Harrell v. State, 33021
| Decision Date | 05 April 1978 |
| Docket Number | No. 33021,33021 |
| Parties | Sayvant HARRELL v. The STATE. |
| Court | Georgia Supreme Court |
Randall M. Clark, Brunswick, for appellant.
Glenn Thomas, Jr., Dist. Atty., John J. Ossick, Jr., Asst. Dist. Atty., Brunswick, for appellee.
Arthur K. Bolton, Atty. Gen., Linda R. Birrel, Staff Asst. Atty. Gen., Atlanta, amicus curiae.
The appellant, Sayvant Harrell, was indicted for the offense of aggravated assault. He was tried by a jury in the Superior Court of Camden County, and found guilty of the lesser included offense of pointing a gun at another. The trial judge imposed a sentence of twelve months in addition to a fine of $1,000. This appeal was filed following the denial of appellant's amended motion for new trial.
Ordinarily this case would be within the jurisdiction of the Court of Appeals in that it is a misdemeanor criminal case. However because the appellant has attacked the constitutionality of Code Ann. § 38-302, we have exercised jurisdiction over this appeal.
The pertinent facts necessary for a decision in this case are as follows: Prior to trial, the appellant filed a "motion in limine" requesting the exclusion at trial of several statements made to police officers by appellant's wife and son. Appellant alleged that the statements were hearsay and, therefore, inadmissible at trial. A hearing was held, and appellant's motion denied on grounds that the officers' testimony, regarding the complained of statements made to them, would be admissible under Code Ann. § 38-302 to explain the officers' conduct in the course of their investigation.
Appellant also filed a challenge to the constitutionality of Code Ann. § 38-302, contending that said code section denied appellant the right to confront the witnesses against him in violation of the Sixth Amendment to the United States Constitution.
At trial, one of the police officers testified concerning the statements which appellant had sought to have excluded. Appellant's counsel again objected to the testimony as being hearsay. In response, the State argued that because the statements were not offered for the truth of the matter contained within them, but offered to explain the course of the police officers' conduct, they were admissible under Code Ann. § 38-302. Upon overruling appellant's objection and admitting the complained of testimony, the court informed counsel that the evidence was admitted solely for the purpose stated.
Prior to the court's charge to the jury, the appellant requested in writing that the court charge that evidence admitted solely for the purpose of explaining conduct be considered only for that purpose, and not for the truth of the matter asserted therein. The trial court denied the appellant's request and, after charging the jury, overruled appellant's objection to the court's failure to charge in regard to the jury's limited consideration of such testimony.
Although the appellant has enumerated sixteen errors in the trial of this case, we need only consider the constitutional question involved and whether the trial court erred in refusing to charge appellant's requested instruction.
1. All of the statements complained of were introduced in evidence under Code Ann. § 38-302 which provides, "(W)hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." (Emphasis supplied.)
Appellant contends that this code section has the effect of immunizing testimony from cross-examination, and therefore, is in violation of the confrontation rights guaranteed by the Sixth Amendment to the United States Constitution.
In considering this question we begin our analysis by recognizing that the Sixth Amendment right of an accused to confront the witnesses against him is a fundamental right, essential to a fair trial and is made obligatory on the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1964). The accused's right to confront the witnesses against him is essential for three basic reasons: "(1) (it) insures that the witness will give his statements under oath thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) (it) forces the witness to submit to cross- examination 'the greatest legal engine ever invented for the discovery of truth'; (and) (3) (it) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).
Although hearsay rules and the Confrontation Clause are designed to protect similar values, "it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law." California v. Green, supra at 155, 90 S.Ct. at 1933. Some hearsay is constitutionally admissible, 1 however, in some instances, statements admitted under recognized hearsay exceptions have been found to violate an accused's Sixth Amendment rights. 2
Those cases which have found a violation of the Sixth Amendment present have all dealt with evidence which was hearsay but which had been admitted under some exception to the hearsay rule. They are inapposite to the instant case in that here evidence admitted under Code Ann. § 38-302 is admitted not as hearsay, but as original evidence to "explain conduct and ascertain motives," and therefore, the evidence is not admitted as an exception to the hearsay rule.
As recognized by Wigmore in his treatise on Evidence, VI Wigmore, Evidence § 1766 (3d Ed. 1940).
Code Ann. § 38-302 is based upon this same premise. As recognized in Germany v. State, 235 Ga. 836, 840, 221 S.E.2d 817, 820 (1976), See also, Watkins v. State, 231 Ga. 481, 202 S.E.2d 442 (1973); Tanner v. State, 228 Ga. 829(3), 188 S.E.2d 512 (1972); Pitts v. State, 226 Ga. 878, 178 S.E.2d 177 (1970); Jones v. State, 224 Ga. 283(3), 161 S.E.2d 302 (1968); Estes v. State, 224 Ga. 687, 164 S.E.2d 108 (1968); Phillips v. State, 206 Ga. 418(3), 57 S.E.2d 555 (1950); Bryant v. State, 191 Ga. 686(14), 13 S.E.2d 820 (1941).
The evidentiary value of testimony admitted under Code Ann. § 38-302 depends not on the credibility of the out-of-court declarant,...
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