Momon v. State
Decision Date | 08 September 1982 |
Docket Number | No. 38643,38643 |
Parties | Ronald L. MOMON v. STATE. |
Court | Georgia Supreme Court |
Murray M. Silver, Atlanta, for Ronald L. Momon.
Lewis R. Slaton, Dist. Atty., Wendy Shoob, Asst. Dist. Atty., for the State.
The defendant, Ronald L. Momon, was convicted by a jury of one count of aggravated sodomy. On appeal the conviction was affirmed. Momon v. State, 161 Ga.App. 629, 288 S.E.2d 767 (1982). We granted certiorari.
Defendant and his common law wife were indicted jointly on one count of rape and two counts of aggravated sodomy upon Marie Caldwell. The defendant was found guilty of one count of aggravated sodomy involving Ms. Caldwell and the defendant's common law wife. He was found not guilty of the rape and aggravated sodomy in which he was alleged to be the actual perpetrator. At defendant's trial the state introduced the testimony of two police officers as to an earlier rape in which defendant had been identified by the victim as the perpetrator.
Detective D.D. Henry, an investigator with the sex crimes unit, was allowed to testify for the state, over repeated objections by the defendant that detective Henry's testimony was hearsay and the crimes were not similar, that one Ann Rembert (since deceased) reported being abducted and raped by two men in a late 1960 greenish blue automobile, that the defendant was arrested ten months later, and that Ms. Rembert identified the defendant's photograph from a photographic array and identified him in a lineup the following day.
Detective C.A. Turner, also with the sex crimes unit, was allowed to testify for the state, over the defendant's objections based on hearsay and lack of similarity of the crimes, that he investigated a call from Ann Rembert, who reported being abducted by two men in a late 1960 four door, light green or blue Dodge, and being taken to an elementary school yard and repeatedly raped. Ann Rembert's death certificate was introduced, over objection, to explain her absence.
Defendant's objections to admission of evidence of other crimes were overruled on the ground that the crimes were sufficiently similar to show identity, motive, scheme, plan, bent of mind and course of conduct. His objections that the officers' testimony was hearsay were overruled on the ground that their testimony explained the officers' conduct.
Code § 38-301 provides as follows: Code § 38-302 provides: "When, 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."
These two Code sections come from the Code of 1863. Code § 38-301 apparently was adopted from Greenleaf's definition of hearsay. Green, The Georgia Law of Evidence, p. 493 (1957); see also Berry v. The Lessee of George Osborne, 15 Ga. 194, 195-196 (1854). Greenleaf defined hearsay as follows: "... it denotes that kind of evidence, which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person." Greenleaf, Evidence, p. 127 (5th ed. 1850). After defining hearsay, Greenleaf went on to say that Id. at p. 127. Greenleaf then wrote: (Emphasis in original.) Id. 127 to 129.
Thus, it appears that Code § 38-302 also had Greenleaf as its origin. In addition, it appears that Code § 38-302 should be understood not as an exception to the rule against hearsay but as an explanation of what is not hearsay. Green, Ga. Law...
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