Evidence - Marc T. Treadwell

• Jurisdiction: Georgia,United States
• Publication year: 1995
• Citation: Vol. 47 No. 1

Evidenceby Marc T. Treadwell*

I. Objections

Last year's evidence survey addressed and mildly criticized the Georgia Court of Appeals holding in Garner v. Victory Express, Inc.¹ that a party objecting to an opposing party's closing argument must, in addition to objecting, state the action he wishes the court to take.² Specifically, the objecting party must request an appropriate instruction to the jury, a rebuke of counsel, or a mistrial. The failure to do so, the court of appeals held in Garner, constitutes a waiver of the right to raise that issue on appeal.³ Why, it is appropriate to ask, is it necessary to request a mistrial when the court has overruled the objection? As pointed out in last year's survey, this meant in Garner that plaintiff's counsel, having seen his objection belittled by the trial court, should have exacerbated the situation by futilely requesting specific relief.⁴

The supreme court granted certiorari in Garner and, during the current survey period, reversed the court of appeals.⁵ The supreme court noted that plaintiff's attorney properly and timely objected to the allegedly improper argument, and the trial court overruled the objection.⁶ The supreme court agreed that the court of appeals properly applied, as it was bound to do, its decision in Seaboard Coastline Railroad v. Wallace,⁷ requiring the objecting party to request specific relief. However, the supreme court was not bound by and chose to overrule Wallace. While a party is free to request specific relief, the court held, it is sufficient that he merely object and "thereby implicitly request that the trial court acknowledge the impropriety of the closing argument by sustaining the objection thereto."⁸ The supreme court's decision is a victory for common sense and relieves attorneys from the humiliating burden of, for example, beseeching a trial judge to rebuke defense counsel when the judge has just overruled an objection to the allegedly offensive argument.

The need for precise objections is demonstrated by two court of appeals decisions addressing the same general issue—the admissibility of withdrawn guilty pleas. In Shoemake v. State,⁹ the prosecutor asked defendant's character witness whether she was aware that defendant had pled guilty to the charged offense—a plea that was subsequently withdrawn. Initially, defendant's attorney objected to the question because it put defendant's character at issue. Defendant then took the stand and testified about the circumstances surrounding the guilty plea and its subsequent withdrawal. When the prosecutor examined defendant about the plea, defendant's counsel again objected, arguing that the withdrawn plea was irrelevant. At the close of the evidence, defendant moved for a mistrial, claiming that the plea negotiations should be treated just as civil settlement negotiations and should not be admissible.¹⁰

Defendant's attorney apparently was unaware that Official Code of Georgia Annotated ("O.C.G.A.") section 17-7-93(b) specifically provides that withdrawn pleas are not "admissible as evidence against [defendant] at his trial."¹¹ The court of appeals ruled that defendant's initial objection—that the evidence improperly impugned her character—was without merit because defendant had placed her character in issue by calling a character witness.¹² Defendant did not specifically assert that the denial of her motion for mistrial was error and, even if she had, the court observed that "the timeliness of the motion is questionable" because it was made after the close of evidence.¹³ Thus, defendant's counsel simply failed to preserve for appeal a meritorious objection to the admission of evidence about his client's withdrawn guilty plea. Fortunately for defendant, the court of appeals accepted the argument that the admission of the plea was an error "of such serious magnitude that even if she erred procedurally in the manner and timeliness of pursuing it, a new trial is required."¹⁴ The court apparently was swayed by its suspicion that the prosecutor knowingly violated the statute.¹⁵ Judge Andrews, joined by Judge Birdsong, argued in dissent that the "objection made was not good and the objection now argued and addressed by the majority was never made below."¹⁶

Judge Andrews returned to this issue in Snow v. State.¹⁷ In Snow, defendant contended that the trial court erred in admitting evidence of defendant's attempt to plead guilty to the charged offense in magistrate court at an initial hearing and of his subsequent withdrawal of his plea.¹⁸ However, defendant's counsel did not make a "specific objection to such testimony" but, rather, only objected generally to "'any statement' with respect to [defendant's] testimony about the circumstances under which his previous statements were made .... "¹⁹ Writing for an undivided panel, Judge Andrews concluded that defendant's objections were insufficient to preserve the issue for appeal.²⁰ In a special concurrence, Judge Beasley differed with Judge Andrews' reasoning, but reached the same result.²¹ She concluded that O.C.G.A. section 17-7-93 did not apply to defendant's statements in his initial appearance in the magistrate court.²² Judge Beasley cited, but did not discuss, Shoemake.²³

Motions in limine are frequently used by attorneys to resolve evidentiary issues prior to trial. The question often arises whether the grant or denial of a motion in limine preserves an issue for appeal or whether it is necessary to object again during the trial. In General Motors Corp. v. Moseley,²⁴ the court of appeals held that "where the trial court's ruling on a motion in limine is violated, further objection at trial is unnecessary to preserve the matter for appellate review."²⁵

II. Relevancy

A. Relevancy of Extrinsic Act Evidence

Perhaps the most problematic area of evidence law is the determination of the relevancy of extrinsic act evidence. Certainly, Georgia's appellate courts address this issue more than any other evidentiary issue. Evidence is extrinsic when it concerns conduct on occasions other than the one at issue. As a general rule, extrinsic act evidence is inadmissible. Like the rule against hearsay, however, the rule against extrinsic act evidence is known more for its exceptions than its flat prohibition. Extrinsic act evidence may be admissible for a substantive purpose, as when a prosecutor tenders evidence of a similar transaction, usually a prior criminal offense, to prove a defendant's motive to commit the charged offense. Extrinsic act evidence also may be admissible to impeach or bolster a witness, as when evidence of a felony conviction is tendered to impeach a witness's character. However, evidence which may appear to be extrinsic may not, in the sometimes arcane world of evidence, actually be extrinsic. For example, as discussed below, the res gestae doctrine, although typically thought of as an exception to the rule against hearsay, is often used to admit evidence of transactions or conduct other than the precise conduct or evidence at issue.

For years, Georgia courts routinely and liberally admitted evidence of similar, but totally unrelated transactions in criminal cases. However, as discussed in previous surveys, the Georgia Supreme Court in Stephens v. State²⁶ and Williams v. State²⁷ substantially tightened the rules governing the admissibility of extrinsic act evidence in criminal cases.²⁸ In Stephens, the supreme court held that the prosecution cannot rely solely on a certified copy of a prior conviction when seeking to use that conviction as similar transaction evidence.²⁹ Rather, the prosecution must offer evidence proving the requisite degree of similarity or connection between the extrinsic act and the charged offense.³⁰ In Williams, the supreme court, in a dramatic departure from prior practice, held that the prosecution must prove, prior to trial, three elements before similar transaction evidence can be admitted.³¹ First, the prosecution must prove the relevance of the independent transaction to a legitimate issue.³² Second, the prosecution must prove the defendant committed the independent offense or act.³³ Third, the prosecution must prove a sufficient connection or similarity between the independent transaction and the charged offense.³⁴ The trial court must make a specific determination that the prosecution has carried its burden of proving each of the three elements.³⁵

During the present survey period, the court of appeals struggled mightily with Williams' procedural requirements and the failure of trial courts to comply with those requirements. The results of this struggle have not been uniformly consistent. The court of appeals in White v. State³⁶ reaffirmed its holding in Riddle v. State³⁷ that a defendant does not waive his right to appeal the trial court's failure to conduct the hearing required by Williams (and subsequently by Uniform Superior Court Rule 31.3) when he does not object at trial to this omission.³⁸ The burden of conducting the hearing is placed solely on the prosecution and the trial court, and the defendant has no responsibility to request a hearing.³⁹ Thus, a defendant's failure to object to the admission of similar transaction evidence on the basis that the hearing was not conducted does not constitute a waiver of his objection. However, in Willis v. State,⁴⁰ the court of appeals rejected defendant's contention that the trial court, although it conducted a Williams hearing, failed to make the findings required by Williams because defendant failed to object at trial.⁴¹

In Banks v. State,⁴² the court of appeals considered the substantive issues raised by the admission of similar transaction evidence and, in a rare move, concluded that the trial court erred in admitting the evidence.⁴³ In Banks, the prosecution alleged defendant and an accomplice entered the home of an eighty-three year old man and, while attempting to rob him, assaulted him. The trial court admitted evidence of Banks'...