State v. Almanza

Decision Date09 October 2018
Docket NumberS18G0585
Citation820 S.E.2d 1,304 Ga. 553
Parties The STATE v. ALMANZA.
CourtGeorgia Supreme Court

Amelia Greeson Pray, A.D.A., D. Victor Reynolds, District Attorney, Michael Scott Carlson, Deputy Chief A.D.A., John Richard Edwards, A.D.A., John Stuart Melvin, A.D.A., Charles Prescott Boring, Deputy Chief A.D.A., Lindsay Beth Gardner, A.D.A., Cobb County District Attorney's Office, Marietta, Attorneys for the Appellant.

Ashleigh Bartkus Merchant, John B. Merchant, III, The Merchant Law Firm, P.C., Marietta, Attorneys for the Appellee.

Andrew Howard Agatston, Andrew H. Agatston, P.C., Marietta, Melvin L. Hewitt, Jr., Isenberg & Hewitt, PC, Atlanta, Donna Coleman Stribling, Solicitor-General, Anna Watkins Davis, Assistant Solicitor-General, William Thomas Kemp, III, Assistant Solicitor-General, DeKalb County Solicitor General's Office, Decatur, Attorneys for the Amicus Appellant.

Peterson, Justice.

We granted certiorari to decide whether hearsay identifying the alleged sexual abuser of a child victim is admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment found in OCGA § 24-8-803 (4) ("Rule 803 (4)"). Under the new Evidence Code, we know that Georgia evidence rules that track the federal rules are to be interpreted according to federal case law, while rules that were instead carried over from the old Evidence Code are to be interpreted according to our case law interpreting the old Code. But Georgia Rule 803 (4) is materially identical to both an existing federal rule and a provision of the old Georgia Evidence Code. Federal case law construing Federal Rule of Evidence 803 (4) has held that the identity of an alleged child sexual abuser may, in certain circumstances, be admissible. Georgia case law construing the old state rule held that such evidence was not admissible. Because the fundamental rule of the new Evidence Code is that federal appellate case law applies when a Georgia rule is materially identical to a federal rule and has not yet been interpreted by a Georgia appellate court, we conclude that the new Evidence Code displaced our old Georgia precedent and so federal case law applies here. Accordingly, Rule 803 (4) permits the admission of identity in child sexual abuse cases when reasonably pertinent to medical diagnosis or treatment. We reverse the Court of Appeals’s decision to the contrary and remand with instructions to vacate the trial court’s order and remand for further proceedings consistent with this opinion.

1. The relevant facts as recounted by the Court of Appeals show that in May 2014 Almanza’s stepdaughter told her mother that Almanza had twice molested her approximately one year earlier.1 The mother reported these accusations to the police, who arrested Almanza on May 28, 2014. The police instructed the mother to take the child for a physical exam at Children’s Healthcare of Atlanta, which the mother did on May 29, 2014.

At the pediatric emergency room, Dr. Lynward Barrett examined the child. Dr. Barrett testified that the mother reported that her daughter had told her that Almanza had molested her on two occasions by touching the child’s vagina and by placing his penis "inside of her." The mother also told Dr. Barrett that the child said these acts had taken place approximately one year earlier. Dr. Barrett performed a physical examination of the child, consulted with a social worker to ensure law enforcement was involved and that the abuser no longer had access to the child, and referred the child for psychological counseling. Dr. Barrett testified that he obtained all of his information from the mother, only questioned the mother, and did not recall the child saying anything before, during, or after the exam.

Dr. Charles Richards, the child’s regular pediatrician, testified that he saw the child and her mother at his office on June 6, 2014 for treatment of the child’s viral symptoms. Dr. Richards testified that, as he was finishing the exam of the child, the mother became emotional and said the child had recently reported that approximately one year earlier Almanza had raped her on two different occasions. Dr. Richards similarly testified that he received all of the information regarding the allegations of sexual molestation from the mother and that the child did not say anything during this visit.

After indicting Almanza on charges of child molestation, incest, aggravated sexual battery, statutory rape, and aggravated child molestation, the State became unable to locate either the mother or the child. The State thereafter filed a motion in limine to obtain a ruling on the admissibility of the mother’s statements to both doctors. Following a hearing on the motion, the trial court ruled that the doctors would be allowed to testify at trial to any findings they made during the physical examination of the child and to the mother’s statements regarding the fact the child had reported being sexually abused. But the trial court also ruled that neither physician could testify as to "[a]ny identification of [Almanza] as the abuser." The State appealed that ruling, and the Court of Appeals affirmed. State v. Almanza, 344 Ga. App. 38, 52, 807 S.E.2d 517 (2017).

The Court of Appeals held that the trial court did not abuse its discretion in refusing to admit the mother’s statements of identification because such statements of identity are categorically inadmissible under Rule 803 (4). Almanza, 344 Ga. App. at 52, 807 S.E.2d 517. In doing so, the Court of Appeals concluded that Georgia case law interpreting the old Evidence Code’s medical diagnosis and treatment hearsay exception remained valid under the new Evidence Code. Id. at 41-45, 807 S.E.2d 517. The Court of Appeals went on to rely alternatively on Eleventh Circuit decisions regarding Federal Rule 803 (4), distinguishing statements of causation (which are admissible) from attribution of fault (which are not). Id. at 45-46, 807 S.E.2d 517. The Court of Appeals also criticized the reasoning or questioned the relevance of precedent addressing the admission of identity in child sexual abuse cases in the First, Fourth, Eighth, Ninth, and Tenth Circuits and specifically rejected the admissibility test set forth in United States v. Renville, 779 F.2d 430 (8th Cir.1985). Almanza, 344 Ga. App. at 46-52, 807 S.E.2d 517.

The Georgia precedent upon which the Court of Appeals relied did not survive the adoption of the new Evidence Code. The Eleventh Circuit decisions that the Court of Appeals alternatively relied upon did not decide the question before us regarding the application of Rule 803 (4) in the context of child sexual abuse; the federal precedent the Court of Appeals rejected did decide that question. We apply that federal precedent and conclude that the Court of Appeals’s categorical bar on the admissibility of identification under Rule 803 (4) in child sexual abuse cases was error.

2. Georgia’s new Evidence Code largely mirrors the Federal Rules of Evidence. This is by design. The preamble to the act adopting the new Evidence Code is explicit:

It is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal[s] as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal[s] interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals. It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence. The General Assembly is cognizant that there are many issues regarding evidence that are not covered by the Federal Rules of Evidence and in those situations the former provisions of Title 24 have been retained. Unless displaced by the particular provisions of this Act, the General Assembly intends that the substantive law of evidence in Georgia as it existed on December 31, 2012, be retained.

Ga. L. 2011, p. 99, 100 § 1. This preamble, though not codified, is a clear instruction manual for courts trying to decipher what the new Evidence Code purports to do and what precedent to apply. Like any instructions, it is best to read them, and they must be read in order. First, the General Assembly stated that the primary aim of the new Code was to "adopt the Federal Rules of Evidence" as "interpreted by" federal appellate courts "as of January 1, 2013[.]"2 Second, if a conflict exists among the federal appellate courts, we look to the "decisions of the 11th Circuit." Third, courts are to look to the "substantive law of evidence in Georgia as it existed on December 31, 2012," only when not displaced by the new code. Id. See also Glenn v. State, 302 Ga. 276, 280 (II) n. 4, 806 S.E.2d 564 (2017) ("[T]o the extent the General Assembly adopted the federal rules, it did so with an understanding of how those rules are applied in federal courts, not by prior Georgia courts." (internal citation and punctuation omitted) ).

Thus, the rule is simple: if a rule in the new Evidence Code is materially identical to a Federal Rule of Evidence, we look to federal case law. Glenn, 302 Ga. at 280 (II) n. 4, 806 S.E.2d 564 ("By using language nearly identical to Federal Rule of Evidence 701 (a)..., the enactment of OCGA § 24-7-701 (a) was a statutory modification to the admissibility of such evidence and displaced prior precedent on the matter ." (emphasis added) ); Davis v. State, 299 Ga. 180, 189 (2) (b), 787 S.E.2d 221 (2016) (" OCGA § 24-4-403 mirrors Federal Rule of Evidence 403 and is interpreted accordingly."); Olds v. State, 299 Ga. 65, 69 (2), 786 S.E.2d 633 (2016) ("[W]hen we have considered the meaning of [Georgia’s] Rule 404 (b), we consistently...

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