Evidence

• Publication year: 2015

Evidence

John E. Hall Jr.

W. Scott Henwood

Jacque Smith Clarke

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Evidence

by John E. Hall, Jr.^* W. Scott Hen wood^** and Jacque Smith Clarke^***

I. Introduction

This year represents only the second full survey period¹ in which the "new" Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) title 24, takes effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and continue to change the face of evidence law in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2014 and May 31, 2015 that have made an impact on evidence law in Georgia. This year's Article provides insight into the courts' findings, particularly regarding similar transaction evidence and multiple varieties of hearsay exceptions. Changes evidenced by new case law are outlined below and organized by topic.

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II. Similar Transaction Evidence

This survey period illustrated some confirmation of consistencies amongst the new and old rules regarding similar transaction evidence alongside accomplice corroboration. In Bradshaw v. State,² the Georgia Supreme Court reconfirmed the accomplice testimony rule as "virtually identical" to the corroboration provision in the old Evidence Code.³ In Bradshaw, the defendant was convicted of malice murder for two shooting deaths along with an accomplice after the trials were severed. The crime involved two shootings after a marijuana deal went bad. The State introduced similar transaction evidence of a crime that had occurred six months before, where the defendant shot another individual in the head because he would not pay for drugs that the defendant's brother provided.⁴

The defendant argued on appeal that the similar transaction evidence was improperly admitted and that his accomplice's testimony was not properly corroborated.⁵ The court found the evidence was properly admitted and the accomplice's testimony was also sufficient to sustain a felony conviction and, in its finding stated: "[T]o sustain a felony conviction, the testimony of an accomplice must be corroborated. This Code section is virtually identical to the corroboration provision in the old Evidence Code."⁶

The court continued, citing a case from the Eleventh Circuit Court of Appeals,⁷ stating that "[t]he Federal Rules of Evidence contain no provision regarding accomplice testimony, and the uncorroborated testimony of an accomplice is sufficient to support a conviction in the Federal Courts if it is not on its face incredible or otherwise insubstantial."⁸ The court explained that when the Federal Rules are silent and it is clear that the General Assembly did not intend to change Georgia's substantive law, the new provision is interpreted consistently with the old unless a new provision of the Evidence Code displaced the law.⁹ Thus, in this survey period, the court continues to emphasize that the rules will not be changing due to the new Evidence Code unless they are actually statutorily replaced by a new provision.

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The following cases illustrate the boundaries of admissibility for similar transaction evidence. Brittain v. State,¹⁰ later cited in this Article for its findings on hearsay evidence, exemplifies the court of appeals interpretation of similar transaction evidence in an aggravated assault, kidnapping, and burglary case.¹¹ In Brittain, the State filed notice of its intent to introduce similar transaction evidence regarding a 2006 murder, kidnapping, and aggravated assault indictment along with a 2007 breaking and entering conviction to show "course of conduct, bent of mind, plan, scheme, motive, identity, intent, and lack of mistake."¹² The court explained that under the old Code, similar transactions were admissible if the state showed that

(1) it [sought] to introduce the evidence not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) there [was] sufficient evidence to establish that the accused committed the independent offense or act; and (3) there [was] a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.¹³

The court then determined the evidence of the similar transactions was sufficiently similar to meet these elements, finding that both incidents involved persons known to the defendant, surreptitious entry into their houses in the early morning, and use of a handgun, and, thus, the trial court had not erred in admitting the similar transactions.¹⁴

In Curry v. State,¹⁵ the court of appeals laid out the standard under the Federal Rules of Evidence¹⁶ for the admission of similar transaction evidence.¹⁷ The case involves disturbing facts regarding the defendant's exploitation of teenage girls for acts of prostitution, but the case shows how the court interpreted the allowance of similar transaction evidence to show intent.¹⁸ The defendant argued on appeal that the trial court violated O.C.G.A. § 24-4-404(b)¹⁹ by admitting testimonial evidence of a third woman who claimed the defendant sold her to men

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as a prostitute.²⁰ The court of appeals disagreed, explaining that although evidence of other crimes, wrongs or acts "shall not be admissible to prove the character of a person in order to show action in conformity therewith," it may certainly be used for other purposes.²¹ The court referenced the new Evidence Code in Georgia²² and noted that the Code is comparable to the Federal Rules, and that the court gives consideration "and great weight to constructions placed on the Federal Rules by the federal courts."²³

The court then applied the Eleventh Circuit's three-part test to the admissibility of similar transactions, which requires the following: (1) the evidence must be relevant to an issue other than the defendant's character; (2) there must be sufficient proof for a jury to find by a preponderance that the defendant committed the acts to be admitted; and (3) that under Federal Rule of Evidence 403,²⁴ the probative value outweighs any undue prejudice.²⁵ The court applied the test and found "striking similarities between [the] offenses" where the testimony to be admitted showed the victim was sold as a prostitute, held against her will, and required to solicit her own clients.²⁶ The defendant controlled the time, prices, and location for the sexual acts, exerted complete control over the victims, kept all monies received, and threatened the victims to keep them from leaving.²⁷ The defendant argued that course of conduct and bent of mind were not permissible reasons for admitting the similar transaction testimony.²⁸ The court agreed, but found the evidence was still admissible because it showed intent, which was a permissible reason for admission under the new rules.²⁹

III. Hearsay

A. Forfeiture by Wrongdoing

This survey period also showed developments in hearsay exclusions and exceptions. In Brittain v. State, previously mentioned in this

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Article, the court fleshed out the proper standard for admission of testimonial hearsay statements to law enforcement.³⁰ The defendant appealed convictions for aggravated assault, kidnapping, and burglary, arguing, among other alleged errors, the court erred in admitting hearsay evidence under the doctrine of forfeiture-by-wrongdoing.³¹ The statements were non-testimonial hearsay statements the victim made to friends regarding her abduction by the defendant in 2007.³² Though the trial took place before the effective date of the new evidence rules, the court assumed, without deciding, that the trial court admitted the hearsay under the forfeiture-by-wrongdoing doctrine and that the prior evidence code would not have permitted hearsay evidence to be admitted under this exception.³³ The court went on to state:

[A]ny error in the admission of same does not justify reversal because the same evidence would be admissible at a second trial. Indeed, Georgia's new Evidence Code has codified the forfeiture-by-wrongdoing exception for hearsay evidence, providing that "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" shall not be excluded by the hearsay rule if the declarant is unavailable as a witness.³⁴

Thus, this testimony was not admitted in error.³⁵ The defendant was in the unlucky position of arguing that there was an error because while it probably was erroneous during his first trial, the testimony would not be erroneous if he were retried.³⁶

B. Hearsay Admissibility to Determine Attendance of Out-of-State Witnesses

A niche hearsay area was further developed over this survey period with a ruling from the Georgia Supreme Court on the admissibility of hearsay when determining whether an out-of-state person is a material witness to a Georgia criminal proceeding. In Parker v. State,³⁷ the Georgia Supreme Court granted certiorari to...