Woodard v. State
| Decision Date | 02 March 1998 |
| Docket Number | No. S97A1867,S97A1867 |
| Parties | , 98 FCDR 1279, 98 FCDR 743 WOODARD v. The STATE. |
| Court | Georgia Supreme Court |
Dennis Terry Blackmon, Thomason & Blackmon, P.C., Carrollton, for Jerry Woodard.
Anne Cobb Allen, Asst. Dist. Atty., Carrollton, David S. McLaughlin, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
John T. Morgan, III, Dist. Atty., Robert M. Coker, Asst. Dist. Atty., Decatur, for amicus appellee.
Appellant Jerry Woodard appeals his conviction for child molestation, arguing that the trial court erred by admitting into evidence certain hearsay statements made out-of-court by a six-year-old witness to the crime. At issue is the validity of the 1995 amendment to the Child Hearsay Statute. 1 The amendment allows hearsay declarations made by a child under the age of fourteen who witnessed an act of sexual or physical abuse inflicted on another to be introduced as substantive evidence in a criminal trial, so long as the child declarant is available to testify. Because we must conclude that the 1995 amendment violates both this Court's precedent, and constitutional principles of equal protection, we are compelled to reverse.
In 1995, Woodard was accused of sexually molesting the five-year-old daughter of friends. A six-year-old friend of the victim purportedly witnessed the incident. On the same day that the molestation was reported to have occurred, both the victim and her six-year-old friend gave statements to an investigator with the Carroll County Sheriff's Department. Several days later, both young girls gave videotaped statements to workers with the Department of Family and Childrens' Services ("DFCS"). The Sheriff's Department investigator who conducted the first interview with the girls also participated in the videotaped DFCS interview. A medical examination of the victim, conducted on the same day that the molestation was reported to have occurred, revealed no physical evidence of sexual abuse.
At trial, the young victim testified that Woodard had inserted his finger into her vagina. Her six-year old friend testified that she had observed Woodard touching the victim's genital area. Both young girls then were cross-examined by defense counsel. Thereafter, the sheriff's department investigator testified that when he initially interviewed the victim, she told him that Woodard had inserted his finger into her vagina. The investigator also testified that the victim's six-year-old friend told him that she saw Woodard insert his hand into the victim's pants. During the investigator's testimony, the videotaped interview of both young girls made by DFCS was played for the jury. After the presentation of all evidence, Woodard was convicted on one count of child molestation.
1. The Child Hearsay Statute, as amended, provides that:
A statement made by a child under the age of 14 years describing any act of sexual conduct or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom it is made if the child is available to testify in the proceeding and the court finds that the circumstances of the statement provide sufficient indicia of reliability. 2
This Court repeatedly has upheld the constitutionality of the Child Hearsay Statute to the extent that it allows the introduction of hearsay statements made by the child victim of sexual or physical abuse, so long as the statutory prerequisites for admitting such statements exist. 3 In this case, it is not disputed that those prerequisites were satisfied. Therefore, the introduction at Woodard's trial of hearsay statements made by the child victim in this case, in which she recounted the incident of abuse to the sheriff's department investigator and DFCS workers, were admitted properly under the statute, and present no grounds for review on appeal.
2. On appeal, Woodard claims that the trial court's admission of the child witness's hearsay statements, as recounted by the sheriff's investigator and in the DFCS video, unconstitutionally denied him the right to confront witnesses against him, and impermissibly bolstered the witness's veracity. In response, the State argues that Woodard's argument is foreclosed by this Court's ruling in Cuzzort v. State 4 that the prior consistent statements of an in-court witness are admissible as substantive evidence.
In most cases decided in Georgia courts before 1982, a witness's prior inconsistent statement made out-of-court was admitted only for purposes of impeachment. That changed in Gibbons v. State, 5 when this Court ruled that the prior inconsistent statement of a witness who testifies at trial and is subject to cross-examination is admissible as substantive evidence. 6 In deciding Gibbons, the Court sought to further the jury's truth-seeking function by allowing it to consider two versions of the same story recounted by the same witness--a witness's out-of-court statement made "closer in time to the event in question, when memories are fresher," 7 as opposed to the witness's contradictory testimony at trial, in which he repudiates his prior statement, when the jury has the benefit of observing the witness's demeanor while testifying and being cross-examined. 8
In addition to furthering the jury's quest for the truth, the Gibbons rule has yielded several other benefits. First, it has protected "both the State and the defense from the erratic or unpredictable witness" 9 who contradicts his earlier material statement when testifying. Second, it has discouraged "efforts to influence the testimony of a witness," by making it more difficult for the witness to revoke her prior declaration while testifying. 10 Finally, the Gibbons rule has protected witnesses from improper attempts to influence their testimony, by eliminating much of the gain to be had when such attempts are successful. 11
In Cuzzort, supra, relied upon by the State, the Gibbons rule was extended to allow the admission at trial as substantive evidence of a prior consistent statement made by a witness who testifies and is subject to cross-examination. 12 Despite the absence of an inconsistency between the witness's out-of-court statement and her testimony at trial, Cuzzort concluded that because the witness's veracity was in issue, her prior consistent statement was admissible. Because the witness was cross-examined concerning both her out-of-court statement and her testimony, the Cuzzort court concluded that the "concerns of the rule against hearsay [were] satisfied." 13
Even though Cuzzort has sometimes been misinterpreted, 14 since it was decided, this Court has clarified when that opinion authorizes the admission at trial of a witness's prior consistent statement--such statements are admissible only where (1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. 15
Consistent with Federal Rule of Evidence 801(d)(1)(B), a witness's veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross examination. 16 As stated by a well-respected commentator:
Thus, to rebut a charge that a witness is motivated or has been influenced to testify falsely or that his testimony is a recent fabrication, evidence is admissible that he told the same story before the motive or influence came into existence or before the time of the alleged recent fabrication. [In those circumstances], the prior consistent statement is defined as not hearsay ... and thus is admitted into evidence. 17
Unless a witness's veracity has affirmatively been placed in issue, the witness's prior consistent statement is pure hearsay evidence, 18 which cannot be admitted merely to corroborate the witness, or to bolster the witness's credibility in the eyes of the jury. 19
In this case, the six-year-old's hearsay statements were introduced during the direct examination of the sheriff's investigator, a State's witness, rather than as part of an effort to rehabilitate the child witness after the veracity of her trial testimony was attacked during cross-examination. Moreover, our review of the transcript shows that when cross-examining the six-year-old, Woodard did not attempt to impeach the veracity of her testimony, and raised no allegations of recent fabrication, or improper influence or motive. 20 Thus, we can only conclude that the prior consistent statement was hearsay evidence improperly admitted to bolster the witness's credibility in the eyes of the jury.
3. The State also argues that the child's hearsay statements were properly admitted under the 1995 amendment to the Child Hearsay Statute. 21 As discussed, the amendment allows the admission into evidence of hearsay statements made by a child under the age of fourteen who witnessed an act of physical or sexual abuse inflicted upon another. 22
In Thornton v. State, supra, decided before the Statute was amended in 1995, this Court unanimously held that it was reversible error for the trial court to introduce the hearsay statements of a child witness (of any age) who observed the physical abuse of another child, but was not himself the victim of such abuse. 23 Our ruling in Thornton was based upon the language of the then-existing statute, which permitted the admission of only those hearsay statements made by a child victim of abuse. 24 Because the 1995 amendment did not exist at the time of Thornton, we did not reach the constitutional implications of admitting a child witness's hearsay declarations in that decision. Thus, Thornton is not controlling in this matter. However, the present appeal requires us to decide whether the 1995 am...
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