Preview:

Final Copy 290 Ga. 805 S11A1503. MOORE v. THE STATE. NAHMIAS, Justice. Calvin Moore appeals his conviction for malice murder in connection with the death of 63-year-old Lucius Harris, Jr. Although we conclude that the evidence was sufficient to support Appellant's conviction, the trial court erred in allowing the State to introduce similar transaction evidence without conducting the hearing required by Uniform Superior Court Rule 31.3 (B) and making the necessary findings on the record. See Williams v. State, 261 Ga. 640, 642 & n. 3 (409 SE2d 649) (1991). Accordingly, we vacate the trial court's judgment and remand the case for a Rule 31.3 hearing and the entry of proper findings or, if need be, a new trial. 1 1. The evidence at trial, viewed in the light most favorable to the

The crimes occurred in the late evening and early morning hours of June 10-11, 2004. On July 15, 2004, Appellant was indicted in Tift County for malice murder, felony murder, and aggravated assault. On March 7, 2006, a jury found him guilty of all charges. The felony murder conviction was vacated by operation of law, the aggravated assault conviction merged, and the trial court sentenced Appellant to life in prison for malice murder. On March 13, 2006, Appellant filed a motion for new trial, which was amended and supplemented on several occasions over the next four years. After several hearings, the trial court denied the motion on October 6, 2010. Appellant filed a timely notice of appeal, and the case was docketed for the September 2011 term and submitted for decision on the briefs. Appellant has chosen to represent himself for parts of the motion for new trial proceeding and on appeal.

1

verdict, showed the following. Appellant moved in with the victim in June or July of 2003. On occasion, Appellant was seen slapping or hitting the victim. On the evening of June 10, 2004, the victim's cousin, Angela Horton, visited him at his house. Horton observed that the victim had a busted lip, his knees were skinned, he had blood on his boxer shorts, and he could barely talk. Appellant was home at the time and told Horton that he was tired of the victim stealing his money and smoking his dope and he was going to beat the victim to death and leave his body on the railroad track so that it could not be identified after a train ran over it. Not thinking that Appellant was serious, Horton left and went to work. That night, Robert Cook, who was then homeless, was camping on an abandoned street by a railroad track. Sometime after 3:00 a.m., Cook saw a large man carrying a body on his shoulders emerge from the bushes. The man put the body down on the ground by a fence before walking over to Cook and asking him what he was doing there. The man then snatched Cook's backpack out of his hand, pulled Cook to the ground, and held Cook down with his hands around Cook's neck. The man let Cook go after Cook said that he "wouldn't say nothing" about what he had seen; when the man looked the other way, Cook 2

ran to a nearby convenience store, where he called 911 at 3:54 a.m. Cook led the responding officers back to his encampment and gave the officers a physical description of the man who had attacked him. The officers searched the area and found the victim's body lying on the railroad track. Identification found with the victim led the officers to his house, where they found Appellant standing in the yard. Appellant matched the physical

description Cook had provided, but Appellant denied having ever been to the area where the victim's body was found. One neighbor had seen Appellant on a street corner at about 3:00 a.m., and another saw his car driving up the street at about 3:15 a.m. The police later found Appellant's latent thumb print on a metal fence rail near Cook's campsite and about 150 yards from where the victim's body was found. The medical examiner determined that the victim died from crushing chest injuries associated with manual strangulation. Over Appellant's objection, the State presented evidence at trial regarding Appellant's involvement in the 1995 death of Robert Littrell, a man made frail by multiple sclerosis. Appellant had lived with Littrell as his caretaker for about five years, and they had financial and physical disputes. On November 2, 1995, Appellant called 911 to report that Littrell was not breathing. The chief medical 3

examiner testified that Littrell had suffered crushing chest injuries and a throat injury consistent with manual strangulation, and a regional medical examiner testified that Littrell's injuries were similar to the injuries suffered by the victim in this case. Appellant claimed that he inflicted Littrell's injuries in an unsuccessful attempt to resuscitate him through CPR. Although Appellant was not charged at the time, he was apparently indicted for the murder of Littrell after the charges were filed in this case. When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) ("`It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)). 2. Appellant contends that the trial court erred in admitting evidence

about his involvement in Littrell's death as a similar transaction at his murder trial without holding a proper hearing on admissibility and making the required on-the-record findings. We agree. 4

Uniform Superior Court Rule 31.3 (B) prohibits the State from introducing evidence of similar transactions or occurrences unless "specifically approved by the judge."2 Where the State seeks to introduce similar transaction evidence, it must provide the defense with written notice and specified information and documents, and "[t]he judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury." USCR 31.3 (B). A Rule 31.3 (B) hearing must be held even if not requested by the defendant. See Stewart v. State, 263 Ga. 843, 845 (440 SE2d 452) (1994) (describing compliance with Rule 31.3 as "mandatory"), overruled on other grounds by Wall v. State, 269 Ga. 506, 509 (500 SE2d 904) (1998); Cavender v. State, 208 Ga. App. 61, 63 (429 SE2d 711) (1993) ("`[T]he burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate

See Rule 31.3 (C) ("Evidence of similar transactions or occurrences not approved shall be inadmissible. In every case, the prosecuting attorney and defense attorney shall instruct their witnesses not to refer to similar crimes, transactions or occurrences, or otherwise place the defendant's character in issue, unless specifically authorized by the judge."). See also OCGA

Download S11A1503. MOORE v. THE STATE.pdf

Georgia Law