Opposition Brief — Williams v. Melton

—

Tr

Office - Supreme Court, U.S,

FILED

NOV 13 1984

ALEXANDER LL. STEVAS.

No. 84-583 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM 1984

HOSEA LORENZO WILLIAMS,

Petitioner,

Vv;

WAYNE MELTON, ET AL,

Respondents.

BRIEF IN GPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Counsel for Respondent

RosBeErt E. WILSON

District Attorney

Stone Mountain Judicial Circuit

DeKalb County Courthouse

556 N. McDonough Street

Decatur, Georgia 30030

(404) 371-2561

TABLE OF CONTENTS

TABLE OF CONTENTS... ccccccccccee «

TABLE OF AUTHORITIES... ....22 cece eeee

STATEMENT OF THE CASE.....2.2-eeeeceee

I. Proceedings in the Courts

BELOW. cc cccccccccccccccceces

II. Statement of Facts..........

SUMMARY OF ARGUMENT......2ccc ee ccccee

ARGUMENT & CITATION OF AUTHORITIES...

I. The Admission At Trial Of

Hearsay Testimony Under

The Georgia Statutory Res

Gestae Exception to the

Hearsay Rule Did Not

Violate Petitioner's Sixth

Amendment Right of Con-

SRORERSIOR s cocsccccseccecess

II. The Eleventh Circuit

Decision Is In Accord With

Controlling Opinions From

This Court And There Is No

Significant Split Among

The Circuits As To How To

Apply Dutton v. Evans and

EE TB eee

CAs ES OS SeetEEEO OSES OEO ESC AESES

CERTIFICATE OF fs Pr

i

ii

10

13

13

33

36

38

TABLE OF AUTHORITIES

CASES

California v. Green, 399 U.S.

149, 90 S.Ct. 1930, 26 L.Ed.

2a 489 6h, ) errr

Dutton v. Evans, 400 U.S. 74,

91 S.Ct. 210, 27 L.Ed.2?d 213

7, eyerwrrTTy TTC cm.

Flewallen v. Faulkner, 677 F.

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

Haggins v. Warden, Fort Pillow

State Farm, 715 F.2d 1050

(6th Care fo ere ee

Kirby v. United States, 174 U.S.

47, 61, 19 S.Ct. 574, 43 L.Ed.

890 cae eon cé6ts Ohba eeerees

Mancusi v. Stubbs, 408 U.S. 204,

92 S.Ct. 2308, 33 L.Ed.2d 293

bio) aww se To Pe

Mattox v. United States, 146

U.S. 1460, 13 8.Ce. 50, 36 L.

Ed. 917 fl. } a eee

McLaughlin v. Vinzant, 522 F.

2d 448, (lst Cir. 1875) cert.

den. 423 U.S. 1037, 96 S.Ct.

573, 46 L.Ed.2d 412 (1975)...

Ohio v. Roberts, 448 U.S. 56,

100 S.ct. 2531, 65 L.Ed.2d

597 4). ) Peewee ee

affiea

PAGE

17

12,14,17

28,35,37

35

21

15

15,18

15,17

16,21

11,12,17

27, 34,35

36

Pointer v. Texas, 380 U.S.

400, 85 S.Ct. 1065, 13 L.

Ed.2d 923 (1965)....eeeeees - %&AS

United States v. Boyd, 620 F.

2d 129 (6th Cir. Beensseceose 48

United States v. Fleishman, 684

F.2d 381 (9th Cir. 1982)..... 29

United States v. Golden, 671 F.

2d 369 (10th Cir. 1982)...... 24

United States v. Iron Shell, 633

F.2d 77 (8th Cir. 1980)....... 24

United States v. Kelley, 526

F.24 615 (8th Cir. 1975)..... 15

United States v. Kelly, 349 F.

Be Faw COG CEE, AFG cccccccs 15

United States v. McKinney, 707

F.2G' 30h (SCR Cif. LOSS). cece 35

United States v. Napier, 518 F.

ae ee COE Gabe APlebecescee 23

United States v. Nick, 640 F.2d

1199 (9th Cir. 1979)......... 21

United States v. Perez, 658 F.

ee ee Ce Gabe SUEbPccececs 15

Williams v. Melton, 568 F. Supp.

104 (N.D.Ga. | a e*eeeeer 4

Williams v. Melton, 733 F.2d

ee EE Gs SPOEPcccccccs 5,18,28

29

Williams v. State, 162 Ga. App.

415 o.06 6} rae e*eeneees#se#e#8e#* 7 3

-iii-

STATUTES PAGE

Ga. Code Ann. §38-305

(mow 0.C.G.A. §24-3-3)........ 7,18

Ga. Code Ann. §68-1620

(now 0.C.G.A. §40-6-271....... 2

OTHER AUTHORITIES

6 Wigmore, Evidence (3d.Ed.

DUP e666 hee 6a SS eeeeeoeeoeee 23,25

McCormick, Evidence (2d.Ed.

DUPED on 6 ban 6bb 66 60658086000086 23,25

Federal Rules of Evidence for

United States Courts and

Magistrates (West, 1975)...... 19,20,27

Notes of Advisory Committee on

Proposed Rules (West, 1975)... 20,25

ehye

No. 84-583

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

HOSEA LORENZO WILLIAMS,

Petitioner,

Vv.

WAYNE MELTON, ET AL. .

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Counsel for Respondent

ROBERT E. WILSON

District Attorney

Stone Mountain Judicial

Circuit

DeKalb County Courthouse

556 N. McDonough Street

Decatur, Georgia 30030

(404) 371-2561

SIATEMENT OF THE CASE

I. Proceedings in the Courts Below

Petitioner was indicted by the July

1980 term of the DeKalb County, Georgia

Grand Jury in two counts, Count I

charged the felony offense of Operating a

Motor Vehicle After Revocation of Motor

Vehicle License As An Habitual Violator.

Count II charged the misdemeanor offense

of Leaving the Scene of An Accident With-

out Rendering Aid as required by Ga. Code

Ann. §68-1620 (now 0.C.G.A. §40-6-271).

On April 24, 1981 following his jury

trial, Petitioner was convicted on both

counts and sentenced to five years (one

year to serve followed by four years on

probation) on the felony conviction and

twelve months concurrent to serve on the

misdemeanor.

Following the denial of Petitioner's

Motion for Wew Trial, the case was ap-

pealed to the Georgia Court of Appeals.

On May 24, 1982, said Court affirmed the

misdemeanor conviction and reversed the

accompanying felony conviction. Williams

v. State, 162 Ga. App. 415 (1982). Pe-

titioner began serving the twelve month

sentence on June 25, 1982.

In August of 1982, Petitioner filed

a federal habeas corpus action in the

United States District Court for the

Northern District of Georgia. That action

was dismissed for failure to exhaust

state remedies. Thereafter, Petitioner

filed a state habeas corpus petition

raising, for the first time, his claim of

denial of his Sixth Amendment right of

confrontation of witnesses. The state

habeas court denied the writ in an opin-

ion filed August 9, 1982. Petitioner's

application for a certificate of probable

cause to appeal that denial to the

Georgia Supreme Court was denied.

A second petition for writ of habeas

corpus was filed in the United States

District Court for the Northern District

of Georgia in November of 1982 and the

Court released Petitioner on bond pending

the resolution of that action. Petition-

er had served approximately rour and one-

half months of his twelve month misdemean-

or sentence at the time of his release on

bond.

Although United States Magistrate

Robert J. Castellani submitted a report

and recommendation that the petition for

writ of habeas corpus be denied in March

of 1983, United States District Court

Judge Marvin Shoob granted the petition

for writ of habeas corpus. Williams v.

Melton, 568 F. Supp. 104 (N.D.Ga. 1983).

Respondent Melton appealed the decision

of the District Court to the Eleventh

Circuit Court of Appeals which reversed

the grant of habeas relief. Williams v.

Melton, 733 F.2d 1492 (lith Cir. 1964).

II. STATEMENT OF FACTS

The evidence at trial disclosed that

there was a collision between two auto-

mobiles at an intersection in DeKalb

County, Georgia on July 18, 1980. Cyrus

Broadus testified that he was driving his

Oldsmobile toward Candler Road when

another car coming toward him turned left

in front of him. The collision was

nearly headon. Mr. Broadus, who was

dazed after his head hit the windshield

of Ais car, remembered someone came to

the car, looked in, turned around and

left. He couldn't recall whether that

person was male or female, black or white.

After some bystanders helped Broadus over

to the side of the road, his car rolled

several hundred yards down the hill and

into a ditch. The other car, a Buick,

came to rest against a pole at the inter-

section but the driver of that vehicle

was nowhere to be found.

Among the people who gathered after

the accident, three residents of the

neighborhoce testified at trial. Each

related a separate but similar incident

wherein an unidentified man on the scene

shortly after the collision remarked to

the witnesses or within their hearing

that the driver of the Buick looked like

Hosea Williams. Robert Steve remembered

the man saying that the Buick's driver,

who looked like Hosea Williams and wore a

flowered shirt, went up to the car,

looked in and headed off down the street.

The other two, Mrs. Harkness and Mr.

Epperson, heard the -= “man say Hosea

Williams was the driver. This testimony

was admitted under the res gestae rule of

Georgia Code Ann. §38-305 (now 0O.C.G.A.

§24-3-3).

The first law enforcement officers

arrived on the scene about 8:20 p.m.,

just a few minutes after the accident.

They searched the Buick and found various

documents addressed to and from Hosea

Williams and a Hertz rental agreement in

Mrs. Williams' name. MThat, coupled with

the information received from the wit-

nesses, prompted them to put a lookout

over the radio in that area for a black

male wearing a flowered shirt, possibly

Hosea Williams. Williams is a well-known

and generally recognizable public figure

in the Atlanta area.

Within thirty minutes after the

accident, Hosea Williams was arrested at

the back side of the Bingo Palace, his

business located on Candler Road one-half

to one mile from the accident scene.

Williams was wearing a flowered shirt and

was somewhat disheveled with a cut over

his right eye. 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 Mr. Williams. A plastic bag

of tomatoes was also found in the car.

A customer at the bikee Palace tes-

tified that she gave a plastic bag of to-

matoes to Mr. Williams that night and

that he took it and his briefcase and

went out the front door of the Bingo

Palace just before 8:00 p.m.

A traffic accident specialist

testified that damage done to the rear-

view mirror inside the Buick was consis-

tent with William's wound and the prob-

able pattern of impact on the driver of

the Buick.

The position of the defense was that

an unknown person other than Williams had

been driving the Buick when the wreck

occurred. The general manager of the

Bingo Palace claimed that she put the

tomatoes and money in the car_ and

couldn't remember what she did with the

keys. She and Williams' sons said he was

at the Bingo Palace from 8:00 to 9:00

that night. They also described his cut

aS a scratch. However, the nurse at the

jail said it would have required five

stitches to close. Barbara Golden testi-

wisi iid

fied that she took the photographs which

were introduced to show there was no

serious wound to Williams' face. On

cross-examination, she admitted falsi-

fying the date on the receipt the day

before she testified. She later pled

guilty to perjury.

Williams testified that he worked at

the Bingo Palace that night in a _ back

storage room where he cut his head on the

jagged edge of a door. He said he had

left the business to go to a nearby

store for a band-aid when he was arrested

He characterized the trial as a political

persecution.

SUMMARY OF ARGUMENT

The United States Supreme Court has

held that when a hearsay declarant is not

present for cross-examination at trial,

=J@e

the Confrontation Clause normally re-

quires a showing that he is unavailable.

Even then, the statement must have ade-

quate “indicia of reliability" before it

can be admitted into evidence. Relia-

bility can be inferred without more if

the evidence falls within a firmly rooted

hearsay exception. In other cases, it

must be shown that the evidence has par-

ticularized guarantees of trustworthi-

ness. Ohio v. Roberts, 448 U.S. 56, 66,

100 Ss. Ct. 2531, 2539, 65 L.Ed.2dad 597

(1980).

Petitioner has conceded that the

hearsay declarant in the instant case was

both unidentified and unavailable. The

reliability of the hearsay evidence ad-

mitted at trial can be inferred because

it conforms to a firmly rooted exception

alle

which is applied routinely in the federal

courts, i.e. excited utterances.

Even if this Court finds that the

challenged hearsay statements are not in-

ferentially reliable, the statements can

be considered to have particularized guar-

antees of trustworthiness because they

meet the criteria established in Dutton

v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27

L.Ed.2d 213 (1970). Therefore, the ad-

mission of the statements into evidence

did not violate Petitioner's right of

confrontation.

Furthermore, only the Ninth Circuit

Court of Appeals departs, in any material

way, from the accepted application of the

rule in Ohio v. Roberts and Dutton v.

Evans, supra, and that departure is ir-

relevant to Petitioner's treatment by the

Eleventh Circuit.

oa) 9a

ARGUMENT AND CITATION OF AUTHORITIES

I. The Admission At Trial of Hearsay

Testimony Under The Georgia Res

Gestae Exception To The Hearsay Rule

Did Not Violate Petitioner's Sixth

Amendment Right Of Confrontation.

The Sixth Amendment to the United

States Constitution provides that

in all criminal prosecutions, the

accused shall enjoy the right...to

be confronted with the witnesses

against him.

This “confrontation clause", in a literal

construction, would ensure that all wit-

nesses against the accused must testify

under oath at trial where they are sub-

ject to cross-examination and where the

jury can observe their demeanor. How

ever, this interpretation has been "re-

jected as unintended and too extreme".

Ohio v. Roberts, 448 U.S. 56, 59, 100

S.Ct. 2531, 2535, 65 L.Ed. 2d 597 (1980).

Where it is not’ possible to sum-

«ite

mon witnesses for a personal appearance

at trial and where an unavailable witness-

has made an extrajudicial statement which

is inculpatory as to the accused, there

have long been established alternate means

of presenting this evidence to the jury.

Most commonly utilized is a series of

recognized exceptions to the hearsay rule

which dispense with the need to have the

unavailable declarant testify at trial as

a condition precedent to the admission of

the statement.

While this Court has never identi-

fied the confrontation clause and the

hearsay rule as congruent, it has held

that they “stem from the same roots" and

pursue the same purposes. Dutton v.

Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 27

L.Ed.2d 213 (1970). Exceptions to the

hearsay rule which have frequently sup-

alée

ported admission of out-of-court state-

ments held not to violate the accused's

right of confrontation including dying

declarations, Mattox v. United States, °

146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917

(1892), Kirby v. United States, 174 U.S.

47, 19 S.Ct. 574, 43 L.Ed. 890 (1899),

Pointer v. Texas, 380 U.S. 400, 85 S.Ct.

1065, 13 L.Ed.2d 293 (1965); #£xprior

recorded testimony of an _ unavailable

witness, Mar.cusi v. Stubbs, 408 U.S. 204,

92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); a

declaration by a co-conspirator in

furtherance of the conspiracy, United

States v. Kelley, 526 F.2d 615 (8th Cir.

1975), cert. den. 424 U.S. 971, 96 S.Ct.

1471, 47 L.Ed.2d 739 (1976), United

States v. Perez, 658 F.2d 654 (9th Cir.

1981); recorded past recollections,

United States v. Kelly, 349 F.2d 720

olSa

770 (2d Cir. 1965), cert. den. 384 U.S.

947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966);

and spontaneous utterances, McLaughlin v.

Vinzant, 522 F.2d 448, (lst Cir. 1975),

cert. den. 423 U.S. 1037, 96 S.Ct. 573,

46 L.Ed.2d 412 (1975).

A. Firmly rooted exceptions to

the hearsay rule.

The most recent pronouncement from

this Court on the subject fashioned an

analysis or “general approach" giving

specific deference to "firmly rooted

hearsay exceptions."

In sum, when a hearsay declarant

is not present for cross-examination

at trial, the Confrontation Clause

normally requires a showing that he

is unavailable. Even then, his

statement is admissible only if it

bears adequate ‘indicia of reliabili-

ty.' Reliability can be inferred

without more is a case where the

evidence falls within a firmly

rooted hearsay exception. In other

cases, the evidence must be ex-

cluded, at least absent a showing

=16-

of particularized guarantees of

trustworthiness. (Emphasis added),

Ohio v. Roberts, 448 U.S. 56, 66,

100 S.Ct. 2531, 2539, 65 L.Ed.2d

597 (1980).

The Court thusly has acknowledged

that the traditionally established excep-

tions to the hearsay rule “rest upon such

solid foundations" as to satisfy the nec-

essary indicia of reliability without

more and “that admission of virtually any

evidence within them comports with the

‘substance of the constitutional protec-

tion." Mattox v. United States, 156 U.S.

237, 244, 15 S.Ct. 337, 340, 39 L.Ed.

409 (1895)." Ohio v. Roberts, supra, at

2539. Such a rule was held to serve the

concerns and principles which have evolved

recently in cases such as California v.

Green, 399 U.S. 149, 90 S.Ct. 1930, 26

L.Ed.2d 489 (1970), Dutton v. Evans, 400

U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213

alPe

(1970), and Mancusi v. Stubbs, 408 U.S.

204, 92 S.Ct. 2308, 33 L.Ed.2d 293

(1972).

The Eleventh Circuit Court. of

Appeals found Georgia's res gestae

exception to the hearsay rule to be such

a firmly rooted exception. Williams v.

Melton, 733 F.2d 1492, 1495 (llth Cir.

1984). It has been established and

practiced in Georgia for 120 years and

carries with it, as predicate require-

ments, those elements which seek to

insure the trustworthiness of statements

thusly made. The declaration to be

offered must accompany the act or

be so nearly connected there-

with as to be free from all

suspicion of device or after-

thought. 0.C.G.A. §24-3-3

(formerly Ga. Code Ann. §38-305).

Spontaneity and voluntariness are the key

factors, believed to negate the probabil-

=iSe

ity of deliberate or conscious misrepre-

sentation.

The Georgia law's continued use of

the phrase “res gestae" may be archaic

but the principles underlying the Georgia

courts’ application of the exception are

well-accepted in other forms and under

other labels.

Although not the express basis for

the Eleventh Circuit decision, Respondent

would note to this Court that the Georgia

statute provides the same protections

insuring the same reliability which have

been provided for in Federal Rules of

Evidence 803(1) and 803(2). Rule 803(1)

sanctions admission of “present sense

impressions," statements describing or

explaining an event or condition made

while the declarant was perceiving the

event or condition, or immediately there-

=19@

after. Rule 803(2) approves the use of

"excited utterances," statements relating

to a startling event or condition made

while the declarant was unde~ the stress

of the excitement caused by the event or

condition. The exceptions themseives are

considered to possess such guarantees of

trustworthiness that non-production of

the declarant in person at trial is jus-

tified even though he may be available.

See Notes of Advisory Committee on Pro-

posed Rules, Rule 803, 28 U.S.C.A. p. 584

(West 1975).

Federal courts which have examined

the application of these statutory excep-

tions, both federal and state, in the

context of the confrontation question

have agreed with the framers of the rules

that the parameters of each rule provide

the necessary safeguards of reliability

=~ 20—

and trustworthiness of the testimony so

as to justify an exception to face-to-

face confrontation at trial. See

McLaughlin v. Vinzant, 522 F.2d 448 (lst

Cir. 1975), cert. den. 423 U.S. 1037, 96

S.Ct. 573, 46 L.Ed.2d 412 (1975), (an

oral declaration, made by the non-testi-

fying co-defendant within minutes after

the shooting, that "George shot someone"

was admitted under the Massachusetts

spontaneous utterance exception to the

hearsay rule); United States v. Nick, 604

F.2d 1199 (9th Cir. 1979)(a declaration,

made by a three-year old child to his

mother after she had taken him home from

the babysitter, that the babysitter had

sexually molested him was admitted under

Federal Rules of Evidence, Rule 803(2));

and Haggins v. Warden, Fort Pillow State

Farm, 715 F.2d. 1050 (6th Cir. 1983)(a

a Me

four-year old child's declarations, ad-

mitted as res gestae, were analyzed by

the Court of Appeals as excited utter-

ances).

There can be little doubt that the

accident involved in the instant case

constitutes a startling event. The

collision was nearly headon, and with

such force that the’ victim, Cyrus

Broadus, had to be helped out of his car

by several bystanders. After Mr. Broadus

reached the side of the road, his car

rolled several hundred yards down the

hill and into a ditch.

Federal courts have found that far

more mundane occurrences constitute ex-

citing or startling events. united

States v. Boyd, 620 F.2d 129 (6th Cir.

1980), (arrival of police while suspect

runs between apartments with stolen mail);

>

United States v. Napier, 518 F.2d 316

(9th Cir. 1975), (kidnapping victim shown

a photograph of her assailant eight weeks

after the crime). It should be noted

that McCormick specifically cites auto-

mobile accidents as the type of event

likely to produce the requisite level of

excitement. McCormick, Evidence, §297,

705 (2d Edition, 1972).

The determination of whether’ the

exclamation was made sufficiently contem-

poraneous with the startling event is one

which “depends entirely on the circum-

stances of each case." 6 Wigmore, Evi-

dence, §1750, 144 (3d Edition, 1940). in

Petitioner's case, Mr. Steve testified

that approximately ten to fifteen minutes

after the accident, an unidentified black

man standing in the crowd that had gath-

hered, stated to him that "the guy that

=23=

was driving that car...looked just like

Hosea Williams", that the man who looked

like Hosea Williams looked at the injured

driver of the other car and then "went

down the street," and that "[h]le had on a

flowered shirt".

An examination of federal case law

reveals that statements made within ten

to fifteen minutes of a startling event

are near enough in time to be considered

spontaneous. United States v. Golden,

671 F.2d 369 (10th Cir. 1982). The

federal courts have gone so far as to

hold that a lapse of one hour does not

remove evidence from the excited utter-

ance exception. United States v. Iron

Shell, 633 F.2d 77 (8th Cir. 1980). While

the declarants in those cases were vic-

tims, it is well-settled that "nervous

excitement which renders an utterance

aSfe

admissible may exist equally for a by-

stander as well as for the injured or in-

juring person, and therefore the utter-

ances of either, concerning what they

observed, are equally admissible." 6 Wig-

more, Evidence, §1755, 159-160 (3rd

Edition, 1940). See McCormick, Evidence,

§297, 705 (2d Edition, 1972). Participa-

tion by the declarant is not required; a

non-participant may be moved to describe

what he perceives, and one may be star-

tled by an event in which he is not an

actor. See Federal Rules of Evidence for

United States Courts and Magistrates

Advisory Committee's Notes, Rule 803, p.

107 (West 1975).

Respondent contends that the sever-

ity of the near headon collision, the

attendant confusion created by removing

the injured driver from his car, and the

=9S—

the injured driver from his car, and the

subsequent crash of the car into a ditch

several hundred yards away were enougk to

sustain a sense of excitement in the by-

stander-declarant for a period of ten to

fifteen minutes.

The exclamation in the instant case

obviously related to the circumstances of

the event which produced it. fThe utter-

ance dealt with the identity of one of

the participants in the automobile acci-

dent. It is also significant to note

that the declarant did not merely state

that the driver of the Buick looked like

Hosea Williams. He added that the driver

"had on a flowered shirt". Williams was

arrested less than thirty minutes after

the accident, one-half to one mile away.

He was wearing a flowered shirt. The

fact that the description given by the

26

declarant contained a relatively specific

description of the driver's clothing,

which proved to be accurate, adds appre-

ciably to the reliability of the state-

ment.

The challenged hearsay statements in

the instant case satisfy the requirement

of the Georgia res gestae statute and, by

analogy, Rules 803(1) and 803(2) of the

Federal Rules of Evidence. Since all are

firmly rooted hearsay exceptions, Ohio v.

Roberts implies that the reliability of

the statements should be inferred without

any further showing of trustworthiness.

Respondent submits that the hearsay evi-

dence in the instant case should not be

rejected as unreliable by this or any

other court merely because it was ad-

mitted at trial pursuant to ae state

statute which contains a phrase no longer

utilized in federal courts.

=27=

B. Indicia of reliability.

Despite the Eleventh Circuit's find-

ing that the Georgia res gestae exception

was firmly rooted, the court conscien-

tiously went on to analyze Petitioner's

Claim by examining what indicia of relia-

bility were present in the challenged

testimony. Williams y- Melton, 733 F.2d

1492, 1495 (llth Cir. 1984). Petitioner

complains that the court did not set out

its reasoning specifically according to

the four-pronged test applied to Dutton

v. Evans and separate its conclusions as

to (1) whether the content of the state-

ment warned against giving it undue weight,

and as to the (2) knowledge and perception,

(3) memory and (4) motivation of the un-

known declarant.

Nothing in Dutton mandates strict

adherence to that form or requires that

o26-

all four of those factors be satisfied

“enanimously and to an equal degree of

strength in every case. See U.S. v.

Fleishman, 684 F.2d 1329, 1339 (9th)

cert. den. 459 U.S. 1044, 103 S.Ct. 464,

74 L.Ed.2d 614 (1982). Indeed, the

Eleventh Circuit approach considers the

same issues and achieves the same end as

would have been achieved by a formal

application of the Dutton language. Its'

recitation of the facts acknowleges that

that unknown declarant's statement is an

express assertion of facts (that the

driver was Hosea Williams and wore a

flowered shirt). Williams, 733 F.2d at

1494. However, the “substantial circum-

stantial evidence" which was present to

corroborate those assertions provided

this jury with a standard of measurement

with which to test the assertions and

=29-

their trustworthiness. Id at 1496.

Second, the declarant's personal

knowledge of the identity of the driver

of the abandoned car can be deduced from

his particularized description. The

declarant did not merely give a general

physical description of a nameless in-

dividual. He told Mr. Steve that the man

looked like a particular person, Hosea

Williams, who is well-known in the area,

and wore a particular type of clothing, a

flowered shirt. Since the details of the

description were later found to. be

accurate, it is reasonable for the

Eleventh Circuit and the jury to conclude

that the declarant's personal knowledge

was very reliable.

Third, the simplicity and accuracy

of the declarant's statement, coupled

with the brief time interval between the

-30-

accident and the time the statement was

made, remove any possibility that the

statement was founded on faulty recol-

lection.

Fourth, the fact that the hearsay

statements are amply supported by circum-

stantial evidence is a clear indication

that the declarant did not misrepresent

Williams' involvement in the accident.

Between twenty and thirty minutes after

the accident, Williams was found one-half

to one mile from the scene. He was wear-

ing a flowered shirt. Williams was di-

sheveled with a cut over his right eye.

The rearview mirror inside the Buick had

been broken off. A traffic specialist

testified that after examining’ the

physical evidence of the accident, he

concluded that Williams' wound and the

broken mirror were consistent with the

=3le

probable impact of the driver of the

Buick.

A briefcase containing $1,400 in

receipts from Williams' place of business

was removed from the car trunk. The

briefcase was claimed by Mr. Williams at

the police station. Also found in the

car were various documents addressed to

Williams as well as a rental agreement in

his wife's name. A customer at the Bingo

Palace testified that she gave Williams a

plastic bag of tomatoes on the night of

the accident. She said Williams took it

and went out the front door of the estab-

lishment just before 8:00 p.m. A plastic

bag of tomatoes was found in Williams’

car.

The Eleventh Circuit closely exam-

ined this ample amount of circumstantial

evidence indicating that Williams was the

-32-

driver of the abandoned Buick and respon-

sibly held that the hearsay admitted

against Petitioner at trial was corrobo-

rated sufficiently to ensure reliability

and trustworthiness, which have always

been the central concern of this Court.

II. The Eleventh Circuit Decision

Is In Accord With Controlling

Opinions From This Court And

No Significant Split Exists Among

The Circuits As To How To Apply

Dutton v. Evans and Ohio v. Roberts.

As has been discussed above in this

argument, Respondent asserts that the

Eleventh Circuit decision is consistent

with both the letter and the spirit of

Supreme Court decisions concerning rights

guaranteed to a defendant by the Confron-

tation Clause of the Sixth Amendment.

Petitioner has challenged not only that

=33<

relationship but also alleges ‘hat the

other circuits “are in disarray" concern-

ing the admissibility of hearsay.

A close examination of the cases

cited by Respondent to support the latter

allegation reveals that, at most, only

the Ninth Circuit may have diverged from

the common application of the OGhio v.

Roberts principle:

In sum, when a hearsay declarant

is not present for cross-examination

at trial, the Confrontation Clause

normally requires a showing that he

is unavailable. Even then, his

statement is admissible only if it

bears aGequate "indicia of relia-

bility.' Reliability can be inferred

without more in a case where the

evidence falls within a firmly rooted

hearsay exception. In other cases,

the evidence must be excluded, at

least absent a showing of particular-

ized guarantees of trustworthiness.

448 ).S. at 66, 100 S.Ct. at 2539.

The Ninth Circuit appears to be

alone among the circuits in its holding

that “if the hearsay does not fall into

—y

an exception it is conclusively

unreliable." United States v. McKinney,

707 F.2d 381, 384 (9th Cir. 1983). The

post-Ohio v. Roberts decisions of all the

other circuits appear to utilize, in

generally similar forms, the standard

inguiry into (1) availability of the

declarant and (2) factors’ indicating

reliability of the declarant's statements.

The Seventh Circuit does not apply, as

Claimed by Petitioner, a "crucial or

devastating" test but rather examines the

cases for general factors of reliability

derived from Dutton v. Evans and Ohio v.

Roberts. Flewallen v. Faulkner 677 F.2d

610 (7th Cir. 1982), cert. denied 103

S.Ct. 214.

Respondent would urge upon this

Court that neither the Eleventh Circuit

nor any other, save possibly the Ninth,

~~

is misapplying the Court's directives on

this issue. Surely, a proper interpreta-

tion by the Eleventh is not the occasion

upon which to scrutinize the Ninth.

CONCLUS ION

The declarant in the instant case

was not only unavailable but was, in

fact, completely unknown. The reliabil-

ity of the hearsay evidence is to be in-

ferred because it conforms to a well-es-

tablished hearsay exception. Therefore,

the “general approach" and analysis of

Ohio v. Roberts, supra, support fully the

conclusion of the Eleventh Circuit that

the admission of the hearsay statements

in the present case did not violate

Petitioner's Sixth Amendment right to

confrontation.

The statements also have particular-

=~36<

ized guarantees of trustworthiness

because they meet the criteria estab-

lished in Dutton v. Evans, supra.

Therefore the admission of the

statements into evidence did not violate

Petitioner's Sixth Amendment right of

confrontation. Respondent urges’ this

Court to deny Petitioner's application

for a writ of certiorari.

Respectfully submitted,

ROBERT E. WILSO

DISTRICT ATTORNEY

STONE MOUNTAIN JUDICIAL

CIRCUIT

STATE OF GEORGIA

Counsel for Respondent

707 DeKalb County Courthouse

556 N. McDonough Street

Decatur, Georgia 30030

(404) 371-2561

a%7~q

CERTIFICATE OF SERVICE

This is to certify that I have this

date served all parties with the fore-

going Brief in Opposition to Petition for

Certiorari by causing it to be placed in

the United States mail, with the proper

first class postage attached and

addressed to:

Tony L. Axam, Esq.

Robert Altman, Esq.

Axam Altman McIntyre, P.C.

200 Peachtree-Trinity Building

175 Trinity Avenue, S.W.

Atlanta, Georgia 30303

This the GR day of November,

nd

ROBERT E. WILSON

DISTRICT ATTORNEY

STONE MOUNTAIN JUDICIAL CIRCUIT

STATE OF GEORGIA

Counsel for Respondent

1984.

=3§-