Walters v. the State

                              SECOND DIVISION
                               ANDREWS, P. J.,
                           MILLER and BRANCH, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 November 20, 2015




In the Court of Appeals of Georgia
 A15A1471. WALTERS v. THE STATE.

      BRANCH, Judge.

      A jury found Alonzo Ricardo Walters guilty of aggravated assault and

possession of a knife during the commission of a felony. He appeals, arguing that the

trial court improperly allowed the State to introduce the victim’s prior consistent

statement. Finding no reversible error, we affirm.

      Viewed in a light favorable to the verdict, the record shows that around 4 a.m.

on October 10, 2012, Valerie Mike stopped at a convenience store in Savannah to buy

gas on her way to work. She testified that as she was pumping gas, a man approached

her and asked for a cigarette, but Mike told him that she did not smoke. The man then

pulled out a butcher knife and demanded money. Mike screamed, ran into the store,

and called 911 on her cellphone, while the man fled on foot.
      The clerk who was working in the store testified that she heard a scream,

looked out the store window, saw Mike standing face-to-face with a man who had

been in the store several times earlier that morning, and then saw Mike running

toward the store. When Mike was halfway to the door, the clerk heard her scream,

“Oh my God, oh my God, he’s trying to rob me.” When Mike entered the store, the

clerk heard her say, “Oh my God, he got a knife.” At trial, the clerk identified Walters

as the man in question.

      Officer James Neff of the Savannah-Chatham Metropolitan Police Department

responded to the 911 call. Neff testified that Mike was “almost crying, shaking, [and]

upset,” but he was able to calm her down so that she could tell him what had

happened. Neff then related what Mike had told him – that she had been pumping gas

when a man approached her and asked for a cigarette, then pulled out a knife and

demanded money, after which she screamed and ran into the store. As Neff was

recounting Mike’s story, defense counsel interrupted: “Your Honor, I’m going to

object to this line of questioning. It’s just simply to bolster what Ms. Mike has already

testified to. She hasn’t been impeached on that.” The prosecutor responded, “I don’t

believe it’s hearsay. I believe that she’s already testified and was subject to cross-



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examination, so I don’t feel that it’s hearsay.” The court overruled defense counsel’s

objection, and Neff finished recapping what Mike had said.

      Neff then testified that after speaking with Mike, he broadcast her description

of her assailant over the police radio, and within minutes other officers found a man

in the area matching the description, along with a large butcher knife in some nearby

bushes. Neff took Mike to the man’s location for a show-up, and she positively

identified the man – who turned out to be Walters – as the one who had threatened

her with the knife.

      Walters was arrested, taken to the police station, and interviewed by a

detective. He told the detective that he had first encountered Mike when she pulled

into the gas station and yelled at him to move out of the way, prompting him to

respond with an expletive. Walters said that Mike was “reaching for something,” so

he pulled out his knife in self-defense. He denied asking her for cigarettes or money.

      Walters gave a different account at trial. There, he admitted that he had

approached Mike while she was pumping gas, but claimed that “it wasn’t about

robbery. It was about something else.” Specifically, Walters testified that he wanted

“to see if I can have sex with [Mike].” He insisted that he had displayed his knife only

in self-defense after seeing Mike reach for something in her clothing. Walters

                                           3
explained that he had lied to the detective about his initial encounter with Mike

because he was afraid of being charged with sexual assault.

      Walters was charged with aggravated assault and possession of a knife during

the commission of a felony. At trial, his defense – as argued by his attorney – was that

“Valerie Mike jumped to the wrong conclusion because of [her] misperceptions about

what was actually going on and she became hysterical, which clouded her judgment

and perception.” The jury found him guilty of both crimes.

      On appeal, Walters asserts one enumeration of error – that the trial court erred

by allowing Neff to testify about what Mike had told him. In particular, Walters

argues that the State had no permissible reason to introduce Mike’s prior consistent

statement because “there was no charge of recent fabrication, improper influence or

improper motive asserted by Mr. Walters during his cross examination of Ms. Mike.”

We agree that Walters did not attack Mike’s credibility by charging her with recent

fabrication or improper influence or motive. Under Georgia’s new Evidence Code,

however, our analysis does not end there.

      Before the implementation of the new Evidence Code, “Georgia had no statute

governing the admission of prior consistent statements.” Grant v. State, 326 Ga. App.

121, 128 (4), n. 4 (756 SE2d 255) (2014). Case law established a general rule that “a

                                           4
witness’ testimony cannot be fortified or corroborated by his own prior consistent

statements.” Parker v. State, 162 Ga. App. 271, 274 (5) (290 SE2d 518) (1982)

(citations omitted). Such statements could be admitted, however, to rehabilitate a

witness if the veracity of the witness’s trial testimony had been placed in issue at trial

and the witness was present at trial and available for cross-examination. Williams v.

State, 292 Ga. 844, 849 (3) (c) (742 SE2d 445) (2013). A witness’s veracity was

placed in issue only in limited circumstances – if “affirmative charges of recent

fabrication, improper influence, or improper motive [were] raised during cross-

examination.” Id. (citation omitted). In the absence of affirmative charges of recent

fabrication or improper influence or motive, prior consistent statements were “hearsay

evidence improperly admitted to bolster the witness’s credibility in the eyes of the

jury.” Baugh v. State, 276 Ga. 736, 738 (2) (585 SE2d 616) (2003) (citations and

punctuation omitted).

      The new Evidence Code, effective January 1, 2013, specifically addresses prior

consistent statements:

             A prior consistent statement shall be admissible to rehabilitate a
      witness if the prior consistent statement logically rebuts an attack made
      on the witness’s credibility. A general attack on a witness’s credibility



                                            5
      with evidence offered under Code Section 24-6-608 or 24-6-609[1] shall
      not permit rehabilitation under this subsection. If a prior consistent
      statement is offered to rebut an express or implied charge against the
      witness of recent fabrication or improper influence or motive, the prior
      consistent statement shall have been made before the alleged recent
      fabrication or improper influence or motive arose.


OCGA § 24-6-613 (c) (emphasis supplied).2 According to its plain terms, this new

rule allows the admission of prior consistent statements if they logically rebut any

attack on a witness’s credibility, except for attacks upon his character for truthfulness

or evidence of his prior convictions. Accordingly, our inquiry is not limited to asking

whether Walters impugned Mike’s credibility by charging her with recent fabrication

or improper influence or motive. We must also consider whether Walters attacked

Mike’s credibility on other grounds. Pre-OCGA § 26-6-613 precedent is of little help

in addressing this question because our definition of what constituted an attack on

      1
        OCGA § 24-6-608 concerns evidence of a witness’s conduct and character for
truthfulness, and OCGA § 24-6-609 involves impeachment by evidence of a prior
conviction.
      2
          Georgia’s new hearsay rule also addresses prior consistent statements, as
follows: “An out-of-court statement shall not be hearsay if the declarant testifies at
the trial or hearing, is subject to cross-examination concerning the statement, and the
statement is admissible as a prior inconsistent statement or a prior consistent
statement under Code Section 24-6-613 or is otherwise admissible under this chapter.
OCGA § 24-8-801 (d) (1) (A).”

                                           6
credibility was narrower then. We therefore turn to federal law. See Parker v. State,

296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015) (“[W]here the new Georgia rules

mirror their federal counterparts, it is clear that the General Assembly intended for

Georgia courts to look to the federal rules and how federal appellate courts have

interpreted those rules for guidance.”).

      Under federal law, the admissibility of prior consistent statements is governed

by Federal Rule of Evidence 801 (d) (1) (B), which was recently amended. The

version of that rule that was in effect when OCGA § 24-6-613 was enacted provided

that a prior consistent statement was inadmissible hearsay unless it was made by a

testifying witness available for cross-examination and was “offered to rebut an

express or implied charge against the declarant of recent fabrication or improper

influence or motive.” Tome v. U. S., 513 U. S. 150, 157 (II) (A) (115 SCt 696, 130

LE2d 574) (1995), citing Fed. R. Evid. 801 (d) (1) (B) (1974). Under the then-

existing federal rule, “[p]rior consistent statements may not be admitted to counter all

forms of impeachment,” but only to “rebut a charge of ‘recent fabrication or improper

influence or motive.’” Tome, 513 U. S. at 157 (II) (A) (citation and punctuation

omitted). Thus, OCGA § 24-6-613 does not mirror the former federal rule, which –

like Georgia law before the new Evidence Code – narrowly defined the kind of

                                           7
credibility attack that could justify the admission of a prior consistent statement.

Accordingly, federal precedent interpreting the former federal rule is also of little

help here.

      The federal rule was amended in 2014, however, and it now provides that a

declarant-witness’s prior consistent statement is admissible if offered “(i) to rebut an

express or implied charge that the declarant recently fabricated it or acted from a

recent improper influence or motive in so testifying; or (ii) to rehabilitate the

declarant’s credibility as a witness when attacked on another ground.” Fed. R. Evid.

801 (d) (1) (B) (2014) (emphasis supplied). This language is not identical to that of

OCGA § 24-6-613 (c), which allows a prior consistent statement if it “logically rebuts

an attack made on the witness’s credibility.” Nevertheless, OCGA § 24-6-613 (c) and

newly amended Fed. R. Evid. 801 (d) (2) (B) both broaden the scope of credibility

attacks that can trigger admissibility of a prior consistent statement, such that

precedent interpreting the latter may be useful in construing the former. Given the

newness of the federal rule, there is little precedent interpreting it, and none

addressing the issue we face here.




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      But the advisory committee notes accompanying the new federal rule may be

instructive:3

                [The former rule] covered only those consistent statements that
      were offered to rebut charges of recent fabrication or improper motive
      or influence. The Rule did not, for example, provide for substantive
      admissibility of consistent statements that are probative to explain what
      otherwise appears to be an inconsistency in the witness’s testimony. Nor
      did it cover consistent statements that would be probative to rebut a
      charge of faulty memory. Thus, the Rule left many prior consistent
      statements potentially admissible only for the limited purpose of
      rehabilitating a witness’s credibility. . . . The intent of the amendment
      is to extend substantive effect to consistent statements that rebut other

      3
         “[A]s judges, we should only be concerned with what laws actually say, not
by what the people who drafted the laws intended.” Day v. Floyd County Bd. of
Educ., 333 Ga. App. 144, 151 (775 SE2d 622) (2015) (Dillard, J., concurring)
(punctuation and footnotes omitted). Unlike ordinary legislative history, however,
advisory committee notes are generated by a committee of judges, professors, and
practitioners who are appointed by the Chief Justice of the United States and who
engage in a lengthy process of drafting and revision, culminating in approval by the
Supreme Court and submission to Congress. See Thomas E. Baker, An Introduction
to Federal Court Rulemaking Procedure, 22 Tex. Tech. L. Rev. 323, 329-331 (1991);
see also 28 USC § 2072 (“Rules of procedure and evidence; power to prescribe”).
Although advisory committee notes cannot change the plain meaning of the federal
rules of evidence, they are “assuredly persuasive scholarly commentaries – ordinarily
the most persuasive – concerning the meaning of the rules.” Tome, 513 U. S. at 161
(Scalia, J., concurring in part and concurring in the judgment); see also Horenkamp
v. Van Winkle & Co., 402 F.3d 1129, 1132 (II) (11th Cir. 2005) (advisory committee
notes “are nearly universally accorded great weight in interpreting federal rules”)
(citation and punctuation omitted).

                                           9
      attacks on a witness – such as the charges of inconsistency or faulty
      memory. The amendment does not change the traditional and well-
      accepted limits on bringing prior consistent statements before the
      factfinder for credibility purposes. It does not allow impermissible
      bolstering of a witness. As before, prior consistent statements under the
      amendment may be brought before the factfinder only if they properly
      rehabilitate a witness whose credibility has been attacked.


See Fed. R. Evid. 801, Advisory Committee Notes. Thus, the advisory committee

notes indicate that while prior consistent statements remain inadmissible under

federal law to bolster a witness’s testimony, they may now come in to rebut a broad

range of attacks on a testifying witness’s credibility.

      With this backdrop, we return to the question of whether Walters attacked

Mike’s credibility in some way other than by charging her with recent fabrication or

improper influence or motive. Our review of the record shows that he did. On cross-

examination, defense counsel asked Walters about her 911 call, which had been

played for the jury during her direct examination but apparently was unintelligible in

parts. Defense counsel asked Mike several times whether she had told the 911

operator that Walters had a gun or a knife. Defense counsel also established that Mike

was very upset by the incident. Later, Walters took the stand and testified that he had

actually approached Mike for sex and had brandished his knife only when he thought

                                          10
she was reaching for a weapon of her own. During closing argument, defense counsel

stated: “Was Mike lying? No. I don’t say she’s lying. I think she’s convinced that

what she said was the truth.” Counsel suggested, however, that Mike became so upset

when Walters approached her that she misinterpreted his intentions. Counsel further

told the jury that they should acquit Walters “[i]f your mind is unsettled, wavering,

or unsatisfied about whether or not Ms. Mike is believable or if her memory of events

was faulty because of hysteria.” Thus, while Walters did not call Mike a liar, he

nevertheless attacked her credibility by suggesting that she had misidentified

Walters’s weapon during her 911 call and that her account of the events was not

believable due to her heightened emotional state.4

      Because Mike’s credibility was attacked, her prior consistent statements to Neff

were admissible if they “logically rebut[ted]” the attack. OCGA § 24-6-613 (c).

Mike’s prior statement that her assailant had wielded a knife logically rebutted

Walters’ suggestion that she had misidentified the weapon. And Mike’s prior


      4
        Although some of these credibility attacks occurred after Mike’s prior
consistent statement was introduced through Neff’s testimony, a prior inconsistent
statement may be admissible if the testifying witness’s credibility was “eventually
attacked” at a later point in the trial. Pate v. State, 315 Ga. App. 205, 207 (1) (a) (726
SE2d 691) (2012), citing Sterling v. State, 267 Ga. 209, 213 (9) (477 SE2d 807)
(1996).

                                           11
statement that she did not scream and flee until Walters pulled the knife logically

rebutted his claim that she was so upset when he initially approached her that she

misconstrued his intentions. Thus, we conclude that the portions of Neff’s testimony

recounting these statements were admissible under OCGA § 24-6-613 (c).

      That leaves the remainder of Neff’s testimony about Mike’s statement – that

Walters asked for a cigarette, then pulled out a knife and demanded money. We

question whether the consistency between this part of Mike’s account to the

responding officer and her testimony at trial logically rebuts Walters’s charge that her

perception of the entire encounter was clouded by hysteria. We conclude, however,

that even if the admission of the remainder of Mike’s prior consistent statement was

erroneous, any error was harmless.

      Because “[t]he improper admission of bolstering evidence is a non-

constitutional, evidentiary error, . . . we must determine whether it is ‘highly

probable’ that the error did not contribute to the jury’s guilty verdict.” Cowart v.

State, 294 Ga. 333, 341 (4) (b) (751 SE2d 399) (2013) (citation omitted). In making

this determination, we may not rely on the fact that Mike gave testimony at trial that

was consistent with her prior statements to Neff, “as the very nature of the error in

admitting the prior consistent statement is that it is repetitive of that to which the

                                          12
witness has already testified.” Character v. State, 285 Ga. 112, 120 (6) (674 SE2d

280) (2009) (punctuation and footnote omitted). However, we note that the sales clerk

working at the gas station testified that she heard Mike scream, “oh my God, he’s

trying to rob me” as she ran into the store. Police found Walters with a knife nearby,

and he later admitted to a detective that he had encountered Mike at the gas station

and eventually pulled out a knife. To the extent that the case boiled down to a

credibility contest between Mike and Walters as to whether he asked her for a

cigarette and money (as she claimed) or for sex (as he claimed), the fact that Walters

told a different story to the investigating detective than he did at trial undermined his

credibility, while there was no evidence that Mike had made any prior inconsistent

statements. Under these circumstances, we conclude that it is not probable that the

admission of the remainder of Mike’s prior consistent statement contributed to the

verdict and that any error was therefore harmless.

      Judgment affirmed. Andrews, P. J., and Miller, J., concur.




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