Godfrey v. State

Citation358 S.E.2d 264,183 Ga.App. 183
Decision Date19 May 1987
Docket NumberNo. 74112,74112
PartiesGODFREY v. The STATE.
CourtGeorgia Court of Appeals

William L. Reilly, Ellijay, for appellant.

Roger G. Queen, Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

The appellant Earl Godfrey was convicted by a jury of aggravated sodomy upon his step-grandson. The offense was committed around Thanksgiving when appellant took the boy to his property to look for a Christmas tree. When the boy and his mother returned to their home, that night the mother heard the boy talking in his sleep, which was not an unusual occurrence. She went to his room and saw him tossing and turning, and according to her statement, "He was begging Earl not to pull his pants down and he told Earl not to do it, they were supposed to be ... hunting for a Christmas tree and he kept taking on for him not to do it." The child "took on" like this for several nights while the mother waited for him to come to her and tell her what had happened. This talking in his sleep was evidently common, for the mother stated: "[U]sually if [he does] anything ... in the daytime he can tell you about it after he goes to sleep.... Like if he was to go fishing or anything, he can tell you all about what he's done that day during his fishing trip after he goes to sleep." The mother thought this was normal, because "[her] mother does it, too." The boy's mother waited for several nights, and finally decided to talk to him about it. She said: "I asked him about his dreams and he told me. I told him what he was saying in his dreams and he [came] out and told me about it [in detail]." She thereupon consulted a physician, and the children's and welfare service and law enforcement authorities.

The appellant complains principally of the admission of this mother's testimony concerning the boy's sleep-talking. Held:

1. The State contends the mother's testimony as to the talk uttered by the child in his sleep is not hearsay because it derives its value solely from the credit of the mother as witness to an "act" and does not rely upon the veracity and competency of the sleeping person (OCGA § 24-3-1(a)); that is to say, the State does not insist upon the alleged sleep utterances themselves as truth or evidence of truth. Instead, the State contends they are one of those rare instances where the conduct of the witness in asking the child about the source of these utterances or about the matters implied in them, becomes material under Teague v. State, 252 Ga. 534, 536, 314 S.E.2d 910.

This evidence by the mother in this case is not inadmissible as hearsay. Hearsay evidence is that which derives its value not solely from the credit of the witness but rests mainly upon the veracity and competency of other persons. OCGA § 24-3-1. But it does not follow that merely because the declarations are those of another, they are hearsay. See Momon v. State, 249 Ga. 865, 866, 294 S.E.2d 482.

This evidence is admissible as original evidence under OCGA § 24-3-16, which is specific "indicia of reliability" legislation enacted to facilitate proof and evidence of sexual abuse of children. The statute is an outgrowth of the principles enunciated in Timberlake v. State, 158 Ga.App. 125, 128, 279 S.E.2d 283. It provides: "A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability."

This statute became effective after the trial of this case. Retrospective application of it to the propriety of the evidence is proper, since it impairs no vested right of the defendant. Thompson v. Wilbert Vault Co., 178 Ga.App. 489, 491, 343 S.E.2d 515. This criminal defendant has no vested right in the mode of trial of or the remedy for his offense. OCGA § 1-3-5. This legislation involves evidentiary changes and may operate retrospectively. Enger v. Erwin, 245 Ga. 753, 754, 267 S.E.2d 25.

As to the fact that these declarations were made in the child's sleep, we find it unnecessary to get caught up in a debate whether dreams and sleep-talk have any relation to reality, and how much. See, e.g., 14 ALR 4th 803, 804, § 2. That is the jury's question in the particular case if the trial court determines they are admissible. In Sutton v. State, 237 Ga. 418, 419, 228 S.E.2d 815, the Georgia Supreme Court held admissible, as relevant and material, incriminating statements made by a defendant while he was asleep or in a drunken stupor. And as to whether the man was asleep or drunk, conscious or unconscious, the court held: "Such matters lie within the province of the jury to decide." The child's sleep utterances might, in the jury's estimation, have rather more credibility than less, if it is found they were a " 'spontaneous declaration' ... made ... in response to a startling event." If they are "a spontaneous reaction to the event rather than the result of 'reflective thought,' " such declarations may have a " 'special trustworthiness.' " House v. State, ...

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5 cases
  • Westbrook v. State
    • United States
    • Georgia Court of Appeals
    • 11 mars 1988
    ...of reliability of the statements. The only other exception would be the traditional res gestae statements. See Godfrey v. State, 183 Ga.App. 183, 186(2), 358 S.E.2d 264 (1987); Vargas v. State, 184 Ga.App. 650(2), 362 S.E.2d 461 Such an interpretation of "available to testify" has not yet b......
  • Godfrey v. State
    • United States
    • Georgia Court of Appeals
    • 13 mai 1988
    ...for appellant. Roger G. Queen, Dist. Atty., for appellee. BIRDSONG, Chief Judge. On certiorari of our decision in Godfrey v. State, 183 Ga.App. 183, 358 S.E.2d 264, a majority of the Supreme Court held that "because of the lack of information regarding the fundamental nature of sleep talk,"......
  • State v. Luke, 73999
    • United States
    • Georgia Court of Appeals
    • 21 mai 1987
  • Luckey v. State
    • United States
    • Georgia Court of Appeals
    • 23 novembre 1987
    ...found that circumstances surrounding the statements in question carried "sufficient indicia of reliability." See Godfrey v. State, 183 Ga.App. 183(1), 358 S.E.2d 264 (1987). However, this omission, if it is error, is harmless because the testimony was admissible for other reasons. The victi......
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