Jarrett v. State

Blackburn, Judge,

dissenting.

I must respectfully dissent, as I believe that the arresting officer’s testimony recounting the out-of-court statement of the defendant’s nephew constituted inadmissible hearsay.

As noted by the majority opinion, this court has frequently held that a witness may testify as to what a third party said in the presence of the defendant, even where the out-of-court declarant is unavailable at trial. Broome v. State, 141 Ga. App. 538 (233 SE2d 883) (1977); Henderson v. State, 170 Ga. App. 482 (317 SE2d 343) (1984), and cases cited therein. However, the Supreme Court has since disapproved of that rule. See Faircloth v. State, 253 Ga. 67 (316 SE2d 457) (1984).

Decided January 11, 1994 Reconsideration denied March 11, 1994 Thomas N. Brunt, for appellant. T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

In Faircloth, the Supreme Court acknowledged the modern trend of admitting out-of-court statements where the declarant is present at trial and available for cross-examination, but considered such testimony inadmissible hearsay where the declarant is unavailable at trial. In so concluding, the court emphasized that it is the out-of-court declarant whose veracity is at issue, and where the actual declarant is unavailable at trial, the defendant’s right of confrontation is inadequately protected by cross-examination of the witness who recounts the out-of-court statements.

The legal basis for this court’s past treatment of such out-of-court declarations as non-hearsay, i.e., that any declaration made in the presence of an accused is admissible, has been criticized as a “folklore,” and “not even good folklore” at that. Agnor’s Ga. Evid. (2nd ed.), § 11-9, p. 336. Such criticism may not require this court’s reconsideration of the issue, but the Supreme Court’s decision in Faircloth demands it.

Unlike Faircloth, where any error in the admission of the hearsay was rendered harmless by other, admissible evidence regarding the matter, the nephew’s out-of-court declaration establishing the defendant as the operator of the motorcycle was the strongest, if not only, evidence on that point and was critical to the instant case. Under these circumstances, the erroneous admission of the nephew’s declaration cannot be regarded as harmless, and the defendant’s conviction should be reversed.

I am authorized to state that Chief Judge Pope, Judge Cooper and Judge Smith concur in this dissent.