Appeal by defendant from judgments dated 3 October 1996 by Judge James D. Llewellyn in Greene County Superior Court. Heard in the Court of Appeals 7 January 1998.
The opinion of the court was delivered by: Greene, Judge.
Ricky Carlton Exum (Defendant) appeals entry of a judgment on a jury verdict finding him guilty of first degree murder and assault with a deadly weapon inflicting serious injury.
Defendant and the victim were married and had four children (sixteen-year-old Kisha, fifteen-year-old Vicki, eleven-year-old Ricky, Jr., and three-year-old Randy) at the time of the victim's murder. Testimony at trial revealed that Defendant had beaten the victim on numerous occasions in the past. Approximately five years before her death, the victim met and subsequently began a regular affair with Aquilla Blount (Blount), a friend of the family. Approximately three months prior to her death, the victim and Blount were attacked by Defendant during daylight hours at Speight Bridge. As a result of this attack, Blount, the victim, and Randy (who was with his mother at the time), had to be treated at the hospital for the injuries they received. Following this attack, the victim took her children and went to a battered women's shelter (the Shelter) instead of returning to the marital home. The victim's sister, Mary Wooten (Wooten) visited the victim several times while she was staying at the Shelter, and was allowed to testify, without any objection from Defendant, to the following conversation between herself and the victim while the victim was residing at the Shelter: [The victim] said it had got to the point that she knew that she was just going to have to leave or he was going to have to leave or something. Because she said at that point he acted like he was trying to kill her the way he was hitting at her at the bridge that time. She said that she could tell that if he could have really got to her like he was trying to that day that he probably would have killed her that day.
When the victim was ready to leave the Shelter, Wooten drove her and the children to Wooten's home, where they remained for a few days. The victim and her children then moved into the home of the victim's parents.
On 15 June 1993, while continuing to reside at her parents' home, the victim was attacked by Defendant in her parents' yard. Wooten was allowed to testify, again without any objection from Defendant, to the following conversation between herself and the victim:
Q: What did [the victim] tell you happened while she was staying at her parents' house?
A: She said one morning she -- everybody had left . . . and she was there by herself.
And she said she walked out in the garden . . . and he came running out from behind a tobacco barn. And they got to -- they got to arguing at that time. And she said at that time that's when he -- that was the time he almost strangled her to death.
Q: Did she ever show you any marks or bruises about her body when she was telling you this?
A: Yes. She had -- like all around her neck you could tell that he had had a hold of her because there were marks all around her neck and up under here. Under here somewhere it was like a flesh wound. You could see the meat around her neck. (Indicating.)
Q: When your sister was telling you about this . . . could you describe how she was acting?
A: She was acting -- shaky voice, chills. Like, fearful.
Q: Did she say anything about when she was telling you this?
A: She was saying like was just mean. She said she don't know where he popped up from that early in the morning and everybody had just left the house. She said he's just mean. He's just mean. I believe he's trying to kill me. I know he is.
The police responded to a call regarding this attack, and the victim went to the police station that day, 15 June 1993, and spoke to the sheriff about the attack. The sheriff testified that "[the victim] conveyed to me that she was scared was going to kill her." The sheriff instructed the victim to take out a warrant against Defendant. The victim obtained a warrant against Defendant for assault on 15 June 1993, and a deputy testified that he attempted to serve the warrant but could not find Defendant. The deputy did notify Defendant's mother, who testified that Defendant had lived with her for some time preceding the murder, that a warrant for Defendant's arrest for assault had been issued. On Friday, 25 June 1993, the original date scheduled for a hearing on the assault charge, Defendant appeared voluntarily at the sheriff's department to have the warrant served. Defendant signed a written promise to appear in court on the following Friday, 2 July 1993, regarding the assault charge. Defendant spoke to the sheriff after his arrest and release on bail for the assault charge, and the sheriff conveyed to Defendant the victim's fear of ...