Stephens v. the State., S10G1958.

• Court: Supreme Court of Georgia
• Citation: 716 S.E.2d 154,11 FCDR 3067,289 Ga. 758
• Docket Number: No. S10G1958.,S10G1958.
• Parties: STEPHENSv.The STATE.
• Decision Date: 03 October 2011

289 Ga. 758
716 S.E.2d 154
11 FCDR 3067

STEPHENS
v.
The STATE.

No. S10G1958.

Supreme Court of Georgia.

Oct. 3, 2011.

[716 S.E.2d 156]

Chandler, Britt, Jay & Beck, Walter Michael Britt, Buford, for appellant.Daniel J. Porter, District Attorney, Jon Wesley Setzer, Asst. Dist. Atty., for appellee.NAHMIAS, Justice.

[289 Ga. 758] Appellant Bradley Stephens was convicted of incest against his stepdaughter, following sexual abuse that began when the victim was five years old and continued until she was sixteen, when he impregnated her and took her to get an abortion. The trial court sentenced Appellant to twenty years in prison, with the first ten years to be served in confinement and the balance to be served on probation with a number of special conditions. The Court of Appeals affirmed Appellant's conviction but vacated his sentence and remanded the case for resentencing due to the trial court's erroneous imposition of special conditions of parole in addition to special conditions of probation. See Stephens v. State, 305 Ga.App. 339, 340, 699 S.E.2d 558 (2010). We granted Appellant's petition for certiorari to answer two questions:

1. Should a trial court give a jury instruction on prior consistent statements? See Council of Superior Court Judges Criminal Pattern Jury Instructions, § 1.31.60 (4th ed.). See also Boyt v. State, 286 Ga.App. 460

[ (3), 649 S.E.2d 589 ]

(2007).

2. Did the Court of Appeals err in upholding the trial court's amendments to Stephens's sentence to include special conditions of probation?

We hold that the pattern jury instruction on prior consistent statements should not be given as a matter of course. Unlike some other states, Georgia admits prior consistent statements as substantive evidence and not solely to rehabilitate a witness's trial testimony. As a result, in ordinary cases the instruction adds nothing to the deliberative process and may instead lead to juror confusion. However, in this case, as in most cases, the instruction did not harm Appellant, and so the Court of Appeals properly affirmed his conviction. We further hold that Appellant's rights were not violated by the process the trial court followed in imposing his special conditions of probation. Accordingly, we affirm the Court of Appeals' judgment.

1. (a) At trial, the court gave, over Appellant's objection, the pattern jury instruction on prior consistent statements:

Should you find that any witness has made a statement prior to trial of this case that is consistent with that witness's testimony from the witness stand and such prior consistent statement is material to the case and the witness's[289 Ga. 759] testimony, then you are authorized to consider the other statement as substantive evidence.

Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II; Criminal Cases, § 1.31.60 (4th ed.). It is now settled law that prior consistent statements, when admissible at all, are substantive evidence. See Cuzzort v. State, 254 Ga. 745, 745, 334 S.E.2d 661 (1985). See also Woodard v. State, 269 Ga. 317, 320, 496 S.E.2d 896 (1998) (reiterating that a witness's prior consistent statements are admissible at trial only in rebuttal to an express or implied charge of recent fabrication or improper influence or motive, but when admitted they are substantive evidence).

Thus, the pattern charge simply states a truism, because “ ‘[a] jury may consider all the words it hears as substantive evidence, unless the trial court tells it to disregard those words or unless the trial court at the moment the words are uttered cautions the jury that the testimony is admitted only for a limited purpose.’ ” Stephens, 305 Ga.App. at 343–344, 699 S.E.2d 558

[716 S.E.2d 157]

(quoting Boyt, 286 Ga.App. at 466–467, 649 S.E.2d 589) (emphasis in original). See also Johnson v. State, 289 Ga. 106, 110, 709 S.E.2d 768 (2011) (same). As a result, the pattern instruction does not assist the deliberative process, and it may cause confusion by suggesting that prior consistent statements are a different or specially important type of substantive evidence.¹ A jury charge may have been needed before Cuzzort, when prior consistent statements were admitted not as substantive evidence but only to rehabilitate an impeached witness, but Cuzzort eliminated that limitation. See Cuzzort, 254 Ga. at 745, 334 S.E.2d 661.

In recent years, the Court of Appeals has repeatedly said that the “better practice” is not to give an instruction on prior consistent statements. Boyt, 286 Ga.App. at 468, 649 S.E.2d 589.² We now hold that an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence. For example, the jury might send a note during deliberations asking whether it can consider a prior consistent statement as regular evidence, or an [289 Ga. 760] attorney might make an improper statement in closing argument suggesting to the jury that a prior consistent statement is not a valid type of evidence. When a charge on prior consistent statements is needed because of such circumstances, the charge should be adjusted to address the issue that requires it. No such circumstances were present in this case, and so the Court of Appeals correctly determined that the pattern instruction should not have been given. It is also worth noting that a routine instruction on prior consistent statements is discouraged in federal practice, see Boyt, 286 Ga.App. at 467–468, 649 S.E.2d 589, and Georgia courts will soon be operating under a prior consistent statements rule that parallels Federal Rule of Evidence 801(d)(1). See Ga. L. 2011, pp. 99, 119 (future OCGA § 24–6–613(c)), 127 (future OCGA § 24–8–801(d)(1)(A)) (effective Jan. 1, 2013)).

(b) The Court of Appeals also correctly held that giving the pattern instruction on prior consistent statements was harmless in this case, as it will be in most cases. See Stephens, 305 Ga.App. at 344, 699 S.E.2d 558. See also Johnson, 289 Ga. at 110–111, 709 S.E.2d 768; Boyt, 286 Ga.App. at 468, 649 S.E.2d 589. Appellant and the State disagree about whether any prior consistent statements were even admitted at trial, with Appellant arguing that the State did not introduce any. Perhaps for this reason, Appellant offers no persuasive argument that the giving of the pattern instruction harmed him. For example, Appellant claims that “by giving the pattern charge, the trial court in effect authorized the jury to disregard the inconsistencies in the testimony” of the victim and the other witnesses who testified at trial, but the pattern instruction in no way suggested that the jury should ignore inconsistencies in the trial testimony. Appellant also argues that “under the pattern charge, the jury was authorized to find that just because another person repeated what had been related by the alleged victim, such constituted substantial evidence,” which “improperly bolstered her testimony.” But prior consistent statements are substantive evidence that also tends to bolster the witness's trial testimony by disproving charges of recent fabrication or improper influence or motive, so Appellant's complaint is actually with the admission of the statements (which is not enumerated as error), not the jury instruction. The pattern jury instruction does not explicitly direct the jury to place any additional weight on prior consistent statements

[716 S.E.2d 158]

beyond that which the law already gives them, which is why it will usually be harmless.

(c) The State does not really defend the pattern charge on prior consistent statements. Instead, the State notes that the pattern charge on prior inconsistent statements is very similar,³ adding that [289 Ga. 761] unless that instruction is also disapproved, juries may mistakenly think that prior inconsistent statements deserve more weight than prior consistent statements. Both points appear to have merit.⁴ However, although the pattern charge on prior inconsistent statements was also given in this case, Appellant has not enumerated it as error, and the State is not entitled to do so. Accordingly, although trial courts should consider that jury instruction with greater care in light of this opinion's rationale, we will not decide if the pattern charge on prior inconsistent statements should also be disapproved until the issue is properly presented and fully briefed in a future case.

2. Appellant also contends that the Court of Appeals erred in upholding the special conditions of probation imposed by the trial court. We disagree.

(a) The jury returned its verdict on Friday, December 12, 2008, and the trial court released the jury and proceeded immediately to the presentence hearing. See OCGA § 17–10–2(a)(1) (“[U]pon the return of a verdict of ‘guilty’ by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed.”). After brief arguments by the prosecutor and defense counsel, who chose not to address special conditions of probation, Appellant asked the court for mercy, and the victim indicated that she did not wish to address the court before sentence was pronounced. See OCGA § 17–10–2(a)(2) (“The judge shall ... hear argument by the accused or the accused's counsel and the prosecuting[289 Ga. 762] attorney, as provided by law, regarding the punishment to be imposed.”).

Then the following exchange occurred:

THE COURT: ... I'm going to sentence Mr. Stephens to a sentence of 20 years, with the first 10 to be served in confinement, the balance on probation. While on probation, he is to pay a $1,000 fine plus...