Petition for Writ of Certiorari — Williams v. Melton

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No. :

IN THE SUPREME COURT : cee

OF THE

UNITED STATES

OCTOBER TERM, 1984

HOSEA LORENZO WILLIAMS,

Petitioner,

Vv.

WAYNE MELTON, ET AL.

Respondents.

PETITION FOR WRIT OF

CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH

CIRCUIT

TONY L. AXAM

ROBERT ALTMAN

175 Trinity Avenue, S.W.

Atlanta, Georgia 30303

(404) 524-2233

Attorneys for Petitioner

No.

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1984

HOSEA LORENZO WILLIAMS,

Petitioner,

Vv.

WAYNE MELTON, ET AL.

Respondents.

PETITION FOR WRIT OF

CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH

CIRCUIT

TONY L. AXAM

ROBERT ALTMAN

175 Trinity Avenue, S.W.

Atlanta, Georgia 30303

(404) 524-2233

Attorneys for Petitioner

QUESTIONS PRESENTED

In the present case

Reverend Hosea Williams, a

Black Georgia State

Representative, was convicted

in state court of leaving the

scene of an automobile

accident. The only direct

evidence against him was a

hearsay statement by an unknown

bystander that the driver of

the car was Rev. Williams.

In a case - where the

prosecution's crucial evidence

is uncross-examined hearsay

testimony of an unknown

bystander:

l. What test should be

employed to determine when

uncross-examined hearsay

statements can be admitted into

evidence without violating the

Sixth and Fourteenth

Amendments?

2. What effect should be

given the question of whether

Georgia's Res Gestae rule is

"firmly rooted."

3. Was the Circuit Court

correct in using a “results

Oriented" test rather than the

four-pronged test established

in Dutton v. Evans, supra?

4. Do the facts of this

case support admission of the

hearsay statement?

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Table of Contents

Opinion Below ...... 8

Jurisdiction. . . .. «+ ?

Constitutional Provision

Involved. . . . « « « 10

Statement of the Case . .ll

Reasons for Granting the

Writ. « © © © © © © 0 03

Conclusion. . ... +. + «38

Certificate of Service. .40

Appendix A. . . . «+ « A-l

Appendix B. ..... . B-l

Appendix C. . . . « « « C=l

peak SSI GARE Lear

ii.

Table of Authorities

CASES

Berger v. California, 393

Be Dae Cheeein «0 tw ow tt el

Chambers v. Mississippi,

410 U.S. 284 (1973)... . .24

Douglas _v. Alabama, 400

sls Fe Beeee? & « 4 6 + 2 « 22

Dutton v. Evans, 400 U.S.

74 (1970). .... 26,29,30,34

Flowallen v. Faulkner, 677

F.2d 610 (7th Cir. 1982) . . 28

Ohio v. Roberts, 448 U.S.

26 (A0GG). « « 0 st tt 23524,25

United States v. Blakey,

607 F.2d. 779 (7th Cir.

Co ee ee ee ie ee

United States v. McKinney,

707 F.2d. 381 (9th Cir.

1983) @ e e e ° ° ° e ° . e ° 28

Unites States v. West, 574

F.2d. 1131 (4th Cir. 1978) . 29

STATUTES

O.C.G.A., §24-4-6 . . . 34

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1984

HOSEA LORENZO WILLIAMS,

Petitioner,

Ve

WAYNE MELTON, ET AL.!

Respondents.

PETITION FOR WRIT OF

CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH

CIRCUIT

The Petitioner, Hosea

Lorenzo Williams, respectfully

prays that a writ of certiorari

issue to review the judgment of

the United States Court of

Appeals for the Eleventh

Circuit entered in this

proceeding on June 7, 1984.

OPINION BELOW

The opinion of the Court

of Appeals is reported at 733

F.2d. 1492 and is attached to

this petition as Appendix A.

The order of the Court of

Appeals denying the petition

for rehearing and rehearing en

banc is unreported and is

attached to this petition as

Appendix B. The District Court

opinion is reported at 568

F.Supp. 104 and is attached to

this petition as Appendix C.

JURISDICTION

The judgment of the Court

of Appeals was entered on June

7, 1984. The order of the

Court of Appeals denying the

petition for rehearing’ and

Suggestion for rehearing en

banc was filed on August 9,

1984.

This petition is timely

filed within sixty (60) days of

August 9, 1984. The

jurisdiction of this Court is

invoked under Title 28, United

States Code, Section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment of the

United States Constitution

states in pertinent part: “In

all criminal prosecutions, the

accused shall enjoy the

right...to be confronted with

the witnesses against him..."

The Official Code of

Georgia, Section 24-3-3

provides that: “Declarations

accompanying an act, or _ so

nearly connected therewith in

time as to be free from all

suspicion of device or

afterthought, shall be

admissible in evidence as part

10

of the res gestae."

STATEMENT OF THE CASE

On July 18, 1980, two

automobiles collided at _ the

intersection of McAfee Road and

Laurel Lane in DeKalb County,

Georgia. Cyrus Broadus, the

driver of one of the vehicles

involved in the collision was

injured in the accident and

remained in his car until

bystanders were able to remove

him. The other car had stopped

near a pole at the intersection

but the driver of the vehicle

‘was no where to be found.

Within a few minutes of

the accident, the police

ll

arrived at the scene. They

searched the abandoned car for

information indicating who the

driver might be and found

various items relating to Rev.

Hosea Williams.

Several bystanders then

told the police that, some ten

or fifteen minutes after the

accident, an unidentified man

had remarked that the driver of

the abandoned car looked like

Hosea Williams and was wearing

a flowered shirt. R.1 at 102,

116, 126. Rev. Williams was

arrested shortly thereafter at

his place of business, The

Bingo Palace.

12

Rev. Williams was indicted

and tried on two counts, a

felony, charging him with

operating a motor vehicle after

revocation of his drivers

license and a misdemeanor

count, charging him with

leaving the scene of an

accident without stopping to

render aid. During the trial

the judge admitted into

evidence the hearsay testimony

of three bystanders reflecting

the statement by the

unidentified Black man

implicating Hosea Williams in

the accident.

Rev. Williams presented a

13

defense and claimed that the

car had been stolen from the

Bingo Palace. The general

manager of the Bingo Palace

testified that she had put a

bag of tomatoes and some money

in the trunk of the car and

might have left the keys in the

trunk. She and Rev. Williams'

son testified that Rev.

Williams left the Bingo Palace

between 8:00 and 9:00 P.M., the

time during which the accident

occurred. When Rev. Williams

was arrested he had a cut over

his eye. He testified that he

hac cut it on the jagged edge

of a door in a back storage

14

room of the Bingo Palace. The

hearsay statements of the

unidentified, unavailable

declarant were the sole, direct

evidence placing Rev. Williams

at the scene of the accident.

The Georgia Court of

Appeals reversed Rev. Williams'

felony conviction but affirmed

the misdemeanor conviction.

Williams v. State, 162 Ga.App.

415, 291 S.E.2d. 732 (1982).

‘Rev. Williams filed a

federal habeas corpus petition

pursuant to 28 U.S.C., §2254

and the district judce granted

relief finding that Georgia's

res gestae exception was vague

15

and imprecise and that the

admission of the hearsay

testimony violated the federal

constitutional requirements

imposed by the Sixth Amendment

confrontation clause. The

district judge concluded that

the hearsay statements’ were

express assertions of past

fact, there was no evidence

whatsoever of the hearsay

declarant's personal knowledge

of the identity of the driver,

there was no opportunity to

determine whether the hearsay

statement was based on faulty

recollection, and, "the

totality of the circumstances

16

under which the statements were

made does not give adequate

assurance that the declarant

was without motive or

opportunity to deliberately

misrepresent Petitioner's

involvement in the accident."

The Eleventh Circuit Court

of Appeals issued an opinion in

which two judges voted to

reverse the district judge and

one judge filed a_e written

dissent. The majority

concluded that the hearsay

declarations fell within

Georgia's res gestae exception

to the hearsay rule, and that

such exception is firmly

17

rooted. The majority went on

to analyze the Sixth Amendment

implications of admitting the

hearsay without any

determination of whether the

hearsay could be termed

reliable under the four indicia

established in Dutton v. Evans,

400 U.S. 74, 89, 91 S.Ct. 210,

220 (1970). Instead, the

majority looked at the other

circumstantial evidence in the

case, emp loyed a "results

oriented" test, and concluded

that the circumstantial

evidence in the case was enough

to render the hearsay

Statements reliable.

18

In dissent, Judge Clark

pointed to the failure of the

majority to analyze the case in

terms of the reliability of the

hearsay under the four-pronged

test of Dutton and concluded

that the hearsay testimony was

Clearly inadmissible under this

Court's precedent.

Judge Clark pointed to the

obvious facts that the hearsay

statements in question were

"assertions of past fact;" none

of the hearsay witnesses heard

the statements about the driver

of the abandoned car until ten

to fifteen minutes after the

accident; the statements were

19

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about the identity of the

driver rather than an opinion,

as was the statement in Dutton;

there was no evidence

introduced about the

declarant's personal knowledge

of identity of the driver; none

of the hearsay witnesses could

testify as to whether’ the

declarant actually witnessed

the automobile accident; or if

he did what sort of view he had

Or whether he merely heard that

Williams was the driver. The

declarant might have overheard

the police mentioning the

Defendant's name when_~ they

found his personal papers in

20

the abandoned vehicle; cross-

examination of the declarant

might well have shown that the

declarant was not in a position

to know whether Williams was

driving the car; the complete

lack of opportunity for cross-

examination made any testing of

the declarant's mental state at

the time of the statements

impossible; nothing about the

circumstances under which the

statements were made indicate

that the declarant did not

misrepresent Williams'

involvement in the accident;

since no one saw the driver of

the abandoned vehicle other

21

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than the hearsay declarant, it

is not impossible that he was

the driver of the car. and

wanted to shift suspicion to

another before he left’ the

scene. Finally, it is possible

that the declarant, without

meaning to lie, simply passed

on information that he heard in

‘the crush of the 30 to 40

observers at the accident

scene. Without this evidence

the trial would have turned on

credibility determinations and

the weighing of circumstantial

evidence.

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REASONS FOR GRANTING THE WRIT

THE ELEVENTH CIRCUIT DECISION

IS IN CONFLICT WITH APPLICABLE

DECISIONS OF THIS COURT AND THE

CIRCUIT COURTS ARE IN CONFLICT

AS TO THE PROPER STANDARD TO BE

APPLIED IN SITUATIONS SUCH AS

THIS.

This Court has

consistently emphasized that

the Confrontation Clause

reflects a preference for face-

to-face confrontation at trial,

and that a primary interest

secured by the Sixth Amendment

provision is the right of

cross-examination. Ohio v.

Roberts, 448 U.S. 56, 63, 100

°$.Ct. 2531 (1980), Douglas v.

Alabama, 380 U.S. 415, 418, 85

S.Ct. 1074 (1965).

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The absence of an

opportunity to cross-examine a

witness and compel him to stand

face-to-face with the jury in

order that they may look at him

and judge by his demeanor and

the manner in which he gives

his testimony whether he is

trustworthy of belief, “calls

into question the ultimate

integrity of the fact-finding

process." Chambers Vv.

Mississippi, 410 U.S. 284, 295,

93 S.Ct. 1038 (1973), quoting

Berger v. California, 393 U.S.

314, 315, 89 S.Ct. 540 (1969),

Ohio v. Roberts, supra at 64.

The Court has recognized

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that the purposes of the Sixth

Amendment are not always

confounded by introduction of

hearsay testimony, but the

Court has ruled that in order

for hearsay evidence to become

admissible it must bear

adequate "indicia of

reliability." Ohio v. Roberts,

Supra at 66.

In Ohio v. Roberts, the

Court stated further that:

Reliability can be in-

ferred without more in

a case where the evi-

dence falls within a

firmly-rooted hearsay

exeception. In other

cases, the evidence

must be excluded, at

least absent a showing

of particularized gua-

rantees of trustworthi-

ness (footnote omitted)"

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In Dutton v. Evans, 400

U.S. 74, 88-89, 91 S.Ct. 210

(1970) the Court pointed to

four specific indicia of

reliability “which have been

widely viewed as determinative

of whether a statement may be

Placed before the jury though

there is no confrontation of

the declarant." The four

indicia are: (1) whether the

statement contained express

assertiors of past fact; (2)

whetlLer the declarant had

personal knowledge of the

identity and role of = the

participant in the crime; (3)

whether it was possible that

26

the declarant’s statement was

founded upon faulty

recollection; and (4) whether

the circumstances under which

the statements were made

provided reason to believe the

declarant misrepresented the

Gefendant's involvement in the

crime.

The circuits are in

disarray as to the standard to

be used to determine whether

‘hearsay testimony can be

admitted without violating the

Confrontation Clause. The

Ninth Circuit has stated that

hearsay may be admitted if it

falls within a_ firmly-rooted

27

hearsay exception and that such

a statement is’ conclusively

unreliable if it does not fall

within such an exception.

United States v. McKinney, 707

F.2d. 381 (9th Cir. 1983). The

Seventh Circuit has stated that

the primary purpose of the

Confrontation Clause is to

secure the right of cross-

examination and that court has

drawn the line of admissibility

by a judgment of whether the

testimony is “crucial-

devastating.” United States v.

Blakey, 607 F.2d. 779 (7th Cir.

1979), Flewallen v. Faulkner,

677 F.2d. 610, (7th Cir. 1982),

28

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cert denied, 103 S.Ct. 214.

See also, U.S.v. West, 574

F.2d. 1131 (4th Cir. 1978).

The Eleventh Circuit

decision in the present case

points out the need for

Clarification. The District

Judge concluded that the res

gestae exception contained in

Georgia law was not firmly

rooted and that none of the

four indicia of reliability

drawn from Dutton vy. _ Evans,

Supra, were satisfied by the

evidence in this case. The

Eleventh Circuit panel majority

concluded that the res gestae

exception was firmly rooted but

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did not rely upon this

conclusion to reverse the

district judge. The Eleventh

Circuit majority went on to

look at the other evidence in

the case, all circumstantial,

finding that this circum-

stantial evidence provided a

sufficient basis for a finding

of reliability.

Judge Clark, in dissent,

did not discuss whether the res

gestae exception was firmly-

rooted but pointed out that

none of the four Dutton indicia

of celiability were

Satisfied. Further,there were

multiple reasons to believe

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that the statement was not

reliable and it is not

unreasonable to conclude that

the hearsay declarant might

even be the person who stole

Rev. Williams' car.

The Eleventh Circuit

majority opinion is

insufficient because the panel

members overlooked the need to

find reliability for the

hearsay statement itself,

focusing instead upon a

"results oriented" analysis

which more closely resembles

the type of analysis one would

find in evaluating the

sufficiency of the evidence.

31

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Circuit Judge Clark opened his

dissent with a succinct

statement of the problem:

I dissent because

Georgia's res gestae

exception has a

applied in an uncon-

stitutional manner.

The confrontation

issue arises in this

case because the jury

was being invited

through hearsay state-

ments to believe the

driver of the abandoned

car was Hosea Williams.

Because these hearsay

statements concerning the

identity of the person

who committed the crime

lack adequate indicia of

reliability, they should

have been excluded. Cir-

cumstantial evidence ob-

tained after Williams was

identified as the possible

driver, no matter how

substantial, cannot pro-

vide the reliability re-

quired. A study of the

purposes achieved by the

right of confrontation

leads to the conclusion

32

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that any indicia of reli-

ability can only come

from a testing of the cir-

cumstances which surround

the making of the hearsay

statements and from the

statements themselves."

Clearly, under the facts

of this case, the hearsay

statement should not have been

allowed into evidence.

First, the hearsay

Statement was the only direct

evidence that Hosea Williams

was the driver of the

automobile. This is

particularly important in

Georgia because of the statute

which limits convictions based

upon circumstantial evidence:

"To warrant a conviction

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on circumstantial evi-

dence, the proved facts

shall not only be consis-

tent with the hypothesis

of guilt, but shall ex-

clude every other reason-

able hypothesis save that

of the guilt of the

accused." 0.C.G.A. ,§24-4-

6.

Without the hearsay the

jury would have had to decide

the case within this

standard. The hearsay evidence

must be considered crucial to

the state's case and

potentially devastating to the

defendant's alibi defense.

Second, the statement

fails all four of the

reliability tests announced in

Dutton v. Evans, supra. The

hearsay statements in question

34

were assertions of past fact.

As stated by Judge Clark, in

his dissent:

The statements cannot

be considered as being

contemporaneous with the

accident since the record

makes it clear that none

of the hearsay witnesses

heard the statements about

the driver of the aban-

doned car until ten to

fifteen minutes after the

accident.

There was no evidence

introduced about . the

declarant's personal knowledge

of the identity of the

driver. None of the hearsay

witnesses could testify as to

whether the declarant actually

witnessed the automobile

accident, or if he did, what

35

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had or whether he merely heard

that Williams was the driver.

The district court pointed

out that testimony’ elicited

upon cross-examination from one

of the police officers at the

scene indicated that the

declarant might have overheard

the police mentioning the

Defendant's name when they

found his personal papers in

the abandoned automobile.

The complete lack of

opportunity for cross-

examination made any testing of

the declarant's mental state at

the time of the’ statements

impossible.

36

There is nothing about the

circumstances under which the

statements were made to

indicate the declarant did not

misrepresent Williams'

involvement in the accident.

Specifically, no one saw _ the

driver of the abandoned vehicle

other than the hearsay

declarant. It is entirely

possible, therefore, that the

declarant himself was the

driver of the car and wanted to

shift suspicion to - another

before he left the scene.

Petitioner respectfully

Suggests that Judge Clark's

analysis, in dissent, is the

37

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proper analysis where there has

been no opportunity for cross-

examination and the hearsay

testimony is crucial to the

state's case. This Court

should accept certiorari to

insure the circuit courts are

properly directed in their

analysis of similar situations

and to vindicate the

constitutional rights of Rev.

Williams in the present case.

CONCLUSION

For the foregoing reasons,

the Petitioner, HOSEA LORENZO

WILLIAMS, respectfully prays

that the Court accept

certiorari and determine the

38

case on the merits.

Respectfully submitted,

AXAM ALTMAN & MCINTYRE, P.C.

pe et . ‘AXAM

ohh Me

AXAM ALTMAN McINTYRE, P.C.

200 PEACHTREE-TRINITY BUILDING

175 TRINITY AVENUE, S.W.

ATLANTA, GEORGIA 30303

(404) 524-2233

ATTORNEYS FOR PETITIONER

39

CERTIFICATE OF SERVICE

I hereby certify that I

have this day served three

copies of the foregoing

Petition for Writ of Certiorari

upon counsel for the opposing

parties by depositing same a

United States mailbox, with

first-class postage prepaid,

addressed to counsel of record

at his post office address, as

follows:

Mr. Robert Wilson

DeKalb County District

Attorney

707 DeKalb County Courthouse

556 N. McDonough Street

Decatur, Georgia 30030

This 7 day of October,

~ Cobet GE

ROBERT ALTMAN

40

: , / ’ . ei mae

- . Ne ny i bey Sean me Pee = Disa

is Seine

r . ae Par oar an

‘

4 ee

: | z Sikale Ve sgdceed ee eae sa

Breas 4 y - eta gitsitien? et ee ot}

, ee lad is

WSS I . PAT EP Bs Oe

$053" Hpeoapest 18 ash oS =

TENG, GURU 4 tiled

FOOTNOTE

Ithe parties are Wayne

Melton, chief jailer for DeKalb

County and Pat Jarvis, Sheriff

of DeKalb County. Both parties

are represnted by the District

Attorney for DeKalb County.

41

APPENDIX A

Eleventh Circuit Opinion

—s

Hozea Lorenzo WILLIAMS,

Petitioner-Appellee,

Wayne MELTON, et al.,

Respondents-Apellants.

No. 83-8464.

United States Court of

Appeals,

Eleventh Circuit.

June 7, 1984.

Appeal from the United

States District Court for the

Northern District of Georgia.

Before RONEY, FAY and

CLARK, Circuit Judges.

FAY, Circuit Judge:

Hosea Williams was

convicted in state court of

leaving the scene of an

accident without rendering aid

and was sentenced to one year

incarceration. During the

trial, the judge admitted into

evidence certain hearsay

Statements under the Georgia

res gestae exception to the

hearsay rule. After exhausting

his state remedies Mr. Williams

filed a petition for habeas

corpus relief pursuant to 28

U.S.C. § 2254 (1980). The

United States District Court

for the Northern District of

Georgia, 568 F.Supp. 104,

granted his habeas corpus

petition finding that the

admission of the hearsay

statements deprived Mr.

Williams of his sixth amendment

right to confront witnesses

against him. After a careful

review of the record we find

innumerable indicia of

reliability in this case which

gave the jury an independent

basis for evaluating the truth

of the hearsay statements even

though there was no

confrontation of the

unavailable declarant. There

was no violation of Mr.

Williams’ sixth amendment right

and we therefore reverse the

district court's granting of

the petition.

qi i &

——“

onuees) wieleiess “ar an

BA.3sF é' 3280 ons

20) page 8

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FACTS

On July 18, 1980, two

automobiles collided at the

intersection of McAfee Road and

Laurel Lane in DeKalb County,

Georgia. .Cyrus Broadus, the

driver of one of the vehicles

involved in the collision, was

hit nearly head-on when the

driver of another car attempted

to turn left in front of him.

Mr. Broadus was injured in the

accident and remained in his

car until bystanders were able

to remove him. His car then

rolled several feet down a hill

and into a ditch. The other

car had stopped near a pole at

VNU RU ATEN 0k GAOT SEE EUATRIU LT SUEY

7 wee Vet” Ww ev ~w ow “Ser we Vs Ae wwe Vet Pie IP — =

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the intersection but the driver

of the vehicle was nowhere to.

be found.

Within a few minutes of

the accident, the police

arrived at the _ scene. They

searched the abandoned car for

information indicating who the

driver might be and_— found

various documents addressed to

and from a Mr. Hosea

Williams. They also found a

Hertz rental agreement in the

name of Mrs. Hosea Williams.

Several bystanders then told

the police that, shortly after

the collision, they had

overheard an unidentified man

= ee vs RY =

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Ol EO EE

————7~

SE 7

= os Ee v

remark that the driver of the

abandoned car looked like Hosea

Williams and was wearing a

flowered shirt. R.Vol. I. at

102, 116, 126.

Based on this information

Hosea Williams was arrested

within thirty minutes at his

place of business, the Bingo

Palace. He was wearing a

flowered shirt and had a cut

over his right eye. R.Vol. I.

at 200, 240-242. At the

Station the police found a

briefcase in the car trunk with

$1,400.00 in receipts from the

Bingo Palace. Mr. Williams

Claimed the briefcase with the

= .

money. R.Vol. I. at 293-295,

298. The police also found a

plastic bag of tomatoes in the

front seat of the car. R.Vol.

I. at 292.

Mr. Williams was indicted

and tried on two counts, a

felony count charging him with

operating a motor vehicle after

revocation of his’ driver's

license and a misdemeanor

count, which charged him with

leaving the scene of an

accident without stopping to

render aid. During the trial

the judge admitted into

evidence, under Georgia's res

gestae cule, the hearsay

testimony of three

bystanders. All of them

testified that they clearly

remembered an unknown declarant

at the scene of the accident

stating that the driver of the

abandoned vehicle looked like

Hosea Williams. The jury had

to decide whether Williams was

the driver of the_~ rented,

abandoned automobile involved

in the collision. They

concluded that he was_- the

driver and returned a verdict

of guilty on both counts.

The Georgia Court of

Appeals reversed Mr. Williams'

felony conviction but affirmed

eh ; “ 7 ert

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his misdemeanor conviction.

Williams v. State, 162 Ga.App.

415, 291 S.E.2d. 732 (1982).

He filed a é federal habeas

petition and the federal

district judge granted relief

finding that Georgia's’ res

gestae exception was vague and

imprecise and that in this case

it also violated the federal

constitutional requirements

imposed by the sixth amendment

confrontation clause.? The

State appeals the granting of

the habeas corpus petition

asserting that the admission of

the hearsay testimony in this

case, under Georgia's res

10

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gestae rule, did not violate

the sixth amendment

confrontation clause.

GEORGIA'S RES GESTAE EXCEPTION

{1} The term res gestae

is almost incapable of a

definition that covers all of

the various and different uses

it encompasses. Walker vy.

State, 137 Ga. 398, 73 S.E. 368

(1912). It literally means

things happened and generally

is used to refer to the

transaction, occurrence,

controversy or matter under

investigation, whether it is

the principal fact in question

ll

a}

: : oe oe

Te ee [a ee ae a

or a collateral one. See,

Kornicki v. Calmar Steamship

Corp., 460 F.2d 1134 (3¢d

Cir.1972); Black's Law

Dictionary, 1173 (Sth ed.

1979). Even though hearsay,

any circumstances, facts or

declarations which are

automatic and undesigned

incidents of the particular

litigated act are admissible

evidence as part of the res

gestae if they help to clarify

the fact in question. Id.

[2] Georgia codified a

res gestae exception in 1863

and since then it has

consistently been used in the

12

3

Georgia courts. See e.g.,

Standard Oil v. Reagan, 15

Ga.App. 571, 84 S.E.69 (1915);

Jones v. State, 62 Ga.App. 734,

9 S.E.2d 707 (1940); Shapiro

Packing Co. v. Landrum, 109

Ga.App. 519, 136 S.E.2d 446

(1964); Gaines v. State, 232

Ga. 727, 208 S.E.2d 798 (1974);

Black v. State, 154 Ga. App.

441, 268 S.E.2d 724 (1980).

The version presently in effect

permits "{[d]eclarations

accompanying an act, or_ so

nearly connected therewith in

time as to be free from all

suspicion of device or

afterthought," to be

13

“admissible in evidence as part

of the res gestae." 0.C.G.A.

§24-3-3 (Michie 1982). The

trial court, in its sound

discretion, must decide on a

case by case basis whether or

not to admit the hearsay

evidence. Based on the time,

circumstances and statements in

question the judge must

determine whether the

declarations meet the

requirements of being free from

ail suspicion of device or

afterthought. Aetna Life Ins.

Co. v. Jones, 80 Ga.App. 472,

479, 56 S.E.2d 305, 309 (1949).

{31 Georgia case law has

14

established a set of standards

which must be met before the

hearsay evidence is admitted on

the basis of the res gestae

exception. As a prerequisite

to admission the declaration

must appear to spring out of

the transaction. Mitchum v.

State, 11 Ga. 615 (1852). It

must be voluntary and

spontaneous, and so close in

time to the event that it

precludes the possibility of

device or afterthought. Clark

v. State, 142 Ga.App. 851, 237

S.E.2d 459 (1977). Georgia's

res gestae exception distrusts

"not after-speech but

15

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1 Ee a en

7 el =

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et Pia

.

&»

»

afterthought." Travelers’

Insurance Co. v. Sheppard, 85

Ga. 751, 775, 12 S.E. 18, 26

(1890).

[4] Applying these

standards to this case we find

that the trial judge properly

concluded that the statements

of the unavailable declarant

fell within Georgia's firmly

rooted res gestae exception.

The testimony at trial

established a scenario. of

excitement and confusion. A

car had turned into another

car, almost head-on. The

injured driver of the struck

car had to be removed from his

16

é

J

i

ad ——

Se all hy a

car by bystanders. His car

then rolled several hundred

yards and_ crashed into a

ditch. In all this confusion,

three different people

overheard an unidentified

declarant state, approximately

ten to fifteen minutes after

the accident, that the driver

of the abandoned car _ looked

like Hosea Williams and that he

was wearing a flowered shirt.

R.VOol. I. at 98, 102. This

declaration was a natural

result of the incident = and

Clarified it. It was voluntary

and spontaneous and was made at

a time so near to it that it

17

reasonably precluded the idea

of any deliberate design. The

trial judge properly concluded

that the declarations of the

unidentified black male clearly

fell within Georgia's res

gestae exception to the hearsay

rule. Yet our review cannot

end here. Although the hearsay

statements were properly

admitted into evidence it is

necessary also to determine

whether this resulted in a

violation of Mr. Williams’

constitutional right to

confront his adverse witnesses.

18

SIXTH AMENDMENT

CONFRONTATION CLAUSE

Appellant asserts, based

on Ohio v. Roberts, 448 U.S.

56, 62-66, 100 S.Ct. 2531,

2537-39, 65 L.Ed.2d 597 (1980),

that statements properly

admitted as part of the firmly

rooted res gestae exceotion do

not violate per se aq

defendant's sixth amendment

right to confrontation. We do

not agree and do not read Ohio

v. Roberts to establish such a

rule. In Ohio v. Roberts, the

Supreme Court found that

testimony taken at a

Preliminary hearing, where the

19

witness was thoroughly cross-

examined, bore sufficient

indicia of reliability to make

the statements from the hearing

admissible at trial, although

the declarant was not

available.4 The Court stated

that "{rJeliability can be

inferred...in a case where the

evidence falls within a firmly

rooted hearsay exception." Id.

at 66, 100 S.Ct. at 2539. Yet

this language in Roberts is

only aeeta because the Court

did not find a firmiy rooted

hearsay exception. It seems to

us it would be possible for a

court to apply Georgia's firmly

20

SARA ON eat ie GIN eycrie oe ee ae

-

rooted res gestae exception in

an unconstitutional manner. We

should therefore examine’ the

indicia of reliability present

in this case so as to guarantee

that petitioner's sixth

amendment right to

confrontation was not violated.

The sixth amendment right

of an accused to confront the

witnesses against him or her is

a fundamental right. Dutton v.

Evans, 400 U.S. 74, 91 S.Ct.

210, 27 L.Ed.2d 213 (1970). It

is so basic that the Supreme

Court has held that its denial,

"without waiver...would | be

constitutional error if the

21

first magnitude and no amount

of showing of want of prejudice

would cure S.° Smith v.

Illinois, 390 U.S. 129, 131, 88

S.Ct. 748, 749, 19 L.Ed.2d 956

(1968). The purpose of this

right is not only to allow the

defendant a chance at cross-

examination, but also to allow

the jury to observe and judge

the credibility of the

witnesses. Dutton v. Evans,

400 U.S. at 89, 91 S.Ct. at

219.

f5,6]) The declarations of

the unidentified male in this

case are hearsay. Yet a

finding that the statements are

22

hearsay does not necessarily

require a Finding that’ the

confrontation clause has been

violated. See e.g., Dutton v.

Evans, 400 U.S. 74, 91 S.Ct.

210, 27 L.Ed.2d 213 (1970).

The sixth amendment

confrontation clause restricts

the use of otherwise admissible

hearsay in two ways. First,

the prosecution must show that

the out-of-court declarant is

unavailable for trial. Second,

where the declarant is shown to

be unavailable, a hearsay

Statement may be used only if

the circumstances provide

sufficient indicia of

23

da

reliability from which the jury

can evaluate the truth. Ohio

Ve Roberts, 448 U.S. 56, 62-66,

100 S.Ct. 2531, 2537-39, 65

L.Ed.2d 597 (1980). In this

case all parties have agreed |

that the hearsay declarant was

unavailable. R.Vol. ITI. at

835. We must therefore only

determine whether the

circumstances surrounding the

hearsay declarations’ contain

sufficient indicia of

reliability so as to satisfy

the requirements of the

confrontation clause.

{7} There is substantial

circumstantial evidence in this

24

case which provided the indicia

of reliability needed by the

jury to conclude that Hosea

Williams was the driver of the

abandoned car. Law enforcement

officers who arrived on the

scene shortly after the

accident searched the car and

found various documents

addressed to and from Mr.

Williams as well as a Hertz

rental agreement for the

vehicle in Mrs. Williams’

name. R.Vol. I. at 173-174.

Approximately thirty minutes

after the accident Mr. Williams

was arrested near the Bingo

Palace, a) business

25

establishment operated by him

and located within a mile of

the scene of the accident.

R.VoOl. I. at 237-243; 249. He

was wearing a flowered shirt,

was somewhat disheveled and had

a cut over his’ right eye.

Id. An accident specialist

with the county police

department testified that the

rearview mirror in the

abandoned car had been broken

off the windshield and cracked

on the left side. Mr.

Williams’ wound and the broken

mirror were consistent with the

probable pattern of impact on

the driver of the abandoned

26

SPS SORA ae Og eee

i

b

q a

,

.

.

oo

a

2

a

is

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ral

s

Bu

yh

pe

(

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a

car. R.Vol. I. at 284-290. At

the police station, a briefcase

containing some $1,400.00 in

receipts from the Bingo Palace

was removed from the car trunk

and claimed by Mr. Williams.

R.Vol. Tf. at 293-297. A

plastic bag of tomatoes was

also found in the car. Id. A

customer at the Bingo Palace,

on the night of the accident,

testified that she gave Mr.

Williams a plastic bag of

tomatoes that night and later

Saw him take the tomatoes and

his briefcase and head for the

front door of the Bingo Palace

just before 8:00 p.m. R.Vol.

27

a a a ia

is : . +

I. at 154.

The evidence in this case

overwhelmingly afforded the

jury an opportunity to evaluate

the truth of the unavailable

declarant's statement.

California v. Green, 399 U.S.

149, 90 S.Ct. 1930, 26 U.Ed.2d

489 (1970). The purpose of the

confrontation clause _-

increase the accuracy of the

fact-finding process by

guaranteeing that the defendant

has an effective means. of

testing adverse evidence.

Thus, hearsay marked with such

trustworthiness that "there is

no material departure from the

28

reason of the general rule,”

Snyder v. Masschusetts, 291

U.S. 97, 107, 54 S.CT. 330, 33,

78 L.Ed. 674 (1934), does not

violate the confrontation

clause. There was ample

circumstantial evidence in this

case to establish the

trustworthiness of the hearsay

res gestae declarations.

REVERSED.

CLARK, Circuit Judge,

dissenting:

I dissent because

Georgia's res gestae exception

has been applied in an

unconstitutional manner. The

29

2

A

s

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}

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BN

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ag

P|

2

confrontation issue arises in

this case because the jury was

being invited, through hearsay

statements, to believe that the

driver of the abandoned car was

Hosea Williams. Because these

hearsay statements concerning

the identity of the person who

committed the crime lack

adequate indicia of

reliability, they should have

been excluded. Circumstantial

evidence obtained after

Williams was identified as the

possible driver, no matter how

substantial, cannot provide the

reliability required. A study

of the purposes achieved by the

30

right of confrontation leads to

the conclusion that any indicia

of reliability can only come

from a testing of the

circumstances which surround

the making of the hearsay

Statements and from the

statements themselves.

The Confrontation Clause

reflects a preference for

literal confrontation at

trial. Ohio v. Roberts, 448

U.S. 56, 63, 100 S.Ct. 2531,

2537, 65 L.Ed.2d 597 (1980);

California v. Green, 399 U.S.

149, 157, 90 S.Ct. 1930, 1934-

35, 26 L.Ed.2d 489 (1970). The

opportunity for personal

31

examination and cross-

examination of witnesses was

designed to prevent convictions

obtained solely upon the basis

of depositions and ex parte

affidavits. Mattox v. United

States, 156 U.S. 237, 242-43,

15 S.Ct. 337, 339, 39 L.Ed. 409

(1895). The chance to confront

a witness allowed not only for

"testing the recollection and

sifting the conscience of the

witness" but also for

"compelling him to stand face

to face with the jury in order

that they may look at him, and

judge by his demeanor upon the

Stand and the manner in which

32

|

|

he gives his testimony whether

he is worthy of belief." Id.

Confrontation, therefore, gives

the accused and the jury the

opportunity to gauge the truth

and reliability of the witness‘

testimony; the accused by

testing his recollection of

events and the jury by

assessing his demeanor.

Through its examinations of

when hearsay may be admitted

without jrunning afoul of the

Confrontation Clause, the

Supreme Court has maintained

this view as to the goal

achieved by confrontation. As

the Court noted in California

33

Green, supra, confrontation

-———— — +

Ve

insures that the witness will

testify under oath, forces the

witness to submit to cross-

examination and makes it

possible for the jury to

observe the witness and thereby

better able to assess

credibility. 399 U.S. at 158,

90 S.Ct. at 1935, 26 L.Ed.2d at

497. The chances for discovery

of truth are enhanced by

testimony under oath, subject

to cross-examination and given

before a jury. If a witness

testifies under oath, he is

impressed with the seriousness

of the matter at hand and made

34

aware of the possible penalties

for lying. Id. The

capabilities of cross-

examination and observation by

the jury for eliciting truth

are self-evident.! &e

because these means of testing

accuracy are so important that

the lack of proper

confrontation at trial "calls

into question the’ ultimate

‘integrity of the fact-finding

process.'" Chambers Vv.

Mississippi, 410 U.S. 284, 295,

93 S.Ct. 1038, 1046, 35 L.Ed.2d

297 (1973), quoting Berger v.

California, 393 U.S. 314, 315,

89 S.Ct. 540, 541, 21 L.&d.2¢

33

508 (1969). Nevertheless, the

state possesses competing

interests, in effective law

enforcement and ‘the development

of rules of evidence applicable

to criminal proceedings, which

may warrant dispensing’ with

confrontation at trial. Ohio

v. Roberts, supra, 448 U.S. at

64, 100 8&.Ct. at 2538, 65

L.Ed.2d at 607. The Supreme

Court has attempted to

accommodate these competing

interests regarding the

admissibility of hearsay

Statements by requiring’ the

State to show both necessity

and reliability.

36

In Dutton v. Evans, the

Court established four indicia

of reliability “widely viewed

as determinative of whether a

statement may be placed before

the jury though there is no

confrontation of the

declarant." 400 U.S. 74, 89,

91 S.Ct. 210, 220, 27 L.Ed.2d

213 (1970). In assessing the

reliability of .a hearsay

statement, the Court

considered: 1) whether the

statement contained express

assertions of past fact; 2)

whether the declarant had

personal knowledge of the

identify and role of the

37

participant in the crime; 3)

whether it was possible that

the declarant's statement was

founded upon faulty

recollection; and 4) whether

the circumstances under which

the statements were made

provided reason to believe the

declarant misrepresented’ the

defendant's involvement in the

crime. 400 U.S. at 88-89, 91

S.Ct. at 219, 27 L.Ed.2d at

226. These indicia of

reliability serve as

substitutes for the usual means

of testing accuracy in a way

that assessing the strength of

the corroborating evidence

38

against the accused cannot.

Asking the Dutton questions

allows for a consideration of

the circumstances in which the

statements were made and

through that a testing of the

knowledge and perception (2nd

question), memory (3rd

question) and motivation (4th

question) of the witness. In

addition, the content of the

statement itself can be

examined to see if it carries a

warning to the jury about the

weight it should carry (lst

question) .2 Dutton, supra, 400

U.S. at 88, 91 S.Ct. at 219, 27

L.Ed.2d at 226.

39

If these questions are

asked about the hearsay

statements admitted against

Williams, it appears that they

lacked sufficient reliability

to meet the constitutional

standard. First, the hearsay

statements in question were

assertions of past fact. The

statements cannot be considered

as being contemporaneous with

the accident, since the record

makes it clear that none of the

hearsay witnesses heard the

statements about the driver of

the abandoned car until ten to

fifteen minutes after the

accident. This single

40

indication of unreliability is

sufficient to reject the

hearsay. The statements

introduced in this case were

statements about the identity

of the driver rather than an

opinion as was the statement in

puttan. ? These statements

therefore failed to carry on

their face a warning to _ the

jury not to give them undue

weight. 400 U.S. at 88, 91

S.Ct. at 219, 27 %.88.24 at

226.

Second, there was no

evidence introduced about the

declarant's personal knowledge

of identity of the driver. The

41

declarant did not say anything

that would indicate how he knew

the driver of the other car was

Williams. None of the hearsay

witnesses could testify as to

whether the declarant actually

witnessed the automobile

accident, or if he did what

sort of view he had or whether

he merely heard that Williams

was the driver. As the

district court pointed out,

testimony elicited upon cross-

examination of one of the

police officers at the scene

indicated that the declarant

might have overheard the police

mentioning the defendant's name

42

when they found his personal

papers in the abandoned

vehicle. Under these

circumstances, cross-

examination of the declarant

might well have shown that the

declarant was not in a position

to know whether Williams was

driving the car. Dutton, 400

U.S. at 88-89, 91 S.Ct. at 219,

27 L.Ed.2d at 226.

While it seems unlikely

that the statements were based

on faulty recollection’ since

they were made so shortly after

the accident, the district

court was correct in nothing

that the complete lack of

43

opportunity for cross-

examination made any testing of

the declarant's mental state at

the time of the statements

impossible. Finally, there is

nothing about the circumstances

under which the statements were

made to indicate that the

declarant did not misrepresent

Williams’. involvement in the

accident. Since no one saw the

driver of the abandoned vehicle

other than the hearsay

declarant, it is not impossible

that he was the driver of the

car and wanted to shift

Suspicion to another before he

left the scene. It is also

possible that the declarant,

without meaning to lie, simply

passed on information that he

heard in the crush of the

thirty to forty observers at

the accident scene. {T]he

mission of the Confrontation

Clause is to advance a

practical concern for the

accuracy of the truth-

determining process in criminal

trials by assuring that’ the

trier of fact [has] a

satisfactory basis for

evaluating the truth of the

prior statement." Dutton, 400

U.S. at 89, 91 S.Ct. at 220, 27

L.Ed. 2d at 227, quoting

45

California v. Green, supra, 399

U.S. at 161, 90 S.Ct. at 1936,

26 L.Ed.2d at 498, That

mission has not been met here

since the jury was presented no

evidentiary basis upon which to

assess the declarant's

knowledge, perception or

motivation.

Under the circumstances of

this case, the constitutional

error cannot be considered

harmless. The harmless error

test as most recently stated by

the Supreme Court is whether,

absent the constitutional

error, it is “clear beyond a

reasonable doubt that the jury

would have returned a verdict

of guilty.” United States v.

Hasting, U.S. » 103

S.Ct. 1974, 1981, 76 L.Ed.2d 96

(1983). Without the hearsay

evidence, the state presented a

strong circumstantial case

against Williams. The physical

evidence in the car, Williams’

appearance at the time of

arrest and the testimony which

placed him leaving his nearby

business shortly before’ the

accident, point to Williams as

the driver of the car.

Williams, however, also put on

a case of circumstantial

evidence which supported his

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theory that the car had been

stolen. As the district court

points out, the most important

factor concerning the hearsay

statements is that they

constituted the sole direct

evidence placing Williams at

the scene. Without this

evidence, the trial would have

turned on credibility

determinations and the weighing

of the circumstantial

evidence. Since there is a

doubt that the jury would have

found Williams guilty without

the identifying statements, the

admission of the hearsay

Statements cannot be considered

48

Ve

ed

=

‘ee

on

2

harmless. Having determined

that the petitioner was denied

his sixth amendment right to

confrontation and that this

error was not harmless, I would

grant the writ of habeas

corpus.

49

FOOTNOTES

FAY, Circuit Judge:

lthe trial judge sentenced

Mr. Williams to one year of

incarceration for the

misdemeanor conviction. He had

served approximately fur and

one-half months of the sentence

when he was released on bond by

the federal district judge

pending disposition of | his

habeas petition. He remains

subject to serving the balance

of his sentence,

2

The sixth amendment

provides in part: "In all

50

criminal prosecutions, the

accused shall enjoy the

right...to be confronted with

the | witnesses against

MEMs cece” The right to

confrontation is a fundamental

right applicable to the states

under the fourteenth

amendment. Pointer v. Texas,

380 U.S. 400, 85 S.Ct. 1065, 13

L.Ed.2d. 923 (1965).

3We disagree with the

district court's conclusion

that the res gestae exception

is not "firmly rooted in

Georgia law." Although we find

that it is a firmly embedded

exception to the hearsay rule

51

we also note that it has been

criticized by both the

commentators and the courts.

See, e@e.g., Cox v. State, 64 ga.

374, 410 (1897); Harper, Res

Gestae in the Georgia Law of

Hearsay, 5 Mercer L.Rev. 257

(1954). The four current

generally prevalent exceptions

that were part of the res

gestae label are declarations

of present bodily condition,

declarations of present mental

state or emotion, excited

utterance and present’ sense

impressions. See Collins v.

Francis, 728 F.2d 1322 (llth

Cir. 1984); McCormick on

52

Evidence 686-711 (2d ed. 1972);

4 Weinstein's Evidence

§803(1) [(01}]-(3) [06] (1981).

‘the use of the transcript

of the preliminary hearing was

permitted by an Ohio statute

which permits the use of such

testimony when the |. witness

cannot be produced at trial.

See, Ohio Rev .Code Ann.

§2945.49(1975).

CLARK, Circuit Judge,

dissenting:

lrhe Court in California

v. Green stated that cross-

examination was the best device

invented for the discovery of

53

truth. 399 U.S. at 158, 90

S.Ct. at 1935, 26 L.Ed.2d at

497.

2according to the Court in

Dutton, if the hearsay

statement contains no

assertions of past fact, then

it carries on its face a

warning to the jury not to give

it undue weight. This is

because the jury is just being

invited to infer something

rather than accept it as fact.

33% is true that one

hearsay witness testified that

the driver “looked just like

Hosea Williams” but the other

two witnesses testified that

54

SSM VOR) SOARS ©. cases =. SSRIS GY SS SS CO SS See) SUE Pe 8 Se

a dinriineeaietiieatiaiinanaie we Sw aveeng 8 ee eS BB a ee al

the driver was expressly

identified as williams. One of

these overheard the declarant |

say that the driver was

Williams. The final hearsay

witness testified that while he

and some others were helping

the injured driver an

unidentified black man came up

and asked the injured man if he

knew who had hit him. When the

dazed victim said that he did

not, the declarart said "Hosea

Williams" after standing around

two or three minutes and melted

away into the crowd.

55

fr ek | ec ee ee

Nn rN

i __ Sepmmnmneeeetnenenaerereeeneneeeemenneaeaaaetrarriinaneriin

APPENDIX B

Denial of Rehearing

IN THE UNITED STATES

COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 83-8464

HOSEA LORENZO WILLIAMS

PETIONER-APPELLEE,

VS.

WAYNE MELTON, ET AL.

RESPONDENTS-APPELLANTS.

Appeal from the United States

District Court for the

Northern District of Georgia

CN PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING

EN BANC

(Opinion June 7, 1984 llth

Cir., 1984, -.F.2d_).

Before RONEY, FAY and

CLARK, Circuit Judges.

PER CURIAM:

The Petition for Rehearing

is DENIED and no member of this

panel nor Judge in regular

service on the Court having

requested that the Court be

polled on rehearing en banc

(Rule 35, Federal Rules of

Appellate Proceudre; Eleventh

Circuit Rule 26), the

Suggestion for Rehearing’ En

Banc is DENIED.

Judge Fay

United States Circuit Judge

APPENDIX C

District Court Order

—_

J 7

;

4

i

_

'

; om

a

i

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

HOSEA LORENZO WILLIAMS

Petitioner,

vs.

WAYNE MELTON, et al.

Respondents

CIVIL ACTION NO. C82-437A

ORDER

This habeas corpus

petition filed pursuant to 28

U.S.C., §2254 is presently

before the Court on the

magistrate's report end

recommendation that the

petition be denied. Although

petitioner Hosea Williams is

presently free on bond granted

by the magistrate on November

10, 1982, pending a decision by

this Court on his habeas corpus

petition, he remains subject to

serving the balance of a one-

year sentence imposed by the

DeKalb County Superior Court

following his 1981 conviction

for leaving the scene of an

accident.

Petitioner challenges the

validity of his conviction on

the sole ground that his sixth

amendment right to

confrontation of the witnesses

against him! was violated by

the trial court's admission of

certain hearsay statements

under the res gestae exception

to the hearsay rule. In its

opinion upholding the trial

court's admission of the

Statements, the Georgia Court

of Appeals described the

challenged testimony as

follows:

Two residents of the

area who had proceed-

ed to the scene imme-

diately upon hearing

the crash testified

that they overheard

an unidentified black

male in the crowd of

onlookers remark that

the driver of the aban-

doned vehicle was Hosea

Williams. A third such

resident testified that

he heard an unknown de-

clarant state that the

driver had been wearing

a flowered shirt and

"looked like" Hosea

Williams.

Williams v. State, 162 Ga.App.

415, 415, 291 S.E.2d 732

(1982).

The sixth amendment

confrontation c’ause restricts

the use of otherwise admissible

hearsay in two ways. First,

the state must demonstrate the

unavailability of the hearsay

declarant; and second, where

the declarant is shown to be

unavailable, a hearsay

statement may be used only if

made under circumstances

providing sufficient “indicia

of reliability." Ohio vy.

Roberts, 448 U.S. 56, 65-66

(1980). In the instant case

petitioner does not object to

the magistrate's finding that

the hearsay declarant? was

shown to be unavailable. The

sole issue before the Court,

therefore, is whether the

circumstances surrounding the

making of the hearsay

statements contain sufficient

"indicia of reliability" to

comport with the requirements

of the confrontation clause.

As already noted, the

Georgia Court of Appeals held

that "the trial court acted

within its discretion in

finding the declarations to be

part of the res gestae."

Williams, supra, 162 Ga.App. at

418.3 The state habeas court,

in addressing the confrontation

issue, relied on the Georgia

Court of Appeals opinion in

Ewald v. State, 156 Ga.App. 68,

274 S.E.2d. 31 (1980), which

was decided after the Supreme

Court's decision in Roberts,

Supra, and which apparently

held that statements properly

admitted as a part of the res

gestae do not violate a

defendant's right to

confrontation. Order on

Petition for Writ of Habeas

Corpus, Civil Action No. 82-

6225, (Super. Ct. DeKalb Co,

Aug. 9, 1982) (Fuller, J.).4

Under Georgia law the res

gestae exception to the hearsay

rule admits "{djeclarations

accompanying an act, or. s0

nearly connected therewith in

time as to be free from all

suspicion of device or

afterthought....” 0.C.G.A.,

§24-3-3 (Michie 1982). In

applying the exception, the

Georgia courts continue to

follow the interpretation laid

down in the early case of

Mitchum v. State, ll Ga. 615,

627 (1852): "Tf the

declarations appear to spring

out of the transaction - if

they elucidate it - if they are

voluntary and spontaneous, and

if they are made at a time so

near to it, as reasonably to

preclude the idea of deliberate

design, then they are to be

regarded as contemporaneous."

In his report the

magistrate points out that

[t]he Georgia res

gestae exception to

the hearsay rule ap-

pears to be an amalga-

mation of two well-

recognized common law

exceptions to the hear-

Say rule: the present

sense impression rule

and the excited utter-

ance rule. Those two

rules admit a statement

if it was made concern-

_ing an event while the

declarant was observing

the event or under the

stress of excitement

caused by the event.

Report and Recommendation at

7. Noting that "[i]t has been

long recognized that a

statement made spontaneously

while perceiving an event is

sufficiently reliable to

justify its admission’ even

though it is hearsay," the

magistrate found that "[t)he

Georgia res gestae exception is

a firmly rooted hearsay

rule." Id. Following the

Roberts Court's holding that

"{[rJeliability can be inferred

without more in a case where

the evidence falls within a

firmly rooted hearsay

exception," 448 U.S. at 66, and

noting that this Court is bound

by the state court's

evidentiary ruling that’ the

hearsay statements were a part

oF the res gestae, see, e.g.,

McLaughlin v. Vinzant, 522

F.2d. 448, 450 (lst Cir. 1975),

the magistrate concluded that

10

the statements bore adequate

indicia of reliability, and

that their admission therefore

did not violate petitioner's

sixth amendment right of

confrontation. Id. at 8.

After careful

consideration, this Court has

concluded that it cannot agree

with the magistrate's initial

premise, namely, that the

Georgia res gestae exception is

a "firmly rooted hearsay

exception" within the meaning

of Roberts, supra. In Roberts,

the Court pointed out that it

had applied the “indicia of

reliability” requirement

ll

“principally by concluding that

certain hearsay exceptions rest

upon such solid _ foundations

that admission of virtually any

evidence within them comports

with the ‘substance of the

constitutional protection.'"

Roberts, supra, 448 U.S. at 66

(quoting Mattox Vv. United

States, 156 U.S. 237, 244

(1895)). The Court noted that

the exceptions for dying

declarations, cross-examined

prior-trial testimony, and

business and public” records

were among these "firmly

rooted" exceptions. Id. n.8.

The res gestae exception, has

12

ii |

for many years been the object

of severe criticism from both

commentators and courts because

of its vagueness and

imprecision.

More than sixty years ago,

one commentator inveighed

against continued recognition

of the exception in the

following terms:

The marvelous capacity

of a Latin phrase to

serve as a substitute

for reasoning, and the

confusion of thought

inevitably accompanying

the use of inaccurate

terminology, are nowhere

better illustrated than

in the decisions dealing

with the admissibility of

evidence as "res gestae."

It is probable that this

troublesome expression

owes its existence and

persistence in our law

13

Eee

of evidence to an inclina-

tion of judges and lawyers

to avoid the toilsome

exertion of exact analysis

and precise thinking.

Morgan, bh Suggested

Classification of Utterances

Admissible as Res Gestae, 31

Yale L.J. 229 (1922). And even

before the turn of the century,

the Supreme Court of Georgia

itself “eschewed anything so

impracticable" as a precise

definition of the res gestae:

The difficulty of

formulating a des-

cription of the res

gestae which will

serve for all cases,

seems insurmountable.

To make the attempt is

something like trying

to execute a portrait

that shall enable the

possessor to recognize

every member of a

14

T

numerous family.

Cox v. State, 64 Ga.

374, 410 (1897).

More recéntly, an observer of

the Georgie rule concluded that

"(tlhe confusion gets further

compounded with each new

attempt to explain ‘what res

gestae really means,'‘" and

insisted that [t]here is no

remedy except to banish

irrevocably this insidious

phrase from our legal

vocabulary." Harper, Res

Gestae in the Georgia Law of

Hearsay, %S Mercer L.Rev. 257

(1954). Finally, since the

Court is concerned here with a

question of federal

LS

constitutional law, it is

Signficant that the Federal

Rules of Evidence reject a res

gestae exception to the general

hearsay exclusion in favor of

more specifically delimited

exceptions for present’ sense

impressions, excited

utterances, and then existing

mental, emotional or physical

conditions. See Fed.R.Evid.

803 (1)-(3).

In light of the vagueness

and imprecision of the res

gestae exception, this Court

declines to hold that-~= any

evidence admitted under this

exception in accord with state

16

eee

evidentiary law necessarily

comports with the requirements

of the sixth amendment

confrontation clause. Rather,

as mandated by Roberts, supra,

448 U.S. at 66, this Court

holds that such “evidence must

be excluded...absent a showing

of particularized guarantees of

trustworthiness."

Accordingly, the Court now

turns to an analysis of the

particular circumstances

Surrounding the challenged

hearsay testimony admitted in

the instant case to determine

whether there existed

sufficient guarantees of

17

trustworthiness to meet federal

constitutional requirements.

The Court is guided in its

analysis by the plurality

opinion in Dutton v. Evans, 400

04. . 7%, - (1970), where

Justice Stewart wrote "that the

mission of the Confrontation

Clause is to advance a

practical concern for the

accuracy of the truth-

determining process in criminal

trials by assuring that ‘the

trier of fact [has] a

satisfactory basis for

evaluating the truth of the

prior statement.'") Quoting

California v. Green, 399 U.S.

18

149, 161 (1970).

In Dutton, supra, 400 U.S.

at 88-89, Justice Stewart

applied the following criteria

in determining that an out-of-

court declaration of a co-

conspirator had sufficient

indicia of reliability for

admission into evidence:

First, the statement

contained no express

assertion about past

fact, and consequently

it carried on its face

a warning to the jury

against giving the

statement undue weight.

Second, Williams' per-

sonal knowledge of the

identity and role of

the other participants

in the triple murder is

abundantly established

by Truett's testimony

and by Williams' prior

conviction. It is incon-

ceivable that cross-exami-

19

nation could have shown

that Williams was not in a

position to know whether

Or not Evans was involved

in the murder. Third, the

possibility that Williams'

statement was founded on

faulty recollection is re-

mote in the extreme.

Fourth, the circumstances

under which Williams did

not misrepresent Evans'

involvement in the crime.

These circumstances go be-

yond a showing that

Williams has no apparent

reason to lie to Shaw.

His statement was spon-

taneous, and it was

against his penal

to make it.

Using the Dutton criteria as a

framework for analysis, and

after a careful review of the

entire trial transcript, this

Court is ineluctably drawn to

the conclusion that the hearsay

statements admitted at trial

20

over petitioner's objection did

not bear sufficient indicia of

reliability to meet the

constitutional standard.

First of all, unlike in

Dutton, the challenged

statements in the instant case

were express assertions of past

fact. Although the state

court's evidentiary ruling that

the statements were part of the

res gestae implies that they

were legally deemed to have

been uttered contemporaneously

with the facts asserted

therein, this does not alter

the reality reflected in the

trial testimony that the

21

statements were actually made

between ten and fifteen minutes

after the events described had

occurred. Thus, Mr. Robert

Steve testified that about ten

or fifteen minutes had elapsed

after the accident when = an

unidentified black man who was

in the crowd that had gathered

remarked to him and several of

the other bystanders that “the

guy that was driving that

car...looxad just like Hosea

Williams," that this man who

looked like Williams “went over

and looked at him [the injured

driver of the other car] and

{then] went down the street,”

22

and that [h]le had on a

flowered shirt" (T-46, 50,

56). Mrs. Addie Harkness also

testified that it was ten or

Fifteen minutes after the

accident that she overheard an

unidentified black male state

that it was Hosea Williams who

had been driving the abandoned

car (T-62, 64). Finally, Mr.

Horace Epperson, while not

indicating the specific amount

of time that had_- elapsed,

testified that some time after

the accident, while he and

other bystanders were attending

to the injured driver, an

unidentified black man

23

comes up and says, "Do

you know who hit you,

Brother?" And the guy

says, "No." He is

sitting there like this,

you know. He said,

"Hosea Williams." And

at that time he stood

around there for two or

three minutes and then

just melted into the

crowd. (T-74).

Second, there was no

evidence whatsoever of the

hearsay declarant's personal

knowledge of the identity of

the driver of the abandoned

car. in tact, testimony

elicited by defense counsel on

his cross-examination of Travis

J. Vanlaeys, a DeKalb county

deputy sheriff who was’7 the

first law enforcement officer

to arrive at the scene of the

24

accident (T-179), established

that the declarant's

"knowledge" might have _ been

based on an overheard

conversation between Vanlaeys

and DeKalb County police

officer C.A. Jones. Vanlaeys

testified that shortly after

his arrival he and Jones

searched the abandoned car

while onlookers stood by within

a distance of twenty to twenty-

five feet, and that upon

discovering correspondence

addressed to and from

petitioner, Jones "said

something like ‘Look at this,

Hosea Williams' [and] I said

25

‘Hosea Williams?'" (T-209).

Paraphrasing Dutton, supra, 400

U.S. at 88-89, under’ these

circumstances it is certainly

conceivable that cross-

examination could have_ shown

that the hearsay declarant was

not in ae position to know

whether or not petitioner

Williams was involved in the

accident.

Third, although the

possibility that the hearsay

declarant's statements were

founded on faulty recollection

is perhaps remote given the

relatively short time interval

between the accident and the

26

—

time the statements were made,

the complete absence of an

opportunity to cross-examine

left unexplored the mental

state of the declarant at the

time of his statements. The

defense thus had no opportunity

to investigate possible drug or

alcohol intoxication, or other

mental condition, which could

have affected even very short-

term memory.

Fourth, and finally, even

accepting, as this Court must,

the state court's determination

that the statements were part

of the res gestae, the totality

of circumstances under which

27

the statements were made does

not give adequate assurance

that the declarant was without

motive or opportunity to

deliberately misrepresent

petitioner's involvement in the

accident. Petitioner's long

and controversial career’ in

public affairs has undoubtedly

garnered him many enemies,

Moreover, if in fact petitioner

was not the driver of the

abandoned car, then one person

with clear motive and

opportunity to lie about his

involvement would have been the

person who was the driver.

Nothing in the evidence

28

—EEE———

presented at trial negates the

possibility that the hearsay

Geclarant himself might have

been the driver of the

"abandoned" car seeking to

deflect suspicion from himself

to petitioner, whose car he had

stolen.

The foregoing analysis has

led this Court to the

conclusion that the challenged

hearsay statements do not bear

sufficient indicia of

reliability to withstand

scrutiny under the

confrontation clause. It is

clear beyond doubt that in the

absence of cross-examination,

29

and without an opportunity to

observe the declarant

testifying under oath, "the

trier of fact [was denied] a

satisfactory basis for

evaluating the truth of the

fhearsay ] statement[s]."

Green, Supra, 399 U.S. at

161. Accordingly, the Court

concludes that the admission of

the hearsay testimony. over

petitioner's objection was a

violation of his sixth

amendment right to confront the

witnesses against him.

This Court's determination

that a constitutional error has

been committed, however, is not

30

the end of “the required

analysis. "[T]here may be some

constitutional errors which in

the setting of a particular

case are so unimportant and

insignificant that they may,

consistent with the Federal

Constitution, be deemed

harmless, not requiring the

automatic reversal of the

conviction," Chapman Ve

Casscornsa, 3286.U0.8. i8, 22

(1967). -In determining whether

a constitutional error is

harmless, "[{t]Jhe question is

whether there is a reasonable

possibility that the evidence

complained of might have

31

contributed to the

conviction." Imad. at 23

(quoting Fahy v. Connecticut,

375 U.S. 85, 86-87 (1963)). In

a recent case, the Supreme

Court stated the test this

way: "The question a reviewing

court must ask is this: absent

the [admission of the hearsay

statements], is it clear beyond

a reasonable doubt that’ the

jury would have returned a

verdict of guilty?" United

States v. Hasting, 5l U.S.L.W.

4572, 4575 (U.S. May 23, 1983)

(citing Harrington Vv.

California, 395 U.S. 250, 254

(1969)). Although this Court

32

is uncertain whether the

Chapman and Hasting statements

of the applicable standard are

entirely consistent, cf.

Harrington, supra, 395 U.S. at

255 (Brennan, J. dissenting)

(Harrington “overrules"

Chapman}, under either

formulation there is no doubt

that the error in this case was

not harmless to petitioner.

It is true that the state

presented substantial

circumstantial evidence’ that

petitioner was the driver of

the abandoned car. Law

enforcement officers who

arrived on the scene shortly

33

after the accident searched the

car and found various documents

addressed to and from

petitioner Williams, as well as

a Hertz rental agreement for

the vehicle in Mrs. Williams’

name (T-121-22). Approximately

thirty minutes after the

accident petitioner was

arrested near the Bingo Palace,

a business establishment

operated by him and _ located

within a mile of the scene of

the accident (T-185-91; 197).

Petitioner was wearing a

flowered shirt, was somewhat

disheveled, and had a cut over

his right eye. Id.

34

Later, at the police

Station, a briefcase containing

some $1,400.00 in receipts from

the Bingo Palace was removed

from the car trunk and claimed

by petitioner (T-241-45). A

Plastic bag of tomatoes was

also found in the car, id., and

a customer at the Bingo Palace

on the night of the accident

testified that she gave

petitioner a plastic bag of

tomatoes that night and later

saw him take the tomatoes and

his briefcase and head for the

front door of the Bingo Palace

just before 8:00 P.M. (T-102).

With regard to the cut on

35

petitioner's forehead, Larry J.

White, an accident specialist

with the DeKalb County Police

Department, testified that the

rearview mirror in the

abandoned car had been broken

off the windshield and cracked

on the left side. According to

White, petitioner's wound and

the broken mirror were

consistent with the probable

pattern of impact on the driver

of the abandoned car (T=-232-

38).

Petitioner, on the other

hand, also put forward

circumstantial evidence in

support of his position that

36

the car had been stolen shortly

before the accident and was

being driven by the- unknown

thief when the accident

occurred. The general manager

of the Bingo Palace testified

that she had put the tomatoes

and money in the car and may

have inadvertently left the

keys in the trunk lock (T-279-

83). She and both of Williams'

sons testified that he was at

the Bingo Palace between 8:00

and 9:00 P.M. on the night of

the accident {T-283, 337-38,

365). One of the two sons also

described the cut over

petitioner's eye as just a

37

scratch (T-382), although a

nurse at the jail who examined

the wound testified that she

told petitioner it would

require about five stitches to

close (T-171-73). Petitioner

himself testified that he was

working at the Bingo Palace the

night of the accident and cut

his head on the jagged edge of

a door in a back storage room

(T-434-35, 478-79). He further

testified that he had left the

Bingo Palace only to go to a

nearby convenience store for a

band-aid, and it was then that

he was arrested (T-435-36).

This brief review of the

38

evidence is sufficient to point

up the most significant factor

concerning the improperly

admitted hearsay statements,

namely, that they constituted

the sole direct evidence

placing petitioner at the scene

of the accident. cf.

Harrington, supra, 395 U.S. at

254 (petitioner's presence at

scene of crime was established

by other direct evidence, so

that hearsay evidence was

merely "cumulative"). This

Court certainly is not

convinced beyond a_e resonable

doubt, as it must be before

holding that a constitutional

39

error was harmless, that there

is no reasonable possibility

that this unique evidence of

such a damaging nature

contributed to the conviction

6

of petitioner. Paraphrasing

Hasting, supra, 5l U.S.L.W. at

4575, absent the admission of

the hearsay statements, it is

not clear beyond a reasonable

doubt that the jury would have

returned a verdict of guilty.

On the contrary, in this

Court's view, the improperly

admitted hearsay evidence to

the effect that some ten to

fifteen minutes after the

accident an unidentified black

40

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a at

man was overheard to say that

Hosea Williams was the guilty

party “and then just melted

into the crowd" (T-74), was the

linchpin of the state's

otherwise purely circumstantial

case. Absent this evidence,

the jury would have been

required to weigh more

carefully the parties'

conflicting theories of the

available evidence, with the

attendant need to judge the

credibility of the various

witnesses, in order to reach an

ultimate determination of guilt

or innocence. This Court

cannot, under these

41

nen Agave

“tee ape

reife uk ARS

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3

circumstances, presume to know

beyond a reasonble doubt what

that determination would have

been.’

Accordingly, the Court

having held that petitioner was

denied his sixth amendment

right to confront the witnesses

against him, and that this

error was not harmless, the

petition for writ of habeas

corpus is hereby GRANTED.

However, the writ's mandate is

SUSPENDED for a period of 90

days to afford the-state an

opportunity to retry

petitioner. The magistrate's

bond shall remain in effect

42

during this period. If the

state does not retry petitioner

withn 90 days, petitioner shall

be DISCHARGED from any further

incarceration pursuant to his

conviction in the Superior

Court of DeKalb County,

Georgia, on April 21, 1981.

IT IS SO ORDERED, this 9th

day of June, 1983.

Marvin H. Shoob, Judge

United States District Court

Northern District of Georgia

43

FOOTNOTES

ly.s. Const. amend. VI

provides in part: "In all

criminal prosecutions, the

accused shall enjoy the

right...to be confronted with

the witnesses against him..."

This provision is made

applicable to the states by the

due process clause of the

fourteenth amendment. Pointer

v. Texas, 380 U.S. 400 (1965).

2The record does not

establish that there was more

than one declarant whose

Statements were overheard. The

Court will, therefore, refer to

the source of the statements in

the singular.

3The court of appeals did

not address the constitutional

question, because petitioner

failed to raise that issue on

direct appeal.

4petitioner's subsequent

application for a certificate

of probable cause to appeal the

denial of habeas relief was

denied by the Supreme Court of

Georgia on October 27, 1982.

The instant petition was filed

on November 9, 1982.

44

cf. McLaughlin, Supra,

522 F.2). at 451, where the

hearsay evidence was admitted

under the state's spontaneous

utterance exception:

It is true that there

is no evidence of

precisely where Dellamano

[the hearsay declarant]

was and what events she

witnessed leading her to

announce that McLaughlin

[petitioner] had shot

Sheridan. But, it was

permissible to draw an

inference not only from

the force of the state-

ment itself but from the

fact that she was accom-

panying McLaughlin and

was somewhere in the

immediate vicinity of the

fatal event, that she

possessed firsthand know-

ledge of the killing.

See McCormick on Evidence

§297 at 705 (2d. ed.

1972)

Just as in McLaughlin, there is

no evidence in the instant case

of precisely where the hearsay

declarant was or what events he

witnessed that led him to make

the statements later testified

45

to by the three nearby

residents. Unlike McLaughlin,

however, there is also nothing

from which one could infer that

the declarant was speaking from

firsthand knowledge, other than

the content of the statements

themselves. There is no

evidence of where the declarant

came from, when he arrived on

the scene, or whether he

witnessed the accident at

all. Unlike other cases, such

as McLaughlin, where admission

of hearsay testimony has. been

upheld, in the instant’ case

literally nothing is known

about the declarant except that

he made certain statements

inplicating petitioner in a

crime "and then just melted

into the crowd [T-74]." The

use of such anonymous

accusations of wrongdoing is

precisely the sort of evil that

the confrontation clause was

intended to prevent.

6Indeed, the jury's

request that the Court

reinstruct them on the meaning

of “res gestae" suggests that

the hearsay evidence may very

well have been at the focus of

their deliberations. Moreover,

in response to the request, the

46

trial judge charged the jury,

inter alia, "that statements

made at the scene of a crime

may be admitted at trial as

Original evidence where shown

that they are contemporaneous,

voluntary, and made at a time

which indicates the lack of

deliberation and deception and

freedom from all suspicion of

device or afterthought" (T-

556). In this Court's view,

this charge improperly

emphasized the trial judge's

finding that the evidence was

trustworthy and therefore may

have caused the jury to give

the evidence undue weight in

its deliberations.

7The apparently

contradictory testimony of

Barbara Golden concerning the

taking of certain photographs,

which the defense introduced to

prove that petitioner's head

wound was only superficial, was

certainly damaging to

petitioner's case. However,

even though Ms. Golden later

pled guilty to perjury, this

Court cannot rely on- that

contradictory testimony to

discredit petitioner's entire

defense and thereby reach the

conclusion that the

47

constitutional error was

harmless. All of this would

simply jo to the credibility of

Ms. Golden and petitioner

himself, and where a verdict

depends on such credibility

determinations, the case is not

one in which a reviewing court

is competent to determine that

a guilty verdict was inevitable

and any error therefore

harmless.

48