State v. Berky

• Decision Date: 15 July 1994
• Docket Number: No. A94A0326,A94A0326
• Citation: 447 S.E.2d 147,214 Ga.App. 174
• Parties: The STATE v. BERKY.
• Court: Georgia Court of Appeals

Page 147

447 S.E.2d 147

214 Ga.App. 174

The STATE v. BERKY.

No. A94A0326.

Court of Appeals of Georgia.

July 15, 1994.

Reconsideration Denied July 28, 1994.

Certiorari Granted July 14, 1995.

Gerald N. Blaney, Jr., Sol., Richard E. Thomas, Asst. Sol., for appellant.

Russell T. Bryant, Lawrenceville, for appellee.

BLACKBURN, Judge.

Peter Berky, appellee, was charged with driving under the influence, driving with an unlawful alcohol concentration, speeding, and improper lane change. Upon Berky's motion to exclude a videotape purporting to show his commission of the alleged offenses, the trial court dismissed the action. The State was unable to lay the foundation for admission of the videotape as the arresting officer was killed in an unrelated incident after Berky's arrest.

The death of a police officer should not inure to the benefit of a criminal defendant. There is a strong public interest in protecting the citizens of Georgia from drunk drivers and in supporting the prosecution of such. This case presents an opportunity to review the foundation requirements for the admission of videotapes into evidence.

In Allen v. State, 146 Ga.App. 815, 817, 247 S.E.2d 540 (1978), we determined that the foundation requirements for the admission of tape recordings, previously established in Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 88 S.E.2d 167 (1955), applied equally well to videotape recordings. The admission of videotapes requires: "(1) It must be shown that the mechanical transcription device was capable of taking the testimony. (2) It must be shown that the operator of the device was competent to operate it. (3) The authenticity and correctness of the recording must be established. (4) It must be shown that changes, additions, or deletions have not been made. (5) The manner of preservation of the record must be shown. (6) Speakers must be identified. (7) It must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress." Allen, supra at 817, 247 S.E.2d 540.

As applied to the facts of the present case, such foundational requirements for the admissibility of a videotape recording are impossible to meet; yet, we can acknowledge that photographic and videotaped evidence can be superior to eyewitness testimony in certain respects. See Franklin v. State of Ga., 69 Ga. 36 (1882). Eyewitness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed.

In other jurisdictions, videotapes "can be used in two main ways: to illustrate the testimony of witnesses, or as substantive proof themselves. [Cits.]" State v. Holderness, 293 N.W.2d 226, 234-235 (Iowa 1980). "Photographs can be admitted as real evidence in a proper case. As stated in Wigmore: 'With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the "pictorial testimony" rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which "speaks for itself[."]' 3 Wigmore on Evidence, Sec. 790 (Chadbourn rev. 1970)." Litton v. Commonwealth, 597 S.W.2d 616, 619 (Ky.1980).

Under the silent witness theory, a videotape constitutes independent probative evidence of what it shows. People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435, 437 (1974). This theory has been adopted in many jurisdictions. See United States v. Stearns, 550 F.2d 1167 (9th Cir.1977) (allowed contents of photograph itself to authenticate); United States v. Taylor, 530 F.2d 639 (5th Cir.), cert. denied, 429 U.S 845, 97 S.Ct. 127, 50 L.Ed.2d 117 (1976) (bank camera tripped by robbers after everyone present locked into bank vault); Holderness, supra (photograph of defendant holding stolen objects allowed); Litton, supra (photographs of defendant in empty pharmacy building taken by an automatic camera); Byrnes, supra (photograph of defendant and his 11-year-old daughter engaging in sexual acts); Ferguson v. Commonwealth, 212 Va. 745, 187 S.E.2d 189, cert. denied, 409 U.S. 861, 93 S.Ct. 150, 34 L.Ed.2d 108, reh'g denied, 409 U.S. 1050, 93 S.Ct. 533, 34 L.Ed.2d 504 (1972) (admission of Regiscope photograph in forgery case); State v. Bunting, 455 A.2d 531 (N.J.1983) (armed robbery photographed by hidden camera); Fisher v. State, 7 Ark.App. 1, 643 S.W.2d 571 (1982) (videotape of defendant removing groceries from back door of store); Bergner v. State, 397 N.E.2d 1012 (Ind.App.1979) (photograph of defendant sodomizing his four-year-old daughter); Sisk v. State, 236 Md. 589, 204 A.2d 684 (1964) (admission of Regiscope photograph).

In fact, the court in Fisher, supra, stated that in adopting the silent witness theory it joined an overwhelming majority of other jurisdictions, citing United States v. Gordon, 548 F.2d 743 (8th Cir.1977); United States v. Gray, 531 F.2d 933 (8th Cir.), cert. denied, 429 U.S. 841, 97 S.Ct. 117, 50 L.Ed.2d 110 (1976); Stearns, supra; Taylor, supra; United States v. Pageau, 526 F.Supp. 1221 (N.D.N.Y.1981); Watkins v. Reinhart, 243 Ala. 243, 9 So.2d 113 (1942); State v. Kasold, 110 Ariz. 558, 521 P.2d 990 (1974); South Santa Clara Valley Water Conservation Dist. v. Johnson, 231 Cal.App.2d 388, 41 Cal.Rptr. 846 (1965); People v. Bowley, 59 Cal.2d 855, 31 Cal.Rptr. 471, 382 P.2d 591 (1963); People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792 (1948); Oja v. State, 292 So.2d 71 (Fla.App.1974); Bergner, supra; Holderness, supra; Cook v. Clark, 186 N.W.2d 645 (Iowa 1971); State v. Thompson, 254 Iowa 331, 117 N.W.2d 514 (1962); Franzen v. Dimock Gould & Co., 251 Iowa 742, 101 N.W.2d 4 (1960); Perry v. Eblen, 250 Iowa 1338, 98 N.W.2d 832 (1959); Foreman v. Heinz, 185 Kan. 715, 347 P.2d 451 (1959); Litton, supra; State v. Young, 303 A.2d 113 (Me.1973); Sisk, supra; Hartley v. A.I. Rodd Lumber Co., 282 Mich. 652, 276 N.W. 712 (1937); Hancock v. State, 209 Miss. 523, 47 So.2d 833 (1950); State v. Withers, 347 S.W.2d 146 (Mo.1961); Vaca v. State, 150 Neb. 516, 34 N.W.2d 873 (1948); King v. State, 108 Neb. 428, 187 N.W. 934 (1922); Byrnes, supra; State v. Hunt, 297 N.C. 447, 255 S.E.2d 182 (1979); Dunford v. State, 614 P.2d 1115 (Okla.App.1980); State v. Brown, 4 Or.App. 219, 475 P.2d 973 (1970); State v. Goyet, 120 Vt. 12, 132 A.2d 623 (1957); Ferguson, supra; State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978); Fisher, 643 S.W.2d at 575.

Authentication of the subject videotape is always required. However, the foundational requirements for the admissibility of videotapes under the silent witness theory would be fundamentally different than the requirements stated in Allen, supra. While the admission of evidence is within the discretion of the trial court, the following three elements must be established: (1) expert testimony establishing that the videotape had not been altered or manipulated; (2) testimony establishing the date and place the videotape was taken; and (3) testimony establishing the identity of the relevant participants depicted. See Holderness, supra, and Bergner, supra.

The admission of the videotape does not violate the rights provided to the defendant by the Confrontation Clause. "Confrontation in a criminal trial includes the right to ask questions and secure answers from the witness confronted. 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 ... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. 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." (Citations and punctuation omitted.) Rosser v. State, 211 Ga.App. 402, 404, 439 S.E.2d 72 (1993).

The present case involves the prosecution of a DUI after the death of the arresting police officer. Clearly, the unavailability of the authenticating officer was not planned or contrived. Except for the officer's death, this case would have been no different from the numerous other cases this officer prosecuted during his four years on the Gwinnett County DUI Task Force. Further, the trustworthiness of the videotape is established by the foundational requirements set forth under the silent witness theory.

This established theory of admissibility can coexist with existing Georgia law. The foundation required under the silent witness theory is not inconsistent with the foundation required under Allen, supra; and differs from the "pictorial testimony theory" of admissibility in the purpose for the admission of the videotape. We join the majority of jurisdictions and adopt the silent witness theory for admission of...