Evidence - Marc T. Treadwell

• Publication year: 1998

Evidence

Marc T. Treadwelf^*

I. Introduction

The survey period saw a large number of cases raising significant evidentiary issues. Two areas in particular should be noted and are discussed in detail below. First, criminal lawyers should be aware of the supreme court's reinterpretation of Cuzzort v. State,¹ a landmark decision creating a broad exception to the hearsay rule for prior consistent statements.² Second, all trial lawyers should be aware that the court of appeals continues to flirt with the idea of requiring parties to tender expert witnesses to the court for certification that they are, in fact, qualified to render expert testimony. As in past evidence surveys, this year's discussion of evidence decisions will be organized in the format of the Federal Rules of Evidence.

II. Objections

Under the Federal Rules of Evidence, the failure of a party to object to evidence precludes that party from raising that issue on appeal unless the admission of the evidence constitutes "plain error."³ During the survey period, the Georgia Court of Appeals, at least according to one judge, came perilously close to adopting the plain error rule in Georgia. In Putnam v. State,⁴ a social worker testified at defendant's child molestation trial that she believed the victim had been molested, she had confirmed the molestation, and the Department of Family and Children Services placed defendant's name in a database of child abusers because the Department concluded also that the victim had been abused.⁵ The court of appeals easily concluded this testimony was inadmissible, noting that it has been "held repeatedly and unequivocally that a witness may not express his or her opinion as to whether a child has been molested."⁶ The lack of an objection, however, presented a problem. Normally the failure to object, no matter how obviously inadmissible the evidence, waives a party's right to appeal the admission of the evidence. However, the court of appeals, citing various authorities, concluded the testimony "was harmful and reversible error, even in the absence of an objection."⁷

It does seem the majority was employing a "plain error" analysis, and in a special concurrence, Judge Beasley criticized the majority for "shortcutting the normal process by using the 'plain error' rule which the United States Supreme Court created . . . ."⁸ According to Judge Beasley, no Georgia case had applied the plain error rule in the context of inadmissible opinion testimony on the ultimate issue to be decided by the jury.⁹ She made it clear that by concurring specially in the judgment, the majority's opinion had no precedential effect.¹⁰

Apparently, Judge Beasley was concerned with the majority's pronouncement that the admission of the testimony was so clearly erroneous that the conviction should be overturned notwithstanding the absence of an objection, and Judge Beasley traced the courts' rather inconsistent treatment of this issue.¹¹ It seems that Judge Beasley's point is that in this area of the law, no evidence can be so clearly erroneous as to be plainly inadmissible.

III. Judicial Notice

In NationsBank, N.A. (South) v. Tucker,¹² plaintiff claimed the trial court erred in failing to take judicial notice of an exhibit to his complaint. Plaintiff sued defendant to collect a debt and attorney fees incurred in the collection of the debt. However, plaintiff rested its case without tendering evidence of the notice required by O.C.G.A. section 131-11 to recover attorney fees in a suit on a note. When the trial court refused to allow plaintiff to reopen its case, plaintiff asked the court to take judicial notice of an exhibit to the complaint, which plaintiff argued was a copy of the required notice.¹³ The trial court refused.¹⁴ On appeal, the court of appeals acknowledged that a trial court, upon timely request, may take judicial notice of the pleadings in an action pending before the court.¹⁵ Thus, the court of appeals acknowledged that the trial court could have taken judicial notice of plaintiff's complaint, including exhibits. However, the court could not judicially notice that the "exhibit was admissible, relevant, identified, authenticated, or the highest and best evidence, because such issues are a matter of proof that cannot be judicially noticed."¹⁶ Thus, while the trial court could have taken judicial notice that the exhibit was attached to the complaint, this did not meet plaintiff's burden of proving it had provided the requisite notice to defendant.

The court of appeals also held during the survey period that a court cannot take judicial notice of county and municipal ordinances.¹⁷

IV. Presumptions

O.C.G.A. section 24-4-23 creates, under certain circumstances, a presumption when a party fails to respond to a letter.¹⁸ Specifically, when in the ordinary course of business good faith requires an answer, it is the duty of the party receiving a letter to answer within a reasonable time.¹⁹ If he doesn't "he is presumed to admit the propriety of the acts mentioned in the letter . . . and to adopt them."²⁰ In Godwin v. Caldwell,²¹ defendant contended the court improperly refused to charge this code section.²² The court of appeals agreed that the evidence was sufficient to establish that the parties "were involved in a course of business to which this statute would apply."²³ However, the court held the statute, by itself, was an incomplete statement of law.²⁴ Because the presumption was one of fact, rather than a presumption of law, it was subject to explanation.²⁵ Therefore, to be a correct charge, defendant should have requested the trial court to charge, in addition to the statute, that the presumption created by the statute could be rebutted.²⁶

V. Relevancy

A. Relevancy of Extrinsic Act Evidence

In the eleven years the author has surveyed Georgia appellate decisions, the determination of the relevancy of extrinsic act evidence has been the single-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. 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, such as when a prosecutor tenders evidence of a similar transaction, usually a prior criminal offense, to prove a defendant's motive in committing the charged offense. Or extrinsic act evidence may be used to impeach or bolster a witness, such as evidence of a felony conviction to impeach a witness's character. Sometimes evidence that seems extrinsic is not subjected to extrinsic act evidence analysis. For example, the res gestae doctrine, although typically thought of as an exception to the rule against hearsay, is often used to admit evidence which, although not directly probative of the transaction at issue, is close enough, temporally, to be admitted as evidence of the transaction.

For years, Georgia courts have routinely and liberally admitted, for substantive purposes, evidence of similar but totally unrelated transactions, usually prior offenses, in criminal cases. However, as discussed in previous surveys, the Georgia Supreme Court in Stephens v. State²⁷ and Williams v. State²⁸ tightened the rules governing the admissibility of similar transaction evidence in criminal cases.²⁹ 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.³⁰ Rather, the prosecution must offer evidence proving the requisite degree of similarity or connection between the extrinsic act and the charged offense.³¹ 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.³² First, the prosecution must prove the relevance of the independent transaction to a legitimate issue.³³ Second, the prosecution must prove the defendant committed the independent offense or act.³⁴ Third, the prosecution must prove a sufficient connection or similarity between the prior act or offense and the charged offense.³⁵ The trial court must then make a specific determination that the prosecution has carried its burden of proving each of the three elements.³⁶

Williams and Stephens, notwithstanding, courts routinely and liberally continue to admit similar transaction evidence in criminal cases, and that was largely the case during the current survey period.³⁷ However, in King v. State,³⁸ the court of appeals concluded that the trial court went too far.³⁹ In King defendant contended the trial court improperly admitted his 1984 convictions for the sale of methamphetamine in his 1997 trial for the existence of methamphetamine in his bodily fluid.⁴⁰ The court of appeals agreed and reversed.⁴¹ The court reasoned that there must be some logical connection between the extrinsic offense and the charged offense when the prosecution seeks to offer the extrinsic offense as similar transaction evidence.⁴² The connection must be such that "proof of the separate offense establishes the offense for which the accused is on trial."⁴³ While both offenses involved methamphetamine, the extrinsic offense involved the sale of the drug, not the use of the drug. Defendant contended the drug was placed in his coffee and thus, he did not possess the requisite criminal intent.⁴⁴ Although this certainly made intent an issue, it did not necessarily follow that the extrinsic offenses were admissible.⁴⁵ The court noted that the prosecution could not explain how the sale of drugs in 1984 would prove the intent to use drugs.⁴⁶ "We note that if it were permissible to admit the prior drug sales in the trial of this case, then any earlier drug offenses would be...