Bishop v. State

820 S.E.2d 673, 304 Ga. 616
CourtSupreme Court of Georgia
DecidedOctober 22, 2018
DocketS18A0979
StatusPublished
Cited by1 cases

This text of 820 S.E.2d 673 (Bishop v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bishop v. State, 820 S.E.2d 673, 304 Ga. 616 (Ga. 2018).

Opinion

BETHEL, Justice.

*675**616Following appellant Harold Bishop's third trial for the murder of his wife, Sherry Bishop, he was convicted of felony murder and has filed this appeal.1 His single claim of error is that the trial court erred in admitting certain statements made by the victim under the necessity exception to the rule against hearsay contained in our old Evidence Code. See former OCGA § 24-3-1. For the reasons that follow, we find no error and affirm.

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Two days before she died, Sherry called Sheriff Ralph Kellett and told him that appellant was going to kill her. Sheriff Kellett did not take action after speaking on the phone with appellant, who assured him everything was fine. On the evening of January 21, 1996, law enforcement officers responded to a telephone call from appellant, in which he said that he had killed his wife. Upon arrival at the home, officers found Sherry deceased from two gunshot wounds, one to her neck and one to her left eye. Her body was sitting upright in a living room chair with her legs crossed. A bowl of food was in the crook of her right arm, and a bent fork was in her left hand. The officers found a shotgun on a nearby couch and a pistol on a table next to Sherry.

**617Appellant had a long history of inflicting violence upon Sherry, whom he had married in 1968, divorced in 1977, and remarried in 1978. Although Sherry was often secretive as to the source of her injuries, she confided in two close friends and her two sisters that appellant caused these injuries. She was admitted to the hospital several times in the 1980s for various injuries caused by appellant. On another occasion, she was injured so badly that her facial features were barely discernible and her closest friends did not recognize her. Appellant shot Sherry in the head in the late 1980s, and another time he held a gun to her mouth and temple for hours, periodically firing it over her head. In 1991, appellant held Sherry down and cut her face five or six times with a razor blade, leaving permanent scars.

Appellant testified at trial that, on the day of the incident, Sherry had been drinking heavily and taking Xanax pills. Sherry was cold that day and asked appellant several times to adjust the thermostat. The thermostat was located on a wall next to a gun cabinet, and as appellant was adjusting it late in the afternoon, he heard a noise and turned to see Sherry pointing a pistol at him. In fear for his life, he quickly grabbed a loaded shotgun from the nearby gun cabinet, ran a few steps toward Sherry, and fired two shots at her in self-defense from a distance of ten to fourteen feet away. Other evidence shows, however, that Sherry was eating, not holding *676a pistol, when she was shot. An autopsy revealed that her stomach contained food of the same kind as what was in the bowl, and the bowl was soiled with what appeared to be blood. DNA from the blood on the fork matched Sherry's DNA, and traces of lead found on the fork were consistent with it being struck by lead pellets. Several officers at the crime scene testified that the pistol on the table was covered with dust and looked as though it had not been touched recently. No blood or fingerprints were found on the pistol.

Other evidence is also inconsistent with appellant's initial statement to the police that he fired the shotgun from ten to fourteen feet away and from the direction of the gun cabinet. Ballistics reports and crime scene evidence indicate that the shotgun blasts must have originated from within three feet of Sherry. Due to the angle of the gunshots, some shotgun pellets should have hit a lamp on the table next to the victim if the shotgun was fired from the area of the gun cabinet, but the lamp was without a scratch.

Appellant does not challenge the legal sufficiency of the evidence supporting his conviction. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that the evidence presented at trial was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt **618of felony murder. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends that the trial court erred by admitting statements made by Sherry to two of her friends and to her two sisters describing prior acts of violence by appellant toward her. According to Bishop, these statements were hearsay, and the trial court abused its discretion in admitting them under the necessity exception to the hearsay rule. We disagree.

Altea Kellett testified that she and Sherry became friends in first grade and that they remained close friends throughout Sherry's life. She added that Sherry would confide in her that appellant abused her, and Kellett described several of those instances, including one in which she visited Sherry in the hospital after Sherry had been shot in the head. According to Kellett, Sherry said that appellant had been the one that shot her on that occasion. On another occasion, Sherry told Kellett that appellant had cut her across the face with a straight razor five or six times. Kellett said that Sherry had scars from that attack for the rest of her life. According to Kellett, Sherry confided in her that, when Sherry was afraid of appellant, she would sometimes drive to the Kelletts' home and spend the night in her car in their driveway.

Another witness, Joan Lonergan, had, at one point, considered Sherry her best friend. They had known each other since the early 1960s, when they were in high school together. Lonergan was also Sherry's hairdresser. Lonergan testified that Sherry regularly confided in her about the abuse at the hands of appellant and that Lonergan and Sherry had the type of relationship where Sherry felt like she could trust Lonergan. Among other instances of violence, Lonergan said that Sherry came into the salon one day and had been beaten so severely around the face that she was unrecognizable. Sherry told Lonergan that appellant had inflicted her injuries. In addition, Lonergan testified that she personally witnessed appellant beat Sherry severely after he became mad at her. On yet another occasion, Sherry came to Lonergan's home after she had been battered by appellant and asked for Lonergan's help. That day, Lonergan got Sherry to agree to go a shelter, but Sherry changed her mind while they were driving there, saying that she was scared what appellant would do when he found out. Sherry also told Lonergan about the incident during which appellant pointed a handgun at the victim for hours, sometimes putting it in her mouth and sometimes firing it over her head.

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Related

Bishop v. State
304 Ga. 616 (Supreme Court of Georgia, 2018)

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Bluebook (online)
820 S.E.2d 673, 304 Ga. 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishop-v-state-ga-2018.