Jomekia Dechelle Pope has been charged with malice murder, felony murder, and arson in connection with the death of Latosha Taylor, and the State has given notice of its intent to seek the death penalty. We granted Pope’s application for interim review and directed the parties to address the following three questions: Did the trial court err in quashing count two of Pope’s current indictment Is any such error cured under the right for any reason principle See State v. Layman , 279 Ga. 340, 340-341 613 SE2d 639 2005. Did the trial court err in ordering a psychological examination of Pope over his objection Will any such error be rendered reliably harmless under the terms of the trial court’s order provisionally sealing the report from that examination Did the trial court err in addressing what hearsay testimony, including the statements by the alleged victim to a police officer and affidavits by the alleged victim, would be admissible at trial in support of the State’s argument that Pope and the alleged victim had a history of prior difficulties For the reasons set forth below, we reverse the trial court’s order quashing count two of Pope’s indictment, we conclude that the trial court erred by ordering Pope to undergo a psychological examination and direct the trial court to maintain the report from that examination under seal unless Pope gives notice of his intent to present expert mental health testimony at trial, and we find no error but caution the trial court regarding the hearsay statements of the alleged victim. 1. On Pope’s motion, the trial court quashed count two of Pope’s indictment, which alleges felony murder predicated on the felony of aggravated battery. That count states as follows:
FELONY MURDER O.C.G.A. § 16-5-1C For that the said accused . . . while in the commission of the felony of Aggravated Battery did maliciously cause bodily harm to Latosha Taylor by dousing her with gasoline and setting her on fire, which seriously disfigured her body and caused the death of Latosha Taylor. . . . In quashing this felony murder count, the trial court stated that the indictment alleges “that the defendant maliciously committed aggravated battery and since aggravated battery also has malice as an element the indictment effectively alleges that the defendant maliciously committed an act of malice .” The trial court reasoned that the State had improperly alleged “malicious malice,” which it found to be “simply not a phrase that can be tested at trial.” We conclude that this finding was erroneous. The felony murder count alleges that the causing of bodily harm was malicious, not that the commission of the complete crime of aggravated battery was malicious.
