Bundrage v. State

Sears, Justice,

concurring specially.

Although I agree with the conclusion reached in the majority opinion that the statements that Williams and Barksdale made on the tape recording are admissible in evidence, I disagree with the majority’s rationale for that conclusion.

1. As for the statements of Barksdale, the majority opinion concludes that his statements are admissible because at the time of the call Barksdale was still an active conspirator and because

the electronic interception of the conversation created a recording of Barksdale’s statements, which statements Williams could have related if he had been a witness. Duren v. State, 177 Ga. App. 421, 422 (1) (339 SE2d 394) (1986). See also Ramsey v. State, 165 Ga. App. 854, 858 (4) (303 SE2d 32) (1983).

Majority opinion at 813-814. The second reason given by the majority for admitting Barksdale’s statements — that the electronic interception only created a recording of statements made by Barksdale that Williams could have related as a witness — is unnecessary and dangerous. It is unnecessary because the first reason given by the majority — that Barksdale was still an active co-conspirator —, coupled with a proper authentication of the tape, is all that is needed to uphold the admission of Barksdale’s statements. The fact that Williams could have testified as to Barksdale’s statements adds nothing to the opinion: It is neither a recognized exception to the hearsay rule nor a prerequisite to authenticating a tape. The second reason is dangerous because it implies that the fact that a person could have testified in court is an exception to the hearsay rule and renders out-of-court statements admissible. Although this reasoning does not lead to problems in this case because Barksdale’s statements were admissible under a legitimate exception to the hearsay rule, it could lead to erroneous results in other cases. Duren and Ramsey, in fact, appear to represent such cases. In both of those cases, a co-conspirator who had confessed cooperated with police by tape-recording conversations with the defendant. In both cases, the trial court admitted the tape containing those conversations, and in both cases the defendants contended on appeal that the conversations, which would include the co-conspirators’ statements as well as the defendants’ own statements, were inadmissible. Further, in both Duren and Ramsey the Court of Appeals appears to have reasoned that the co-conspirators’ statements during the conversations were admissible simply because they could have come into court and testified.² 3Of course, that someone may come into court and testify is not an exception to the hearsay rule, and a party should not be permitted to circumvent the hearsay rule by tape recording or videotaping a witness’s statement and introducing it in court in lieu of having the witness actually testify. In fact, we have recently addressed a similar situation in Thornton v. State ³ In that case, the state videotaped the statements of two children who were not the victims of abuse and introduced those videotapes at trial instead of having the children testify as to the abuse in question. We held the tapes inadmissible under the rule against hearsay and reversed Thornton’s conviction. Under the majority opinion, however, the videotapes in Thornton would have been admissible because the videotaping only “created a recording of what [the two children] could have related if [they] had been a witness.” Id. at 813-814.

In short, the fact that Williams could have testified to Barks-dale’s statements is an inappropriate and unnecessary factor to consider in determining whether Barksdale’s statements were admissible. Barksdale’s statements were admissible because he was an active part of the conspiracy when he made the statements and because the tape was properly authenticated.

2. With regard to Williams’s statements on the tape, the majority opinion holds that they are admissible under OCGA § 24-3-2, not for the truth of the matter asserted, but for the limited purpose of providing context for Barksdale’s statements so as to make them recognizable as a statement of a co-conspirator of Bundrage and thus admissible at trial. I cannot agree with this analysis.

First, in support of its holding that Williams’s statements were admissible under § 24-3-2, the majority cites Green, Ga. Law of Evidence (4th ed.), § 288, to the effect that “an utterance [that] is merely a part of the surrounding circumstances of an occurrence” is admissible as original evidence. Here, however, Williams’s statements on the tape were not part of the surrounding circumstances of an occurrence, and thus would not be admissible under the rationale set forth in Green.⁴ ***Moreover, under § 24-3-2, evidence is admissible to explain an actor’s (here, Barksdale’s) conduct or motives.^{5 6}Williams’s statements themselves, however, do not explain any conduct or motives of Barksdale’s, but simply provide context for Barksdale’s responses.

The majority also relies on United States v. Gutierrez-Chavez.⁶ In that case, the court ruled that a co-conspirator’s statements in a taped conversation with the defendant were admissible under the theory that they were not hearsay. The court reasoned that the statements were not offered for their truth, but only for the limited purpose of putting the responses of the defendant into context and making them recognizable as an admission.⁷

In this case, however, at least in some critical instances the significance of Williams’s statements is in the truth of them. For instance, when Williams asks Barksdale “[w]hat y’all [Barksdale and Bundrage] do with them guns,” and Barksdale responds that “they gone,” Barksdale’s response has no significance standing alone. The response is only relevant to the issues in the case if Williams’s implicit assertion that Barksdale and Bundrage had the guns is true.⁸ If Williams’s implicit assertion is true, then Barksdale’s response is relevant to the case as an admission that he and Williams had the guns and had disposed of them, and would be admissible as a statement of Barksdale’s regarding the conspiracy.

Moreover, at least one federal court has questioned whether this exception should apply when the statements of the co-conspirator are not merely minor, insignificant statements, but contain affirmatively prejudicial statements against the defendant.⁹ In this regard, although the majority states that “there is no contention that any of Williams’ statements in the recorded calk were affirmatively prejudicial to appellant,” and that its review of the record shows that none of Williams’s statements were inculpatory of Bundrage, my review of the tape recording indicates that the whole thrust of the recording, thus including Williams’s statements, is affirmatively prejudicial to Bun-drage. To begin, Williams’s implicit assertion, discussed above, that Barksdale and Bundrage had the guns is affirmatively prejudicial to Bundrage. In much of the rest of the conversation, Barksdale and Williams express concern that the police have visited Williams and mentioned Bundrage’s and Barksdale’s names to him as possible suspects, and they discuss how they have to “watch” themselves. Thus, Williams’s statements on the tape do offer fertile grounds for inferences of Bundrage’s guilt.

3. Although I disagree with the majority’s rationale for holding that Williams’s statements were admissible, I conclude that they were admissible under the theory of adoptive admissions.

Under Federal Rule of Evidence 801 (d) (2) (B) a statement is not hearsay if “the statement is offered against a party and is ... a statement of which the party has manifested an adoption or belief in its truth.” Some federal courts have reasoned that, if a defendant, through the give and take of a phone conversation, has manifested an intent to adopt the statements of the other party to that conversation, then the other party’s statements are not hearsay.¹⁰

In Georgia, although we do not have an adoptive admissions exception to the hearsay rule, we do have OCGA § 24-3-36, which provides that “[acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.” Moreover, this Court has held that the list of hearsay exceptions in our evidence code is not exhaustive; ¹¹ 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 present 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”;¹²

and that if those two reasons are met, the hearsay in question is admissible.¹³

In this case, the necessity requirement is met on the ground that Williams was unavailable to testify (due to his refusal to testify) as to critical evidence in a murder case.¹⁴ Further, the trustworthiness of Williams’s statements stems from the fact that a conspirator (here, Barksdale) would not manifest an intent to adopt the statements, particularly incriminating ones, of another conspirator (Williams) unless those statements were true. In this regard, hearsay statements of one person that have been adopted by another person are at least as reliable and probably more so than statements to which the latter person has merely acquiesced or remained silent.¹⁵ We have limited § 24-3-36 when hearsay statements are sought to be admitted based on a defendant’s silence, Jarrett v. State, 265 Ga. 28 (453 SE2d 461) (1995), but Jarrett has no application here as the hearsay statements would not be admitted based on Bundrage’s silence. The statements, instead, would be admitted under a two-step analysis — first, that Barksdale adopted them as his own, and, second, that Barksdale’s statements, including the ones he adopted, are admissible against Bundrage under the co-conspirator exception to the hearsay rule.

Decided October 16, 1995 Reconsideration denied November 3, 1995. Lawrence & Ford, Francis N. Ford, for appellant. Fredric D. Bright, District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Richard J. Warren, Assistant Attorney General, for appellee.

4. In sum, because I agree with the majority that Barksdale’s statements on the tape are admissible under the co-conspirator exception to the hearsay rule but disagree with part of the majority’s rationale for admitting those statements, and because I would admit Williams’s statements on the tape under a different theory than that utilized by the majority, I specially concur in the majority opinion.

I am authorized to state that Presiding Justice Fletcher joins in this special concurrence.

2 In both cases the Court of Appeals reasoned that the conversations were admissible on the grounds that Crowder v. State, 237 Ga. 141 (227 SE2d 230) (1976), did not prevent a conspirator who had confessed from testifying at trial as to facts; that a defendant’s statements are admissible through the testimony of any one who heard them; that for these reasons the co-conspirator could have testified regarding the contents of the conversations; and that therefore the taped conversations were admissible.

3 264 Ga. 563, 564-566 (2) (a, b) (449 SE2d 98) (1994).

4 Compare Atlanta Gas Light Co. v. Slaton, 117 Ga. App. 317, 319 (2) (160 SE2d 414) (1968) (a witness who saw a person tampering with a gas meter shortly before a gas explosion (the occurrence) was allowed to testify to what the person was doing and should have been allowed to testify as to what the person said regarding his tampering with the gas line).

5 See Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982).

6 842 F2d 77, 81 (5th Cir. 1988).

7 Id. at 81.

8 See Weinstein’s Evidence, § 801 (c) [01] (if a statement is offered for the fact that the statement was made and not for the truth of the matter asserted, the fact that the statement was made must be relevant to the issues in the lawsuit).

9 See United States v. Smith, 578 F2d 1227, 1233, 1236-1241 (8th Cir. 1978). See also United States v. Alonzo, 991 F2d 1422, 1426-1427 (8th Cir. 1993).

10 See Gutierrez-Chavez, 842 F2d at 81; United States v. Rollins, 862 F2d 1282, 1296-1297 (7th Cir. 1988).

11 Higgs v. State, 256 Ga. 606, 607 (351 SE2d 448) (1987); Rea v. Parsley, 170 Ga. 788, 793 (154 SE 325) (1930).

12 Higgs, 256 Ga. at 607 (emphasis in original) (quoting Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (1) (173 SE2d 691) (1970)).

13 Higgs, 256 Ga. at 607-608.

14 See Higgs, 256 Ga. at 608.

15 See OCGA § 24-3-36.