Hayes v. State , 265 Ga. 1 ( 1995 )

Hunstein, Justice.

Aldridge Level Hayes was charged with malice murder (Count 1), felony murder (Count 2), and aggravated assault (Count 3). He was convicted of all three counts. The trial court sentenced Hayes to life for the murder, a concurrent term of years for the aggravated assault, and revoked his First Offender Status on an earlier drug charge. He appeals from the denial of his motion for a new trial.¹

1. The evidence established that Charles Hillman was walking in the company of Charles Poole when a car pulled up beside the men. Hillman immediately began to run; appellant, a passenger in the car, exited the vehicle with a knife in his hand and followed Hillman. Witnesses, including Poole and Travis Brooks, who was the driver of the car, testified that within the space of a few minutes appellant chased down Hillman, stabbed him, followed after Hillman as he broke away from the fight, threw Hillman against Poole’s car as Hillman tried to enter the vehicle, and stabbed him repeatedly. Although Brooks entered into the fight and stabbed Hillman on his side, the evidence was uncontroverted that it was a stab wound to Hillman’s heart, inflicted by appellant, that caused Hillman’s death. Evidence was also adduced that appellant knew that Hillman had been the confidential informant who had provided information to the police that had led to appellant’s conviction on a drug charge.

A rational trier of fact could have found proof of appellant’s guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Although the evidence was sufficient to support the conviction for malice murder, see Division 1, supra, the trial court expressly merged Count 1, the malice murder conviction, into Count 2, the felony murder conviction, and sentenced appellant to one term of life imprisonment. See Malcolm v. State, 263 Ga. 369 (434 SE2d 479) (1993), in which we noted that where there is a single victim, “the defendant may be sentenced on either [the malice murder or the felony murder] but not both.” (Emphasis supplied; citations and punctuation omitted.) Id. at 371.² While the trial court, during the sentencing hearing, recognized that the aggravated assault, as the underlying felony, merged into the felony murder conviction, see Johnson v. State, 254 Ga. 591 (4) (331 SE2d 578) (1985), the sentence as entered fails to reflect that merger. Accordingly, appellant’s conviction and sentence for aggravated assault are vacated. Id.

3. Appellant contends error in the admission of testimony by Atlanta Police Officer William Davidson that Hillman, who had served as a confidential informant and had provided information leading to appellant’s arrest and conviction for drug charges, had stated to Davidson that appellant knew of Hillman’s involvement and was “out to get [Hillman] or do anything to kill him.” OCGA § 24-3-1 (b) permits the use of hearsay evidence “in specified cases from necessity.” An exception to the rule against the admission of hearsay will be allowed “from necessity” where “necessity” and “particularized guarantees of trustworthiness” are established. Roper v. State, 263 Ga. 201 (2) (429 SE2d 668) (1993); McKissick v. State, 263 Ga. 188 (3) (429 SE2d 655) (1993). The necessity requirement is met as the statements were made by the victim who is now unavailable due to his death. Id. The trustworthiness of Hillman’s statements is provided by the fact that Hillman made the statement to the police officer for whom he had worked and to whom he had provided information about appellant and that he never disavowed the statements. See id. at 189. Moreover, the testimony of Officer Davidson was duplicated by that of another witness, Brooks, relegating any error in the admission of this evidence to the harmless category. Roper, supra at 203.

4. Evidence that appellant was arrested and later convicted on drug charges as a result of information provided by Hillman to the police was properly admitted to establish a motive for the murder. Johnson v. State, 260 Ga. 457 (2) (396 SE2d 888) (1990). “Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue. [Cit.]” Id. at 458.

5. Brooks, the driver of the car that brought appellant to the crime scene, was a juvenile at the time of the crimes and turned State’s evidence just before trial as part of a guilty plea agreement that requires him to serve 12 years for aggravated assault. We find no error in the trial court’s refusal to allow appellant to obtain Brooks’ juvenile court records for impeachment purposes. McBee v. State, 210 Ga. App. 182 (1) (435 SE2d 469) (1993). Given that Brooks’ participation in the crime was well known to appellant and he had ample opportunity to investigate Brooks’ background, there was no abuse of the trial court’s discretion in the denial of appellant’s motion for a continuance. Harden v. State, 211 Ga. App. 1 (2) (438 SE2d 136) (1993). The record does not support appellant’s contention that the trial court improperly limited his cross-examination of Brooks as to the terms of the plea bargain he negotiated with the State.

6. We find no abuse of the trial court’s discretion in admitting evidence of the gang affiliation appellant shared with his alibi witnesses and a police officer’s testimony that the name of the gang meant “I will die for you, you will die for me” as this evidence was relevant to show the state of the witnesses’s feelings toward appellant and his relationship to them. OCGA § 24-9-68; Watkins v. State, 206 Ga. App. 701 (7) (426 SE2d 238) (1992).

7. Our review reveals no merit to appellant’s remaining enumerations as to the admission of certain photographs, the trial court’s statements made about a witness who violated the rule of sequestration, certain jury charge language, and appellant’s assertion that he received ineffective assistance of counsel.

Judgment affirmed in part and vacated in part.

All the Justices concur, except Hunt, C. J., and Sears, J., who concur in Divisions 1, 3 through 6 and in the judgment, and Benham, P. J., and Carley, J., who dissent.

1 The homicide occurred on October 3,1991. Hayes was indicted on February 11,1992 in Fulton County. He was found guilty on May 27, 1992, and his sentence was filed on June 3, 1992. Pursuant to a grant of writ of habeas corpus, an out-of-time motion for new trial was allowed in January 1994. The motion was denied on March 31, 1994. A notice of appeal was filed on April 11,1994 and the case was docketed on May 10, 1994. This appeal was submitted for decision without oral argument on July 5, 1994.

2 We acknowledge there can be rare instances where a trial court, upon receiving guilty verdicts on both malice murder and felony murder counts, may deem it necessary to sentence the defendant only on the felony murder conviction because, e.g., the evidence to support the malice murder did not appear to the trial court to be sufficient under Jackson v. Virginia, supra. See Hendrick v. State, 257 Ga. 514 (3) (361 SE2d 169) (1987), in which this Court vacated the conviction and sentence for malice murder and ordered sentence be imposed on the felony murder conviction because the evidence was insufficient to support the malice murder conviction. Such a rare instance was not present in the case at bar. However, because we cannot say it was reversible error as a matter of law for the trial court here to have “merged” the malice murder into the felony murder conviction, the felony murder conviction and sentence thereon stand.