Friday, June 2, 2017
In Adkins v. State, 2017 WL 2061679 (Ga. 2017), Mark Adkins was charged with a number of crimes arising from the murder of Frederick Early and the non-fatal shootings of Briona Moore and Pamphylia Baynes. Baynes picked Adkins out of a photo array conducted by Detective Alan Sammons of the Savannah-Chatham Metropolitan Police Department. At trial,
Sammons testified that Baynes provided a description of the shooter and picked Adkins out of a photo array, but did not provide a name of the shooter. On cross-examination, Sammons testified that, before showing Baynes the photo line-up, he did not ask her to provide "specific facial features" of the alleged shooter. On re-direct examination, the prosecutor asked Sammons to explain why he had not asked Baynes for that information. Sammons replied, "My instinct told me she knew who the shooter was, that she already had seen him." Defense counsel objected that this was "[i]mproper opinion" testimony because the witness was "talking about his instincts. He's not Spider Man." The trial court overruled the objection, finding that Sammons was "explaining his course of conduct."
The Supreme Court of Georgia agreed, distinguishing cases in which police officers improperly provided opinion testimony about the credibility/veracity of witnesses for the prosecution by concluding that
Here, Sammons's testimony that his "instinct" told him that Baynes knew the identity of the shooter was offered to explain why he had not asked Baynes to provide more detailed information on the shooter's facial features, after the defense raised a question about that matter.
This "course of conduct" exception is probably the most frustrating evidentiary exception to the defense bar. Technically, it's true that Detective Sammons testimony was only offered to prove his course of conduct, but obviously it led to the jury believing that Sammons found Baynes to be credible. The same kind of dichotomy applies in the hearsay realm, where police officers indicate that they pursued the defendant or excluded an alternate suspect based upon inadmissible hearsay. In such cases, again, the evidence is only offered to prove course of conduct, but you easily imagine jurors using that hearsay to prove the truth of the matter asserted.