Adams v. State

• Decision Date: 08 March 1989
• Docket Number: No. 77842,77842
• Citation: Adams v. State, 191 Ga.App. 16, 381 S.E.2d 69 (Ga. App. 1989)
• Parties: ADAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 69

381 S.E.2d 69

191 Ga.App. 16

ADAMS v. The STATE.

No. 77842.

Court of Appeals of Georgia.

March 8, 1989.

Rehearing Denied March 23, 1989.

James E. Toland, Jr., Dalton, for appellant.

Jack O. Partain III, Dist. Atty., Todd L. Ray, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

James Paul Adams appeals from his conviction on four counts of obtaining controlled substances by forgery and one count of attempting the same offense.

Construing it to support the verdict, the evidence at trial showed that Sabrina Thibodeau, appellant's twelve-year-old niece, was arrested at a pharmacy when the pharmacist became suspicious of the signature on a prescription Thibodeau had presented for Percocet, a controlled substance. Thibodeau gave a statement to the police implicating appellant and his wife, and on the basis of that statement appellant and his wife were arrested and indicted. Appellant's wife pled guilty to the charges against her and is not involved in this appeal. Testimony was presented from pharmacists at the drugstore where Thibodeau was arrested that four other forged prescriptions had been presented within a period of one month, all for either Percocet or Percodan, controlled drugs, and all bearing the forged signature of Dr. Jack A. Brown, a local emergency room physician. Dr. Brown testified that the signature on the prescriptions was not his, that he had examined appellant twice at the hospital where he was employed on or near the dates appearing on the forged prescriptions, and that on one of those occasions he had prescribed Percocet. After presentation of a majority of the State's evidence, a continuance was granted because Sabrina Thibodeau could not be located. A lengthy investigation and interrogation of family members was conducted by the judge, who found that appellant's family was hiding the child, and that as she was unavailable to testify, her statement could be admitted into evidence.

In her statement given to the authorities, Thibodeau alleged that her uncle (appellant) and his wife had brought her to the pharmacy, given her eleven dollars in cash, and instructed her to fill the prescription, and to say it was for "Mary Ann Young." She stated she had "done this a bunch of times here [in Whitfield County] and in Gordon County." She thought she had taken as many as thirty prescriptions to a particular drug store in Gordon County. She further described how her aunt and uncle visited hospitals and doctors and stole prescription blanks and ran off without paying for the visit, and where they took the prescriptions to be filled.

1. The evidence of record is such that the jury was authorized to convict appellant of the crimes charged under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court erred by admitting Thibodeau's statement into evidence because it was hearsay and its admission violated appellant's right to confront the witness. However, OCGA § 24-3-1(b) provides that hearsay evidence is admitted in specified cases from necessity. In Higgs v. State, 256 Ga. 606, 351 S.E.2d 448 (1987), the Georgia Supreme Court, citing Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2536, 65 L.Ed.2d 597 (1980), held that the United States Supreme Court had "not interpreted 'confrontation' to signify the exclusion of every hearsay exception, and has provided [a] method to resolve confrontation challenges based on the admission of hearsay testimony: '... First, ... the Sixth Amendment establishes a rule of necessity. In the usual case ... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. [Cits.] The second aspect operates once a witness is shown to be unavailable.... [O]nly hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule [may be admitted]." ' [Cit.]" Higgs, supra 256 Ga. at 608-609(7), 351 S.E.2d 448. See also Swain v. C & S Bank of Albany, 258 Ga. 547, 372 S.E.2d 423 (1988). We find that Thibodeau's statement meets these criteria as well.

The trial court made every effort to locate Thibodeau and obtain her attendance in court. The trial judge, after interrogating the child's (and appellant's) family, found that they were deliberately hiding the child, shifting her from place to place and lying to deputies and others, to prevent her from testifying. The trial was continued to secure Thibodeau's presence, and the child's grandmother, with whom the child had been living, was ordered to produce her. When she was not produced, the court held the child's grandmother in contempt, sentencing her to 10 days in jail. Not until all avenues were exhausted did the trial court allow the statement to be admitted into evidence. We find this effort satisfied the "necessity" requirement. Detective Leevan Kirk of the Whitfield County Sheriff's Department took Thibodeau's statement, and his testimony at trial established the voluntariness of Thibodeau's statement pursuant to the criteria set forth in J.E.W. v. State, 256 Ga. 464, 467(2), 349 S.E.2d 713 (1986). Circumstantial guarantee of its trustworthiness, see Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224, 226(1), 173 S.E.2d 691 (1970), is provided by the fact that Thibodeau gave her statement immediately after being apprehended, in the course of an official investigation; that Detective Kirk testified she never recanted or sought to change her statement; and that her statement recounts particulars later corroborated by other evidence. See generally Higgs, supra 256 Ga. at 608(5), 351 S.E.2d 448. Accordingly, the trial court did not err by admitting the statement into evidence.

3. Appellant maintains the trial court erred by failing to grant his motion for a directed verdict of acquittal because no evidence was...