Evidence - Marc T. Treadwell

• Publication year: 2000

Evidenceby Marc T.Treadwell^*

I. Introduction

Hard cases, it is said, make bad law. Criminal prosecutions for child molestation and abuse are likely the hardest cases of all. Apart from their horrific facts, they present tremendous evidentiary challenges to prosecutors, primarily because of the victims' youth. Consequently, Georgia's appellate courts have repeatedly fashioned new evidentiary rules to assist prosecutors in such cases. Whether these hard cases make bad law no doubt depends on one's perspective. Without question, however, appeals involving child molestation and abuse continue to make new law, and the current survey period was no exception.

II. Objections

Several cases decided during the survey period illustrate the proper ways to object to the admission of evidence. First, the court of appeals, following the lead of the supreme court's decision in Sharpe v. Department of Transportation,¹ emphatically reaffirmed the contemporaneous objection rule, which requires that a party object timely and properly to inadmissible evidence. In Sharpe the supreme court expanded the contemporaneous objection rule and barred the use of a subsequent motion to strike to attack illegal evidence.² In Macon-Bibb County Board of Tax Assessors v. J.C. Penney, Inc.,³ the board claimed the superior court erred when it denied motions for directed verdict on the grounds that the taxpayer presented no competent evidence of the fair market value of the property at issue. The board claimed a directed verdict was appropriate because the taxpayer's expert testimony was not based on applicable Georgia law. However, the board did not object to the testimony at the time it was offered.⁴ The court of appeals held that by failing to make a contemporaneous objection, the board waived its right to contend that the expert's testimony should have been excluded from evidence and could not, by way of a motion for directed verdict, attack that testimony.⁵

In Crosby v. Cooper Tire & Rubber Co. ,⁶ the trial court instructed the jury to disregard plaintiff's expert's testimony on the grounds that the expert gave several opinions that were not disclosed during discovery. Defendant did not object to this testimony immediately but later moved to strike the testimony. The trial court granted the motion.⁷ This, the court of appeals held, was error.⁸ The contemporaneous objection rule required defendant to object to the testimony at the time it was given. In the absence of an objection, a party cannot later attack the testimony by a motion to strike.⁹

Motions in limine, although valuable tools to resolve evidentiary disputes prior to trial or out of the presence of the jury, do not necessarily relieve a party from making appropriate objections at trial. In Ward v. State,¹⁰ defendant moved in limine to prevent the prosecution from referring to him in closing argument as a "career criminal." The trial court denied the motion. In his closing argument, the prosecutor made several references to defendant's vocation as a burglar but did not specifically argue that because of defendant's prior convictions the jury should infer that he was a career criminal.¹¹ The court of appeals conceded that a party does not waive an objection to inadmissible evidence by failing to object to the admission of that evidence at trial if that evidence was the subject of an unsuccessful motion in limine.¹² However, a motion in limine only preserves for review matters specifically raised by the motion. In Ward the court, perhaps making a fine distinction, concluded that the prosecutor's precise references to defendant's previous criminal activity were not specifically addressed by defendant's motion, and because defendant did not object when those references were made, he waived the right to raise that issue on appeal.¹³

The court of appeals also reaffirmed during the survey period that a party waives the right to object to the admission of evidence that was the subject of a motion in limine if the party fails to obtain a ruling on the motion from the trial court.¹⁴

In Holder v. State,¹⁵ the court of appeals addressed the requirement that a party make an appropriate proffer when the trial court rules evidence inadmissible. In Holder defendant contended that the trial court improperly sustained an objection to a question intended to establish the reason defendant took the action that he did. The trial court ruled that the evidence was hearsay. On appeal, defendant contended that the evidence was admissible to explain his conduct. However, defendant did not advance this as a basis for the admission of the evidence at trial. Thus, although the trial court was aware of the substance of the evidence, the court was not aware of the reason it had been tendered.¹⁶ Because defendant failed to make an appropriate proffer, the court of appeals held that he could not raise that issue on appeal.¹⁷

III. Judicial Notice

In Enchanted Valley R.V. Resort, Ltd. v. Weese,¹⁸ defendants contended that plaintiff failed to introduce evidence of regulations promulgated by the Georgia Department of Human Resources.¹⁹ The court of appeals held that it was not necessary for plaintiffs to tender the regulations because the trial court properly took judicial notice of the regulations.²⁰ Official Code of Georgia Annotated ("O.C.G.A.") section 24-1-4,²¹ the court reasoned, requires a trial court to take judicial notice of regulations published under authority by the Secretary of State.²² The Administrative Procedure Act requires the Department of Human Resources to promulgate its regulations in the manner prescribed by theAct.²³ The Act also requires the Secretary of State to publish the regulations as the "Rules and Regulations of the State of Georgia."²⁴ Thus, because the regulations were published in accordance with the Administrative Procedure Act, the trial court was required to take judicial notice of those regulations.

IV. Relevancy

A. Relevancy of Extrinsic Act Evidence

In the thirteen years the author has surveyed Georgia appellate decisions, the determination of the relevancy of extrinsic act evidence has been the most frequently addressed evidentiary issue. Accordingly, some background discussion is appropriate. Evidence is extrinsic when it concerns conduct on occasions other than the one at issue. As a general rule, extrinsic act evidence is inadmissible.²⁵ However, like the rule against hearsay, 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, such as when a prosecutor tenders evidence of a similar transaction, usually a prior criminal offense. This evidence is used to prove a defendant's motive or intent when he committed the charged offense, or it may be admissible to impeach or bolster a witness, such as evidence of a felony conviction to impeach a witness' character. Sometimes evidence that may appear to be extrinsic may not, in the often arcane world of evidence, actually be extrinsic. For example, the res gestae doctrine, although typically thought of as an exception to the rule against hearsay, is often used to admit evidence that, although not directly related to the transaction at issue, is close enough to be admitted.

For years Georgia courts have routinely and liberally admitted, for substantive purposes, 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. State,²⁷ tightened the rules governing the admissibility of similar transaction 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. Second, the prosecution must prove that the defendant committed the independent offense or act. Third, the prosecution must prove a sufficient connection or similarity between the prior act or offense and the charged offense.³² The trial court must then make a specific determination that the prosecution has carried its burden of proving each of the three elements.

Williams and Stephens notwithstanding, courts still freely admit similar transaction evidence in criminal cases, and that was largely the case during the current survey period, particularly with regard to sex crimes.³³ However, some supreme court justices are beginning to question the broad use of similar transaction evidence.³⁴ During the survey period, a court of appeals judge, Judge Barnes, joined in this criticism. In Roberts v. State,³⁵ the trial court admitted evidence of defendant's prior guilty plea for the sale of cocaine. In that offense, defendant flagged down an undercover officer's car and offered to sell the agent cocaine. In the charged offense, defendant also allegedly approached undercover agents in an attempt to sell cocaine. However, as defendant approached the officers' car, he apparently recognized the officers and dropped something on the ground. One of the officers walked directly to that spot and picked up a bag that contained cocaine. On appeal defendant contended the trial court erroneously admitted evidence of the prior offense.³⁶ A majority of the six judge panel disagreed, concluding that sufficient similarities existed between the two offenses and that the prior offense was relevant "to the issues being tried."³⁷

Judge Barnes dissented.³⁸ She...