Evidence

• Publication year: 2014

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 first full survey period¹ in which the "new" Georgia Evidence Code, title 24 of the Official Code of Georgia Annotated (O.C.G.A.), takes effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and have continued to change the face of evidence law in Georgia. Appellate cases are now providing guidance and direction on the courts' interpretation of the rules, and these cases affect litigants' strategies. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2013 and May 31, 2014 that have made an impact on evidence law in Georgia.

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II. Case Law Update

A review of last year's survey and the cases cited therein shows no subsequent notable history modifying those matters.² No cases cited in last year's survey were granted certiorari or were reversed at the time of this Article's publication. Changes evidenced by new case law are outlined below and organized by topic.

III. The Parol Evidence Rule

In this survey period, the Georgia Court of Appeals grappled with the application of the parol evidence rule in the criminal law context. In Davis v. State,³ a unique case out of Dodge County, Georgia, the court of appeals held that the parol evidence rule does not apply to contract discussions for the funding of a business relocation when that relocation proved to involve criminal behavior.⁴ In Davis, the defendant, Bruce Davis, owned multiple clothing manufacturing companies in various parts of the country. Davis convinced a man named Pruett to loan him $350,000 to finance the relocation of a Florida trouser plant to a facility that Pruett owned in Eastman, Georgia. Before signing the contract, the two met and discussed various terms, including repayment and how the loan proceeds would be spent.⁵ Once Davis received the money, he used the proceeds for "various other business interests, including some related to [a different] manufacturing facility . . . . In fact, Davis never relocated the Florida plant to Eastman, never made any rent payments [to Pruett] pursuant to the lease agreement . . ., and never repaid the loan . . . ."⁶

At a criminal bench trial for theft by taking, the man who introduced Davis and Pruett testified concerning Davis's promises to use the loan proceeds solely for relocating the trouser plant to Eastman. These were terms outside of the contract itself. The lower court found Davis guilty of theft by taking after considering this evidence. Davis appealed, and enumerated as reversible error the trial court's admission of this parol

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evidence.⁷ Specifically, he contended "that the trial court erred in allowing Pruett and [the man who introduced Davis and Pruett] to testify regarding promises that Davis made prior to the execution of, yet not incorporated into, the contracts regarding how the funds would be spent."⁸

The court of appeals disagreed with Davis, holding that the parol evidence rule was inapplicable to the contracts at issue.⁹ The court stated that "the purpose of the parol evidence rule is 'to bring finality to an agreement, except when ambiguity requires that the language of the contract be explained but not varied.'"¹⁰ The court declined to extend this contractual rule to the evidence admitted in this particular criminal case, stating, "[C]riminal law is less concerned with the finality of agreements between two private parties."¹¹ The court considered the statements admissible and relevant in this criminal context, particularly because the statements showed Davis's intent, a necessary element of theft by taking, which the court, in a footnote, compared with "fraud in the inducement" in the civil context where parol evidence is generally admissible.¹² The court cited a plethora of other jurisdictions in agreement in the notes as well,¹³ but reserved creating a broad rule for parol evidence in criminal cases, stating:

This Court is not aware of any reported decisions, and the parties direct us to none, where an appellate court excluded parol evidence in the context of a criminal proceeding. Nevertheless, we are not prepared to say, and we do not say, that the parol evidence rule will never apply in any criminal context. We leave that question for another day.¹⁴

Thus, the court of appeals sailed nimbly through "uncharted jurisprudential waters," as it characterized the issues presented.¹⁵ This interesting conflict between a traditionally civil rule and its application in the criminal context shows a unique seed planted for future evidence law in Georgia.

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IV. Hearsay: Prior Consistent Statements

In Grant v. State,¹⁶ the court of appeals confirmed Georgia's rule on prior consistent statements, as developed through case law.¹⁷ In that case, Michael Grant appealed his convictions for aggravated assault and fleeing or attempting to elude a police officer, which he received after shooting his short-order cook while working as a restaurant manager. Grant had multiple enumerations of error; the one most relevant here is his argument that the trial court erred by allowing the state to introduce certain prior consistent statements.¹⁸

The statements at issue were by witnesses to the shooting who made statements to the patrol officer at the scene that supported the defendant, but whose later recorded testimony-and even later testimony at trial-while consistent at those stages, were not consistent with their original statements.¹⁹ Grant argued in limine that the later interviews with the witnesses should not be admitted since they "improperly fortified or bolstered their testimony."²⁰ The court of appeals agreed and held that the admission of these statements (played by recording to the jury) was in error.²¹

The court explained its reasoning, stating, "[A] prior consistent statement is only admissible if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination . . . ."²² Otherwise, the statements are "pure hearsay evidence."²³ The court also pointed out the crucial need for the prior statement to predate alleged fabrication, which was not true of the statements offered at trial in this instance.²⁴

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The court referenced the new Evidence Code²⁵ in its reasoning.²⁶ The court quoted Carlson on Evidence,²⁷ stating, "Georgia had no statute governing the admission of prior consistent statements in the pre-2013 [evidence] code. OCGA § 24-6-613(c) fills this gap and codifies [prior case law]."²⁸ The statute itself states, "If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose."²⁹ Thus, the new rule and the old rule are consistent regarding prior consistent statements; the new rule simply codifies what was previously decided over time through the common law.

V. Similar Transactions or Events

The Georgia Supreme Court has recently reviewed similar transaction evidence in the context of a felony murder appeal.³⁰ In Reeves v. State,³¹ the court confirmed Georgia's rule regarding similar transactions in criminal cases and recognized its codification in the new Evidence Code.³² In Reeves, the defendant, Robert Lee Reeves, Jr., was convicted of felony murder predicated on aggravated assault. The defendant based his appeal partially on the fact that a prior offense had been improperly admitted because the two transactions were not sufficiently similar.³³

In reviewing the trial court's admission of the defendant's previous guilty plea for attempt to commit rape, the supreme court noted that the proper standard for the admission of similar transaction evidence requires the following from the state: "(1) it must identify a proper

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purpose for admitting the transaction; (2) show that the accused committed the independent offense; and (3) show a sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter."³⁴ The proper purposes for admitting this evidence at the time of the appellant's trial included to show the defendant's "course of conduct, intent, modus operandi, scheme, and bent of mind."³⁵ The court went on to detail the striking similarities between the two crimes in the case at issue: similar age, location, and race of the victims, similar method of violence, similar time of year, and similar time of day were all present.³⁶

Once again making a point to specifically note the similarities between the new Evidence Code and its own ruling, the court stated that the appellant's case was tried under Georgia's old Evidence Code, "under which courts routinely admitted similar transaction evidence for purposes such as bent of mind or course of conduct."³⁷ The new Evidence Code includes "admission of evidence of other crimes, wrongs, or acts for purposes including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."³⁸ Thus, once again the similarities in the new and old Evidence Codes are referenced by the appellate courts, but not yet directly applied because of the timeline of the original trials that were outside of the effective date for the new Evidence Code.³⁹ The courts are clearly setting up the standards for interpretation of the new Evidence Code for themselves and practitioners going forward.

VI. The Best Evidence Rule

During this survey period, the court of appeals recognized changes in the best evidence rule. The new and old rules were contrasted in the following cases, illustrating that duplicates and police...