Doughty v. State, 70010
| Decision Date | 08 July 1985 |
| Docket Number | No. 70010,70010 |
| Citation | 333 S.E.2d 402,175 Ga.App. 317 |
| Parties | DOUGHTY v. The STATE. |
| Court | Georgia Court of Appeals |
James A. Elkins, Jr., Columbus, for appellant.
William Smith, Dist. Atty., J. Gray Conger, Asst. Dist. Atty., for appellee.
Three officers of the Columbus Police Department responded to a call to headquarters concerning a disturbance, possibly armed, at Doughty's residence. As the officers went to the front door, they heard people inside arguing. The police announced their presence, ringing the doorbell and pounding on the door. They continued this for several minutes. No one came so they began to walk back to the patrol cars.
As they got to the cars, they heard what they thought were firecrackers exploding. Officer Myers, who normally worked as a detention officer, but was along on this occasion to gain experience, saw wood on Doughty's front door splintering, realized the noise was gunfire, and was then hit twice in one arm. Officer Bowen got on the loudspeaker, announced that the house was surrounded, and told whoever was inside to come out with hands raised. A few seconds later, the intoxicated Doughty emerged holding up a .22 caliber rifle and saying, "don't shoot, don't shoot." He had a live .22 cartridge in his pocket, and several empty ones were found inside the house on the floor near the door.
Doughty was indicted for three counts of the offense of aggravated assault upon a peace officer. OCGA § 16-5-21(a) & (c). After trial by jury, he was convicted of and sentenced for three counts of aggravated assault. OCGA § 16-5-21(a) & (b). Doughty appeals.
All three officers testified that as they stood at the front door trying to make their presence known, they heard someone inside the house state that the police were at the front door. Defendant objected to the testimony on the basis of inadmissible hearsay. The court overruled such objection apparently on theories of either res gestae or explanation of conduct.
First we question the characterization of the objected-to statements as hearsay. "Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons." OCGA § 24-3-1. Generally, for evidence to be inadmissible as hearsay, it is evidence of extrajudicial statements or declarations of the witness or of another when offered as proof of the matter therein asserted. The rule does not exclude extrajudicial utterances offered merely to prove the fact of the making or delivery thereof. See 22A C.J.S. Criminal Law § 718. See also Green, Ga. Law of Evidence, 2d Ed., § 217. Hearsay evidence is not admissible to prove the truth of the fact asserted, unless the evidence constitutes a recognized exception to the general rule excluding hearsay. Moore v. State, 154 Ga.App. 535, 538, 268 S.E.2d 706 (1980).
Here, the statements were not offered for their truth; it is undisputed that the officers were outside. They were offered instead for their very utterance, to show that at least one person inside the house knew they were present and said so, allowing the inference that others, including appellant, then knew so too. Simply whether it was uttered, not whether it was true, was at issue. The witnesses who claimed to have heard it, and the witnesses who could have said it but claimed it had not been said, were present to be cross-examined as to the fact of utterance. Moreover, there is no question that Doughty was behind the door, inside the home, arguably in the presence of the sayer and of the officers who were standing on the other side of the door. Anything seen or heard by a witness in the presence of a defendant is admissible and does not constitute hearsay. Grindle v. State, 151 Ga.App. 164, 259 S.E.2d 166 (1979). The statements were not hearsay to begin with.
Assuming for the sake of argument that the statements are properly characterized as hearsay, it was not error to admit them as part of the res gestae.
"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 in evidence as part of the res gestae." OCGA § 24-3-3.
What is res gestae of a given transaction must depend upon its own peculiarities of character and circumstances. The real test is whether the subject declarations are part of the occurrence to which they relate. Courts must allow some latitude in this matter. The admissibility of the declarations does not depend upon any arbitrary time or general rule for all cases, but is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the statutory requirements of being free from all suspicion of device or afterthought. Wallace v. State, 151 Ga.App. 171, 259 S.E.2d 172 (1979).
It is clear that the statements, if hearsay, were properly determined to be part of the res gestae. Even though the trial court expressed some initial doubt as to admissibility as part of the res gestae, it properly allowed the officer to testify as to the overheard declaration, for if the admissibility of evidence is doubtful, the rules of evidence require that it be admitted and its weight left to the jury. See Wallace v. State, supra at 173, 259 S.E.2d 172. Whether the utterances were made or not depended on the credibility of the witnesses who were examined about it, i.e., the police who said they heard and those who were inside the house and could have said or heard.
Having determined that the statements were admissible since they were not hearsay, but even if they were, because part of the res gestae, we need not consider whether they were also admissible to explain conduct under Momon v. State, 249 Ga. 865, 294 S.E.2d 482 (1982) and Teague v. State, 252 Ga. 534, 314 S.E.2d 910 (1984).
"Where the judgment of the trial court is proper and legal for any reason, it will be affirmed regardless of the reason assigned." Johnson v. Barrett, 166 Ga.App. 353, 356, 304 S.E.2d 478 (1983).
The actual testimony was: THE STATE: "Would anybody with normal hearing on the other side of that door have heard what you were doing to the door with your night stick?" OFFICER: "Yes, Sir."
"Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving the reasons therefor." OCGA § 24-9-65.
Here, the officer was not asked to give an opinion as to whether or not the people inside the residence would have heard the pounding on the door with the nightstick, but rather in his opinion anybody with normal hearing would have. Appellant argues that a proper foundation was not laid for the opinion and that it was a "mere conclusion."
Determination as to whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. Dept. of Transp. v. McLaughlin, 163 Ga.App. 1, 5, 292 S.E.2d 435 (1982). We find no abuse of discretion in the court's apparent determination of sufficiency here. The foundation had been laid by his prior testimony, which established where he was and what he had done so as to form such an opinion.
Moreover, as the question was phrased so as to glean opinion within the common knowledge, experience and education of mankind, it was not error to permit the testimony. Buchanan v. State, 168 Ga.App. 365, 366, 308 S.E.2d 860 (1983).
Even assuming that the officer's testimony on this point was an unsupported conclusion, it was rendered harmless inasmuch as there was ample evidence to support the inference (Jones v. State, 75 Ga.App. 610, 614, 44 S.E.2d 174 (1947)), for appellant testified on direct examination that he heard the loud banging at the door.
3. Appellant contends that the court erred by "refusing to permit the defendant to question Det. Hall about his failure to talk to all the witnesses who would have been present at the time that the incident took place."
Detective Hall was the investigating officer at the crime scene. The record shows that appellant was allowed a thorough cross-examination of Hall, including questioning about individuals found at Doughty's residence. Appellant's counsel asked Hall whether he had spoken with another individual who was in the home, and when Hall responded that he had not done so, defense counsel asked "Now as I understand it you're in charge of the investigation of what supposedly happened and you don't think enough about the other witnesses other than police officers to find out what they're going to say happened that evening?" The court sustained the state's objection to such argumentative query, and defense counsel without further objection proceeded to question Hall regarding those interviewed in Hall's investigation.
We find no impropriety in the court's ruling here. Furthermore, the form or line of questioning the court did not allow explored was voluntarily abandoned and therefore is not even properly before us for review. Chicola v. State, 253 Ga. 773, 775, 776, 325 S.E.2d 379 (1985).
4. Doughty alleges that the trial court erred in permitting the state to propound a hypothetical question to one of appellant's character witnesses in that the question did not encompass all of the facts which had been admitted into evidence.
While it is true that the hypothetical question must embody the facts offered in evidence by the state against the defendant (Curry v. State, 155 Ga.App. 829, 273 S.E.2d 411 (1980)), there is no...
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