Evidence - Marc T. Treadwell

• Publication year: 2003

Evidenceby Marc T. Treadwell^*

I. Introduction

This survey period saw no dramatic developments. The necessity exception to the hearsay rule continued to catch within its net statements that, a generation ago, would never have seen the light of a courtroom day. However, there were hints that some appellate justices and judges are becoming increasingly uncomfortable with the broad scope of the necessity exception. With regard to expert testimony, Georgia courts continued their refusal to adopt Daubert v. Merrell Dow Pharmaceuticals, Inc.,¹ perhaps because of a reluctance to impose on trial court judges the tremendous burden of microscopic analysis of proffered expert testimony.

II. Objections

Motions in limine are invaluable tools for resolving evidentiary issues out of the presence of jurors. Little is accomplished by a successful objection to proffered evidence when the jury has already heard the evidence. used properly, motions in limine can exclude objectionable evidence before trial. However, as discussed in previous surveys, motions in limine have to be used with an eye on preserving objections for appeal, a point made by the court of appeals this survey period in Hand v. Pettitt.²

In Hand, a civil suit for battery, plaintiff, during his opening statement, referred to defendant's noxious conduct on occasions other than the occasion at issue. Somewhat after the horse had left the barn, defendant moved in limine to exclude the evidence. The trial court denied the motion.³ The court of appeals noted that a motion in limine can be used in two ways.⁴ First, an attorney can ask the court to prohibit any mention of the evidence in the presence of the jury until the admissibility of the evidence has been determined.⁵ Second, an attorney can seek a final ruling on the admissibility of evidence.⁶ In the case of the latter, the trial court should deny the motion unless there are no circumstances under which the evidence would be admissible, and thus, the movant carries a heavy burden.⁷ "The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violating some ordinary rule of evidence, prior to trial, because the evidence has not been tendered in the context of evidence already admitted, which may make the evidence admissible for certain purposes."⁸ In Hand the court of appeals concluded that defendant, when he moved in limine to exclude the evidence after the jury had heard the evidence during opening statements, was in effect seeking an absolute pretrial ruling on the admissibility of the evidence.⁹ In other words, defendant was asking the trial court to find that the evidence was not admissible under any circumstances.¹⁰ The court of appeals concluded that defendant could not meet his heavy burden of establishing that the evidence at issue was not, under any conceivable scenario, admissible.¹¹

III. Judicial Notice

Lawyers are accustomed to simply citing the statutes and cases upon which they rely, and it is all too easy to forget that Georgia courts cannot always take judicial notice of legislative or judicial materials. This lesson was learned the hard way in Collier v. Merck.¹² In Collier defendant appealed his conviction in a county recorder's court for violating a county ordinance. On writ of certiorari to the court of appeals, defendant contended that the evidence was insufficient to warrant his conviction.¹³ However, the court of appeals did not address this issue because the record did not contain the substance of the

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3. Id. at 171, 573 S.E.2d at 425.

4. Id. at 172, 573 S.E.2d at 425.

5. Id.

6. Id.

7. Id.

8. Id. at 173, 573 S.E.2d at 426.

9. Id. at 172, 573 S.E.2d at 426.

10. Id.

11. Id. at 173, 573 S.E.2d at 426.

12. 261 Ga. App. 831, 584 S.E.2d 1 (2003).

13. Id. at 831, 584 S.E.2d at 2. ordinance defendant had allegedly violated.¹⁴ The court noted that neither a superior court nor an appellate court could take judicial notice of a local ordinance.¹⁵ Rather, it is incumbent upon the party seeking to prove the terms of the ordinance to ensure that the substance of the ordinance is contained in the record.¹⁶

IV. Privileges

Georgia law recognizes a clergy privilege: "[E]very communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling"¹⁷ to a member of the clergy shall be deemed privilegeod.¹⁸ In Mrris v. State,¹⁹ defendant contended that the trial court improperly denied his motion in limine seeking to exclude from evidence his conversations with one Reverend Boyd.²⁰ on appeal, the supreme court sided with the trial court.²¹ The evidence showed that defendant had known the Reverend for years, long before he became a clergyman, and considered him to be a father figure. Indeed, the Reverend was never defendant's pastor.²² The supreme court also relied on the fact that when defendant called Reverend Boyd, the Reverend asked defendant why he called, and defendant responded "'because you're the only father figure I've ever had.'"²³ This suggests that the supreme court relied on the substance of the communications to decide that the communications did not fall within the clergy privilege.²⁴ In any event, the supreme court held that the trial court properly concluded that defendant's statements to Reverend Boyd were not subject to the protection ofthe clergy privilege because they were not made to the Reverend in his capacity as a clergyman.²⁵

V. Relevancy

A. Relevancy of Extrinsic Act Evidence

The use of extrinsic act evidence—evidence of what someone did on an occasion other than the one at issue—is now routinely admitted in criminal cases. As discussed in last year's survey,²⁶ even the seemingly sacrosanct principle that extrinsic act evidence cannot be used to prove a defendant's propensity to commit criminal acts has been called into question.²⁷ In Carr v. State,²⁸ Judge Eldridge argued that "'propensity' can be a sufficient basis for the admission of a similar transac-tion."²⁹ Perhaps drawing a distinction too fine to be meaningful to defendants and their attorneys, Judge Eldridge wrote that propensity evidence is permissible when offered to show course of conduct or intent, and the "evil to be avoided is . . . admission of a similar transaction simply to demonstrate a predisposition to commit an offense that the defendant committed in the past, i.e., he did it before, so he did it this time as well."³⁰ Defense lawyers likely will lament that if extrinsic act evidence can be offered to prove propensity, then any meaningful obstacle to the use of such evidence has been removed. However, two decisions rendered during the survey period may suggest, at least on the part of some appellate judges, a reluctance to adopt the continued and expanded use of extrinsic act evidence.

In Mika v. State,³¹ defendant argued that the trial court improperly admitted evidence of his conviction for selling cocaine some eight years prior to the current charged offense of selling cocaine.³² The majority held that the first offense was sufficiently similar to the charged offense to be admissible similar transaction evidence.³³ The "mere" lapse of time between the two offenses did not render the prior offense too remote to be admissible.³⁴ In a dissenting opinion, Judge Phipps, joined by Judge Miller, strongly criticized the majority.³⁵ The majority, Judge

Phipps wrote, did not analyze the prior offense in the light of the purpose for which it was admitted, i.e., to show defendant's intent, course of conduct, bent of mind, and modus operandi.³⁶ A proper analysis, Judge Phipps argued, revealed that the evidence was not admissible for those purposes.³⁷ Defendant did not contend that he lacked the intent to commit the crime, but rather he denied that he committed the act of selling cocaine. consequently, intent and bent of mind were not disputed issues, and the prior offense was not relevant to prove intent or bent of mind.³⁸ With regard to course of conduct, the admission of extrinsic act evidence contemplates continuous conduct closely connected to the charged offense, and an eight-year old offense hardly met this criterion.³⁹ For similar transaction evidence to be relevant to prove modus operandi, the prior offense must be "'so nearly identical in method [as the crime charged] as to earmark them as the handy work of the accused,'"⁴⁰ and the two offenses were not that similar.⁴¹ To Judge Phipps, the "real role which the extrinsic crime evidence played at trial was simply to show that Mika had sold cocaine before, thereby permitting the jury to infer that he had done so again."⁴²

The contention that intent can be removed as an issue, and thus as a basis for the admission of extrinsic act evidence, has arisen before. In Evans v. State,⁴³ the trial court admitted similar transaction evidence to establish intent to engage in the sale of cocaine and to establish state of mind.⁴⁴ In a dissenting opinion, Judges Beasley and Cooper argued that the charged offense—sale of cocaine—did not require specific intent, and thus, intent was not an issue.⁴⁵ State of mind was also not an issue because defendant did not dispute that a drug sale took place; rather, defendant contended that he did not participate in the sale. Thus, the similar transaction evidence was not sufficiently relevant to a legitimate issue to outweigh its inherent prejudicial impact.⁴⁶ Interestingly, the United States Court of Appeals for the Eleventh

Circuit has consistently rejected this argument, holding that a plea of not guilty generally makes an issue of intent and thus warrants the introduction of extrinsic act evidence.⁴⁷

The court of appeals decision in Pitts v. State⁴⁸ also prompted a vigorous dissent. In Pitts the defendant, who was charged with various drug offenses, argued that his trial attorney should have moved for a mistrial after a co-defendant, in response to questioning from her lawyer, testified that defendant sold drugs for a living.⁴⁹ A majority of the...