Williams v. State

• Decision Date: 24 May 2004
• Docket Number: No. S04A0071.,S04A0071.
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Supreme Court

596 S.E.2d 597

277 Ga. 853

WILLIAMS v. The STATE.

No. S04A0071.

Supreme Court of Georgia.

May 24, 2004.

Maria Murcier-Ashley, Marietta, for appellant.

J. David Miller, Dist. Atty., Andrew W. Pope, Brian A. McDaniel, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Jason C. Fisher, Asst. Atty. Gen., for appellee. BENHAM, Justice.

This appeal is from Willie Jerome Williams's convictions for malice murder and possession of a firearm during the commission of a crime.¹ The evidence at trial showed Williams and another man brought Classie Patillo to a hospital dead from a gunshot wound, the bullet having entered her back and passed through both her lungs and her spine. One emergency room registration clerk testified Williams told her he and Patillo were looking at the gun and it went off as she tried to put it away. Another emergency room registration clerk testified Williams told her he and Patillo were looking at the gun and it discharged accidentally when he tried to take it from her to put it away. A police officer who interviewed Williams at the emergency room testified Williams said Patillo had taken the pistol from his hand and dropped it on the floor, causing it to discharge. Two witnesses who were in the house when the shooting occurred testified they heard Williams and Patillo in an adjoining room arguing and then having sex. One witness testified she heard Patillo scream Williams's name, then heard a loud bang, following which Williams came to the other couple's room and said Patillo had shot herself. The other witness who was in the house when the shooting occurred testified Williams told him he dropped the weapon when Patillo grabbed it and it fired upon hitting the floor. A firearms examiner testified the weapon had to be cocked to fire and could not accidentally fire by being dropped. Forensic testimony established the bullet was fired from a distance of two to four inches and went through Patillo's body from back to front, right to left, and down. Three friends of Patillo's were permitted to testify over Williams's hearsay objection to instances of prior difficulty between Williams and Patillo. Williams testified the shooting was an accident caused by Patillo pulling on the hand in which he held the weapon as she implored him not to leave. He explained his various inconsistent statements, including one in which he admitted he cocked the gun and had his finger on the trigger as he struggled with Patillo, as having been made while he was in shock and denial regarding his possession of the gun.

1. The evidence adduced at trial, as summarized above, was sufficient to authorize a rational trier of fact to find Williams guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The State presented three witnesses to establish the existence of prior difficulties between Williams and Patillo. One of those witnesses was permitted to testify only to her personal observation of difficulties between Williams and Patillo, but the other two were permitted to testify about declarations by Patillo concerning Williams's abuse of her. Williams contends the trial court erred in permitting the hearsay testimony to be admitted under the necessity exception to the hearsay rule, and we agree.

The two prerequisites for the admission of hearsay because of necessity are: a finding that the hearsay is necessary, and a finding that the declarant's hearsay statement is surrounded by particularized guarantees of trustworthiness. [Cit.] ... [T]he hearsay declarant's death or unavailability, in and of itself, does not satisfy the "necessary" component.... To satisfy the requirement that the hearsay be "necessary," in addition to showing the hearsay declarant's unavailability due to death, privilege, or other reason, the proponent of the hearsay must also show "that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered." [Cit.] ... After the completion of the three-pronged examination of whether the hearsay is "necessary," the trial court must then examine whether the hearsay statement is surrounded by "particularized guarantees of trustworthiness," that is, whether there is "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." [Cit.] Absent a showing of particular guarantees of trustworthiness or indicia of reliability, the proffered hearsay must be excluded from evidence. [Cit.]

Clark v. State, 271 Ga. 6, 9-10(5), 515 S.E.2d 155 (1999).

The first of the three prongs of the "necessary" component of the showing required for the admission of hearsay testimony under the necessity exception, unavailability, was shown by the declarant's death. The second prong, relevance, was shown because such prior difficulties "are evidence of the relationship between the two and may show the defendant's motive, intent, and bent of mind in committing the act for which he is being tried. [Cit.]" Graham v. State, 274 Ga. 696, 698(2), 558 S.E.2d 395 (2002). Regarding the third prong of the "necessary" component, the requirement the proffered evidence be more probative of the fact for which it is offered than other evidence which may be procured and offered, the trial court made such a finding as to one hearsay witness, but not as to the other. Our review of the testimony at trial persuades us, however, the trial court's finding the hearsay would be more probative than other evidence is not supported by the testimony of the hearsay witnesses and the third prior difficulty witness. Two of the prior difficulty witnesses testified about events they personally witnessed in which Williams used or threatened to use a firearm in an altercation involving Patillo. That testimony was more probative than the hearsay on the issues of Williams's prior difficulties with Patillo, especially since those events involved a firearm, the very method by which Williams killed Patillo. See Phillips v. State, 275 Ga. 595(4), 571 S.E.2d 361 (2002) (hearsay statement of eyewitness no more probative on the issues discussed therein than testimony of other eyewitnesses). Compare Watkins v. State, 276 Ga. 578(2), 581 S.E.2d 23 (2003) (hearsay statement constituted only evidence appellant had previously shot at the victim in his truck). Thus, the trial court's conclusion that the hearsay evidence at issue met the requirements of the "necessary" prong of the necessity exception was incorrect and rendered the admission of the hearsay testimony error.

However, we do not find that error to require reversal. In light of overwhelming evidence of Williams's commission of the murder, we conclude that it is highly probable that the admission of the hearsay testimony did not contribute to the verdict. Thus, it was not harmful error. Heard v. State, 274 Ga. 196(6), 552 S.E.2d 818 (2001). Having concluded that the totality of the evidence was such as to render harmless the trial court's admission of hearsay, we need not address the second prong of the necessity exception, particularized guarantees of trustworthiness.

3. After the conclusion of evidence, the trial court explained to the jury the usual order of events, hearing closing argument from the attorneys and then receiving instructions from the court, would be reversed in this case with the consent of the parties. Defense counsel had announced to the court immediately prior to the court's explanation that he had discussed the order of events with Williams and Williams agreed to the reversal of the usual order. Williams now argues the reversal of order was reversible error.

In Griffith v. State, 264 Ga. 326, 327(2), 444 S.E.2d 794 (1994), this Court held the provision in OCGA § 5-5-24(b) that the court "shall instruct the jury after the arguments are completed," is mandatory and requires a complete charge be given after closing arguments are completed. However, the error does not always require reversal, as is demonstrated by the holding in Griffith that it was highly unlikely the failure to do so contributed to the verdict. Id. More recently, the Court of Appeals applied to the issue the principle that a party cannot complain of error caused by his own conduct, and rejected a claim of error on the ground counsel consented to the reversal of order. McConnell v. State, 263 Ga.App. 686(2), 589 S.E.2d 271 (2003). Since the record in the present case shows counsel consented, we conclude that consent bars assertion of the issue on appeal. Williams also complains the trial court allowed the jury to begin deliberations prior to closing argument, but the record does not support that assertion. At the conclusion of its instructions, and prior to closing argument, the trial court sent the jury to the jury room with direction only to select a foreperson. After what the transcript describes as a brief delay, the trial court brought the jury back to the courtroom and informed the jurors they would hear closing arguments and would then be returned to the jury room to begin deliberations. There being no indication in the record that the jury was instructed to begin deliberations prior to closing argument or that premature deliberations actually occurred, we find no merit in Williams's assertion of error.

4. Williams contends the trial court erred in permitting an investigator to remain in the courtroom after invocation of the rule of sequestration and in failing to require the witness to testify first. Where, as here, [t]he prosecutor stated that he needed him for presentation of the case and that to require him to...