# Opposition Brief — Williams v. Melton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2389%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1984 - **Citation:** 469 U.S. 1073 ## Text — 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§- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2389%3A2. Public record. Not legal advice.