Farmer v. State , 266 Ga. 869 ( 1996 )

Benham, Chief Justice.

Appellant James Farmer was given a probated sentence when he pleaded guilty to several driving offenses in September 1994. On November 1, 1994, the trial court revoked appellant’s probation after finding that a preponderance of the evidence established that appellant had committed aggravated battery on his common-law wife. The Court of Appeals denied appellant’s application for discretionary review of his probation revocation, and we granted his petition for a writ of certiorari, asking whether appellant’s probation revocation was based upon admissible evidence.

When the State called appellant’s wife to testify at the probation revocation hearing, she asserted her marital privilege and declined to testify against her spouse. OCGA § 24-9-23 (a). The State then called as a witness the clerk of the magistrate court. The clerk testified that Mrs. Farmer had come to the clerk’s office to pay overdue fines on an unrelated matter and had explained that her tardiness was due to her hospitalization for two broken arms that her husband had caused. Appellant’s wife executed an affidavit for appellant’s arrest in response to the clerk’s query whether Mrs. Farmer wished to do something about it. The clerk then testified to the contents of the wife’s statements to the clerk when the wife executed the affidavit, and the affidavit was admitted into evidence. The clerk’s testimony and the affidavit established that the wife had suffered two broken arms when appellant had forcefully ejected her from their home. There was no other evidence that the wife had suffered an injury or that any injury suffered was at the hands of her husband. The trial court ruled the clerk’s testimony admissible under OCGA § 24-3-10 and Brown v. State, 261 Ga. 66 (401 SE2d 492) (1991), as the prior testimony given under oath of a witness now inaccessible. The trial court also determined that the clerk’s testimony was admissible as substantive evidence of the aggravated battery because it recounted a prior statement inconsistent with the victim’s current desire to have the charge against her husband dismissed. See Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). No basis for the admission of the wife’s affidavit was given.

1. The clerk’s testimony was hearsay since its value rested mainly on the veracity and competency of one other than the witness relating it. OCGA § 24-3-1. The trial court based the admission of the clerk’s hearsay testimony on erroneous theories of law. OCGA § 24-3-10, cited by the trial court to support the admission of the clerk’s testimony, authorizes the admission of “[t]he testimony of a witness since . . . inaccessible for any cause which was given under oath on a former trial upon substantially the same issue and between substantially the same parties. . . .’¹ The authority given by the statute to use a witness’ prior testimony in a proceeding involving substantially the same parties and the same issues as those involved in the present trial ensures that the party against whom the testimony is offered had an adequate opportunity to cross-examine the now unavailable witness during the previous proceeding. Barnes v. State, 256 Ga. 370 (2) (349 SE2d 387) (1986). See also Agnor’s Georgia Evidence, § 11-29, wherein the author states “[t]he former trial must have been before a tribunal where cross-examination was possible and not prevented.” Even assuming that the execution of an affidavit to support the issuance of an arrest warrant constitutes “testimony” “on a former trial,” the prior “testimony” in this case was not admissible since the party against whom it was offered had not had the opportunity to cross-examine the unavailable witness at the prior proceeding.

2. Nor was the clerk’s account of the wife’s statement admissible as a prior inconsistent statement under Gibbons v. State, supra. At the probation revocation hearing, the wife gave testimony establishing the existence of her common-law marriage to appellant and affirmed that it was her desire to see the charge against her husband dismissed. She gave no testimony concerning the factual underpinning of the charge which served as the basis for the probation revocation. Since no in-court testimony was ever elicited with which the statements making up the affidavit could be inconsistent, the wife’s earlier statement to the clerk was inadmissible as a prior inconsistent statement. Barksdale v. State, 265 Ga. 9 (2) (a) (453 SE2d 2) (1995).

3. Recognizing that the trial court’s rationale for admitting the clerk’s testimony might not survive this Court’s scrutiny, the State suggests that this Court make the determination that the testimony was admissible under the “necessity” exception to the statute prohibiting the admission of hearsay evidence. OCGA § 24-3-1. In order to rule that the testimony is admissible under the necessity exception, we are asked to find that there is a necessity for the exception and “a circumstantial guaranty of the trustworthiness of the offered evidence. . . .” Higgs v. State, 256 Ga. 606 (3) (351 SE2d 448) (1987). However, the trial court was never asked to consider admitting the testimony under the “necessity” exception, and did not make any factual findings which would support admission under that exception to the rule against hearsay. Since the question was not presented to or ruled upon by the trial court, we decline the State’s invitation to encroach upon the factfinding function of the trial court. “The Supreme Court shall be a court of review . . .” (Ga. Const. 1983, Art. VI, Sec. VI, Par. II) for the correction of errors made by the trial court. See Bennett v. State, 187 Ga. App. 234 (369 SE2d 552) (1988). The trial court not having made a determination regarding the admissibility of the evidence under the “necessity” exception, there is no ruling to review for legal error. The case is remanded to the trial court for consideration of the issue.

Judgment reversed and case remanded.

All the Justices concur, except Carley, Thompson and Hines, JJ., who dissent.

1 It is undisputed that the assertion of the marital privilege renders the spouse unavailable to testify. See Luallen v. State, 266 Ga. 174 (5) (465 SE2d 672) (1996).