Clark v. State, 53518

• Citation: 142 Ga.App. 851,237 S.E.2d 459
• Decision Date: 14 July 1977
• Docket Number: Nos. 1,3,2,No. 53518,53518,s. 1
• Parties: Ellis CLARK v. The STATE
• Court: Georgia Court of Appeals

Page 459

237 S.E.2d 459

142 Ga.App. 851

Ellis CLARK v. The STATE.

No. 53518.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 14, 1977.

Garland, Nuckolls, Kadish, Cook & Weisensee, Edward T. M. Garland, John A. Nuckolls, Atlanta, for appellant.

John T. Perren, Dist. Atty., Richard D. Allen, Asst. Dist. Atty., Dallas, for appellee.

SMITH, Judge.

The appellant was indicted for aggravated sodomy and child molestation after allegedly assaulting a six year old boy. A jury found him guilty of aggravated sodomy and thus did not reach the question of whether he was guilty of the lesser charge. The substantial enumerations of error deal with several evidentiary rulings at trial. We conclude that certain testimony introduced against the appellant was hearsay and was not part of the res gestae. Since the hearsay testimony comprised the heart of the evidence against the appellant on the aggravated sodomy charge, the judgment of conviction must be reversed.

1. A neighbor of the victim was an eyewitness to the alleged sexual assault. He testified that he saw a man driving a blue Ford stop at the curbside in front of his house. The alleged offense occurred there and the witness ran outside and shouted at the perpetrator who drove away. The witness and a neighbor drove off in pursuit. Another neighbor took the victim home. The victim's father testified that he saw the blue Ford driving away, and three to five minutes thereafter his sister-in-law brought the child home. The father said he learned at that time what had happened, and, accompanied by his father-in-law, he drove away in an attempt to find the offender. He drove three or four miles and was unable to determine where the other cars had gone so he returned home. Asked what he did then, he replied, "Questioned my sister-in-law and my little boy, and at this time we gained nothing." The boy's mother testified he was scared and crying when he was brought home, but he thereafter calmed down. She said he made no statements about what had happened to him.

Meanwhile, the eyewitness and the other neighbor had located a blue Ford and informed a law officer who arrested the driver. The eyewitness returned to the neighborhood and told the victim's father what he had seen and told him that the offender had been caught and the Sheriff wanted the father to go down to the jail and swear out a warrant. The father went inside the house to get his boy, and the father, the father-in-law, and the boy began the drive to the jail. The father testified that, during this ride, "I asked him exactly what happened, what did the man do?" The boy did not answer but broke down and cried. Finally, after regaining his composure, he answered his father and gave an account of the incident. The father's testimony was self contradicting, but he seemed to conclude that the boy's statement to him was made thirty to forty minutes after the incident.

Over the objection, the trial court ruled the boy's statement to his father was part of the res gestae, and the father was allowed to repeat the statement at trial. Admission of the statement is enumerated as error.

Code § 38-305 provides, "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible as part of the res gestae." Of this exception to the hearsay rule, Chief Justice Bleckley said, "What the law altogether distrusts is not after-speech but afterthought." Travelers' Insurance Co. v. Sheppard, 85 Ga. 751, 775, 12 S.E. 18, 26. Where a statement is narrative rather than exclamatory, "the circumstances must be closely scrutinized, because narrative is generally the result of afterthought." Southern R. Co. v. Brown, 126 Ga. 1, 4, 54 S.E. 911, 912. Other cases have more generally condemned narrative statements: "The real test is, were the declarations a part of the occurrence to which they relate, or were they a mere narrative concerning something which had fully taken place and had therefore become a thing of the past?" Western & Atlantic R. Co. v. Beason, 112 Ga. 553, 557, 37 S.E. 863, 865; Peebles v. State, 236 Ga. 93(2), 222 S.E.2d 376. Much of the case law on res gestae declarations is founded upon Justice Nisbet's interpretation in Mitchum v. State, 11 Ga. 615, 627: "If the declarations appear to spring out of the transaction if they elucidate it if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous."

If we apply these standards spontaneity, voluntariness, closeness in time, freedom from suspicion of device or afterthought to the present declaration, while closely scrutinizing the circumstances because of the declaration's narrative character, then we can reach no conclusion but that the declaration was not sufficiently part of the event to come within the res gestae exception. The conclusion might very well be different had the child told what had happened in an immediate outcry or even shortly after being calmed down. But here, he had returned to his home and his mother; he had been questioned about what had happened and said nothing; he had stayed at his home until he was calmed down and still said nothing; he had been asked by his father in his car what happened and he said nothing; and finally, after breaking down once again and recomposing himself, he gave a concise narrative of what had happened. Hardly can it be said that this declaration was spontaneous or voluntary in the sense traditionally contemplated by the res gestae rule. The time lapse of thirty to forty minutes, and the boy's exposure during that period to persons who were aware what had transpired, leave open too many opportunities for the formulation of an untrustworthy declaration. The father's recollection of the child's declaration was inadmissible hearsay and should have been excluded.

This hearsay testimony was essential to the state's proof of aggravated sodomy. Without it, the evidence did not support the verdict. Therefore, the trial court erred in denying the appellant's motion for a directed verdict of acquittal on the aggravated sodomy charge.

2. The appellant enumerates as error the court's failure to rebuke the District Attorney or grant a mistrial following several instances where the District Attorney brought up allegedly inflammatory matters during cross examination of defense witnesses. In every instance, the questions were objected to and the objections were sustained; and in none of them did the defense counsel move for a mistrial or request a rebuke. Since we are reversing the judgment on other grounds, we need not decide whether the District Attorney's actions were so egregious or prejudicial as to require action by the trial court on its own motion. See Smith v. State, 118 Ga.App. 464, 164 S.E.2d 238; and Brown v. State, 110 Ga.App. 401, 138 S.E.2d 741. The appellant's remaining enumerations of error are without merit.

Judgment reversed.

BELL, C. J., QUILLIAN, P. J., and WEBB and SHULMAN, JJ., concur.

DEEN, P. J., and MARSHALL, McMURRAY and BANKE, JJ., dissent.

McMURRAY, Judge, dissenting.

The crux of this case is that a neighbor...