*1 pending charges against her. Under these circumstances we find that ruling appellant inquiring the trial court’s that barred from into the pending charges impair pro- nature of the did not the defense from viding jury discriminating the with “sufficient information to amake appraisal” Agan’s motives and biases.6 See United Oliver, States v. supra. Accordingly, we no find abuse the trial court’s discretion excluding supra. Brown, this evidence. See appellant’s assessing 4. In contention that the State violated (83 215) (1963)
Brady Maryland,
Judgment All the Justices concur. affirmed. May 19,
Decided Connelly, Bobby Connelly, Cook, Cook & Lee L. S. Branch appellant.
Bryant Speed Attorney, Simpson, Leigh II, G. Fred District R. E. Attorneys, Attorney Patterson, Baker, Assistant District Thurbert E. Heinemeyer, Attorney General, M. General, Madonna Assistant appellee.
S03A0062. WHITE v. THE STATE. Justice. Hines, appeals Ernest White his conviction for malice murder con- shooting brother, nection with the fatal He White. chal- jury ruling prevented knowing specific While court’s from nature of charges pending against Agan, necessarily this restriction did not harm the defense as jury charged speculate Agan left was thus free with far more serious or hei actually nous crimes she than was. lenges evidence of certain statements admission into Finding sufficiency chal- at trial. of the evidence wife and the lenges merit, we affirm.1 to be without day Thanksgiving, 28, 1997,
On November County Depart- reported sister, Keel, to the Dade Sheriff’s White’s missing. *2 around 10:00 He was last seen alive was ment that Wayne day buying a store. and chicken feed at local a.m. that (“White”), on either side of their deceased lived Drive on Sand Mountain. brother, Ernest Wrights property The next the off of father’s day, feed was found on 29, 1997, the sack of chicken November parked Wayne’s steps in the drive- home and his truck was mobile of County Department way. day, a received the Dade Sheriff’s Also Wayne’s near a home a male found at mobile call about mobile deceased home. Wayne’sbody neighboring mobile on the deck of
Police found body, pool pool near of blood There was a of blood around the home. leading door, home to and a trail of blood around the mobile the front Wayne’sbody. body very rigid appeared to have The was and cold and ring wearing time. The victim was a watch and been there some containing money. body on the was a billfold and Wayne’s shotgun be a cause death was determined to The comma-shaped was exit wound consistent wound to with a deer chest. The slug gauge shotgun. fired The location of from shotgun’s wadding was fired from three five feet indicated shot to from the victim. cartridges weapon, scene, secured the but did not find a
Police Josephine, investiga- slugs. wife, White and his returned home while agreed go to tors to talk with an at the crime scene. White to the sheriff’s office investigator. left, came out of After White inquire investigator and an told their residence to about her husband questioning he had been taken to the sheriff’s office for Wayne investigating had been hurt and the “Wayne probably didn’t see who crime. commented investigator said, what,” The and done it him.” “did responded, point, police “shot him.” At that had not told 1998, 28, 12, County- murder on November 1997. On a Dade The occurred October grand jury felony indicted Ernest malice murder while in the commission White for 9-11, aggravated assault, aggravated jury was assault. He tried before a November 1998, 1998, 11, guilty charges. was of all White was sentenced found On November imprisonment merger regard aggra The life for malice murder. trial court found felony by operation of vated and the murder stood vacated law. See Malcolm assault (4), 369, filed on 371-374 A motion for new was Ga. 6, 8, 25, 1998, August August amended on 2002. A notice November denied 5, 2002, Sep September appeal appeal filed docketed in this Court on was and the was tember 2002. The case was submitted for decision on November Wayne dead or that he had shot. was dispute stemming in a been involved from August a water line. Prior their father’s death the broth- got running their ers water for residences from a line to the father’s house; the water was in the name bill father’s After the and the father would among split along death, the bill three. father’s his home with the water line burned. installed own water line; meter and would not let White attach a the brothers had an jail. relationship altercation over it and both taken between the brothers continued to deteriorate and accused each including breaking misdeeds, other of various into each other’s stealing weapons, putting sugar gas spreading homes, tanks, and driveway. Wayne’s dog missing. Also, A tacks was week or two Wayne’s trying death, told a before that he was by “doing things stealing kind him, cause “all of trouble” things,” “just going [Wayne’s]guts and that was shoot out.” going Wayne, White told others to kill and about a week Wayne’s ground Wayne. death, before Wayne White fired shot into the near people
told several that he was afraid White. Wayne’sneighbors 28, 1997, Sometime noon on before November *3 gunfire, yelling help, person moaning, heard someone a people arguing. scream, and then woman’s two Josephine 28, 1997, Before noon on November and White arrived Holly’s Josephine at Lula home. looked “scared to death” and after Holly thought room, left White she told that she that had White ago.” Josephine awhile “killed related that White left their weapon, saying “going up home with a that set he was to a block against by door”; road”; the trailer that “come that a few gunshot scream; minutes later she heard a back to mobile home and told her that he “hid pile and that White came gun in a brush suggested they go trailer,” in behind and that he then that to Holly. Josephine Holly visit When White returned to where and talking, stated, he “after all that. . . I’m not nervous.” Wayne’s
Two or three weeks after White commented Holly’sgrandson, you going you “I I, told I was kill him I didn’t told going Wayne’s I kill him.” or death, was Two three months after neighbor, Johnson, told a been that had the cause problems, [White] of all the that “if he hadn’t caused so problems, happened,” that none this would have and that “it came point [Wayne] gestured it was either or us.” White with his stop talking. hand for by police, any
When interviewed White denied involvement his brother’s death and that left claimed he had his residence around morning 8:00 or 8:30 the of the murder and did not return until that evening. dead, When the officer that informed White his brother was emotionally very ten nervous and
White cried and behaved wanting stopped. first, hurt his White, at denied then seconds and pointing weapon him, then White admitted at but brother or ever having weapon pointed a at him. September reported weapons 1997 and stolen two police In had been recovered. late October
never that notified “long neighbor guns” in near two some bushes White’s found weapons neighbor had that White’s their Because the heard homes. discovery missing, her and White claimed a 20 she notified him of gauge shotgun shotguns his. The later identified as found; this shot- seized gun to one she had from White’s home as similar reported gauge weapons earlier as one of the was the same Wayne’s following death, White At as stolen. Christmastime stepson gauge shotgun. sold a 12 gauge owning gauge or trial,
At a 20 White admitted either shotgun killed, it was at the time that his was but claimed brother pawnshop. 1997, he in a He November further testified Holly left their 9:00 a.m. to visit and his wife home around having any they spent firing day most of there. denied weapon morning, killing brother, ever and denied denied telling anyone that he kill his or that he had wanted to brother fact killed him. announcing trial,
1. Prior to filed an affidavit her testify against not to her White contends that the intention husband. hearsay by admitting trial court erred four instances of by Josephine.
(a) First, White takes issue with the admission police evening prior 29, 1997, statements to November being that her shot informed brother-in-law killed, to the effect that her brother-in-law had been shot probably did who had it to him. trial court not see done found res admissible under both the hearsay, determining necessity exceptions to the admission of due to her invocation of the unavailable spousal privilege and that there were of trustworthiness *4 statements. testify
White concedes that his wife was unavailable to because spousal privilege urges her invocation of the that was no but there showing that the statements were relevant and material and that they probative might were more a fact than evidence other that offered; have he not also contends that the statements were part gestae. admissible as of the res unnecessary
However, it is to consider whether the statements part they were of the res admissible in evidence were necessity. necessity out of In order admit a under statement
587
exception
hearsay rule,
unavailable,
the declarant must be
particular
trustworthiness,
must be
there
and the
must be shown to be relevant
material
statement
to a
fact and more
probative
might
pro-
of that
fact than
material
other evidence that
(4) (510
Chapel
State,
151,
cured and offered.
v.
270 Ga.
155
SE2d
totality
“The court must consider the
of the circum-
making
stances
surround the
of the
statement
determine its
reliability. ‘The test is whether “the declarant’s
is so
truthfulness
surrounding
clear from the
circumstances
test of cross-
’”
marginal utility.” Yancey
would
State,
examination
550,
be of
v.
275 Ga.
(2) (a)
269)
(570
(2002).
Here,
553
SE2d
the first
sat-
element is
isfied;
to
was unavailable as a witness because of her refusal
testify against
Higgs State,
606,
husband.
v.
256 Ga.
608
SE2d
The trustworthiness of the
is
statements
by
they
spontaneously,
the facts that
shown
made
short
killing,
apparent
time
there
after
was no
motive
lie in a
implicating White; moreover,
manner
com-
pletely consistent with the evidence of the
mur-
circumstances of the
(2)
(5);
Yancey
(c);
supra
State,
der. Id. at 608
see also
at 555
v.
Cook
(543
701) (2001);
State,
574,
State,
273 Ga.
SE2d
Perkins v.
16) (1998). Finally,
269 Ga.
SE2d
the fact that at
yet
statements,
the time
made these
had not
fatally
informed her that
her
had been shot and
wounded renders
highly
question
statements
relevant
of how
knew
she
shooting
probative
more
about the
of that material
than
fact
Chapel
State,
other evidence that the State could have offered.
supra at 155
(b)
challenges
testimony neighbor,
the admission of
his
Johnson, about the conversation she had in White’s
presence
in which
stated that
had been the cause of
problems
point
being
it
all their
and that
had come to the
either
signaled Josephine
stop talking.
them.
White then
overruling
objection
contends
statements
the trial court erred in
finding
presence,
were made White’s
unavailing.
therefore,
But
admissible.
the contention is
(453
certainly
State,
It is
true that
Jarrett v.
265 Ga.
461) (1995),
SE2d
this Court
concluded that witness
a criminal
declarant’s
statements based on
acquiescence
State,
accused’s
(5) (465
or silence. Luallen v.
672) (1996). However,
SE2d
the declarant’s statements are
adopts
“where the
own
admissible
defendant
the statements as his
(2) (a) responses.”
State,
Gordon v.
376)
(2000).
(2001), citing
Carruthers v.
arguably were true statements that the Thus, the state- not be disclosed. information should that the jury. State, Gordon v. consideration were admissible for ments (a). supra at 374 (c) into evidence of with the admission next takes issue Holly morning Josephine’s murder to of the conversation thought White had shot the effect gunshot Wayne, shortly and a she heard a after she saw Holly. weapon The and then asked to visit scream, White hid his of trustworthi- that the trial court found ness and very they in time the murder and close were made gestae. part of the res Holly trial court’s determination The Tesfaye clearly part State, erroneous. v. the res is not The statements SE2d 275 Ga. 443 spontaneous explained murder, the circumstances of immediately following shooting, unsolicited, and were made also satisfied the criteria for the scene. The statements White fled (2) (c); supra necessity. Yancey State, v. at 555 out of admission Chapel (4). (a), supra. supra 1 State, at 155 See Division v. (d) testimony Investigator Lastly, challenges Hicks shooting. him the She related later account to residence, White the front door of the marital that she was outside up, home, a few minutes later the mobile drove went behind moan, came to the residence shot and a and White back she heard a go”;Josephine maintained that she her that “needed to and told did not see shooting. investigator’s testimony objection to the First, White made no preserved appel- present complaint redirect; therefore, is not (5). supra State, Moreover, if at 379 even review. Gordon v. late by Josephine error, it would have of these statements admission duplicative the statements were deemed harmless because properly her which were admitted. other comments (c) supra; State, Division Woods 394) (2002); Myers the verdicts no merit to White’s contention that 2. There is contrary against evidence, is him are and that his conviction support the State’s case was evidence to it because without sufficient based upon and failed to exclude all other circumstantial evidence guilt. hypotheses White’s conviction was not save his reasonable solely ample evidence; there was direct evi- on circumstantial based including inculpatory own that he committed the dence statements. to enable a rational trier of The evidence was sufficient guilty beyond of the malice a reasonable doubt fact to find White Virginia, murder of his brother. Jackson v. 443 U. S. SC 61 LE2d Judgment except concur, Fletcher, J., All the Justices C. affirmed. specially. Hunstein, J., who concur concurring specially. Justice, Chief Fletcher, majority adopts holds that a husband his wife’s statements simply by gesturing quiet. as his own for her to be Because this hold- *6 ing logically factually supportable, separately is neither nor I write affirming in the convictions. majority’s holding request that a husband’s of his wife to up” actually agrees means,
“shut law, as a matter of with his interpretation exchange. wife is a remarkable of such an The rele- question determining admissibility alleged adop- vant for of an party, naturally tive admission is “does the silence or conduct of the according experience, and stances, to human amount, under the circum- presence?”2
to an admission of what is said in his 3The gesturing stop talking defendant’s to his wife for her to to a naturally agrees about his brother does not mean that he with what saying. experience fact, she is such a comments. In the usual human would consider
gesture disagrees to mean that the husband with his wife’s supports expansion To the extent that Gordon v. State3 the vast adoptive contrary of the use of trial, admissions a criminal to Jar- State,4 rett v. it should be overruled. erroneously
While these statements were admitted, the error directly inculpatory harmless that the statements were not regarding and were cumulative of other evidence the difficult rela- tionship between the brothers. joins spe-
I am authorized to state that Justice Hunstein in this cial concurrence. May 19,
Decided
appellant.
Hildebrand,
E.
Jennifer
Attorney,
Franklin, Jr.,
Herbert E.
Baker,
District
Thurbert E.
Attorney
Attorney
General,
Smith,
Paula K.
General,
Senior Assistant
appellee.
Vandiver,
Giles v.