HUDSON v. THE STATE.
S00A0865
SUPREME COURT OF GEORGIA
NOVEMBER 13, 2000
(538 SE2d 751)
HINES, Justice.
Robert M. Dyer, for appellant. Claude S. Beck, for appellee.
Although reasonable arguments can be made in support of the drafter‘s position allowing the owner of the servient tenement to unilaterally make reasonable changes in the location of an easement,12 we conclude that the majority rule is sounder.13 Foremost, it provides certainty in land ownership. Allowing unilateral avoidance of the contract by the owner of the servient estate not only would violate fairness principles, it also would create uncertainty in real property law by opening the door for increased litigation over “reasonableness” issues based on today‘s conditions rather than those considered in the original bargain. No doubt, when the servitude was first created both parties considered all market factors, including their respective costs and benefits, before agreeing on the consideration for the transaction. If the benefits of relocation become substantial enough, it is the market that should ultimately bring the parties together again, not the courts.
Because the majority rule best conforms to principles of real estate law that promote stability, we adhere to precedent and hold that Pettengill‘s easement cannot be unilaterally relocated.
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 13, 2000.
Robert M. Dyer, for appellant.
Claude S. Beck, for appellee.
HINES, Justice.
J. H. Hudson, Sr., appeals his convictions for malice murder and aggravated assault in connection with the death of his wife, Louise Hudson. For the reasons that follow, we reverse.1
Hudson pled not guilty by reason of insanity to the charges against him, and was found by a jury to be guilty but mentally ill on all counts.
1. Hudson did not deny the shootings, but raised the defense of insanity. Thus, questions on review are whether, viewing the evidence in the light most favorable to the verdicts, a rational trier of fact could have found that Hudson failed to prove by a preponderance of the evidence that he was insane at the time of the crimes, and whether the State met its burden of proving he was guilty, but mentally ill, beyond a reasonable doubt. See Fuss v. State, 271 Ga. 319, 320 (1) (519 SE2d 446) (1999).
There was expert testimony that, at the time of the shootings, Hudson had the mental capacity to distinguish between right and wrong. See
On re-direct examination, Hudson asked Hilton how he was being paid, and the court sustained the State‘s objection to this question. Hilton was paid by court funds, and the court ruled the jury should not get the impression that by ordering that Hilton be paid, the court was in some way endorsing Hudson‘s insanity defense. The court also noted that it was inappropriate for the jury to be informed that Hudson was indigent.
“The admission of evidence is a matter which rests largely within the sound discretion of the trial judge.” [Cit.] However, “[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value,” [cits.], and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. [Cit.]
Baker v. State, 246 Ga. 317, 319 (3) (271 SE2d 360) (1980). Here, the court abused its discretion. The State‘s cross-examination left the jury with the clear impression that Hudson had hired Hilton and was paying him for the examination and his testimony. Insanity was Hudson‘s sole defense, and the State directly attacked the primary evidence in support of that defense by questioning that suggested that Hilton was being paid for beneficial testimony. Thus, Hilton‘s credibility had been denigrated, the facts of his employment had become pertinent to the trial, and Hudson was entitled to counter the innuendo. See Blige v. State, 264 Ga. 166, 167 (2) (441 SE2d 752) (1994). The court should have allowed the attack on Hilton‘s credibility to be rebutted with testimony that the funds Hilton was receiving did not come from Hudson, and it could have fully charged the jury that the court‘s role in procuring Hilton‘s services in no way reflected any court approval of the merits of the defense.
The defense of insanity, and the State‘s evidence in opposition to it, was primarily a matter of expert testimony, and it cannot be concluded that allowing this unrebutted attack on Hilton‘s credibility is harmless. Consequently, a new trial is necessary. Because the issues raised in Hudson‘s remaining enumerations of error may recur on retrial, they will be addressed.
3. Hudson contends that an audiotape of Melanie Hudson‘s 911 emergency telephone call was admitted into evidence without meet-
5. The prosecutor compared Hudson to well-known murderers Charles Manson, David Berkowitz, and Jeffrey Dahmer, noting that they too contended that they were not guilty by reason of insanity and were delusional, but were nonetheless held accountable for their actions and found guilty of their crimes. Counsel is permitted wide latitude in closing argument, and limitation on argument is a matter for the court‘s discretion. Morgan v. State, 267 Ga. 203, 203-204 (1) (476 SE2d 747) (1996). It is permissible to use well known cases to illustrate a legal principle. Stephens v. State, 264 Ga. 761, 763 (6) (450 SE2d 192) (1994). Here the State attempted to illustrate the difference between the legal definition of insanity that precludes guilt,
Judgments reversed. All the Justices concur, except Benham, C. J., Fletcher, P. J., and Hunstein, J., who concur specially, and Carley, J., who dissents.
I concur in the judgment of the majority opinion; I write separately because I do not believe that the wide latitude allowed in closing argument encompasses irrelevant and prejudicial comparisons to infamous defendants.
This Court first allowed a prosecutor to refer to notorious crimes in closing arguments in Forehand v. State.2 The four judges who joined that majority, however, gave no reason for the decision and simply stated “[w]e find no error,” and the sole case cited for support did not involve a comparison to an infamous crime.3 This Court has been loathe to reverse a conviction based on the state‘s comparison of the defendant to well-known criminals. This fact, however, is scant reason to continue a practice that injects wholly irrelevant and highly prejudicial matter into a trial that should be focused on the individual crime and defendant. As this Court observed over 100 years ago,
[t]he rule of stare decisis is a wholesome one, but should not be used to sanctify and perpetuate error. . . . We deprecate and distrust rash innovation as much as the most conservative magistrates ought, but it has never been the doctrine of any court of last resort that the law is to be a refuge and safe asylum for all the errors that creep into it. . . . Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes. If this is to be done in any case, it would seem to be a case like the present. . . .4
Even under the cases cited by the majority, the references in this case were improper. The mention of notorious murderers is permissible only if there is an evidentiary basis for the illustration.5 An obvious corollary to this rule is that the illustration must factually support the point the state is attempting to make. The district attorney justifies his comparison of the defendant to Charles Manson, David Berkowitz and Jeffrey Dahmer by noting the alleged similarities
CARLEY, Justice, dissenting.
In my opinion, the trial court did not abuse its broad discretion in restricting redirect examination as to the use of court funds to pay the defense‘s expert witness due to Hudson‘s indigency. Moreover, even if the trial court did abuse its discretion, I do not believe that the mere revelation to the jury that Hudson did not personally pay the expert selected by his attorney could have benefitted the defense in any way. Thus, any error was harmless.
Furthermore, I do not believe that the trial court erred in permitting the State to cross-examine, regarding competency to stand trial, the same expert who testified in support of Hudson‘s defense of insanity. See Harris v. State, 259 Ga. 511, 512 (1) (384 SE2d 647) (1989). Accordingly, I cannot join Divisions 2 or 4 of the majority opinion and I dissent to the reversal of the convictions.
DECIDED NOVEMBER 13, 2000.
Culp & Smith, John C. Culp, for appellant.
Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Anna E. Green, Assistant District Attorneys, Thurbert E. Baker, Attorney General, W. Swain Wood, Assistant Attorney General, for appellee.