White v. State

• Decision Date: 12 May 1997
• Docket Number: No. S97A0049,S97A0049
• Citation: 268 Ga. 28,486 S.E.2d 338
• Parties: , 97 FCDR 1627 WHITE v. The STATE
• Court: Georgia Supreme Court

Page 338

486 S.E.2d 338

268 Ga. 28, 97 FCDR 1627

WHITE v. The STATE

No. S97A0049.

Supreme Court of Georgia.

May 12, 1997.

Kathy S. Palmer, Swainsboro, for Maurrice Julius White.

Richard A. Malone, Dist. Atty., William Steven Askew, Asst. Dist. Atty., Swainsboro, Michael J. Bowers, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Atlanta, for State.

BENHAM, Chief Justice.

Appellant Maurrice Julius White was convicted of malice murder in connection with the death of James Miller, a taxicab driver in Vidalia, Georgia. ¹ The taxicab company's dispatcher testified that the victim had reported picking up a passenger at a convenience store shortly before he was found fatally wounded in his cab, with three gun shot wounds to his neck and head. Two employees of the convenience store identified appellant's photograph as depicting one of several young men in the store shortly before the homicide. A firearms expert from the GBI Crime Lab concluded from an examination of the bullet fragments recovered from the victim's body that the bullets had been fired from a .32 caliber revolver. The State introduced statements given to police by a now-deceased juvenile in which the juvenile stated that he had loaned a .32 caliber gun equipped with five bullets to appellant the evening before the cab driver was shot, and that appellant had returned the weapon a day or two later with only one bullet. Another witness testified that appellant had told the witness and his brother that appellant had shot the taxicab driver in an attempt to rob him. Unsigned statements of two other witnesses, each stating that appellant had admitted shooting the taxicab driver, were admitted into evidence as prior inconsistent statements after the witnesses denied making the statements. A latent print examiner from the GBI Crime Lab matched known prints of appellant to fingerprints lifted from the interior glass of the right rear window of the victim's taxicab.

1. Appellant suggests that, in light of the jury's acquittal of appellant on the armed robbery charge, the evidence was not sufficient to authorize the jury's guilty verdict on the murder charge. In light of the abolition of the inconsistent verdict rule in criminal cases by this court in Milam v. State, 255 Ga. 560(2), 341 S.E.2d 216 (1986), the sole question is whether the evidence was sufficient to authorize a rational trier of fact to find appellant guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence summarized above was sufficient to meet that standard.

2. As stated earlier, statements given to police by a juvenile deceased at the time of trial were admitted at trial through the testimony of the police detective to whom the statements were given. One statement consisted of the detective's summary of her conversation with the decedent four months after the taxicab driver was slain; the other was a handwritten statement, purportedly written by the juvenile eight months after the crime, and signed by the juvenile, his mother, and the detective. In each statement, it was reported that appellant had borrowed the decedent's .32 caliber revolver and five bullets "to get some money" the evening before the victim was killed, and returned it a day or two later with only one bullet. The gun was not recovered by authorities because, according to the juvenile's statements, the juvenile had thrown it into a dumpster in a neighboring town upon hearing about the taxicab driver's death. The police detective found .32 caliber shell casings at a site where the juvenile was said to have shot the weapon in target practice.

The police detective's testimony, as it related to the deceased youth's statements, was hearsay since its value rested mainly on the veracity and competency of one other than the witness relating it. OCGA § 24-3-1; Farmer v. State, 266 Ga. 869(1), 472 S.E.2d 70 (1996). The trial court admitted the evidence under the "necessity" exception to the rule against the admission of hearsay. OCGA § 24-3-1. That exception may not be utilized unless two prerequisites are established: (1) that a necessity for the exception exists; and (2) that there is "a circumstantial guaranty of the trustworthiness of the offered evidence--that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered." Higgs v. State, 256 Ga. 606(3), 351 S.E.2d 448 (1987).

The declarant's pre-trial death meets the necessity prong. Mallory v. State, 261 Ga. 625(2), 409 S.E.2d 839 (1991). ² As for the second prong, whether there are "circumstances which attribute verity" to the statements (Roper v. State, 263 Ga. 201(2), 429 S.E.2d 668 (1993)), the trial court made the following findings: with regard to the first statement, the trial court found a substitute for the declarant's oath and cross-examination in that the statement had been voluntarily made to a police officer in the course of an official investigation in the presence of an adult family member after the declarant had received a telephonic admonition from his mother to tell the truth; the statement had never been recanted by the declarant, and had been repeated without material deviation in the declarant's second statement to police. With regard to the second statement, the trial court found circumstantial guarantees of trustworthiness in that the statement was signed by the declarant, had been made to police in the course of an official investigation in the presence of the juvenile declarant's mother, was consistent with the earlier statement, and was never recanted. The trial court also noted that the statement contained information about the murder not known to the general public and was corroborated by the discovery of .32 caliber shell casings at the site the decedent said he went for target practice.

A statement made to a police officer during the course of an investigation has been deemed reliable when it was made shortly after the incident to which it related or shortly after the declarant was contacted by police concerning the incident. See McKissick v. State, 263 Ga. 188(3), 429 S.E.2d 655 (1993) (statements made by victim within hours of being released from car trunk); Higgs v. State, supra, 256 Ga. 606(5), 351 S.E.2d 448 (statement made within hours of the killing); Wallace v. State, 216 Ga.App. 718(2), 455 S.E.2d 615 (1995)(statement made right after the shooting); Patterson v. State, 202 Ga.App. 440(4), 414 S.E.2d 895 (1992) (statement made immediately after declarant was contacted by police); Adams v. State, 191 Ga.App. 16(2), 381 S.E.2d 69 (1989) (statement made immediately after declarant apprehended). The decedent's statements at issue in the case at bar were made four and eight months after the incident to which they relate, but the first statement was made orally immediately upon the decedent being contacted by the officer, and the second statement was a handwritten reiteration of the oral statement. Because the original statement was made to one the declarant knew to be investigating the events to which the declarant's statement related, and the statement was made immediately after the declarant was contacted by police concerning the incident, the declarant's hearsay statement contains indicia of reliability making it worthy of belief. The fact that the declarant never recanted his statement or sought to change it is also an indicator that the statement is worthy of belief. McKissick v. State, supra 263 Ga. at 189, 429 S.E.2d 655; Higgs v. State, supra, 256 Ga. at 608, 351 S.E.2d 448. However, the fact that the two statements are consistent with one another, without more, is "not a satisfactory 'substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.' " Smith v. State, 266 Ga. 827(4), 470 S.E.2d 674 (1996). The trial court did not err when it admitted the hearsay testimony.

3. Appellant complains that the trial court erroneously limited his cross-examination of the police detective concerning the death of the juvenile whose statements were admitted under the "necessity" exception to the hearsay rule. Appellant contends the trial court's ruling made him "unable to properly pursue in the presence of the jury information that may have shown a suicide motive...." At a hearing outside the presence of the jury, a detective testified that the investigation into the juvenile's death was ongoing and that possible circumstances of the death, i.e., suicide, accidental shooting, involvement of others, could not be excluded until the autopsy and crime lab reports were received. When defense counsel stated her intention of examining the witness before the jury about the possibility of suicide as the cause of death, the trial court ruled out questions "that tend to be speculative," and limited the witness's testimony to what she knew. Before the jury, the witness testified that the circumstances of the juvenile's death, including the possibility it was a suicide, were not yet resolved. Thus, appellant successfully brought to the jury's attention the possibility that the...