Sosebee v. State, 44131
| Decision Date | 19 June 1987 |
| Docket Number | No. 44131,44131 |
| Parties | SOSEBEE v. The STATE. |
| Court | Georgia Supreme Court |
Austin E. Catts, Robert G. Rubin, Atlanta, for Geary Alan sosebee.
Johnnie L. Caldwell, Jr., Dist. Atty., J. David Fowler, Asst. Dist. Atty., Griffin, J. Thomas Morgan, Asst. Dist. Atty., for the State.
The appellant, Geary Alan Sosebee, was indicted on charges of sexually abusing his five-year-old daughter. 1 He moved in limine to exclude incriminating hearsay statements which had been made by his daughter, but the trial court denied his motion. We granted Sosebee's interlocutory application. On appeal, the issue is whether the Child Hearsay Statute, OCGA § 24-3-16 (eff. July 1, 1986), which allows the state to use a child's out-of-court statements without requiring the state to call the child as a witness, unconstitutionally infringes upon a defendant's Sixth Amendment right to confront witnesses.
OCGA § 24-3-16 provides that "[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability." By its terms, this statute allows the prosecution to satisfy its burden of proof under certain circumstances by introducing the alleged victim's hearsay declarations without putting the victim on the stand. The statute does not, however, specify all the implications of the phrase, "if the child is available to testify in the proceedings." More particularly, it is unclear whether the legislature intended to require the defendant to call the child as a defense witness in order to exercise his right of confrontation. We think it is unlikely that this was the legislative intent, since it is possible that jurors could resent the defendant for forcing the child to take the stand and undergo cross-examination. Absent a clear directive from the legislature, we are reluctant to require the defendant to bear this onus, especially since a reasonable alternative construction of the statute exists.
We therefore hold that if the prosecution invokes the Child Hearsay Statute to introduce out-of-court declarations by the alleged victim, the court shall do as follows: Before the state rests, the court shall, at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the...
To continue reading
Request your trial
-
Felix v. State, s. 18960
...If the State does not call the child to testify, the defense must Our conclusion is supported by other authorities. Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987) (interpreting a statute similar to NRS 51.385, court concluded that prosecution or court must make declarant available to ......
-
Westbrook v. State
...184 Ga.App. 650(2), 362 S.E.2d 461 (1987). Such an interpretation of "available to testify" has not yet been given. In Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987), the Supreme Court avoided appellant's arguments attacking the statute as violating the Sixth Amendment right-to-confro......
-
79 Hawai'i 128, State v. Apilando
...himself" or establish both that the witness is unavailable and that the out-of-court statement is reliable); Sosebee v. State, 257 Ga. 298, 299, 357 S.E.2d 562, 563 (1987) (holding that if the prosecution proffers an out-of-court statement of a child witness pursuant to statute, before the ......
-
Thornton v. State
...declined the trial court's offer, made outside the presence of the jury, to call the child to the stand pursuant to Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987). (d) There is no requirement in OCGA § 24-3-16 that the state provide the defense with pre-trial notice of its intention t......
-
Evidence - Marc T. Treadwell
...Sec. 24-3-16 (1995). 282. 252 Ga. App. at 240, 555 S.E.2d at 901. 283. Id. at 240-41, 555 S.E.2d at 901 (quoting Sosebee v. State, 257 Ga. 298, 299, 357 S.E.2d 562, 563 (1987)). 284. Id. 285. 252 Ga. App. at 240-41, 555 S.E.2d at 901. 286. Fed. R. Evid. 106. 287. 252 Ga. App. 167, 555 S.E.2......