Gregg v. State

• Decision Date: 05 September 1991
• Docket Number: No. A91A1086,A91A1086
• Parties: GREGG v. The STATE.
• Court: Georgia Court of Appeals

Page 65

411 S.E.2d 65

201 Ga.App. 238

GREGG v. The STATE.

No. A91A1086.

Court of Appeals of Georgia.

Sept. 5, 1991.

Reconsideration Denied Sept. 19, 1991.

Certiorari Denied Nov. 1, 1991.

Rubin Law Offices, Floyd E. Doolittle, and Robert P. Hoyt, Stone Mountain, for appellant.

W. Fletcher Sams, Dist. Atty. and William T. McBroom, III, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Thomas Mark Gregg appeals his judgment of conviction of two counts of child molestation and his sentence.

Appellant has filed four enumerations of error relating to the alleged erroneous admissions of prior out-of-court statements of the child victim under the provisions of OCGA § 24-3-16. Held:

1. Appellant's assertion that error occurred because the State introduced "extensive inadmissible prior consistent statements to bolster the inconsistent and recanting testimony of the alleged victim" is without merit. First, for reasons discussed in Division 3 below, the statements were admissible. Secondly, "where [as here] the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement[s] of the witness [are] admissible." Edwards v. State, 255 Ga. 149, 151, 335 S.E.2d 869; accord Richardson v. State, 256 Ga. 746, 747(5), 353 S.E.2d 342; Treadaway v. State, 191 Ga.App. 111(2), 381 S.E.2d 43.

2. The trial court can modify a ruling on a motion in limine at trial. Agnor, Ga.Evidence (2d ed.), Motion in Limine § 8-1.1, citing Frink v. State, 177 Ga.App. 604(1), 340 S.E.2d 631.

3. Appellant asserts the trial court erred in denying the motion in limine to exclude testimony of hearsay witnesses offered under OCGA § 24-3-16, because no evidence of "indicia of reliability" was tendered at the hearing on the motion. During a hearing as to the victim's competency, the trial court indicated it would attempt to make a "specific finding" as to the issue of "indicia of reliability." At the conclusion of the hearing, the trial court found "sufficient indicia of reliability."

a. Pretermitting whether this finding was supported at the conclusion of the so-called competency hearing by evidence of record is the question of whether the trial court, in ultimately admitting victim statements at trial, under OCGA § 24-3-16, is limited solely to evidence of "indicia of reliability" offered at the pretrial hearing, or whether it also may consider evidence subsequently introduced at trial and bearing on the "indicia of reliability" at the time the statement was made.

We find that if, after both sides have rested at trial, competent evidence of record exists which will support a finding of "indicia of reliability," then error, if any, resulting from a previous denial of the motion in limine is rendered harmless. In this regard, examination of OCGA § 24-3-16 reveals that while the court must find that "the circumstances of the statement provide sufficient indicia of reliability," such finding is not a condition precedent to the admissibility of the statement; rather, this statutory requirement is met if after both parties have rested, the record contains evidence which would support such a finding. In fact, our courts have consistently held "OCGA § 24-3-16 does not require a hearing to determine 'indicia of reliability' be held prior to receiving the testimony," Reynolds v. State, 257 Ga. 725, 726(2), 363 S.E.2d 249, (where appellant had contended "the trial court erred by allowing the [witnesses] to testify to statements made by [child] without first making a determination that the statements possessed 'sufficient indicia of reliability.' "). Likewise, we held, when a finding of child competency was required by the laws of this state, "[t]here is no requirement that the trial court must determine competency of a child witness during an investigative interview before the substance of that interview can be admitted into evidence." Newberry v. State, 184 Ga.App. 356, 358(4), 361 S.E.2d 499. The trial court has broad discretion in the admission of evidence (see Gully v. Glover, 190 Ga.App. 238(4), 378 S.E.2d 411), and may duly admit evidence subject to an adequate foundation for admissibility being subsequently established by the proponent. "The object of all legal investigation is the discovery of truth," (OCGA § 24-1-2) and as long as sufficient evidence of indicia of reliability appears in the record either before or after the introduction of the child's out-of-court statements, the fair trial rights of the defendant are adequately protected. Thus, if the record contains sufficient evidence of "indicia of reliability," we would not reverse the correct ruling of the trial court regardless of the reason given for or the timing of its ruling. See Tony v. Pollard, 248 Ga. 86(1), 281 S.E.2d 557. And in this regard, an appellate court can consider evidence offered not only at a pretrial hearing, but that offered by either the State or the defendant during the course of the trial. Cf. Gadson v. State, 197 Ga.App. 315, 316(1), 398 S.E.2d 409 (voluntariness of confession may look at evidence contained in entire record); Whatley v. State, 196 Ga.App. 73, 75(1), 395 S.E.2d 582 (may consider evidence in pretrial, trial and post-trial proceedings in determining propriety of disclosing informant's identity); Jones v. State, 187 Ga.App. 421, 422-423, 370 S.E.2d 784 (may...