Petition for Writ of Certiorari — Sorrow v. Georgia

Supreme Court, U.S.

(\ FIiIbLk D

981780 MAY 5 - 1999

OFFiCE OF THE CLERK

In The

Supreme Court of the United States

PHILLIP A. SORROW,

Petitioner,

STATE OF GEORGIA,

Respondent.

On Petition For Writ Of Certiorari

To The Georgia Court Of Appeals

°

PETITION FOR WRIT OF CERTIORARI

*

Rare Banks III

Counsel of Record

Banks, Stusss & NEVILLE

Suite 200

110 Old Buford Road

Cumming, Georgia 30130

(770) 887-1209

May 4, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The State of Georgia by statute (O.C.G.A. § 24-3-1(b))

provides for the admission of hearsay in cases of “neces-

sity”. The question presented is:

Under the facts of this case was Petitioner denied the

rights of confrontation and cross-e.amination granted to

him pursuant to the Fifth, Sixth and Fourteenth Amend-

ments to the United States Constitution?

PARTIES TO THE PROCEEDING

Phillip A. Sorrow (Petitioner in this Court)

State of Georgia (Respondent in this Court)

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ..........0csccccccccceccs i

PARTIES TO THE PROCEEDING .................. ii

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TABLE OF AUTHORITIES ........................ iN

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STATUTORY PROVISIONS INVOLVED............. 2

SIATEMENT OF THE CASE.............cccccccces 2

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REASONS FOR GRANTING THE PETITION....... 5

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TABLE OF AUTHORITIES

Page

Cases:

Adams v. State, 217 Ga. App. 706 (459 S.E.2d 182)

i Se ee ene nny EA Pi eer nme 7

Barter o. Page, F5O UD. 7EO CIGGGR 2 sce cccscccccsneses 9

Becton v. State, 134 Ga. App. 100 (213 S.E.2d 195)

CME iv ecak deca dee es cu dsenrcensele wet cdaduaeees 8

Brookhart v. Janis, 384 U.S. 1 (86 S. Ct. 1245, 16

i Oe SOD RO ee cvenessevevsngeraseenveves ex 9

California v. Green, 399 U.S. 149 (90 S. Ct. 1930, 26

S.C ee SE nis ch och erawactepeeaecnaseuess 9

Douglas v. Alabama, 380 U.S. 415 (85 S. Ct. 1074, 13

Lic Me Se I RIE 0 No. Vindeoucbeeucecdcnsseceeeeds 9

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

me Se: he. Pere rrr rT yr erere 8, 9

Illinois v. Allen, 397 U.S. 337 (90 S. Ct. 1057, 25

mm PF Ree rp rr rr rrr rere 9

Lingerfelt v. State, 235 Ga. 139 (218 S.E.2d 752)

i, EEE ETE Pee Ee eee eer ET ere 8

Pointer v. Texas, 380 U.S. 400 (85 S. Ct. 1065, 13

Se ee ee I I wok eaccenaedenndesaaeeees 8, 9

Roberts v. Russell, 392 U.S. 293 (88 S. Ct. 1921, 20

fe Ee ee RU SED deeb Seenuevcudul Canweeiweseds 9

Sorrow v. State, 234 Ga. App. 357 (505 S.E.2d 842)

RPE «da vucnsaenastwkncus see suse aas ie eeaee eee. 1

Thomas v. State, 199 Ga. App. 586 (405 S.E.2d 512)

SPER ucaeeseuessesasareeeeuntes ies tiaetcaeeereiny 8

Sets

TABLi: Ur AUTHORITIES - Continued

Page

STATUTES:

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Seren te OED ong oc oye bcs censacietine ee ee ae

8 Oe Te ean anny BSE, AINE 2

Cea ae Ns hs hoon eee sae 7

CONSTITUTIONAL AUTHORITY:

Georgia Constitution of 1983, Art. 1, § I, Para. XIV..... 6

Georgia Constitution of 1983, Art. I, § I, Para.I.....4, 7

United States Constitution, Fifth, Sixth and Four-

teenth Amendments ..................... 1, 4, 6, 8, 9

PETITION FOR WRIT OF CERTIORARI

Phillip A. Sorrow respectfully petitions for a Writ of

Certiorari to review the Judgment of the Georgia Court of

Appeals and as to which Certiorari was denied by the

Supreme Court of Georgia, the Georgia Court of last

resort. The Georgia Court of Appeals erroneously deter-

mined that Petitioner had not been denied his rights of

confrontation and cross-examination under the United

States Constitution when a hearsay statement was admit-

ted into evidence pursuant to O.C.G.A. § 24-3-1(b).

+

OPINIONS BELOW

The opinion of the Georgia Court of Appeals is

reported as Sorrow v. State, 234 Ga. App. (505 S.E.2d 842)

(1998) (Appendix A). The opinion of the Georgia Supreme

Court denying Certiorari is reported as__ Ga.__ (Janu-

ary 15, 1999) (Appendix B) and the decision of the Geor-

gia Supreme Court denying rehearing of Petition for Writ

of Certiorari is not reported (Appendix C).

+

JURISDICTION

Jurisdiction is based upon denial of rights protected

by the Fifth, Sixth and Fourteenth Amendments to the

United States Constitution. The Georgia Court of Appeals

issued its decision on August 31, 1998. The Georgia

Supreme Court denied Petitioner’s Petition for Writ of

Certiorari on January 15, 1999. Petitioner properly sub-

mitted a Motion for Reconsideration to the Georgia

Supreme Court. This Petition is timely filed within ninety

days of the Georgia Supreme Court’s denial of Peti-

tioner’s Motion For Rehearing on February 8, 1999.

*

STATUTORY PROVISIONS INVOLVED

O.C.G.A. § 24-3-1 provides:

(a) Hearsay evidence is that which does not derive its

value solely from the credit of the witness but rests

mainly on the veracity and competency of other persons.

(b) Hearsay evidence is admitted only in specified cases

from necessity.

+

STATEMENT OF THE CASE

A. Background

Petitioner, Phillip A. Sorrow, was convicted in the’

State Court of Forsyth County, Georgia of the misde-

meanor offense of Battery! based upon the prior out of

court statement of his wife which was admitted as “nec-

essary” when she exercised her marital privilege to not

testify pursuant to O.C.G.A. § 24-9-23(a) which provides

that a spouse may not be compelled to testify for or

against each other.

1 O.C.G.A. § 16-5-23.1

B. The Proceedings

This appeal is from the State Court of Forsyth County

following a verdict of Guilty in a jury trial. Petitioner was

charged on accusation by the Solicitor General of Forsyth

County in one count with the misdemeanor offense of

Battery.

The case proceeded to jury trial on November 19-21,

1997. Petitioner was convicted on November 21, 1997 and

on January 20, 1998 was sentenced to 12 months to serve

provided that eleven months would be served on proba-

tion. Petitioner thereafter filed his Notice of Appeal to the

Georgia Court of Appeals

Facts presented in the State’s case and relevant to the

question presented show the following: The “victim”,

Anne Sorrow, was the wife of Petitioner and exercised her

marital privilege to not testify. The state then sought to

introduce - as an exception to Georgia’s hearsay rule -

Mrs. Sorrow’s statement as given to the investigating

officer on the night of the alleged event.

The court conducted a hearing outside the presence

of the jury and considered the necessity of admitting Mrs.

Sorrow’s statement as well as considering whether or not

there were sufficient indicia of reliability to admit the

statement.

During that hearing outside the presence of the jury,

Mrs. Sorrow testified that the statement sought to be

introduced by the State was inaccurate in some respects

and incomplete in other aspects.

The investigating officer - through whom the state

sought to introduce Mrs. Sorrow’s statements -— and

through whom the state sought to establish the indicia of

reliability also testified outside the presence of the jury

concerning Mrs. Sorrow’s statement. That officer (Wayne

Seymour) initially testified on direct concerning his recol-

lection of events. The investigating officer then testified

on cross-examination and still outside the presence of the -

jury.

Ultimately, the investigating officer realized that he

had been testifying about the wrong set of circumstances.

The State then provided him with a copy of the “state-

ment” by Mrs. Sorrow and a copy of an incident report

and then recalled Mr. Seymour who then testified that his

recollection of his investigation was a “whole lot” differ-

ent now than it was when he testified earlier in the day.

Petitioner’s objection to the admissibility of such

statement was denied as the trial Court finally decided to

admit the hearsay statement of the investigating officer.

Petitioner excepted to the court’s ruling contending that

admission of the statement would violate the right to

confrontation and cross-examination under both the

Georgia Constitution (Article I, Section I, Paragraph 1)

and under the Sixth Amendment to the United States

Constitution and was violative of due process under the

Fifth and Fourteenth Amendments to the United States

Constitution.

The court additionally overruled Petitioner’s objec-

tion to the admission of a similar prior transaction.

Petitioner was thereafter convicted based solely upon

the admitted hearsay statement and evidence of the simi-

lar transaction.

The Georgia Court of Appeals issued its decision on

August 31, 1998. The Georgia Supreme Court denied

Petitioner’s Petition for Writ of Certiorari on January 15,

1999. Petitioner properly submitted a Motion for Recon-

sideration to the Georgia Supreme Court. This Petition is

timely filed within ninety days of the Georgia Supreme

Court’s denial of Petitioner’s Motion For Rehearing on

February 8, 1999.

REASONS FOR GRANTING THE PETITION

This case presents an example of zealous prosecution

of a “domestic violence” type criminal offense and

addresses the interplay between spousal privilege and

the application of the constitutional doctrines of confron-

tation and cross-examination in light of a state statutory

exception to the general exclusion of hearsay.

The issues set forth herein are of broad importance in

an era of heightened consciousness of “domestic vio-

lence” and increasing pressure upon prosecutors to vigor-

ously prosecute such offenses. Specific guidance is

necessary to preserve the balance between vigorous pros-

ecution and the protection of individual constitutional

rights.

A review of existing law and principles involved will

illustrate the necessity of providing such guidance and

protection.

Petitioner does not contend that O.C.G.A. § 24-3-1 is

facially unconstitutional but that in the circumstances of

this case its application resulted in denial of constitu-

tional protections to Petitioner. O.C.G.A. § 24-3-1 pro-

vides: )

(a) Hearsay evidence is that which does not

derive its value solely from the credit of the

witness but rests mainly on the veracity and

competency of other persons.

(b) Hearsay evidence is admitted only in speci-

fied cases from necessity.

The hearsay statement was admitted pursuant to this

Georgia statutory rule of evidence. Petitioner contends

that the constitutional requirements of the Georgia and

United States Constitutions take precedence over a statu-

tory rule of evidence. Article I, Section I, Paragraph XIV

of the Georgia Constitution provides:

Every person charged with an offense against

the laws of this state shall have the privilege

and benefit of counsel; shall be furnished with a

copy of the accusation or indictment and, on

demand, with a list of the witnesses on whose

testimony such charge is founded; shall have

compulsory process to obtain the testimony of

that person’s own witnesses; and shall be con-

fronted with the witnesses testifying against t

such person.

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defense.

Article I, Section I Paragraph I of the Georgia Constitu-

tion provides:

No person shall be deprived of life, liberty, or

property except by due process of law.

O.C.G.A. § 24-9-64 provides:

The right of a thorough and sifting cross-exam-

ination shall belong to every party as to the

witnesses called against him. If several parties

to the same case have distinct interests, each

may exercise this right.

The question squarely presented is whether a statu-

tory rule of evidence (O.C.G.A. § 24-3-1(b)) will trump

the constitutional provisions of the Georgia and Sixth

Amendment to the United States Constitutions as set

forth above and which protect the right of confrontation

and cross-examination. Petitioner additionally conterds

he has suffered a denial of due process under the Fifth

and Fourteenth Amendments to the United States Consti-

tution.

Since the primary evidence against Mr. Sorrow con-

sisted of the hearsay statement and evidence of a similar

transaction, Mr. Sorrow was convicted essentially as if an

ex parte affidavit had been admitted against him. See,

Adams v. State, 217 Ga. App. 706 wherein it was observed,

It is basic that every person charged with an

offense against the laws of this State shall be

confronted with the witnesses testifying against

him. It is also basic that upon the trial of a

criminal case upon the issue of guilty or not

guilty, ex parte affidavits are not admissible

either for or against the accused. The basis of

these rules is the fundamental principle that in a

criminal prosecution the testimony of the wit-

nesses shall be taken before the court, so that at

the time they give the testimony they will be

sworn and will be subject to cross-examina-

tion, the scrutiny of the court, and confronta-

tion by the accused.

(Citation and punctuation omitted.) (emphasis added)

Becton v. State, 134 Ga. App. 100, 101 (213 S.E.2d 195).

The Georgia Court of Appeals has also previously

recognized, “The Sixth Amendment’s right of an accused

to confront the witnesses against him is likewise a funda-

mental right and is made obligatory on the states by the

Fourteenth Amendment. It cannot seriously be doubted

at this late date that the right of cross-examination is

included in the right of an accused in a criminal case to

confront the witnesses against him.” Lingerfelt v. State,

235 Ga. 139, 140 (218 S.E.2d 752) (1975) (quoting from

Pointer v. Texas, 380 U.S. 400, 403 (85 S. Ct. 1065, 13

L. Ed. 2d 923) (1965)”, Thomas v. State, 199 Ga. App. 586.

Petitioner contends that in the circumstances of this

case there was a denial of confrontation and cross-exam-

ination when he was convicted entirely upon evidence as

to which he had no opportunity of cross-examination or

confrontation.

Seminal guidance can be gained from Dutton v.

Evans, 400 U.S. 74, 88-89 (91 S. Ct. 210, 27 L. Ed. 2d 213)

(1970) in which it was observed:

While it may readily be conceded that hearsay

rules and the Confrontation Clause are gener-

ally designed to protect similar values, it is quite

a different thing to suggest that the overlap is

complete and that the Confrontation Clause is

nothing more or less than a codification of the

rules of hearsay and their exceptions as they

existed historically at common law. Our deci-

sions have never established such a congruence;

indeed, we have more than once found a viola-

tion of confrontation values even though the

statements in issue were admitted under an

arguably recognized hearsay exception. The

converse is equally true: merely because evi-

dence is admitted in violation of a long-estab-

lished hearsay rule does not lead to the

automatic conclusion that confrontation rights

have been denied.” Id., at 155-156 (citations and

footnote omitted).

It cannot be reasonably argued that the evidence to

which Petitioner objected was not “crucial” or “devastat-

ing” as it was the only evidence — other than that of a

similar transaction. Dutton has made it clear that “the

Sixth Amendment's right of an accused to confront the

witnesses against him is . . . a fundamental right . . . made

obligatory on the States by the Fourteenth Amendment.”

Pointer v. Texas, 380 U.S. 400, 403. See also Douglas v.

Alabama, 380 U.S. 415; Brookhart v. Janis, 384 U.S. 1; Barber

v. Page, 390 U.S. 719; Roberts v. Russell, 392 U.S. 293;

Illinois v. Allen, 397 U.S. 337; California v. Green, 399 US.

149.

The admission of the hearsay statement against Peti-

tioner resulted in a complete denial of confrontation and

10

cross-examination of the out of court declarant and was

erroneous and must be reversed.

+

CONCLUSION

For the above and forgoing reasons the writ of cer-

tiorari should be granted.

Respectfully submitted,

Rare Banks III

Counsel of Record

Banks, Stusss & NEVILLE

Suite 200

110 Old Buford Road

Cumming, Georgia 30130

(770) 887-1209

May 4, 1999

ee et ORION Any

A-1

APPENDIX A

FIRST DIVISION

McMURRAY, PJ.,

BLACKBURN and ELDRIDGE, JJ.

NOTICE: MOTIONS FOR RECONSIDERATION

MUST BE RECEIVED IN OUR CLERK’S OFFICE

WITHIN TEN DAYS OF THE DATE OF DECI-

SION to be deemed timely filed. (Court of

Appeals Rules 4 and 37, January 1, 1995)

August 31, 1998

In the Court of Appeals of Georgia

A98A1803. SORROW v. THE STATE BL-085C

BLACKBURN, Judge.

After a jury trial, Phillip A. Sorrow appeals his con-

viction of battery. Sorrow contends that the trial court

erred in admitting the victim’s incriminating hearsay

statement into evidence. Sorrow claims that, because the

victim did not testify, the admission of her statement

violated his right to confront the witnesses against him

and violated his due process rights under the Fifth and

Fourteenth Amendments to the United States Constitu-

tion. The trial court correctly determined that the victim’s

statement was admissible pursuant to the necessity

exception to the hearsay rule, and we affirm Sorrow’s

conviction.

1. “In Higgs v. State, 256 Ga. 606 (351 S.E.2d 448)

(1987), the Georgia Supreme Court, citing Ohio v. Roberts,

448 U.S. 56, 65 (100 S. Ct. 2531, 65 L. Ed. 2d 597) (1980),

held that the United States Supreme Court had not inter-

preted ‘confrontation’ to signify the exclusion of every

A-2

hearsay exception, and had provided a method to resolve

confrontation challenges based on the admission of hear-

say testimony: First, the Sixth Amendment establishes a

rule of necessity. In the usual case the prosecution must

either produce, or demonstrate the unavailability of, the

declarant whose statement it wishes to use against the

defendant. The second aspect operates once a witness is |

shown to be unavailable. Only hearsay marked with such )

trustworthiness that there is no material departure from

the reason of the general rule may be admitted.” (Cita-

tions and punctuation omitted.) Adams v. State, 191 Ga.

App. 16, 17 (2) (381 S.E.2d 69) (1989).

OCGA § 24-3-1 (b) provides that “hearsay evidence is

admitted only in specified cases from necessity.” There

are several specific exceptions from the rule against the

admission of hearsay. See OCGA § 24-3-1 et seq. The

Georgia Supreme Court has found that the evidence code

does not contain an exhaustive list of exceptions to the

hearsay rule. See Higgs, supra at 607 (3). It has deter-

mined that “the two underlying reasons for any exception

to the hearsay rule are a necessity for the exception and a

circumstantial guaranty of the trustworthiness of the

offered evidence — that is, there must be something pre-

sent which the law considers a substitute for the oath of

the declarant and his cross examination by the party

against whom the hearsay is offered.” (Punctuation and

emphasis omitted.) Id. Based upon OCGA § 24-3-1(b),

therefore, the Georgia Supreme Court has held that “[aJn

exception will be allowed ‘from necessity’ where ‘neces-

sity’ and ‘particularized guarantees of trustworthiness’

are established. Mallory v. State, 261 Ga. 625 (2) (409

eerie

A-3

S.E.2d 839) (1991).” McKissick v. State, 263 Ga. 188, 189 (3)

(429 S.E.2d 655) (1993).

In the present case, the State’s only witness to the

battery was the victim, Sorrow’s wife. At trial, she

invoked the marital privilege, see OCGA § 24-9-23, and

refused to testify. The State then sought to introduce the

victim’s verbal and written statements that were made to

the arresting officer shortly after the incident. The trial

court determined that the victim’s statements were neces-

sary and reliable and admitted them pursuant to OCGA

§ 24-3-1(b).

(a) The victim’s statement was necessary, and she

was unavailable to testify because of her refusal to testify

against her husband. See Higgs, supra at 608 (4) (witness

was unavailable due to her refusal to testify against her

husband and her testimony was necessary as the only

eyewitness to the crime). See also Wallace v. State, 216 Ga.

App. 718, 719 (2) (455 S.E.2d 615) (1995) (same).

(b) In determining whether the hearsay statements

are trustworthy, the courts consider, among other things:

“(1) [whether] the witness’s statement was given shortly

after the event; (2) [whether] the witness’s statement was

given during the course of an official investigation; and

(3) [whether] there was [any] testimony that the witness

retracted the statement or controverted the statement.”

Jackson v. State, 202 Ga. App. 582, 586 (2) (414 S.E.2d 905)

(1992). Courts have also considered whether the declarant

consulted an attorney before making the statements,

whether the declarant previously testified regarding the

reason for her refusal to testify, and the extent to which

A-4

the declarant’s statement is supported by other evidence.

See Higgs, supra at 608 (5). See also Adams, supra at 18.

In the present case, the trial court determined that

the victim’s statements were trustworthy because: they

were given shortly after the incident occurred; they were

made as part of an official investigation by a police

officer; they were not based upon a faulty recollection;

the declarant had no apparent reason to lie; and the

declarant had not disavowed her statements. Our review

of the record indicates that the trial court’s findings are

based on the evidence and are not clearly erroneous;

therefore, we affirm the trial court’s admission of the

victim’s hearsay statements pursuant to OCGA

§ 24-3-1(b).

2. We need not address Sorrow’s second enumera-

tion of error as he failed to support it with any argument

or citation of authority except to refer to his arguments in

connection with his first enumeration. See Court of

Appeals Rule 27(C)(2).

Judgment affirmed. McMurray, P. J., and Eldridge, J.,

concur.

B-1

APPENDIX B

SUPREME COURT OF THE STATE OF GEORGIA

CLERK’S OFFICE

ATLANTA

DATE: January 15, 1999

Rafe Banks, III

BANKS & STUBBS

200 Forsyth Professional Building

110 Old Buford Road

Cumming GA 30040

Case No. $99C0065

PHILLIP A. SORROW v. THE STATE

COURT OF APPEALS CASE NO. A98A1803

The Supreme Court today denied the petition for

certiorari in this case.

All the Justices concur.

Sincerely,

Sherie M. Welch, Clerk

C-1

APPENDIX C

SUPREME COURT OF GEORGIA

Case No. $99C0065 Atlanta, February 08, 1999

The Honorable Supreme Court met pursuant to

adjournment. The following order was passed:

PHILLIP A. SORROW v. THE STATE

Upon consideration of the Motion for Reconsidera-

tion filed in this case, it is ordered that it be hereby

denied.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I hereby certify that the above is a true extract from

the minutes of the Supreme Court of Georgia. Witness

my signature and the seal of said court hereto affixed

the day and year last above written.

Sherie M. Welch, Clerk.

poe et ea le