Evidence - Marc T. Treadwell

• Publication year: 1994

Evidenceby Marc T. Treadwell^*

I. Objections

Previous survey articles have discussed the need for precise objections to preserve an issue for appeal. Sometimes, however, even the most precise objection may not be sufficient. In Garner v. Victory Express, Inc.,¹ plaintiff objected to defendant's counsel's comment during closing argument on the lack of any evidence indicating that defendant was unsafe or careless.² Apparently, defense counsel was referring to the absence of evidence of prior negligence on the part of defendant's driver. The trial court overruled this objection.³ Plaintiff argued that because he was precluded from proving defendant's negligence by his prior driving record or from proving the driver's general character for recklessness in driving, defendant should not be allowed to comment on the absence of any such evidence.⁴

Although plaintiff's argument appears improper, the Georgia Court of Appeals did not reach this issue. Rather, the court of appeals determined that plaintiff's objection was insufficient because he failed to state the action he wanted the trial court to take.⁵ When a party objects to a question or answer during the course of the examination of a witness, the relief requested is obvious; the question should not be answered or, if given, the answer should be stricken.⁶ In the context of a closing argument, however, the desired relief is not obvious. Accordingly, the court of appeals held that requesting the relief desired is incumbent upon a party objecting to an improper closing argument.⁷ The relief requested can be an appropriate instruction to the jury, a rebuke of counsel, or a mistrial.⁸ The court of appeals acknowledged that plaintiff timely objected and properly stated the grounds for his objection.⁹ By not specifying the desired relief, however, he failed to invoke a reviewable ruling.¹⁰ Thus, even though the trial court overruled plaintiff's objection, plaintiff should have stated the relief he desired. In other words, plaintiff's counsel should have exacerbated the situation by futilely requesting specific relief when he saw his objection belittled by the judge in front of the jury. These requests would have created the impression that defendant's counsel's argument raised a valid point.¹¹

II. Relevancy

A. Relevancy of Extrinsic Act Evidence

Perhaps the most problematic area of evidence law is extrinsic act evidence. Extrinsic act evidence provides evidence of conduct on occasions other than the one at issue. This evidence is extrinsic to the transaction or incident at issue and, as a general rule, is inadmissible. Like the rule against hearsay, however, the rule against extrinsic act evidence is known more for its exceptions rather than its flat prohibitions. Extrinsic act evidence may be admissible for a substantive purpose. For example, evidence of a prior criminal offense used to demonstrate motive. Extrinsic act, evidence may also be admissible to impeach or bolster a witness. For example, evidence of a felony conviction to impeach a witness' character would be admissible. When analyzing extrinsic act evidence, one must first consider the threshold question of whether the proffered evidence is actually extrinsic to the act at issue. Although used more frequently to admit hearsay evidence, the res gestae doctrine also permits the introduction of evidence that may seem extrinsic to the act at issue. The admission of evidence under the res gestae doctrine depends on the relationship between the extrinsic act and the act at issue. For example, in Touchton v. State,¹² defendant, who had been convicted of child molestation, claimed that the prosecution improperly placed his character into issue by eliciting testimony from an acquaintance of the victim.¹³ The acquaintance, who along with the victim had posed nude for defendant, testified that defendant frequently bought them beer.¹⁴ The witness' testimony suggested that defendant's beer purchases provided the incentive for her to pose for defendant.¹⁵ The trial court overruled defendant's objection and the court of appeals affirmed.¹⁶ The court of appeals ruled that defendant's acts were part of the res gestae of a similar crime and were admissible even though they impugned defendant's character.¹⁷

For years, Georgia courts routinely and liberally admitted evidence of similar, but totally unrelated, transactions in criminal cases. In the past two Evidence surveys,¹⁸ however, the author discussed two decisions of the Georgia Supreme Court, Stephens v. State,¹⁹ and Williams v. State,²⁰ that appear to signal a decided shift in this trend. 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.²¹ Rather, the prosecution must offer evidence proving the requisite degree of similarity or connection between the extrinsic act and the charged offense.²² 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.²³ First, the prosecution must prove the relevance of the independent transaction to a legitimate issue.²⁴ Second, the prosecution must prove that the defendant committed the independent offense or act.²⁵ Third, the prosecution must prove a sufficient connection or similarity between the prior act or offense and the charged offense.²⁶ The trial court must then make a specific determination that the prosecution has carried its burden of proving each of the three elements.²⁷ The court of appeals readily embraced Stephens and Williams and, for the most part, decisions during the present survey period indicated a continued restriction of the permissible use of extrinsic act evidence.

In Riddle v. State,²⁸ defendant contended that the trial court improperly admitted extrinsic act evidence by failing to hold the pretrial hearing required by Williams and Uniform Superior Court Rule 31.3.²⁹ However, defendant failed to object to the evidence on this basis. The court of appeals addressed the issue of whether this failure to object barred defendant from raising this issue on appeal.³⁰ In reviewing Rule 31.3 and Williams, the court of appeals found that the burden of conducting the required hearing is placed solely on the prosecution and the trial court.³¹ A defendant has no responsibility to request a hearing.³² 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.³³

Typically in extrinsic act decisions, the evidence consists of prior crimes against third parties. In Barrett v. State,³⁴ however, defendant contended that the trial court erred in admitting evidence of prior difficulties between him and the victim without first conducting the hearing required by Uniform Superior Court Rules 31.1 and 31.3.³⁵ The supreme court took this opportunity to catalog its recent attempts, such as those in Stephens and Williams, to provide guidance to trial courts in determining whether to admit similar transaction evidence.³⁶ The court noted that extreme prejudice can result from the admission of prior act evidence, and an explanation on analyzing this evidence has become necessary given the increased use of prior act evidence in criminal prosecutions.³⁷ Because the cases listed in Barrett involved prior similar transactions that did not involve the victim, the trial court concluded that the procedural requirements for the admission of extrinsic act evidence did not apply to evidence of prior difficulties between a defendant and his victim.³⁸ The supreme court rejected this argument, noting that the inherent prejudice is the same.³⁹ Therefore, the trial court erred when it admitted the extrinsic act evidence without complying with the Uniform Superior Court Rules.⁴⁰

In a special concurrence, Justices Hunt, Hunstein, and Carley, disagreed.⁴¹ Justice Carley first noted that the court's decisions addressing evidence of defendant's prior difficulties with the victim conflicted, and one line of authority or the other needed to be overruled.⁴² To Justice Carley, the need for procedural safeguards mandating prior notice of the prosecution's intent to use similar transaction evidence is understandable; the defendant needs fair warning to rebut this evidence.⁴³ In the case of evidence of prior difficulty with the victim, however, advance warning is not needed. Clearly, a defendant will realize that the state will attempt to use evidence of his prior altercations with the victim. Thus, Justice Carley concluded, the procedural requirements of Uniform Superior Court Rules 31.1 and 31.3 should not be extended to evidence of this nature.⁴⁴

The appellate courts have always been particularly tough on defendants in child molestation cases. This view is evidenced by the court of appeals decision in Adams v. State.^4,5 In Adams defendant, who was convicted of child molestation and sodomy, contended that the trial court erred when it admitted certified copies of his conviction for child molestation in Indiana.⁴⁶ The State offered no evidence, other than the documents, establishing the similarity of the prior offense to the charged offense as required by Stephens.⁴⁷ The court of appeals acknowledged the holding of Stephens.⁴⁸ The court of appeals also noted that special allowances had been made in child molestation cases: "'[T]he sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible."'⁴⁹ In candid language describing numerous special rules for child molestation cases, the court of appeals explained why special rules are necessary in child molestation cases:

Of all the sex crimes imaginable, nowhere is a liberal extension of the rule more necessary to facilitate the search for truth than in the...