Cuzzort v. State

Smith, Justice,

dissenting.

Both the “good” and the “bad” among us describe, report, and fall victim to crimes. For this reason, and for reasons to follow, I respectfully dissent.

Mr. Jones accuses Mr. White of stealing $100 from his jacket at a party. Mr. Jones punches Mr. White. Mr. Jones tells Fred, Jake, Ralph, James, Maggie, and Bill that he hit Mr. White because Mr. White stole $100 from his jacket at the party. Does this tell us that Mr. White stole the money, or that Mr. Jones simply dislikes him? The statements are relevant only to Jones’ consistency, not to White’s guilt or innocence.

Mr. White is indicted and brought to trial for the theft of $100. At trial, Fred, Jake, Ralph, James, Maggie, and Bill testify for the prosecution that Mr. Jones told them that he hit Mr. White because Mr. White stole $100 from him. Mr. Jones testifies that he hit Mr. White because Mr. White stole his money. Under this opinion the testimony of Mr. Jones’ friends would be allowed not only as evidence that Mr. .Jones said he hit Mr. White or that he did in fact hit Mr. White. It would also be introduced as substantive evidence that Mr. White stole $100 from Mr. Jones.

*747 Let us observe the benefits of this treatment of prior consistent statements under the logic of Gibbons v. State, 248 Ga. 858 ( 286 SE2d 717 ) (1982). First and foremost, this court in Gibbons sought to allow a jury to discover the truth by presenting two sides of one story: a witness’ testimony “closer in time to the event in question, when memories are fresher,” Gibbons, supra at 863 , as opposed to his testimony at trial, when the jury has the opportunity to observe his demeanor. Here, where the jury will be presented testimony at trial in concordance with statements made “closer in time to the event in question,” the jury will not choose between the statements. It will only decide whether the person making the original statement here, Mr. Jones, is a profligate liar, or simply a big talker. The “truth-seeking function” is not furthered by such a rule.

Next, under “salutary effect (a)” of Gibbons , this court noted that the rule in Gibbons would protect “both the state and the defense” to a degree from “the erratic or unpredictable witness.” 248 Ga. at 864 . Here, there is no “erratic or unpredictable witness.” This reason for the introduction of prior statements does not exist in this case. Cuzzort will have no salutary effect in this manner.

Thirdly, this court recognized in “salutary effect (b)” of Gibbons , that the rule in Gibbons would discourage “efforts to influence the testimony of a witness, as the prior declaration is no longer effectively revocable at the will of the witness.” Id. (Emphasis in original.) Here, there is absolutely no revocation. This reason for the introduction of prior statements does not exist in this case. Cuzzort will have no salutary effect in this manner.

Finally, “salutary effect (c)” of Gibbons consisted of the protection of witnesses “from improper attempts to influence testimony — the potential gain from that impropriety being diminished substantially by the adoption of this rule.” Id. This effect, as well, is utterly lacking in this case. In fact, unscrupulous parties will actually be encouraged to attempt to influence witnesses to change their testimony to avoid a double dose of unfavorable testimony and to even the scales. Cuzzort could have a detrimental, rather than a salutary effect here.

As the effects of the Gibbons rule on prior consistent, rather than inconsistent, testimony will be harmful where any effect will be had at all, we should not conjure up the rule here.

Furthermore, we have consistently held, prior to this case, that “[a] witness may not be bolstered or corroborated by proof that her testimony at trial is consistent with what she told someone in an out-of-court statement. Atlanta K. & N. R. Co. v. Strickland, 116 Ga. 439 ( 42 SE 864 ).” Seaboard Coast Line R. Co. v. Duncan, 123 Ga. App. 479, 480 ( 181 SE2d 535 ) (1971); Fuller v. State, 196 Ga. 237 ( 26 SE2d 281 ) (1943). While Gibbons had no bearing on this rule whatsoever, *748 this case overrules, or at least emasculates, the rule. We should not so readily tread on established law.

Decided October 1, 1985.

Hatcher, Johnson & Meaney, James A. Meaney III, for appellant.

David L. Lomenick, Jr., District Attorney, for appellee.