Jarrett v. State

• Decision Date: 20 February 1995
• Docket Number: No. S94G1010,S94G1010
• Citation: 265 Ga. 28,453 S.E.2d 461
• Parties: JARRETT v. The STATE.
• Court: Georgia Supreme Court

Page 461

453 S.E.2d 461

265 Ga. 28

JARRETT v. The STATE.

No. S94G1010.

Supreme Court of Georgia.

Feb. 20, 1995.

Thomas N. Brunt, Cartersville, for Jarrett.

Thomas J. Campbell, Dist. Atty., Calhoun, Mickey R. Thacker, Asst. Dist. Atty., Cartersville, for State.

HUNSTEIN, Justice.

Jarrett was convicted of driving under the influence and other motor vehicle violations while operating a motorcycle. According to the stipulated trial transcript, the arresting officer did not observe Jarrett operating the vehicle and when questioned by the officer at the scene, Jarrett denied driving the motorcycle. However, Jarrett's nephew informed the officer at the scene of the arrest in Jarrett's presence that Jarrett had been driving. Jarrett made no response to his nephew's statement. Although the nephew was not present at trial, the trial court nevertheless ruled, over objection, that any statement made by the nephew in the presence of Jarrett would be admissible as an exception to the hearsay rule. The Court of Appeals affirmed in Jarrett v. State, 212 Ga.App. 381, 441 S.E.2d 843 (1994) and we granted certiorari.

1. The Court of Appeals concluded that the trial court did not err in admitting the testimony of the officer as to the declaration of the nephew in reliance on those cases which hold that the acquiescence or silence of a defendant constitutes a tacit admission and that it is therefore permissible for a witness to testify as to what he saw and heard while in the presence of the defendant even though the declarant is not present at trial and subject to cross-examination. See, e.g., Moore v. State, 240 Ga. 210(2), 240 S.E.2d 68 (1977); Reeves v. State, 194 Ga.App. 539(1), 391 S.E.2d 35 (1990); Broome v. State, 141 Ga.App. 538(2), 233 S.E.2d 883 (1977). See also OCGA § 24-3-36 which provides that "[a]cquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission."

However, we have been critical in other contexts of instances where a defendant's failure to reply or to deny guilt is commented upon. In Mallory v. State, 261 Ga. 625(5), 409 S.E.2d 839 (1991), while recognizing that evidence of a defendant's silence was not precluded by federal constitutional law, see Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (no due process violation to permit cross-examination as to post-arrest silence when defendant takes stand), and while acknowledging our own hearsay exception codified at OCGA § 24-3-36, we nevertheless held that under our state law the high degree of potential prejudice of any comment upon a defendant's silence or failure to come forward far outweighs its minimal probative value and will not be allowed. Mallory, supra, 261 Ga. at 630(5), 409 S.E.2d 839. The rule promulgated in Mallory is consistent with the extensive criticism leveled by several commentators at any rule which allows a comment upon a criminal defendant's silence. See Agnor's Georgia Evidence, § 11-9 (3d ed. 1993); McCormick on Evidence, § 160 (4th ed. 1992). Because we can conceive of no legitimate distinction between the admission condemned in Mallory and the admission in the present case, we now conclude that a witness in a criminal trial may not testify as to a declarant's statements based on the acquiescence or silence of the accused. Accordingly, ...