Evidence - Marc T. Treadwell

• Publication year: 2002

Evidenceby Marc T. Treadwell^*

I. Objections

It is a basic but often overlooked fact that a party seeking to appeal a trial court's evidentiary ruling excluding evidence must not only make a contemporaneous objection, but must also make an appropriate proffer. For example, in Pittman v. State,¹ the trial court, after the prosecution invoked the rule of sequestration, ruled that if defendant's expert remained in the courtroom during the prosecution's case, he could not testify. Defendant chose to keep the expert in the courtroom. Defendant argued on appeal that the trial court had discretion to permit witnesses to remain in the courtroom to assist a party in the presentation of his case. Defendant had a valid point; it did not appear that the trial court exercised any discretion when it subsequently excluded the testimony of the expert after he sat at counsel's table during the prosecution's case in chief.² Rather, the mere fact that the witness was in the courtroom was sufficient for the trial court to conclude "that the ends of justice would not be met if the expert witness were permitted to testify after being in the courtroom."³ However, defendant did not make a proffer of what the expert would have said had he testified. Consequently, the supreme court found no grounds for reversal.⁴

In Sharpe v. Department of Transportation,⁵ a case discussed in a previous survey,⁶ the supreme court expanded the contemporaneous objection rule by abolishing the use of a subsequent motion to strike to attack "illegal evidence."⁷ Although a motion to strike can still be used to challenge previously admitted evidence that, in light of subsequent evidence, may no longer be admissible, it must clearly appear that the motion is based on subsequent developments. In Bryan v. Brown Childs Realty Co.,⁸ defendant did not initially object to testimony by plaintiff's expert on the issue of damages. After a subsequent witness testified about other matters and the court considered two unrelated issues, defendant moved to strike the expert's testimony. However, the subsequent evidence did not relate to the expert's testimony, and thus, there clearly was no evidence admitted after his testimony that revealed a defect in the testimony. Therefore, the contemporaneous objection rule barred defendant's belated effort to attack the expert's testimony.⁹

Georgia law recognizes one other exception to the contemporaneous objection rule—an exception that is likely an accident of stare decisis. Hearsay evidence, even if not objected to, is wholly without probative value and cannot support a verdict.¹⁰ Thus, a party can successfully appeal a verdict that is based on hearsay even though he did not object when the hearsay was admitted.¹¹ In a previous survey, the author suggested that this exception to the contemporaneous objection rule might soon meet its demise.¹² That speculation was based on Sharpe, the decision abolishing motions to strike illegal evidence. The author speculated that it seemed implicit in the holding in Sharpe that the court also would reject the principle that unobjected to hearsay has no probative value.¹³ That has not yet happened, although the current survey period saw uneven application of this exception. In two cases, the court reversed convictions based on hearsay evidence notwithstanding the absence of an objection.¹⁴ In both cases, the court adhered to the principle that hearsay evidence simply has no probative value.¹⁵ However, in Howard v. State,¹⁶ the court of appeals, when faced with the same situation, seemed to apply the contemporaneous objection rule: "Although Howard objected at trial to the admission of the letter on the ground the letter was not properly authenticated, the hearsay basis now urged was not raised. Under such circumstances, there remains nothing for appellate review."¹⁷ Stare decisis is a hard doctrine to overcome, but surely it is only a matter of time before the supreme court rules that the contemporaneous objection rule also applies to hearsay evidence.

II. Relevancy

A. Relevancy of Extrinsic Act Evidence

In the fifteen 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. The issue usually arises when prosecutors attempt to introduce evidence of a defendant's conduct on other occasions, claiming that, for example, evidence of a defendant's prior crime is relevant to a legitimate issue. Deeply rooted in our judicial heritage is the principle that a person should not be convicted because of his character or because of his conduct on other occasions.¹⁸ No one can reasonably contend that evidence of a defendant's bad character should be admissible to prove that he committed the charged offense. Though logically relevant—a person of bad character is more likely to commit a crime than one of exemplary character—the extreme prejudicial effect of such evidence demands its exclusion. Similarly, evidence of specific extrinsic acts or transactions is not admissible to prove that a person, on the occasion in question, acted in conformity with his conduct on other occasions.¹⁹ Notwithstanding the general rule that extrinsic act evidence is inadmissible, such evidence, particularly evidence of allegedly similar crimes, is routinely admitted;²⁰ the exceptions have truly swallowed the rule, or so it surely seems to defense attorneys.

Although the use of similar transaction evidence in criminal cases has expanded considerably, one principle has always seemed clear—evidence ofa defendant's conduct on other occasions is not admissible to prove his"propensity" to commit criminal acts.²¹ However, even that core principle was called into question during the current survey period. In Carr v. State,²² the trial court admitted, during defendant's trial for burglary, evidence of allegedly similar burglaries committed or attempted by defendant. The trial court then charged the jury that it could consider this evidence "as proof of [defendant's] 'predisposition to commit the crime.'"²³ This jury charge was based on the decision in Zinn v. State,²⁴ which held that a defendant's propensity to commit a crime was relevant to rebut a claim of entrapment.²⁵ In Carr, however, defendant did not claim entrapment, and thus, Zinn was not applicable.²⁶

This led the court to a discussion about the permissible purposes of extrinsic act evidence. The court acknowledged that similar transaction evidence is highly prejudicial and, thus, it is admissible only for limited purposes.²⁷ A clearly improper purpose would be to demonstrate "'a propensity to commit criminal acts in general or a certain type crime in particular.'"²⁸ This improper use of extrinsic act evidence, the court held, "goes to the very heart of the reason why similar transaction evidence is generally inadmissible."²⁹ Indeed, "'the primary aim of this rule [barring the admission of extrinsic act evidence] is to avoid the forbidden inference of propensity.'"³⁰

However, Judge Eldridge, concurring specially and in the judgment only, wrote a separate opinion and argued that "'propensity' can be a sufficient basis for the admission of a similar transaction."³¹ Citing examples of similar transaction evidence properly admitted to prove a defendant's propensity, Judge Eldridge stated:

[It] is not a forbidden concept when establishing the admissibility of a similar transaction when it goes to show conduct and/or intent with regard to the commission of the indicted offense . . . . The evil to be avoided is, as in this case, 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.³² @@@

It often seems that even when defendants can convince appellate courts that similar transaction evidence was erroneously admitted, their victory is pyrrhic. In Vaughan v. State,³³ defendant, who was charged with the sale of cocaine, contended the trial court erroneously admitted evidence of his 1997 conviction for possession of cocaine.³⁴ The court of appeals agreed that the possession charge was not sufficiently similar to the sale charge to be admitted as a similar transaction, rejecting the State's contention that it was admissible to demonstrate identity.³⁵ However, the court also found that the error was harmless; the evidence of defendant's guilt was so overwhelming that the inadmissible evidence likely did not contribute to his conviction.³⁶

In Thomas v. State,³⁷ defendant also convinced the court of appeals that the trial court erroneously admitted allegedly similar transaction evidence.³⁸ In Thomas defendant was charged with offenses arising from an assault on a pizza delivery man—an assault motivated by defendant's desire to get an order of chicken wings and four large pizzas. At defendant's trial, the trial court admitted evidence that defendant had committed an armed robbery of a convenience store. This act, the prosecution contended, demonstrated a common scheme or plan and thus was admissible for a legitimate purpose.³⁹ The court of appeals was not impressed. "We cannot, however, fathom any similarity between the two acts so as to demonstrate a coherent 'scheme or plan,' especially since—contrary to the State's representation at the Uniform Superior Court Rule 31.3(B) hearing—the instant act did not involve an 'attempt to obtain money forcefully from people.'"⁴⁰ Again, however, the court also found that the evidence of defendant's guilt was so overwhelming that the error was harmless.⁴¹

Extrinsic act evidence can also be relevant in civil cases, although, perhaps ironically, courts are much more reluctant to admit extrinsic act evidence in civil cases than they are in criminal cases. It would seem that in criminal cases, when freedom and potentially life itself are at stake, the courts would be more circumspect in the...