial without the benefit of the oath and the test of cross-examination of the declarant. White v. State, 268 Ga. 28(2), 486 S.E.2d 338 (1997). In such a situation, the court considers the totality of the circumstances. Fetty v. State, 268 Ga. 365, 367, 489 S.E.2d 813 (1997); Dix v. State, 267 Ga. 429, 431, 479 S.E.2d 739 (1997); Roper v. State, 263 Ga. 201(2), 429 S.E.2d 668 (1993). Uncontradicted statements made to one in whom the deceased declarant placed great confidence and to whom she turned for help with her problems are admissible under the necessity exception. Fetty v. State, supra, 268 Ga. at 368, 489 S.E.2d 813; McGee v. State, 267 Ga. 560(5), 480 S.E.2d 577 (1997); Roper v. State, supra. Cf. Carr v. State, 267 Ga. 701(3), 482 S.E.2d 314 (1997).

In the case at bar, one witness testified that she and the victim had known each other for over twenty years and had been neighbors for the ten years before the victim's death. She described herself and the victim as "good friends" who had seen each other at least twice a week until the last two-three years, when the victim had become involved with appellant and had spent much of her time with him on the road as a truck driver. The witness testified that she and the victim had a "trusting" relationship which allowed them to talk to each other about family and relationship issues. Five days before the victim was injured, the witness and the victim had spent two-three hours together when appellant interrupted them and had the victim leave with him for thirty-forty minutes. Upon her return, the victim told the witness that appellant had threatened to kill her. In light of the victim's reaction to the threat, the witness made arrangements for the victim to spend the night elsewhere.²

The second hearsay witness testified that she was the manager of the small restaurant at which the victim had worked, and had been a friend of the victim for two-three years. She stated that the victim sought her out, placed confidence in her, and talked to her about the victim's personal problems. Because the victim had not shown up for work, the witness went to the victim's home in the late afternoon of November 19, just a few hours before the victim sustained her fatal injuries. The witness found appellant and the victim arguing and, when the witness encouraged the victim to leave with the witness, the victim told the witness she was scared for her life. Under the totality of the circumstances, we concur with the trial court's conclusion that the deceased declarant's statements to the two witnesses were coupled with circumstances that attribute verity to it. The trial court did not err when it admitted the hearsay testimony.

3. Appellant contends the trial court erroneously permitted two witnesses to testify about alleged prior difficulties between appellant and the victim without evidence of a probative connection between the prior incidents and the incident giving rise to appellant's murder trial. Pretermitting appellant's failure to voice an objection at trial to the testimony at issue, we note that we held in Wall v. State, 269 Ga. 506, 509, 500 S.E.2d 904 (1998), that evidence of a defendant's prior acts toward the victim is admissible when the defendant is accused of a criminal act against the victim because the prior acts "are evidence of the relationship between the victim and the defendant and may show the defendant's motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted." The trial court did not err in admitting the testimony in question.

4. Appellant believes reversible error was committed when the trial court permitted the State to impeach one of its witnesses with a prior statement inconsistent with his trial testimony without laying the foundation set forth in Duckworth v. State, 268 Ga. 566, 492 S.E.2d 201 (1997). As we stated in Duckworth, at 568, 492 S.E.2d 201, the necessary foundation is set forth in OCGA § 24-9-83: the time, place, person, and circumstances of the former statement must be called to the witness's attention and, if the contradictory statement is in writing, it must be shown or read to the witness. Our review of the transcript shows the witness was reminded of the circumstances surrounding the prior inconsistent...