Brown v. State

• Decision Date: 02 July 2001
• Docket Number: No. S00G1809.,S00G1809.
• Citation: 549 S.E.2d 107,274 Ga. 31
• Court: Georgia Supreme Court
• Parties: BROWN v. The STATE.

549 S.E.2d 107

274 Ga. 31

BROWN v. The STATE.

No. S00G1809.

Supreme Court of Georgia.

July 2, 2001.

Lynn M. Kleinrock, Decatur, for appellant.

J. Tom Morgan, III, Dist. Atty., Robert M. Coker, Asst. Dist. Atty., Decatur, for appellee.

BENHAM, Justice.

On January 27, 1996, an anonymous informant called 911 and reported that a black male in a purple hat, black leather coat, and blue jeans was dealing drugs from a white automobile in an apartment complex. An officer dispatched to the site in response to the 911 call testified that he saw a man meeting the description standing next to a white car. The officer detained the man, later identified as appellant Fred Brown, based on the description.

A second officer dispatched to the scene found 58 hits of crack cocaine in plain view on the back seat of the white car. Through the car's license tag, the second officer learned that the car was registered to appellant. The car was inoperable, with one of its back windows broken out, and had been sitting in the parking lot for over a year. Appellant was indicted for possession of cocaine with intent to distribute.

At trial, the officer who arrested appellant was permitted to testify over appellant's hearsay objection with respect to the description of the alleged drug dealer, as relayed to him by the dispatcher who had spoken with the anonymous informant, for the purpose of explaining the officer's conduct in arresting appellant. An officer not involved in the 1996 incident testified to appellant's 1990 conviction for possession of crack cocaine. Though present when appellant was arrested in 1990, this officer had no independent recollection of the incident. The trial court allowed the officer to lay the foundation and read the narrative portion of the 1990 police report of the incident under the business records exception to the hearsay rule, even though he had not prepared the report. Appellant was convicted of the 1996 charge after the deadlocked jury received an Allen charge. The Court of Appeals affirmed appellant's conviction in Brown v. State, 245 Ga.App. 149, 537 S.E.2d 421 (2000). We granted certiorari to answer two questions regarding the trial court's admission of testimony read from a police report and the admission of hearsay testimony given by the officer who arrested appellant.¹

1. First we address whether the trial court erred in allowing, as evidence of a similar transaction, the narrative portion of the police report of appellant's 1990 arrest to be read into evidence under the business records exception to the hearsay rule. Without the admission of the 1990 police report, the State did not met its burden under Williams v. State, 261 Ga. 640(2), 409 S.E.2d 649 (1991) for admitting evidence of a similar transaction since the State did not present evidence to establish a sufficient connection or similarity between the independent offense and the crime charged such that proof of the former tended to prove the latter. The only evidence linking appellant to the 1990 crime was a certified conviction, which is insufficient, standing alone, to establish the required nexus. Stephens v. State, 261 Ga. 467(6), 405 S.E.2d 483 (1991).

OCGA § 24-3-14 allows admission, under the business records exception, of

[a]ny writing or record ... made as a memorandum or record of any act, transaction, occurrence, or event ... if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

This Court has had occasion to address the characteristics a document should have to be considered a business record. In Martin v. Baldwin, 215 Ga. 293, 110 S.E.2d 344 (1959), we addressed the admissibility of medical records under the business records exception. We stated that evidence admitted under the business records exception should be "routine facts" whose accuracy is not affected by "bias, judgment, and memory." Martin, supra at 299, 110 S.E.2d 344. We also noted that the danger in admitting certain types of evidence of an event is that the organization will gain the opportunity to "use self-serving statements without the important test of cross-examination" and noted that "[c]ross-examination is unimportant in a case of systematic routine entries made by a large organization where skill of observation or judgement is not a factor." Id. Some information recorded by police officers cannot be said to be "routine facts," since the facts and circumstances surrounding every arrest vary widely. Police work by its very nature is adversarial and police investigations are inherently accusatorial. Complete accuracy in recording the sensitive facts involved in police investigations is not easily attained by even the most objective observer. Many of the incidents which police investigate involve human attitudes and emotions which are subjective in nature and susceptible to many interpretations.

Law enforcement officers have a difficult task to perform in investigating allegations of criminal conduct. The investigations themselves are fraught with numerous obstacles and hardships. Further, the information collected by police officers frequently consists of circumstances that are neither easily definable nor entirely concrete. Unlike the business world where objective information may be gathered in the stream of commerce, police work is often heavily influenced by the beliefs, impressions, and, at times, hunches of the investigating officer. It is because of these difficulties that police report narratives do not fit easily within the business records exception to the hearsay rule.

Thus, while the narrative portion of a police report may meet the technical requirements of the statute, it does not have the reliability inherent in other documents that courts have traditionally considered to be business records. We conclude that the narratives contained in police reports generated in connection with police investigations are not the appropriate subject of an exception to the hearsay rule.² Based on the foregoing, we conclude that the evidence contained in the police report narrative were not facts that should properly be admitted under the business records exception to the hearsay rule. Accordingly, we conclude that the trial court erred when it allowed a police officer to read into evidence the narrative portion of a police report of which he had no personal knowledge and did not prepare, and the Court of Appeals erred in affirming that ruling. In doing so, the Court of Appeals relied on several opinions from that court that hold that a police report may be admissible as a business entry where a proper foundation is laid, but is generally inadmissible when it includes hearsay statements, opinion evidence, and conclusions. Gann v. State, 190 Ga.App. 82(1), 378 S.E.2d 369 (1989); Reed v. Heffernan, 171 Ga.App. 83(1), 318 S.E.2d 700 (1984); Johnson v. State, 168 Ga.App. 271(1), 308 S.E.2d 681 (1983); Pickett v. State, 123 Ga.App. 1(2), 179 S.E.2d 303 (1970). To the extent these cases or any other cases hold that a police report narrative like the one at issue is admissible as a business record, they are overruled. Johnson v. State, 247 Ga.App. 660(3), 544 S.E.2d 496 (2001); Shoney's, Inc. v. Hudson, 218 Ga.App. 171(1), 460 S.E.2d 809 (1995); Curtis v. State, 190 Ga.App. 173(2), 378 S.E.2d 516 (1989); Fine v. APAC-Georgia, Inc., 192 Ga. App. 895(1), 386 S.E.2d 692 (1989); Johnson v. Dallas Glass Co., 183 Ga.App. 584(2), 359 S.E.2d 448 (1987); Jones v. Davis, 183 Ga. App. 401(2)(a), 359 S.E.2d 187 (1987); Estes v. State, 165 Ga.App. 453(2), 301 S.E.2d 504 (1983); Bramblett v. State, 139 Ga.App. 745(4), 229 S.E.2d 484 (1976); Calhoun v. Chappell, 117 Ga.App. 865(2), 162 S.E.2d 300 (1968); Stubbs v. Daughtry, 115 Ga.App. 22, 153 S.E.2d 633 (1967).³

The United States Supreme Court addressed a similar situation in Palmer v. Hoffman, 318 U.S. 109(1), 63 S.Ct. 477, 87 L.Ed. 645 (1943), which dealt with the admissibility of railroad accident reports as business records under a federal statute analogous to the Georgia statute. Like police reports, railroad accident reports were also asserted to be made in the regular course of business because it was the duty of a railroad employee to prepare an account of every accident that occurred and because the practice was related to the operation of the railroad. Also similar to police reports, the railroad accident reports contained a narrative prepared by an employee describing an incident. The Court refused to consider the railroad accident reports, as business records even though they technically were made in the regular course of business, focusing more on the "earmarks of reliability [cit.] acquired from their source and origin and the nature of their compilation" rather than on the "regularity of preparation" of the reports. Id. at 114, 63 S.Ct. 477. The Court noted that while the accident reports "may affect the business in the sense that it affords information on which the management may act," the reports were not "typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls." Id. at 113, 63 S.Ct. 477.

[T]he fact that a company makes a business out of recording its employees' versions of their accidents does not put those statements in the class of records made "in the regular course" of the business within the meaning of the Act. If it did, then any law office in the land could follow the same course, since business as defined in the Act includes the professions. We would then have a real perversion of a rule designed to facilitate admission of records which experience has shown to be quite trustworthy.....We cannot so completely empty the words of the Act of their

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