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Docket Number

A91A1086.

Attorney(S)

Rubin Law Offices, Floyd E. Doolittle, Robert P. Hoyt, for appellant. W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

Judges

BIRDSONG, Presiding Judge.

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Smart Summary

Case Summary: Gregg v. The State, A91A1086 (Court of Appeals of Georgia, Sept. 5, 1991)

Factual and Procedural Background

Thomas Mark Gregg was tried in Spalding Superior Court before Judge Whalen and convicted of two counts of child molestation. He appealed the judgment of conviction and his sentence. On appeal Gregg raised four enumerations of error, principally contesting the admission at trial of certain prior out-of-court statements by the child victim under OCGA § 24-3-16.

Legal Issues Presented

Whether admission of the victim's prior out-of-court statements under OCGA § 24-3-16 was erroneous, particularly where the statements were offered as prior consistent statements allegedly used to bolster inconsistent or recanting testimony.
Whether a trial court may modify a previous ruling on a motion in limine during the course of trial.
Whether, when a motion in limine to exclude hearsay under OCGA § 24-3-16 has been denied (or when admissibility is contested), the court is limited to considering only evidence of "indicia of reliability" presented at the pretrial hearing, or whether evidence subsequently introduced at trial may be considered in determining whether the statutory "indicia of reliability" exists.
What factors constitute "indicia of reliability" for out-of-court statements by a child under OCGA § 24-3-16 and whether the record here contained sufficient indicia to support admission of the victim's statements.

Arguments of the Parties

Appellant's Arguments

Appellant contended the State introduced extensive inadmissible prior consistent statements to bolster the inconsistent and recanting testimony of the alleged victim.
Appellant argued the trial court erred in denying a motion in limine to exclude testimony of hearsay witnesses offered under OCGA § 24-3-16 because, at the pretrial motion hearing, no evidence demonstrating the required "indicia of reliability" was tendered.

The opinion does not contain a detailed account of the appellee's specific trial or appellate arguments beyond the court's characterizations of the State's position and its reliance on statutory and case law authorities in support of admissibility.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Edwards v. State, 255 Ga. 149, 151 (335 S.E.2d 869)	Prior consistent out-of-court statements are admissible where a witness's veracity is at issue and the witness is present, under oath, and subject to cross-examination.	Cited to support the proposition that the victim's prior consistent statements were admissible here where the victim testified and was subject to cross-examination.
Richardson v. State, 256 Ga. 746, 747 (353 S.E.2d 342)	Affirmed the rule in Edwards regarding admissibility of prior consistent statements.	Listed as accord to Edwards to reinforce admissibility of prior consistent statements.
Treadaway v. State, 191 Ga. App. 111 (381 S.E.2d 43)	Recognized the admissibility principles regarding prior consistent statements.	Cited as additional authority in support of admissibility.
Frink v. State, 177 Ga. App. 604 (340 S.E.2d 631)	Addresses procedural handling of motions in limine during trial.	Cited for the principle that a trial court may modify a ruling on a motion in limine at trial.
Reynolds v. State, 257 Ga. 725, 726 (363 S.E.2d 249)	OCGA § 24-3-16 does not require that a hearing to determine "indicia of reliability" be held prior to receiving the testimony.	Used to support the court's holding that admissibility may be based on indicia of reliability shown in the record either before or after introduction of the statements.
Newberry v. State, 184 Ga. App. 356, 358 (361 S.E.2d 499)	There is no requirement that competency of a child be determined during an investigative interview before admitting the substance of that interview; timing of the statement (days, weeks, months later) is not by itself dispositive of unreliability.	Cited to support that pretrial determination is not mandatory and to note that delay alone does not render a child's statement unreliable.
Gully v. Glover, 190 Ga. App. 238 (378 S.E.2d 411)	Trial court has broad discretion in the admission of evidence.	Invoked to explain the trial court's discretion to admit evidence subject to foundation being later established.
Tony v. Pollard, 248 Ga. 86 (281 S.E.2d 557)	An appellate court will not reverse a correct ruling regardless of the reason given for, or the timing of, the trial court's ruling.	Used to support affirming a correct evidentiary ruling even if the timing or stated basis was imperfect, so long as the record supports admissibility.
Gadson v. State, 197 Ga. App. 315, 316 (398 S.E.2d 409)	Voluntariness of a confession may be determined by looking at the evidence contained in the entire record.	Offered by analogy to support the proposition that an appellate court may consider the entire record when assessing indicia of reliability.
Whatley v. State, 196 Ga. App. 73, 75 (395 S.E.2d 582)	Evidence from pretrial, trial, and posttrial proceedings may be considered in certain determinations.	Used analogously to support considering evidence from multiple stages in determining admissibility or related issues.
Jones v. State, 187 Ga. App. 421, 422-423 (370 S.E.2d 784)	May consider evidence in suppression hearing and at trial in determining legality of search.	Cited as supporting authority for considering the full record across proceedings.
Godfrey v. State, 258 Ga. 28, 29 (365 S.E.2d 93)	"Indicia of reliability" must spring from the circumstances of the statement.	Cited to emphasize that reliability derives from the statement's circumstances.
Knopp v. State, 190 Ga. App. 266 (378 S.E.2d 703)	Discusses factors that may be considered in assessing reliability of a child's statement.	Supports the list of non-exclusive factors the court may consider when assessing indicia of reliability.
Hunter v. State, 194 Ga. App. 711, 712 (391 S.E.2d 695)	Referenced for comparison of factors relevant to reliability.	Included as comparative authority in discussing relevant factors.
Ortiz v. State, 188 Ga. App. 532, 535 (374 S.E.2d 92)	Referenced for comparison of factors relevant to reliability.	Included as comparative authority in discussing relevant factors.
State v. Sorenson, 421 N.W.2d 77 (S.C. Wisc.)	Non-Georgia authority cited in discussion of factors and reliability.	Cited as additional authority relevant to factors for assessing reliability.

Court's Reasoning and Analysis

The Court of Appeals addressed appellant's contentions in a multi-part analysis.

First, the court rejected appellant's claim that admission of "extensive inadmissible prior consistent statements" was error. The court concluded both that (a) for reasons discussed later in the opinion the statements were admissible under OCGA § 24-3-16, and (b) prior consistent statements are admissible where, as here, the veracity of a witness is at issue and the witness is present at trial, under oath, and subject to cross-examination. The court relied on Edwards v. State and related authorities for that proposition.

Second, the court noted that a trial court may modify a ruling on a motion in limine at trial, citing Frink and an evidence treatise. This supports the trial judge's ability to revisit pretrial evidentiary rulings when circumstances at trial warrant it.

Third, and central to the appeal, the court examined whether the trial court's finding regarding the "indicia of reliability" required by OCGA § 24-3-16 had to be made exclusively at the pretrial hearing. The court explained that (1) while the statute requires a finding that the circumstances of the statement provide sufficient indicia of reliability, that finding is not a condition precedent to admissibility at trial; (2) if, after both sides have rested, the record contains competent evidence supporting a finding of indicia of reliability, any error resulting from an earlier denial of a motion in limine is rendered harmless; and (3) appellate courts may consider evidence offered at pretrial hearings and at trial in assessing whether the record as a whole supports the requisite indicia of reliability. The court cited Reynolds and Newberry for the proposition that a prior hearing is not required and relied on cases such as Gully and Tony v. Pollard to explain trial-court discretion and appellate review.

The opinion then set out that "indicia of reliability" must arise from the circumstances of the statement and listed non-exclusive factors that a court may consider, drawn from Godfrey, Knopp, and related authorities. The enumerated factors (as recited in the opinion) include: the atmosphere and circumstances under which the statement was made (time, place, people present); spontaneity; the child's age; the child's demeanor; the child's physical or emotional condition; presence or absence of threats or promises; presence or absence of drugs or alcohol; the child's general credibility; presence or absence (and nature) of coaching by others; the nature of the child's statement and language used; and the consistency between repeated out-of-court statements by the child. The court cautioned these factors are not mechanical or exhaustive and that delay between incident and statement does not, by itself, render a statement unreliable.

Reviewing the record (the transcript of the hearing and trial), the appellate court determined there was a sufficient showing of indicia of reliability for all out-of-court statements by the victim that were presented to the jury by eyewitness testimony. The court further observed the child victim testified at trial and was subject to examination and cross-examination by both parties, allowing the jury to observe demeanor and permitting confrontation, which the court viewed as an additional safeguard protecting appellant's fair-trial rights.

Consequently, the court concluded that appellant's enumerations of error lacked merit because the record contained sufficient evidence to support admissibility under OCGA § 24-3-16 and the trial procedures provided adequate safeguards.

Holding and Implications

Holding: The Court of Appeals affirmed the judgment. The court held that the trial court did not err in admitting the victim's prior out-of-court statements, that a trial court may modify rulings on motions in limine during trial, and that indicia of reliability may be established from the record as a whole (including evidence introduced at trial), so long as the record supports such a finding under OCGA § 24-3-16.

Implications:

The direct effect is that Gregg's convictions and sentence were upheld and his enumerations of error regarding admission of the victim's prior statements were rejected.
The opinion reiterates and applies existing Georgia authorities concerning: (a) admissibility of prior consistent statements when the witness testifies and is subject to cross-examination, (b) the trial court's discretion to revisit motion in limine rulings during trial, and (c) the principle that evidentiary findings of "indicia of reliability" under OCGA § 24-3-16 may be supported by evidence in the entire trial record rather than only by pretrial hearings. The opinion does not purport to announce a novel rule beyond these applications of existing precedent.

Disposition: Judgment affirmed. (Pope and Cooper, JJ., concur.)

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GREGG v. THE STATE.

BIRDSONG, Presiding Judge.

Thomas Mark Gregg appeals his judgment of conviction of two counts of child molestation and his sentence.

Appellant has filed four enumerations of error relating to the alleged erroneous admissions of prior out-of-court statements of the child victim under the provisions of OCGA § 24-3-16. Held:

1. Appellant's assertion that error occurred because the State introduced "extensive inadmissible prior consistent statements to bolster the inconsistent and recanting testimony of the alleged victim" is without merit. First, for reasons discussed in Division 3 below, the statements were admissible. Secondly, "where [as here] the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement[s] of the witness [are] admissible." Edwards v. State, 255 Ga. 149, 151 ( 335 S.E.2d 869); accord Richardson v. State, 256 Ga. 746, 747 (5) ( 353 S.E.2d 342); Treadaway v. State, 191 Ga. App. 111 (2) ( 381 S.E.2d 43).

2. The trial court can modify a ruling on a motion in limine at trial. Agnor, Ga. Evidence (2d ed.), Motion in Limine § 8-1.1, citing Frink v. State, 177 Ga. App. 604 (1) ( 340 S.E.2d 631).

3. Appellant asserts the trial court erred in denying the motion in limine to exclude testimony of hearsay witnesses offered under OCGA § 24-3-16, because no evidence of "indicia of reliability" was tendered at the hearing on the motion. During a hearing as to the victim's competency, the trial court indicated it would attempt to make a "specific finding" as to the issue of "indicia of reliability." At the conclusion of the hearing, the trial court found "sufficient indicia of reliability."

(a) Pretermitting whether this finding was supported at the conclusion of the so-called competency hearing by evidence of record is the question of whether the trial court, in ultimately admitting victim statements at trial, under OCGA § 24-3-16, is limited solely to evidence of "indicia of reliability" offered at the pretrial hearing, or whether it also may consider evidence subsequently introduced at trial and bearing on the "indicia of reliability" at the time the statement was made.

We find that if, after both sides have rested at trial, competent evidence of record exists which will support a finding of "indicia of reliability," then error, if any, resulting from a previous denial of the motion in limine is rendered harmless. In this regard, examination of OCGA § 24-3-16 reveals that while the court must find that "the circumstances of the statement provide sufficient indicia of reliability," such finding is not a condition precedent to the admissibility of the statement; rather, this statutory requirement is met if after both parties have rested, the record contains evidence which would support such a finding. In fact, our courts have consistently held "OCGA § 24-3-16 does not require a hearing to determine `indicia of reliability' be held prior to receiving the testimony," Reynolds v. State, 257 Ga. 725, 726 (2) ( 363 S.E.2d 249) (where appellant had contended "the trial court erred by allowing the [witnesses] to testify to statements made by [child] without first making a determination that the statements possessed `sufficient indicia of reliability.'"). Likewise, we held, when a finding of child competency was required by the laws of this state, "[t]here is no requirement that the trial court must determine competency of a child witness during an investigative interview before the substance of that interview can be admitted into evidence." Newberry v. State, 184 Ga. App. 356, 358 (4) ( 361 S.E.2d 499). The trial court has broad discretion in the admission of evidence (see Gully v. Glover, 190 Ga. App. 238 (4) ( 378 S.E.2d 411)), and may duly admit evidence subject to an adequate foundation for admissibility being subsequently established by the proponent. "The object of all legal investigation is the discovery of truth," (OCGA § 24-1-2) and as long as sufficient evidence of indicia of reliability appears in the record either before or after the introduction of the child's out-of-court statements, the fair trial rights of the defendant are adequately protected. Thus, if the record contains sufficient evidence of "indicia of reliability," we would not reverse the correct ruling of the trial court regardless of the reason given for or the timing of its ruling. See Tony v. Pollard, 248 Ga. 86 (1) ( 281 S.E.2d 557). And in this regard, an appellate court can consider evidence offered not only at a pretrial hearing, but that offered by either the State or the defendant during the course of the trial. Cf. Gadson v. State, 197 Ga. App. 315, 316 (1) ( 398 S.E.2d 409) (voluntariness of confession may look at evidence contained in entire record); Whatley v. State, 196 Ga. App. 73, 75 (1) ( 395 S.E.2d 582) (may consider evidence in pretrial, trial and posttrial proceedings in determining propriety of disclosing informant's identity); Jones v. State, 187 Ga. App. 421, 422-423 ( 370 S.E.2d 784) (may consider evidence in suppression hearing and at trial in determining legality of search).

(b) Indicia of reliability must spring from the circumstances of the statement. Godfrey v. State, 258 Ga. 28, 29 ( 365 S.E.2d 93); see Knopp v. State, 190 Ga. App. 266 (2) ( 378 S.E.2d 703). The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child's statement to the persons present; (3) the child's age; (4) the child's general demeanor; (5) the child's condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child's general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child's statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child's statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. Compare Hunter v. State, 194 Ga. App. 711, 712 ( 391 S.E.2d 695); Ortiz v. State, 188 Ga. App. 532, 535 (3) ( 374 S.E.2d 92); and Newberry v. State, supra; see also State v. Sorenson, 421 N.W.2d 77 (S.C. Wisc.). These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. Nor does the fact that the statement is made days, weeks, or even "several months after the alleged incident," in and of itself make the statement unreliable. Newberry, supra at 358 (2).

Examination of the transcript of the hearing and trial establishes a sufficient showing of indicia of reliability, within the meaning of OCGA § 24-3-16, as to all out-of-court statements made by the victim, which were testified to by witnesses in the presence of the jury.

(c) The record also shows the child was present at trial, testified as a court witness, and was subject to examination and cross-examination by appellant and the State. Thus, appellant had every conceivable opportunity to examine and cross-examine the child in the presence of the jury, regarding the child's memory of and the circumstances surrounding his making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the child's demeanor in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to appellant's right of fair trial, and provided appellant full opportunity for confrontation.

The enumerations of error and assertions of appellant in support thereof are without merit.

Judgment affirmed. Pope and Cooper, JJ., concur.

DECIDED SEPTEMBER 5, 1991 — RECONSIDERATION DENIED SEPTEMBER 19, 1991 — CERT. APPLIED FOR.

GREGG v. STATE