In re LJP

• Decision Date: 22 September 2003
• Docket Number: No. S03G0587.,S03G0587.
• Citation: 587 S.E.2d 15,277 Ga. 135
• Parties: In the Interest of L.J.P., a child.
• Court: Georgia Supreme Court

587 S.E.2d 15

277 Ga. 135

In the Interest of L.J.P., a child.

No. S03G0587.

Supreme Court of Georgia.

September 22, 2003.

James A. Yancey, Jr., Brunswick, for appellant.

Stephen D. Kelley, Dist. Atty., W. Franklin Aspinwall, Jr., Asst. Dist. Atty., for appellee.

CARLEY, Justice.

The Juvenile Court adjudicated L.J.P. delinquent by reason of his commission of attempted armed robbery and aggravated assault. At the delinquency hearing, Officer Duggan testified regarding what the victim told him during a pre-hearing identification of L.J.P. The victim testified at the hearing as well, but was unable to identify L.J.P. at that time. In the Court of Appeals, L.J.P. argued, in support of his contention that the evidence was insufficient, that Officer Duggan's testimony as to the victim's pre-trial identification was not admissible pursuant to the hearsay exception recognized in White v. State, 273 Ga. 787, 788(2), 546 S.E.2d 514 (2001). The Court of Appeals did not expressly address this hearsay issue, but affirmed, holding that the evidence was sufficient and that the victim's one-on-one identification of L.J.P. immediately after the incident was not impermissibly suggestive. In the Interest of L.J.P., 258 Ga. App. 762, 764(1), 766(2)(b), 574 S.E.2d 839 (2002). We granted certiorari to address whether the police officer's testimony regarding the victim's pre-hearing identification of L.J.P. was inadmissible hearsay in light of the victim's subsequent inability to identify him as the assailant and the absence of any actual cross-examination of the victim. Because the hearsay exception set forth in White continues to apply even in these circumstances, we affirm the judgment of the Court of Appeals.

It is well-settled that, although hearsay, a witness' testimony regarding another person's out-of-court identification of the accused may be admissible. White v. State, supra at 788(2), 546 S.E.2d 514. "`Justification is found in the unsatisfactory nature of courtroom identification and [ in] the constitutional safeguards that regulate out-of-court identifications arranged by the police.' [Cits.]" White v. State, supra at 789(2), 546 S.E.2d 514. In recognizing this hearsay exception, White simply imposed the universally accepted requirement that the declarant testify and be available for cross-examination. Nothing in White requires that the declarant corroborate the identification or actually be cross-examined about it.

In an opinion on which we heavily relied in White, the Supreme Court of the United States held that neither the Confrontation Clause nor the Federal Rules of Evidence are "violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification." United States v. Owens, 484 U.S. 554, 564(III), 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).

"(T)he Confrontation Clause guarantees only `an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant might wish.'" [Cits.]. . . . It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, [cit.]) the very fact that he has a bad memory. (Emphasis in original.)

United States v. Owens, supra at 559(II), 108 S.Ct. 838. "Ordinarily a witness is regarded as `subject to cross-examination' [where, as here,] he is placed on the stand, under oath, and responds willingly to questions." United States v. Owens, supra at 561(III), 108 S.Ct. 838. Meaningful cross-examination is not eliminated "by the witness' assertion of memory loss-which, as discussed earlier, is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement." United States v. Owens, supra at 562(III), 108 S.Ct. 838.

In the great majority of state jurisdictions which recognize the hearsay exception for out-of-court identifications, the testimony of a third person concerning an extrajudicial identification of an accused is admissible as substantive evidence even where the declarant is unable to make an in-court identification when called upon to do so. Such evidence is also admissible where the declarant testifies, but is not asked to make an in-court identification. Annot., 29 A.L.R.4th 104, §§ 5-7 (1984 & Supp.).

"`Evidence of an extrajudicial identification is admissible, not only to corroborate an...