Evidence
| Publication year | 2020 |
Evidence
John E. Hall Jr.
W. Scott Henwood
Leesa Guarnotta
[Page 103]
In the sixth year since the implementation of Georgia's new Evidence Code,1 the Georgia Supreme Court must still remind lower courts and litigators to rely upon the new Code and its subsequent case law when addressing evidentiary issues arising after 2013.2 This Article highlights some of the continuing changes to Georgia's evidence rules based on the new Georgia Evidence Code, official Code of Georgia Annotated (O.C.G.A.) Title 24.3 This Article period spans from June 1, 2018 to May 31, 2019. Specifically, this Article addresses: (1) the consequences of straying from the new Code; (2) new interpretations of Rule 404(b);4 and (3) reinterpreting what is admissible evidence in relation to pre-arrest silence, parties as evidence, and identity testimony in child sexual abuse cases.
[Page 104]
A. Not Applying the New Code
As with most new rules, it will take courts and attorneys time to adjust to the new Evidence Code. These adjustments do not come without consequences, as seen in Beck v. State.5 Dallas Beck was convicted of felony murder, among other crimes, in 2014 after a local basketball game escalated into a confrontation. One of Beck's arguments on appeal was that the jurors considered extrajudicial information about sentencing, which denied him a fair trial.6
Eleven jurors testified about the issue at the hearing for a new trial. Of those eleven, three "testified that the jury discussed sentencing during deliberations." Two of those three testified that such discussions did not affect their verdicts. The third, however, testified that the discussions did affect the verdict. one of the three jurors denied that the sentencing information was from another juror, but could not remember who gave the jury the information or how they got it. The other eight jurors denied considering sentencing during deliberations. The trial court denied the motion for a new trial, finding that the sentencing discussions did not affect the verdict and that the one juror who testified otherwise was not credible given the inconsistencies in her testimony.7
O.C.G.A. § 24-6-606(b)8 provides that
Upon an inquiry into the validity of a verdict . . . a juror shall not testify . . . as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the jury deliberations . . . concerning the juror's mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror's attention . . . .9
As stated by the Georgia Supreme Court, "The difference between the old and new Evidence Codes matters in this case."10 However, there
[Page 105]
was no mention of Rule 606 in the hearing or the filings associated with the hearing.11
The supreme court noted that the trial court had evidence with which it could conclude that extraneous prejudicial information was introduced to the jury.12 Notwithstanding, the trial court did not make any findings of whether the juror who testified about information being given to them was credible.13 Instead, as the supreme court noted, the trial court relied only on whether the information was prejudicial.14 However, under Rule 606(b), the juror testimony as to whether the information was prejudicial is barred.15 Accordingly, the supreme court vacated the trial court's denial and remanded the issue for consideration under Rule 606.16
B. Relying on Cases Decided Before the New Code
Even in cases where the trial court applied the new Evidence Code, decisions may go awry where the court applies precedent established by cases prior to 2013, as in Barrett v. Burnette.17 Barrett arose out of a negligence suit in which Barrett claimed, among other things, that Burnette was driving under the influence after Barrett hit Burnette's parked car. Witnesses and Barrett testified that Burnette's car was in the middle of the road without the emergency flashers on. Burnette, on the other hand, testified that he pulled off the roadway and turned on the flashers after discovering he had a flat tire. He then walked to his house to call a wrecker service. About forty-five minutes after the call, the wrecker service called Burnette about the accident. Burnette rode with his mother to the accident scene.18
Prior to trial, Burnette moved to exclude evidence of his DUI citation that was ultimately dismissed and any evidence as to whether he was legally impaired prior to, during, or after the collision. Although Barrett did not object to the exclusion of the citation, he argued that testimony as to Burnette's blood alcohol level and his and the trooper's observations of Burnette's conduct at the scene should be admissible. In support of admission, Barrett argued that Burnette was too drunk to
[Page 106]
move his car, so he left it in the middle of the road. Burnette countered by saying he had two beers while home and had not driven for about forty-five minutes when he returned to the scene.19
The trial court excluded all evidence relating to Burnette's intoxication citing that under O.C.G.A. § 24-4-403,20 the danger of unfair prejudice substantially outweighed the evidence's probative value.21 The court had three foundations for its findings: (1) Shelter Mutual Insurance Company v. Bryant,22 which stated, in that case, "[I]t may have been a better choice to omit the evidence [of intoxication] due to its inflammatory nature because of the general public's appreciation of the dangers of drinking and driving;"23 (2) the tenuous probative value of the positive breath test considering the time Burnette was away from his car; and (3) the fact that the DUI charge was dismissed.24 Ultimately, the jury found both Burnette and Barrett 50% at fault. On appeal, Barrett argued the trial court erred in granting Burnette's motion in limine.25
In its opinion, the Georgia Court of Appeals described Rule 403 as an extraordinary remedy.26 The court went on to explain that "'the question of whether a motorist's consumption of alcohol impaired his driving capabilities and entered into the proximate cause of the collision is best left for the jury's resolution.'"27 The court then turned to the core issue of the case—the location of the car—which hinged upon Burnette's credibility.28 The court reasoned that since Burnette's intoxication at the time of parking was highly relevant, the trial court's ruling was overly broad.29 Accordingly, the court of appeals reversed the trial court's judgment over Judge Markle's dissent that the trial court correctly applied the Rule 403 balancing test.30 Although Barrett is physical precedent only,31 it serves to remind courts and attorneys that
[Page 107]
they should be cautious when relying on cases that applied Georgia's old Evidence Code.
As both the Federal Rules of Evidence and Georgia's Evidence Code continue to develop, there are bound to be some inconsistencies in how the rules of evidence are interpreted and implemented. These inconsistencies are exemplified in State v. Atkins.32 Denzel Atkins was charged with murder, among other crimes, in December 2015 following a police investigation after a shooting victim, Elijah Wallace, was found on Fulton County Road. According to Atkins's accomplice, Harold Foster, Atkins and Foster borrowed a car to meet Wallace. After Atkins and Wallace got into an argument in the car, Atkins shot Wallace and drove a few blocks before dumping Wallace's body on the roadside.33
At trial, the State sought to introduce a 2013 Candler County murder indictment against Atkins to prove intent, motive, identity, and lack of accident or mistake under Rule 404(b). According to Rasheen Jones, he and Atkins were going to buy marijuana from Perry Herbert when Atkins forced Herbert into a vehicle at gunpoint. After some driving, Atkins forced Herbert out of the vehicle and shot him. Atkins was later acquitted after denying his presence for the crime.34
The trial court found sufficient proof from which a jury could find Atkins committed at least some of the prior acts by a preponderance of the evidence, that there was a legitimate purpose for the other acts evidence, and that the prejudicial impact of the evidence would not substantially outweigh any probative value.35 Nevertheless, the trial court excluded the evidence about Herbert's murder "out of an abundance of caution"36 because there was not sufficient evidence Atkins participated in Herbert's murder.37
[Page 108]
A. Rejecting the Application of Collateral Estoppel to Rule 404(b) Evidence
In line with the Federal Rules of Evidence, for other acts evidence to be admissible, Georgia's Evidence Code requires a trial court to find that
(1) the other acts evidence is relevant to an issue other than the defendant's character, (2) the probative value is not substantially outweighed by undue prejudice under O.C.G.A. § 24-4-403 . . . and (3) there is sufficient proof that a jury could find by a preponderance of the evidence that the defendant committed the acts.38
The trial court went beyond these three requirements, implicitly relying on Moore v. State.39 According to Moore, other acts evidence is barred where it would relitigate facts from a prior trial.40
However, as the Georgia Supreme Court noted, in Dowling v. United States,41 the Supreme Court of the United States expressly declined to extend collateral estoppel to otherwise admissible other acts evidence because a lower standard of proof is required.42 Despite Dowling, the Georgia Supreme Court acknowledged that the trial court did not err in relying on Moore at the time of the trial court's decision.43 Nevertheless, the Georgia Supreme Court vacated and remanded the order...
To continue reading
Request your trial