Evidence

• Publication year: 2016

Evidence

John E. Hall Jr.

W. Scott Henwood

Jacque Smith Clarke

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Evidence

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

I. Introduction

This year represents the third full survey period during which the "new" Georgia Evidence Code, Official Code of Georgia Annotated ( O.C.G.A.) title 24,¹ is in effect. These new rules took effect on January 1, 2013.² The rules conform in large part to the Federal Rules of Evidence and have continued to change the face of evidence law in Georgia, which continues to develop from last year.³ This Survey highlights cases decided by the Georgia Court of Appeals and Georgia Supreme Court between June 1, 2015 and May 31, 2016 that have made an impact on evidence law in Georgia. This year's Article provides insight into the courts' findings, particularly regarding spoliation, similar transaction evidence, business records, and the best evidence rule. The Case Law Update also provides an interesting update from last year's case law.

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II. Case Law Update

A review of last year's Survey shows some interesting appellate history. Last year's Survey discussed a similar transaction evidence case regarding prior DUI convictions called Frost v. State.⁴ That case was reversed by the Georgia Supreme Court in State v. Frost.⁵ The defendant, Gary Frost, was charged with DUI less safe under O.C.G.A. § 40-6-391(a)(1).⁶ The events leading up to the arrest are interesting. Frost, attempting to drive through the entrance of a Cobb County apartment complex early in the morning, struck the entry gate. Police arrived and found Frost sitting in his vehicle—engine on and music blasting—drinking out of a bottle of wine.⁷

At the time of his arrest, Frost refused to submit to a breath test. Thus, at trial, the State had no evidence concerning his Blood Alcohol Content (BAC).⁸ To prove Frost had knowledge, "[t]he State proposed to present evidence at trial that Frost had driven under the influence of alcohol in Cobb County on two occasions in 2009."⁹ The supreme court, upholding the trial court's decision to admit this evidence and reversing the court of appeals decision to exclude it, held that this specific situation is governed by the plain language of O.C.G.A. § 24-4-417.¹⁰ The court determined that the court of appeals defined the provision too narrowly, and that this rule is a "rule of inclusion."¹¹ Importantly, the court emphasized:

Rule 417 was not borrowed from the Federal Rules of Evidence, and it was not carried over from our old Evidence Code. It is an original creation of the new Evidence Code, and to understand its meaning . . . we must fall back upon the usual principles that inform our consideration of statutory meaning.¹²

The court then went on to interpret the plain language of the statute, citing several reasons for its holding.¹³ No other new cases cited in last year's Survey were reversed or questioned. New case law is organized below by topic.

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III. Spoliation

This period has provided new guidance on spoliation. In Phillips v. Harmon,¹⁴ the Georgia Supreme Court vetoed the bright line test that has been used to determine when the duty to preserve evidence starts.¹⁵ The duty now starts when litigation is pending or "reasonably foreseeable to that party."¹⁶ In this case, the plaintiff claimed medical malpractice against several health care providers after her son experienced oxygen deprivation during her labor. The defendants obtained a defense verdict, and the trial court denied a motion for new trial. The court of appeals reversed, and the defendants sought certiorari.¹⁷

The specific evidence for which the plaintiffs claimed spoliation was the printed paper strips recording the results of electronic monitoring of the child's heart rate. Though the hospital's regular practice was to maintain the record electronically along with nurses' notes, the strips themselves were only maintained for thirty days. The plaintiffs contended there were nursing notations on the strips that were not part of the electronic record and requested the jury be instructed that the plaintiffs were entitled to a presumption that the strips contained information prejudicial to the defendants.¹⁸ The trial court denied this instruction, and the court of appeals reversed. The Georgia Supreme Court explained its reasoning regarding foreseeability by explaining that it may matter "what the defendant did or did not do in response to the injury, including . . . investigation, the reasons for any notification of counsel and insurers, and any expression by the defendant that it was acting in anticipation of litigation."¹⁹ This decision means practitioners need to be proactive even earlier to prevent spoliation claims.

IV. Similar Transaction Evidence

A. The Bradshaw Test, Interpreted

This survey period presented multiple cases interpreting the Bradshaw²⁰ test when determining the admissibility of other acts evidence. Under Bradshaw, the State must show (1) evidence of extrinsic acts is

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relevant to an issue other than the defendant's character; (2) the probative value of the other acts evidence is not substantially outweighed by unfair prejudice; and (3) there is sufficient proof that the jury could find the defendant committed the act in question.²¹ In State v. Jones,²² the defendant was charged with DUI per se, DUI less safe, and speeding.²³ The State sought to introduce evidence of the defendant's prior conviction of DUI less safe, asserting that this evidence was relevant to show the defendant's intent and knowledge. The Georgia Supreme Court applied the Bradshaw test to determine the admissibility of prior acts evidence.²⁴ Overruling the court of appeals, the court concluded that the evidence of the defendant's prior DUI conviction was relevant to prove his intent "because [the evidence] had a tendency to make the existence of his general intent to drive under the influence more probable and would authorize a jury to logically infer that [the defendant] was voluntarily driving while under the influence."²⁵ This ruling satisfies the first prong of the Bradshaw test. The court then remanded the case to the court of appeals to consider the trial court's determination under Rule 403.²⁶ Importantly, the court explained that "Rule 404(b) . . . is, on its face, an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered. . . ."²⁷

Importantly, this case settled the dispute over which law governs when interpreting the new evidence rules. Thus, the federal interpretation of this rule of inclusion prevails, and admission will be fairly liberal so long as the purpose for admission is not character propensity-based. However, as highlighted in the case, Rule 403 acts as a backstop, and courts can use their discretion when determining the admissibility of prejudicial evidence.²⁸

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B. Other Acts Evidence, a Reversed Murder Conviction, and State of Mind Analysis

A very interesting case from the survey period involves a murder conviction that was reversed due to the trial court's error in admitting other acts evidence.²⁹ The appellant was charged and convicted of malice murder in connection with the death of a security guard at a Hormel meat packing plant in 1976.³⁰ The appellant shot the victim in the back seven times after binding him down with belts and a shirt. At trial, the State sought to introduce evidence showing that the appellant and an accomplice murdered a Mississippi state trooper in 1983, claiming this evidence was admissible to prove identity, motive, and course of conduct. The trial court agreed and admitted the evidence.³¹

The Georgia Supreme Court cited Jones and Bradshaw, infra, ruling that the State must satisfy the three-prong test (articulated above) to determine whether the other acts evidence is admissible.³² Prong three was satisfied by the appellant's guilty plea. The key issue involved relevance of the other acts evidence, and the court broke down each reason for admission asserted by the State individually.³³ To admit for purposes of identity under the new Georgia Evidence Code, the State must show that the extrinsic act was a "signature crime," involving acts so similar that they are classified as the "handiwork of the appellant."³⁴

The court explained that when examining other acts evidence, it must consider both the similarities and dissimilarities.³⁵ Here, the crimes were too dissimilar to allow admission of the prior murder evidence, and the evidence was also not admissible to show motive (this was very straight-forward reasoning).³⁶ The court then emphasized a key difference between our old evidence law and the new Evidence Code, explaining that the "'course of conduct' and 'bent-of-mind' exceptions . . . have been eliminated from the new Evidence Code."³⁷ Ultimately, the court ruled that the trial court's error in admitting this other acts evidence was extremely

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prejudicial and not harmless, justifying reversal of the appellant's murder conviction.³⁸ Interestingly, the court did not specifically examine the "course of conduct" argument and only stated that it was left out of the new Code,³⁹ though the new Code does allow other acts evidence for "other purposes"—a sort of catchall provision—and explicitly states that the reasons listed in the rule are not exclusive.⁴⁰

Another very interesting case from this survey period also addressed evidence of other acts. State v. Brown⁴¹ involved the court of appeals vacating trial court verdicts of acquittal for the defendants on charges of trafficking in cocaine, possession of marijuana with intent to distribute, and other violations.⁴² Importantly, this court vacated the exclusion of evidence of other crimes and remanded the issue back to the trial court because the trial court failed to exercise its discretion when considering the purpose for admission of...