# Petition for Writ of Certiorari — Williams v. Melton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2389%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 1073 ## Text — - ee — - ww v S 4-5 g« 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? : . S al ay a : , ke a ain @ —_ - ~~ ma yy, be v7) » ° n> eal id i’ ie - es meh OS Pe eo wet St Sees : ‘ , rhe vrA tee afl 2 2 vee ‘ os > 7 * i re ‘eves eh vw 3 ' . a wey ‘ ; 2 Te it Bed a Lk é * J é a» ‘- ® P| j ; ‘ Sad. ie ¢ i be Oe Ls ee ae | o 2 el : Sa ae at *s f . + Soe y owe > ¢ TT , ,, Q a ey ie , \ ohae aaa SetGald- a ene anand tye tassoade. col paps. i eae stent ee | Laks Ptakies 16 To -« : ; e i prea ehow Ft 30S em) pers. a i 5 ge olan 3oce Saale san. it 1a | DP ye ‘ rig “ay | a ee. ree | he “a ea? Sarcy_- teen rei ’ ha my 4 = . 4 yi - a a eT ee | ? Fi Laré > de fi i % "9 a" t Pts 2 - ’ « a > ks cc : a Pal ad oy + fr rs 4 . 4 3, 1 =? at vam 2 a 7 U - 4 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 2 2a eSnigoana Sg eicporeesiea : Asa 5 ‘fire ica® Yar me Te | win y of ee eg Ot. pee dat os ‘eshelety . "eu muerte oft ee eo 4 ea Jeoial Yours “ ce as i © 744, oe | ~ Lee tex : eh: : : jaime + VA set . ee? or hainmo} , eel uee>* ? « Sire « Tsan, ? 4 . 2 . ‘e2 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 _ . ot ore tanosanete a] 4 a 7 oc i sri Tao: Hey - alge nl @melis” ronat = oe] 607 Cteeged PyeD : betkikc. giiec an . eles VEOTR nm) AGU iee ee) -awehleg ¢4 23am ee i ed ee eel) 7@. wagon, 1. aey Qo °-a04 eens siesane® -~=4 Ce nies tinetwiise TSSTSG) SHI.) Erase wal as xd Balti Teese. ate 19, wet ‘‘eppata Poa. Limeum pers . yf (hice ifer -1t*, beGuiG+s ps0 rset ' oar, ete - ve. 73) se. at 7 “ee Gaus sist F=iSk SeAbe? ; at) wie CAF ae 1b oe 11 ree i | eves -Oo- yer Le » al hey Shape? Sac eagso tie “of “4S yO 11iel re eke. Be ce 4. 3 "ay @ os top : eA7 Va *eCreee engi i Siptjneatan, & 27pl1y a [Pal es «(elie ae. eat * g et a a - 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 33 a ie Mt a i. } =, oe ee ¢ pas as ie ‘Ne etotied: are yates: gees sine Hen Gis ide acto sie Gas piizras os aev eS Bike Holdawd: heave Thee - . ‘ ’ pe Z| ‘ a 2 eS a *. ; “ost ¢ ‘ ‘ = me bi ¥ in 2 ~~ = m2 v6 BPA SRSeIL ) oT mig? S. on * 2 it 1 Sy Reig eS Gai ay j - e e- ‘ 7 > ie tae : i ¢ , ch.) = ae . * + ow 2 ® }. ~ as ; Te y , ' * 4 t ‘ *~ f ' i * ‘ - 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 » a ie od oa ’ y ' > . Pi a es ‘ 3 a al - ‘ * q we “ i . 4 * ’ « ~ fF - a i al .- * el hoe —— i o ae | ag ¥ ; : ‘ - , . ” ? ‘ ~ er Pe coe it 77 - s a ~i 7 acme lt ns oe V- —we e | 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 a : ie: : a es 5 havea . J 7 : “a0 ect % - ons Pear sobre sae SaUaANS. e, dint. ‘odie oT ° aoa nae m.\: ton: +b sig iateso Tas S760] tat. + - sl ee jasss sqecate he saPsetcus ens Po | a Paint: Toye ¥ é ; 7 a bd X ‘ a. s y 4 2 “ ~i¢ \ 6 a a . ee . Me € Rj oo = 2 ‘ { % 42 . * 7 ie De . 14 ‘11 ; ‘ & ~ Ny ‘ a , P : la ’ . me, 8 “fs oy ‘ g v . alt L a * ol 1) 7 a ie A> = 2 th ; nan a si. - a Sad - rr in : a a ~ e ru * 1] + My ae i . 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 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 — = : * aes 2s ee mates . ee ; * =e s 2 ® 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 = ? _. a hs, ab - 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 ‘oe 2 4. “Ve! ) Ga) at : . a r od i e ey io thay > sie gan ee = , _ mes ab : Fr - aaa 7 : = > ee ‘ ‘ndeitokw wt 7 ath et he ee SERIT IIa. Gid- Pod . = A 7 a lio ae —_ _ 7 A i ea = eae i 23@ = 7) «= ae Sea ye 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 b t ¥ > 4 - sag - mn iW ' - “ - ‘ i ’ . a8 ‘ > > . * 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 ; | is | . ea : r | ' ‘ _ | | : . : . ; : J ‘ * “ al q cay * Pa} : c ‘ : ‘ ’ r q 1. ; a : ’ é ) rs ‘ : — a ‘ 2 ‘(ae : me? 'y a “I } 4 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 v7 7cScQ * ait : , f 4 “4 | 5 f . 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2389%3A1. Public record. Not legal advice.