Shaver v. State

405 S.E.2d 281, 199 Ga. App. 428, 1991 Ga. App. LEXIS 530

• Court: Court of Appeals of Georgia
• Decided: March 15, 1991
• Docket: A90A1843
• Status: Published

Opinions

Andrews, Judge.

Shaver was convicted of one count of child molestation and one count of aggravated child molestation, both against his four-year-old son. He appeals the judgment entered on the convictions.

The convictions were based on testimony from the mother of the victim and two investigative officers, who repeated out-of-court statements made to them by the victim describing the acts of molestation. Additionally, one of the officers testified to statements made to her by Shaver confessing that he committed the acts of molestation.

1. In his first three enumerations of error, Shaver contends this evidence was inadmissible, lacked probative value, and was therefore insufficient to sustain the convictions.

The state offered the hearsay testimony regarding the victim’s out-of-court statements pursuant to the exception created in OCGA § 24-3-16 (the Child Hearsay Statute), under which these statements in a child molestation case are admissible “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” A child is considered “available to testify” under OCGA § 24-3-16 only if he is competent to testify within the meaning of OCGA § 24-9-5.¹ In the Interest of K. T. B., 192 Ga. App. 132 (384 SE2d 231) (1989); Ward v. State, 186 Ga. App. 503 (368 SE2d 139) (1988). After the defendant expressed his desire to have the victim called as a witness (Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987)), a hearing was held to determine the child’s competency in which the victim, who was four years old at the time of trial, refused to testify and otherwise failed to qualify as a competent witness. Accordingly, the hearsay testimony was not admissible under OCGA § 24-3-16.

Nor do we find this hearsay testimony admissible under any other applicable exception. By relying on Idaho v. Wright, 497 U. S. _ (110 SC 3139, 111 LE2d 638) (1990), (under totality of circumstances test, court found that out-of-court statements of child unavailable as witness, lacked sufficient guarantees of trustworthiness, so inadmissible for Confrontation Clause purposes), and comparing the Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216) (1980) and Glisson v. State, 188 Ga. App. 152, 155 (372 SE2d 462) (1988) cases, the dissent apparently suggests that the out-of-court statements are admissible under the necessity exception to the hearsay rule. OCGA § 24-3-1 (b). The necessity exception most commonly applies when the out-of-court declarant is unavailable to testify because of death or the exercise of a privilege not to testify (Glisson, supra at 154), and the circumstances surrounding the statement provide a guaranty of trustworthiness. Higgs v. State, 256 Ga. 606, 607-609 (351 SE2d 448) (1987).

Here the victim was unavailable because he failed to qualify as a competent witness. Moreover, former OCGA § 24-3-16 (the Child Hearsay Statute as it applied prior to the 1989 amendment to OCGA § 24-9-5) set out the exception to the hearsay rule directly applicable here, and provided no exception for admission of these statements where the child is unavailable because he is not competent to testify. In the Interest of K. T. B., supra. “Only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule may be admitted.’ ” (Citations and punctuation omitted.) Adams v. State, 191 Ga. App. 16, 17 (381 SE2d 69) (1989). Under these circumstances the victim’s out-of-court statements fail to demonstrate sufficient indicia of reliability to qualify for the necessity exception. The incompetence of the witness cannot be avoided by presenting his testimony through the mouths of others.

Even though Shaver failed to object to admission of the hearsay, it can provide no basis for the convictions. “[H]earsay evidence has no probative value even if it is admitted without objection.” Germany v. State, 235 Ga. 836, 840 (221 SE2d 817) (1976); Collins v. State, 146 Ga. App. 857, 859-860 (247 SE2d 602) (1978).

Since the hearsay lacks any probative value, it cannot provide the material evidence necessary to corroborate the defendant’s confession, which, without such corroboration, is unsufficient to support the convictions. Brown v. State, 253 Ga. 363, 364 (320 SE2d 539) (1984); OCGA § 24-3-53. The argument that the hearsay is rendered trustworthy and admissible because corroborated by the defendant’s confessions, while the confessions are simultaneously corroborated by the hearsay is unpersuasive. This would sanction admission of otherwise unreliable evidence by mutual bootstrapping. See Idaho v. Wright, supra, 111 LE2d at 656-657 (rejecting attempt to bolster inherently unreliable hearsay by reference to other corroborating evidence).

Without the hearsay and uncorroborated confession, there was a lack of sufficient evidence to sustain the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In view of the conclusions reached in Division 1, we need not address the defendant’s remaining enumerations of error.

Judgment reversed.

Sognier, C. J., Banke, P. J., Birdsong, P. J., Carley, Pope and Cooper, JJ., concur. McMurray, P. J., and Beasley, J., dissent.

1 The offenses alleged in this case took place prior to the effective date of the 1989 amendment to OCGA § 24-9-5, which provided that any child is competent to testify in a child molestation case; thus former OCGA § 24-9-5 applies, requiring that the child qualify as a competent witness.