Rosser v. State, A93A1395

• Decision Date: 01 December 1993
• Docket Number: No. A93A1395,A93A1395
• Citation: 211 Ga.App. 402,439 S.E.2d 72
• Parties: ROSSER v. The STATE.
• Court: Georgia Court of Appeals

Page 72

439 S.E.2d 72

211 Ga.App. 402

ROSSER v. The STATE.

No. A93A1395.

Court of Appeals of Georgia.

Dec. 1, 1993.

Reconsideration Denied Dec. 15, 1993.

Alan J. Baverman, Atlanta, for appellant.

Thomas J. Charron, Dist. Atty., William M. Clark, Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

SMITH, Judge.

Phillip Bernard Rosser a/k/a Rayvaris Anderson and a codefendant were convicted of trafficking in cocaine, OCGA § 16-13-31(a)(1), as well as other charges. Rosser appeals following the denial of his motion for new trial. He asserts that the admission of certain hearsay statements offered by a State's witness based on "necessity" violated his right to a fair trial and his right to confront the witnesses against him. We agree and reverse.

1. On February 22, 1991, Marietta-Cobb-Smyrna narcotics agent Robert Jones received information regarding illegal drug activity at a certain apartment in Cobb County. Jones determined that the apartment was leased to appellant's sister, Angela Rosser. Jones observed Phillip Rosser and a codefendant, Harry Shannon Butler, enter and leave the apartment several times in a vehicle described to Jones as one allegedly used by the suspects. He also testified that some pager numbers were traced to a "Phillip Brown" at the same apartment.

On February 28, 1991, Jones went through discarded garbage outside the apartment unit under investigation. The address on a letter in the garbage connected it to the apartment. He also found rolling papers, as well as a razor blade that field-tested positive for cocaine. Jones then procured a search warrant for the apartment and executed it later that same day with several other agents.

When Jones and the other officers first arrived at the apartment, the vehicle used by Rosser and Butler was not present. The officers decided to wait for the suspects to return. Two officers watched the apartment in an unmarked car while Jones and the other officers waited across the street in a parking lot. From across the street, Jones observed Rosser and Butler enter the complex as expected, but he could not make radio contact with the officers watching the apartment.

After waiting for a time they considered sufficient for Rosser and Butler to enter the apartment, Jones and the other uniformed officers drove into the complex, but they found Rosser and Butler standing in the parking lot outside the apartment. The two were arrested in the parking lot and taken into the apartment. The two gave false names to police when informed that the search warrant bore their names, but later acknowledged their true identities. A search of Rosser's person produced a small amount of marijuana and $1,806 in cash. Both men were wearing large amounts of jewelry and also had pagers.

Rick Hardin, a Marietta police officer assigned to the search team, testified that during the course of the search, he learned that crack cocaine was stored outside the apartment. He searched the apartment complex grounds and located a McDonald's sack containing 354 "hits" of crack cocaine outside the apartment building, about 25 feet from the doorway to the building, under a bush partially covered by some pine straw. Inside the apartment, Hardin located 250 empty plastic baggies in the hallway and in a closet.

Over objection, Agent Jones was recalled and testified that, after execution of the search warrant at her apartment, Angela Rosser told him that she knew her brother was using her apartment for drug activities and that her brother came in and grabbed a McDonald's bag just before the police entered her apartment.

"Confrontation in a criminal trial includes the right to ask questions and secure answers from the witness confronted. [Cit.] However, the United States Supreme Court has not interpreted 'confrontation' to signify the exclusion of every hearsay exception, and has provided the following method to resolve confrontation challenges based on the admission of hearsay testimony: 'The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. (Cits.) The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." ' Ohio v. Roberts, 448 U.S. 56, 65 (100 SC 2531, [2539] 65 LE2d 597) (1980)." Higgs v. State, 256 Ga. 606, 608-609(7), 351 S.E.2d 448 (1987).

The threshold question, unavailability of the witness, is typically established "because of death or in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband." Glisson v. State, 188 Ga.App. 152, 154(2), 372 S.E.2d 462 (1988). The case of Adams v. State, 191 Ga.App. 16, 381 S.E.2d 69 (1989), relied upon by the State, establishes that a declarant may be deemed unavailable to testify for "necessity" purposes because she could not be found. The witness in Adams, just as in the present case, was presumed to be alive and was otherwise compellable to testify.

In finding the "necessity" requirement satisfied in Adams, this court observed that "[t]he trial court made every effort to locate Thibodeau and obtain her attendance in court. The trial judge, after interrogating the child's (and appellant's) family, found that they were deliberately hiding the child shifting her from place to place and lying to deputies and others, to prevent her from testifying. The trial was continued to secure Thibodeau's presence, and the child's grandmother, with whom the child had been living, was ordered to produce her. When ...