Martin v. State

• Decision Date: 27 October 2008
• Docket Number: No. S08A1257.,S08A1257.
• Citation: 668 S.E.2d 685,284 Ga. 504
• Parties: MARTIN v. The STATE.
• Court: Georgia Supreme Court

668 S.E.2d 685

284 Ga. 504

MARTIN v. The STATE.

No. S08A1257.

Supreme Court of Georgia.

October 27, 2008.

Thomas S. Clegg, Maurice G. Kenner, Decatur, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Anna G. Cross, Bettieanne C. Hart, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., for Appellee.

BENHAM, Justice.

DeKelvin Rafael Martin has been indicted for the murders of Travis and Ila Ivery and Savion Wright, the grandparents and the 12-year-old son, respectively, of Martin's girlfriend, Tymika Wright. Martin has also been charged with Ms. Wright's rape, as well as other related crimes. The State has filed written notice of its intent to seek the death penalty. This Court granted Martin's application for interim review and ordered the parties to address whether the trial court erred in denying Martin's motion in limine to preclude the admission of Ms. Wright's prior testimony. For the reasons set forth below, we affirm the trial court's order.

On January 4, 2005, Martin pleaded guilty to all sixteen counts of his indictment, including the three murder charges. Immediately following the entry of his plea, a bench trial was held on the issue of sentencing, during which Ms. Wright testified for the State. In December 2006, Martin was allowed to withdraw his guilty plea due to the trial court's failure to inform him of all his constitutional rights as set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Ms. Wright is now deceased, and Martin filed a motion in limine to preclude the admission of her prior testimony at his guilt/innocence trial. The trial court denied Martin's motion, holding that Ms. Wright's prior testimony is admissible under the provisions of OCGA § 24-3-10 and that its admission will not violate the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Whether Ms. Wright's prior testimony "is admissible as a matter of Georgia evidence law, and whether it is admissible as a matter of federal constitutional law, are two distinct questions." Prater v. State, 148 Ga.App. 831, 834(5), 253 S.E.2d 223 (1979) (citing California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) for the proposition that, while hearsay rules and the Confrontation Clause are designed to protect similar values and may "overlap," they are not congruent). While Wright's testimony must pass both tests in order to be admissible,

[i]n keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided upon other grounds [cit.], we first address the [evidentiary] issue[] raised by the appeal.

Powell v. State, 270 Ga. 327, 327-328(1), 510 S.E.2d 18 (1998).

1. OCGA § 24-3-10, the "prior testimony" exception to the hearsay rule, permits the admission of the testimony of a witness at a prior proceeding provided the proponent is able to show that:

(1) the declarant is unavailable as a witness at trial; (2) the testimony was given under oath at a hearing or other proceeding; and (3) the parties and issues are substantially similar. [Cits.]

Pope v. Fields, 273 Ga. 6, 7-8(1)(a), 536 S.E.2d 740 (2000). Martin concedes that Ms. Wright is unavailable to testify at trial, that her prior testimony was given under oath, and that the parties at his sentencing trial and the parties at his upcoming guilt/innocence trial are identical. However, he contends that, because the issues involved at the sentencing trial were not substantially similar to those that will be decided at the guilt/innocence trial, the sentencing trial did not provide him with an adequate opportunity to cross-examine Ms. Wright.

For the purpose of construing OCGA § 24-3-10, it is well established that "the qualifying adverb `substantially'" means something less than "identical." Atlanta & West Point R. v. Venable, 67 Ga. 697, 699 (1881).

"(The rule) does not require that all the issues ... in the two proceedings must be the same, but at most that the issue on which the testimony was offered in the first suit must be the same as the issue upon which it is offered in the second. Additional issues or differences in regard to issues upon which the former testimony is not offered are of no consequence. Moreover, insistence upon precise identity of issues ... [is] out of place with respect to former testimony where the question is ... merely ... the salvaging, for what it may be worth, of the testimony of a witness not now available in person." [Cit.]

Prater, supra, 148 Ga.App. at 837-838(5), 253 S.E.2d 223(A)(2) (holding that prior testimony from a commitment hearing and an extradition hearing in Tennessee was admissible at defendant's burglary and armed robbery trial).

However, there must be "sufficient similarity so that there was previously an adequate opportunity for cross examination." Prater, supra, 148 Ga.App. at 837(5)(A)(2), 253 S.E.2d 223. See Craft v. State, 154 Ga.App. 682(1), 269 S.E.2d 490 (1980) (stating that the purpose of the requirement that the two proceedings involve substantially the same issues and parties is to ensure that there was an adequate opportunity for cross-examination). Admissibility, in fact, hinges on the adequacy of an opportunity for cross-examination, rather than on the type of proceeding in which the prior testimony was presented. Id.

This Court has never considered the admissibility of the prior testimony of a witness at a sentencing trial. However, in applying the prior testimony hearsay exception on a case-by-case basis, we have found former testimony at committal hearings and preliminary hearings admissible at the trial of the case where the party against whom the testimony was offered had an adequate opportunity for cross-examination at the prior proceeding, implicitly "conclud[ing] that the issue of probable cause to suspect the defendant of guilt is substantially the same, for [OCGA § 24-3-10] purposes, as the issue of ultimate proof of guilt." Prater, supra, 148 Ga.App. at 838(5), 253 S.E.2d 223(A)(2)(a). See Hosick v. State, 262 Ga. 432(4), 421 S.E.2d 65 (1992) (preliminary hearing testimony); Littles v. Balkcom, 245 Ga. 285(3), 264 S.E.2d 219 (1980) (commitment hearing testimony); Robinson v. State, 68 Ga. 833 (1882) (committing trial testimony). On the other hand, prior testimony from a defendant's bond hearing has been held inadmissible at the trial of the case, because the court there concluded that "the issues involved in the two proceedings were not so sufficiently similar that it can be said that the previous opportunity for cross-examination of the witness ... was adequate." Craft, supra, 154 Ga.App. at 683(1), 269 S.E.2d 490. Accord Dickson v. State, 281 Ga.App. 539(1), 636 S.E.2d 721 (2006).

Martin contends that his situation is analogous to that of the defendant in Dickson, supra, in which it was held error to admit at trial prior testimony from a defendant's bond hearing. That holding was premised on the court's determination that, because a witness at a bond hearing only provided information regarding whether there was a significant risk that the defendant would violate the conditions of his bond pending trial, and "because the focus of the bond hearing was whether to allow the defendant to be released on bond, not whether the criminal allegations [against him] were supported[,]" the defendant there did not have a meaningful opportunity to cross-examine the unavailable witness regarding his prior testimony. Id. at 540(1), 636 S.E.2d 721. Martin maintains that, similarly, he had no meaningful opportunity to cross-examine Ms. Wright, because a witness for the State at a sentencing trial "simply provides information concerning the impact the crime has had on her life" and because the "focus" of a sentencing trial is determining what sentence a defendant should receive, not whether the State can prove beyond a reasonable doubt that he is guilty of the offenses alleged in the indictment against him. Moreover, Martin argues that he had no reason to cross-examine Ms. Wright regarding issues of his culpability or Ms. Wright's credibility, because his guilt was not at issue at his sentencing trial. See Wilson v. Reed, 246 Ga. 743(1), 272 S.E.2d 699 (1980) (noting that a plea of guilty admits the facts set forth in an indictment).

However, as this Court has repeatedly noted, evidence relating to guilt or innocence is relevant to sentence and, thus, admissible, in a sentencing trial,

not because the validity of the conviction is at issue, but because the [fact finder] needs to examine the circumstances of the offense[s] (as well as any aspect of the defendant's character or prior record) in order to decide intelligently the question of punishment. [Cits.]

Alderman v. State, 254 Ga. 206, 210(8), 327 S.E.2d 168 (1985). See also Romine v. State, 256 Ga. 521(3), 350 S.E.2d 446 (1986); Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983). Indeed, such evidence was particularly important at Martin's sentencing trial where the trial judge, as the fact finder, heard for the first time evidence relating to the circumstances of the offenses. See Romine, supra, 256 Ga. at 528(3), 350 S.E.2d 446. Martin's guilty plea to all counts of the indictment did not relieve the State of its burden, before a death sentence could be imposed, to prove beyond a reasonable doubt the existence of at least one statutory aggravating circumstance alleged in its notice of intent to seek the death penalty. ...