Evidence

• Jurisdiction: Georgia,United States
• Publication year: 2017
• Citation: Vol. 69 No. 1

Evidence

John E. Hall Jr.

W. Scott Henwood

L. Witt Carmon II

Evidence

by John E. Hall, Jr.^*

W. Scott Henwood^**

and L. Whit Carmon II^***

I. Introduction

Following the adjustments to Georgia's Evidence Code on January 1, 2013, Georgia courts have developed significant case law interpreting various changes from the old code.¹ This year's survey period marks the fourth year since the landmark alterations to the Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24² took effect. Addressed in this year's Article are cases spanning from June 1, 2016 to May 31, 2017.³ Specifically, this Article addresses the following: (1) Significant developments regarding the admissibility of evidence ascertained by or maintained through technology; (2) Special rules of admissibility tied to crimes of sexual misconduct or prior violent bad acts; and (3) Exercises of the exemptions to the hearsay rule.

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II. Technology

In the era of continuous self-documentation, the advent of ever-advancing, smaller, increasingly more user-friendly recording devices has given rise to large gaps in the law. There is an enormous need for legal authority interpreting the use and admissibility of recorded statements, events, and circumstantial evidence procured by or maintained through contemporary technology. In this survey period, Georgia courts addressed several pertinent points of law regarding the intersection of evidence and technology.

A. Authentication of Evidence Maintained as Video Recording

In State v. Smith,⁴ the defendant sought to exclude a video recording of his statement in a pretrial motion. In the hearing on the motion, an investigator acknowledged the disc housing the alleged statement had no identifying markers on it that would confirm it was the video taken on the day of the crime, and further testified he was not present when the disc in question was created. In addressing the authentication of the video, the Decatur County Superior County stated, "[T]he State must show [the recording] is a fair representation of the statement, and may authenticate the recording by any witness familiar with the subject depicted on the recording, as is the case with any other video recording presented as evidence at a criminal trial."⁵ The Georgia Supreme Court upheld the trial court's decision to exclude the video recording of the defendant's confession because, "Given the equivocal testimony of the investigator with respect to whether the video disc being offered into evidence was one he had reviewed, the State failed to carry its burden of proving the video recording was a fair representation of defendant's interview."⁶

B. Necessity of Preserving All Components of Recorded Video Evidence

In State v. Hall,⁷ the Georgia Court of Appeals held that the State failed to prove a cell phone video contradicted a defendant police officer's version of the events such that it did not resolve a conflict in evidence where the video contained no audio recording component of the incident in question.⁸ Hall, a Clayton County police officer, was indicted for simple battery based on his use of force during an encounter with a homeowner

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whom he believed might be a burglar, At trial, Hall filed a motion seeking immunity from prosecution under O.C.GA. § 16-3-24.2,⁹ wherein he argued that "his use of force was reasonable and justified in light of the homeowner's resistance to being handcuffed and detained."¹⁰ After an evidentiary hearing that included witness testimony and cell phone video footage of most of the incident, the trial court granted Hall's motion for immunity. Subsequently, the State appealed.¹¹

On appeal from the trial court's grant of denial of immunity under O.C.G.A. § 16-3-24.2, the court of appeals viewed the evidence in the light most favorable to the trial court's ruling.¹² The immunity statute in question provides law enforcement with immunity if the officer's conduct is justified.¹³ The statute states that, "A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force."¹⁴

The court of appeals held that the State's argument that the suspect did not resist was not supported by the footage contained on the cell phone.¹⁵ Additionally, as there was no audio component included in the video, the evidence did not resolve the conflicting testimony regarding whether the suspect was argumentative and belligerent towards Hall and the other officers, nor did the video resolve the conflicting testimony whether the defendant requested that the suspect put his arms behind his back before the suspect was handcuffed.¹⁶

This case clearly illustrates the importance of preserving all facets of multimedia recordings, and demonstrates that Georgia courts will take a multi-layered approach to reviewing such recordings. Here, as demonstrated in Judge Peterson's concurrence, the court demonstrates the importance of preserving a complete audio-visual file:

The video [was] not clear enough for [the Court] to determine with confidence which disputed set of facts are true. If it was, [the Court] would owe no deference to the trial court's factual findings . . . regardless of whether they were based in part on resolving conflicting witness testimony. But [the Court does] owe deference [in this case]

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because the video alone does not resolve the factual dispute, and the trial court had to resolve conflicting witness testimony to decide the matter.¹⁷

Obviously, the Georgia Court of Appeals recognizes the powerful impact that contemporaneous cell phone recordings have on circumstances such as this where there is a "central factual dispute" and only conflicting witness testimony available to resolve it.¹⁸ However, as this case also demonstrates, where a multimedia recording does not capture every element of the event in question, courts are less likely to defer to the recording over other available evidence.¹⁹

C. Recorded Phone Call Does Not Violate Sixth Amendment Right of Confrontation

In Jones v. State,²⁰ the defendant was convicted of possessing a controlled substance outside of its original container, trafficking in heroin, and possessing heroin with the intent to distribute. The defendant argued that the trial court erred in permitting the State to play a recording of a monitored phone call between an informant and Jones when the informant did not testify at trial. The Clarke County Superior Court admitted the recording because it found the informant's statements were admissible to provide context for the defendant's responses to the informant's statements and were not admitted to prove the truth of the matter asserted. As for the defendant's own statements, the trial court determined those were admissible as admissions of a party opponent.²¹ The court of appeals cited United States Court of Appeals for the Eleventh Circuit precedent that "statements offered by a non-testifying speaker are not hearsay and do not violate the Confrontation Clause when the statements are 'not offered for their truth, but only to place . . . [the defendant's] statements in context.'"²² Thus, the trial court did not err in admitting the recording.²³

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III. Admission of Prior Bad Acts Evidence—Sexual Misconduct and Domestic Violence

Georgia law has demonstrated, time and again, that crimes linked to domestic abuse and sexual violence receive close attention by the courts. This survey period illustrated several instances wherein the special rules that apply to the admissibility of evidence in these types of cases resulted in admission of evidence that might have otherwise been excluded. It bears emphasizing that the primary motivation for these special evidentiary rules is a clear public policy in favor of preventing these types of particularly heinous offenses.

A. Domestic Violence—Admission of Prior Bad Acts as Evidence of Motive

In Harris v. State,²⁴ the defendant was convicted of family violence battery under O.C.G.A. § 16-5-23.1(f)(2).²⁵ The defendant appealed, arguing the Newton County Superior Court improperly admitted evidence of his prior convictions for family violence battery and simple battery. Here, the defendant was alleged to have physically abused his girlfriend's aunt's twenty-year-old daughter because she allegedly refused his sexual advances. The prior conviction in question occurred when the defendant was found guilty of another act of family violence battery and a simple battery in 2009 against his estranged wife and her sister.²⁶

The State averred that the evidence was permissible to show motive, specifically that the defendant uses physical violence to control women who have denied him something he desires.²⁷ Even though motive was not an element of the charged offense, the Georgia Court of Appeals upheld the admission because,

the other acts evidence was relevant to shed light on why Harris reacted as he did when the victim did not acquiesce to his sexual advances. . . . Accordingly, the evidence was relevant for the permissible purpose of showing the impetus behind [the defendant's]

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action of punching the victim in the face when she did not willingly agree to be his sexual partner.²⁸

In Smart v. State,²⁹ the defendant was convicted of malice murder and related offenses in connection with the beating of his wife. The defendant argued the Chatham County Superior Court erred in allowing the defendant's ex-wife's sister, Katie Tucker, to testify about the relationship the defendant had with his ex-wife and the abuse his ex-wife suffered during the course of their relationship.³⁰ The Georgia Supreme Court upheld the trial court's admission of the testimony because, although Tucker's testimony referenced specific acts of domestic violence, "her testimony also revealed the impetus behind that...