Littles v. Balkcom

264 S.E.2d 219, 245 Ga. 285, 1980 Ga. LEXIS 767

• Court: Supreme Court of Georgia
• Decided: February 20, 1980
• Docket: 35644
• Status: Published

Opinions

Per curiam.

Defendant Charles A. Littles is serving a life sentence for the murder of Mary Virginia Reid.

According to the evidence submitted at trial, the victim was shot in the head on August 12,1974. She died four months later from pulmonary embolus, after identifying Littles as her assailant to two witnesses at the scene and testifying at his committal hearing on the charge of aggravated assault. Littles’ conviction for murder was affirmed in Littles v. State, 236 Ga. 651 (224 SE2d 918) (1976). In April, 1979, he filed a petition for a writ of habeas corpus, which was denied. We granted his application to appeal the denial of his petition for habeas corpus.¹

1. Littles contends that the trial court record contained no evidence as to the victim’s cause of death upon which a rational jury could conclude beyond a reasonable doubt that the defendant was guilty of murder as required under Jackson v. Virginia, — U. S. — (99 SC 2781, 61 LE2d 560) (1979). Georgia law requires claims as to the sufficiency of evidence to be raised on direct appeal; such a claim may not be raised in a state habeas corpus proceeding. Head v. Hopper, 241 Ga. 164, 165 (243 SE2d 877) (1978); Allen v. Hopper, 234 Ga. 642 (2) (217 SE2d 156) (1975); Coleman v. Caldwell, 229 Ga. 656 (2) (193 SE2d 820) (1972).

2. Two witnesses who talked with the victim at the scene of the shooting a few minutes after she was shot testified that the victim identified the defendant as her assailant.² Defendant contends that the admission of this testimony denied him his constitutional right of confrontation.

The constitutional right to confrontation does not require that all hearsay evidence be excluded from evidence in criminal cases. Pointer v. Texas, 380 U. S. 400, 407 (85 SC 1065, 13 LE2d 923) (1965); Dutton v. Evans, 400 U. S. 74, 80 (91 SC 210, 27 LE2d 213) (1970). A witness testifying at trial subject to cross examination can testify as to what he has heard without violating the confrontation clause. See opinion of Stewart, J., in Dutton v. Evans, supra, 400 U. S. at 88, and opinion of Harlan, J., 400 U. S. at 94.

The victim’s statement was properly admitted as part of the res gestae, Littles v. State, supra, and the admission of such evidence did not violate defendant’s right of confrontation. See Code Ann. § 38-305; Callahan v. State, 229 Ga. 737 (194 SE2d 431) (1972).

3. The sheriff testified over objection as to the testimony which the victim gave at the defendant’s commitment hearing two and a half months after the shooting.³ Defendant contends that the admission of the sheriffs testimony at trial recounting the victim’s preliminary hearing testimony denied him his constitutional right of confrontation. The defendant was represented by counsel at that hearing and the victim was subjected to cross examination. However, no transcript of the testimony given at that hearing was made.

Admission of an oral summary of the victim’s testimony given at defendant’s preliminary hearing was not error. The victim’s "statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial.” California v. Green, 399 U. S. 149, 165 (90 SC 1930, 26 LE2d 489) (1970).

The absence of a hearing transcript was just one non-controlling factor in considering the weight to be given the sheriffs testimony. Code § 38-314 provides: "The testimony of a witness, since deceased, or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and between substantially the same parties, may be proved by anyone who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.” The defendant testified in his own defense in this case. He, or his attorney, or the commitment hearing magistrate could have testified as to any discrepancy they observed between the victim’s testimony and the sheriffs recollection of it.

The sheriffs recounting of the victim’s preliminary hearing testimony which had been given subject to cross examination by the defendant’s attorney did not violate the defendant’s right of confrontation. California v. Green, supra; Prater v. State, 148 Ga. App. 831 (5B) (253 SE2d 223) (1979).

Argued January 14, 1980 Decided February 20, 1980. Rogers & Hardin, Richard H. Sinkfield, Phillip S. McKinney, for appellant. Arthur K. Bolton, Attorney General, Mary Beth Westmoreland, Assistant Attorney General, for appellee.

Judgment affirmed.

All the Justices concur, except Hill, J., who dissents.

1 On direct appeal, Littles v. State, supra, we considered, among other enumerations, the sufficiency of the evidence, whether the testimony of the two witnesses who spoke with the victim at the scene was admissible as part of the res gestae, and the admissibility of the testimony of the sheriff who heard the victim’s testimony at the committal hearing. These same three subjects, this time presented as constitutional questions, are before us again on habeas corpus.

2 The defendant lived in the house next to and below that of the victim. Witness Miller, who drove the victim to the hospital, testified that as he was putting the victim in his car she told him that that fellow right down there shot her. When asked who she was talking about, the victim said to Miller: "Charles Littles.”

Witness Wind apparently was one of the first people to find the victim. When he asked her what happened, she said "kind of foggy,” "that man done shot me.” Wind asked "What man?” and she said "Charles.”

3 The sheriff testified as to the victim’s testimony as follows: ". . . in the morning approximately, around 6:00 o’clock, she heard somebody at her door and her window. A window at first, she said at the window, and then she heard the door open and heard somebody started in, and she met him at the door to her bedroom. . . And she recognized him and called him Charles, said, 'Charles, what are you doing here?’ And he made some unusual noise and said she pushed him, he was in the door and she pushed him back against her refrigerator, and tried to, attempted to run out and said when she did, well, he shot her with a pistol in the head and she ran on out in the yard and fell and went screaming for help. 'Somebody, please help me!’ 'Please help me!’ And said he came back out of his house with something around his head and he said, 'I’ll help you, and he shot me twice and was bang, bang!’ And he left and left her laying there on the ground.”