*1 Bowen, III, L. Olson, Brandon Frank E. Jenkins & Jеnkins appellants. Spencer IV, for Lee William appellee. Byrd, Scheer, for W. E. Charles
Steven Long, Long Brewton, Wheale, B. amicus Tucker,Everitt, & John curiae. THE STATE. HAMES v.
S04A0489.
CARLEY, Justice. of malice on alternative counts Hames was indicted Joshua hunting, by misusing felony and a firearm while murder, murder aggravated felony assault. in the commission оf murder while underlying separately jury grand the two him also indicted charging jury acquitted malice him on the counts felonies. A felony aggravated during assault, and murder the commission felony guilty aggravated him murder it found assault. separate count for that offense. firearm and on the the misuse of a Merging felony underlying homicide, into felony jury’s guilty judgment verdict as to on the entered murder, ofconviction Following imposed the denial of a motion life sentence. and a appeal.1 brings trial, this new Hames hunting parents’ on their his brother Sam went 1. Hames and separated areas. Hames to hunt on different The two so as land. subsequеnt according spotted something and which, statement as a bobcat or to his crouching testimony, animal, such he mistook for victim, aimed at fact, Sam. Hames what he saw was wildcat. killing scope crouching figure through fired, his rifle and on the his brother. When verdict, jury’s strongly construed most rational trier of fact sufficiеnt to authorize a the evidence is gun guilty the misuse of a while to find Hames hunting. Virginia, 2781, LE2d U. 307 SC Jackson v. 443 S. SE2d497) (1996). (1979); State, police During warrant, the discovered the execution ofa search objection, handwriting bedroom. Over his of Hames’ on wall writing the existence of as relevant to of this was admitted judgment for new a noticе of 2002. The 2003. The The homicide occurred trial on of conviction appeal jury appeal February returned September was submitted 19,2003, imposed on October 10,2003, guilty which the trial court denied the life sentence for decision on verdicts on 11,2002. case January 30, on January grand was docketed in this February jury on 2003. The trial court entered indicted Hames on November 4,2003. August 11,2003. Hames filed a motion Court on November filed to kill brother. The admission of this acquitted error, but enumerated as Hames of an intentional handwriting obviously homicide. The does not relate whether gun. § violated OCGA 16-11-108 he aimed and fired when provision, guilt irrelevant, Under that the intent to kill is depends upon whether the defendant used a firearm *2 bodily endanger safety person
in a manner to the of another unjustifiable consciously disregarding substantial a endanger risk that his act or omission cause harm to or will safety person disregard the of another and the constitutes a gross deviation from thе ofcare a standard which reasonable person would exercise in situation the .... goes
“[T]he introduction of evidence that to motive is requiring harmless error where there is a conviction for an offense no (3) (401 [Cit.]” motive. Stoudemire v. (1991). any, handwriting Therefore, error, if in admission of the was harmless here. special holding concurrence misconstrues the in Stou- proposition has
demire. This Court cited for the Stoudemire that “evidence ofa defendant’s motive which is not material to his criminal is irrelevant Brown inadmissible.” v. (2) (512 dispositive However, there, issue here, is of such as admission irrelevant and inadmissible rеgard, motive evidence be held to be “harmless error.” that that, Stoudemire holds does not when the accused is ofa convicted crime which principle generally motive, the “harmless error” applies to an enumeration asserts of the erroneous admission that issue. the introduction in homiсide case evidence of
the existence of insurance wherein the defendant is the beneficiary where evidence has no relevance to the charge infecting has the enormous so process inflaming the trial that fundamental fairness can be easily compromised. (3). exception Thus,
Stoudemire v. at 50-51 a limited rule “harmless error” exists in such cases when the State intro- the fact that the “[D]espite duces irrelevant evidence of insurance. prosecutors... error,... introduction ofmotive evidence undertake severe risk of harmless [is] inject attempting when reversal pоlicy establishing required of an insurance without first nexus.” (3) (439 Woodham See 509) (2001);Bryan Givens also (2) do not we case, but, consistent in this “abandon” Stoudemire principle apply holding, to the introduc “harmless error” with its insurance. does not involve evidence which of motive tion gave a state- interviewed and homicidе, Hames was After the police. the unredacted admission of He contends that to the ment Primarily, parts to which erroneous. at trial was interview questioning objects kill the intent and motive to about his relate to consider- is relevant to our However, the crime which victim. hunting. appeal As to that firearm while misuse of a ation intentionally firing the fatal shot. The issue offense, admitted doing gross deviation from so was was whether person under the the would exercise that a reasonable of care standard bodily safety endangered circumstances, which deviation unjustified consciously disregarding risk a substantial and victim assuming portions Accordingly, injury. the interview even relating admissible, error in kill not motive to were to intent and admitting Stoudemire them was harmless. remaining portions attacks interview which Hames of the interrogating were officer which he contends
are comments *3 credibility. opinion expressions However, the on his inadmissiblе testifying case, in the and his as a sworn witness was not officer contested statements appear during an interview to reflect designed interrogation technique aggressive the truthfulness to test State, Rowe v. motive to kill. See denial of intent or of Hames’ proved 119) (2003). technique (2) (582 800, That SE2d story, shaking he to maintain Hames’ as continued in unsuccessful shooting large cat. When in the belief that he was that he fired testimony defense, was consis- in took the stand his own by pre-trial the verdict statement. As demonstrated tent with his aggravated acquitting assault, him malice murder and proving beyond carry its burden of that the State failed to found reasonable doubt his brother. Under these intent to kill or harm his portion interview to delete the circumstances, if it error to fail was shooting, challenged it was Hames’ version of the the officer wherein clearly (3). supra State, at 50 See also Rowe harmless. Stoudemire App. (2). Compare State, 221 Stаte, Holland v. at 804 v. 823 (1996). (1) (d) (472 SE2d additional in limine to exclude denied a motion
4. The trial court
ruling,
possible
error,
if
was
for murder. This
of a
(3).
Stoudemire v.
likewise harmless.
sequestration
enforcing
the rule of
err
The trial court did not
(3) (338
313, 316
255 Ga.
Hames’ father. Norman
Pre-autopsy photographs
of the victim were admissible to
show the nаture and
extent of his wounds. Russell v.
267 Ga.
(3) (485
717) (1997);
Holmes v.
261 Ga.
(2) (
7. The trial court did not err in to allow a defense express credibility pre-trial a favorable as to the of Hames’ testimony province statement. The excluded would have invaded the jury. App. (2) (505 ofthe Patterson v. previously jury acquitted Moreover, discussed, as Hames of involving any all crimes intent to kill or harm his brother. prove credibility determinative factor not to be the of his claim thought firing that he animal, was at an but whether his admitted aiming shooting investigation act of without further as to the target (a). nature ofthе intended Under was a violation of OCGA§ 16-11-108 assuming testimony circumstances, these even bol- stering credibility admissible, was its exclusion would be harm- (2) (353 less error at most. See Cook v. refusing 8. Hames contends that the trial court erred in to allow testify good the defense to call numerous witnesses to as to his reputation veracity. credibility “Until the attacked, of a witness is contradictory either for bad character or because of statements, party calling him can not introduce of his veracity.” App. character for Duncan SE proffer, yet At the time he made the Hames had not credibility become a оf bis Therefore, witness his own defense. testimony point. subsequently was not an issue at that Even after he attempt impeach testified, the State still did not him either showing by showing any contradictory his bad character or state- ments. testimony
Hames contends that the excluded nevertheless was challenges crеdibility admissible in rebuttal of the to his made the the interrogating during pre-trial officer interview. *4 prove
interview “was not offered the State in order to the truth of provocative questioning. supra [the officer’s] [Cits.]” Rowe v. at interrogator’s expression 803 of doubts about Hames’ theory version of the homicide were not аdmitted as “his of the case[, nothing police questioning eliciting and were] more than aimed at responses custody.” from a defendant in Rowe v. at 803 (2). Accordingly, challenge the State did not make a substantive to credibility. Compare Simpson, App. Hames’ 46 Edwards v. 266) (1970). reputation Therefore, evidence ofhis veracity supra. never became admissible. Duncan v. urges OCGA 16-11-108 cannot § that a violation of felony predicate constitutionally for a murder constitute the offense rejected considered and contention conviction. We Chapman, Assembly (4), (5). the General Since felony of a firearm while has not acted to eliminate the hunting misuse upon felony inherently dangerous crimes from those Therefore, can this enumeration is murder conviction be based. without merit. exceptFletcher, Judgment concur, J., All the Justices C. affirmed. specially, Sears, J., Benham, J., who who P. dissents. concur concurring specially. Justice, Chief FLETCHER, disposes majority opinion summarily error in the against Hames as harmless because he
admission of motive evidence only felony firearm murder and misuse of a while was hunting, convicted improperly “motive.” But because
neither of which has the to influence a even if such admitted еvidence evidence is not necessary prove particular crime, elements of a separately I to examine each of Hames’s enumerations error write alleged merit, its I are without on merits. Because find I errors judgment concur in the to affirm convictions.2 majority improperly v.State3 to limits Stoudemire involving cases insurance. While Stoudemire involve evidence of allegedly nothing motive, in its rationale insurance went suggests relating that evidence to insurance is the evidence that highly prejudicial. Indeed, State,4 be irrelevant and in Brown involving upon evidence, relied a case not insurance this Court proposition Brown, cited for the Stoudemire. Court Stoudemire that criminal of a defendant’s motive which not material “evidence is Furthermore, is and inadmissible.”5 irrelevant focusing felony on the fact that the defendant was convicted majority perpetuates murder, murder not malice the erro- neous dicta of Stoudemire that confuses motive not an prosecution intent. Motive is with yet felony murder,6 of either murder or
element
malice
generally
offer
motive.7
is
entitled to
evidence of
rely
Rather than
on a universal rule that
evidence of
felony motive harmless whеn a defendant is convicted of
2 Arguments regarding
support a
16-11-108 should he used to
conviction
OCGA§
opinion Chapman
(467
are foreclosed
this Court’s
497) (1996).
(401
187 holding would reaffirm “evidence Brown’s that of a defendant’s is not to motive which material his criminal is irrelevant and holding reaffirm inadmissible.”81 would also Stoudemire’s that wherе prosecution evidence, the offers the trial court and this Court must consider whether the “the evidence has enormous infecting inflaming process so trial that the funda- easily compromised.”9Therefore, mental [could] fairness be Hames’s require of enumerations error as the to admission motivе evidence on examination their merits. writings
2. Hames that the contends his wall used illegally they State as motive were evidence seized because were beyond scope specifically of the But search warrant. items not plain listed in a search warrant be seized inif view.10Hames also argues writings improperly placed that admission of these character at issue. Motive evidence “is not rendered inadmissible merely by incidentally places the fact that it the defendant’s charac 11 writings theory ter in issue.” The were relevant to the State’s that intentionally living shot the victim because victim was not religious in accordance with Hames’s and moral beliefs. The State present right prosecution had the evidence of motive in its up jury Hames for malice and it was to the or not to theory. believe the State’s
(b) admitting Hames also contends the trial court erred in police gave shoоting. statement that Hames after the The trial court lengthy hearing held a to consider the statement and excluded portions prior certain to its introduction into evidence. Even if portions incidentally put of the admitted statement Hames’s charac- theory issue, ter in the statement was relevant tо the State’s shooting was intentional not abuse its discre- admitting tion in it.12
(c)Finally
allowing
Hames contends that the trial court
erred
marijuana
peeping
victim used
and was a
tom.
Again,
theory
intentionally
however, the State’s
was that Hames
shot
living
the victim because he was not
in accordance with Hames’s
8 Id.
9 Stоudemire,
religious drawings proper motive). references to occult relevant because (2000) (“trial Ritter court did not abuse its admitting testimony challenged discretion in as the evidence was relevant [defendant’s] .”). motivе . . theory motive and to the State’s relevant This evidence was beliefs. the trial court admitting it. its discretion did not abuse majority reaches reasons, find that the the above For majority opinion reasoning. wrong right result but uses warning that the erroneous in Stoudemire our should not abandon “unnecessary” circumstances, can, in certain admission so inflame a trial. a new joins special in this Benham to state that Justice I am authorized concurrence. *6 dissenting. Presiding Justice, SEARS, upon majority opinion respectfully based dissent to my dissent
reasons outlined June Decided 12, 2004. July denied Reconsideration appellant. Millsаps, E. for James Attorney, Wynne, Baker, Jr., Thurbert E. Kendall District W. Attorney
Attorney General, Nadler, General, Assistant Raina appellee. v. SOUTHERLAND. SOUTHERLAND
S04F0101. Justice. Benham, appeals “Husband”) (hereinafter from Charles Southerland marriage 3-year ending Southerland to Patricia divorce decree (hereinafter assigning contending “Wife”), trial court erred in gifts property members of her certain from Wife as non-marital awarding gifts, family property deriving and in Wife from those alimony of her income and consideration without child financial resources.1 prop- particular property or non-marital is marital
1. Whether Payson, Pаyson question erty the factfinder. is a of fact for findings of fact The standard which finding by “any rule, under evidence” are reviewed is the upheld. by any supported must be Westmoreland pilot discretionary appeal pursuant application this Court’s granted We Husband’s seeking discretionary appeal applications pursuant grant project, all non-frivolous to which we final divorce decree. from a