☢ test - Í

questions, that the Confrontation Clause requires us to evaluate.’ [Cit.] Thus, we must determine whether Lorenzo, in response to Sergeant Lummus's and the translator's questions, was primarily attempting to deal with an ongoing emergency, as was [witness] McCottry in Davis, or whether he was attempting to describe past events and serve as a witness against Cuyuch. We conclude that the record shows that, in critical part, Lorenzo was primarily describing past events and was attempting to provide evidence against Cuyuch. At the outset, we note that Lorenzo's statements were not made to curtail any emergency threat from Cuyuch, as the uncontradicted testimony is that, while Lorenzo and Sergeant Lummus were in the house, Cuyuch was calmly watching television with another person. Admittedly, the record does not show whether Lorenzo knew whether Pasqual was still at the residence or had left the residence when he and Sergeant Lummus arrived. Thus, it is unclear whether Lorenzo was attempting in any way to obtain emergency aid for Pasqual by identifying Pasqual as the person who needed help. In any event, however, Lorenzo's statements that he knew that the knife was in the front yard and that Cuyuch was the person who had stabbed Pasqual cannot be said to have been given primarily to assist in providing aid to Pasqual. Instead, these statements, made in response to a question by Sergeant Lummus through the translator as to who needed help, were describing past events and identified and reported Cuyuch as the perpetrator of a past crime. At that point, Lorenzo was effectively ‘acting as a witness’ [cit.] against Cuyuch.” Mitchell v. State, 292 Ga.App. 124, 663 S.E.2d 800 (June 20, 2008). No confrontation violation where defendant’s co- defendant testified and was impeached with her prior statements from her guilty plea entry. “In reliance on Douglas v. Alabama , 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), Mitchell argues that her right under the Confrontation Clause of the Sixth Amendment to cross-examine witnesses against her was violated when the prosecutor was allowed to read her sister’s testimony from the transcript of her guilty plea hearing. Mitchell’s reliance on Douglas is misplaced. Douglas found a flagrant violation of the defendant’s rights under the Confrontation Clause where the prosecutor called an accomplice to the stand and read parts of the accomplice’s confession that implicated the defendant, even though the accomplice could not be cross-examined because he had invoked his privilege against self-incrimination and refused to testify. [Cits.] Here, Rucker testified and was cross-examined. And permitting a witness to be impeached by reading from the transcript of a prior inconsistent statement is proper. Wilson v. State , 277 Ga. 485, 486(5), 591 S.E.2d 812 (2004).” Williams v. State, 292 Ga.App. 892, 666 S.E.2d 18 (June 18, 2008). Trial court properly admitted (as excited utterances) testimony from officers that, as they chased defendant, they heard bystanders “screaming out that [defendant] had threw something.” A baggy containing cocaine was found in the area. Held, no Crawford /confrontation violation because statements were not testimonial; “the police officers did not elicit the statements and the primary purpose of the bystanders’ shouts was to avert a crime in progress, not to establish or prove past events for a later criminal prosecution.” Kilgore v. State, 291 Ga.App. 892, 663 S.E.2d 302 (June 16, 2008). Unavailable witness’s previous testimony at defendant’s probation revocation hearing , where defense counsel had opportunity to cross-examine her, was properly admitted. “‘[Victim] Thrasher’s sworn testimony at [Kilgore’s] probation revocation hearing concerned substantially the same issue as the trial of this case. … [Kilgore’s] probation revocation hearing was between substantially the same parties as was his trial. And Thrasher was subject to cross-examination by [Kilgore’s] trial counsel at the probation revocation hearing. Because Thrasher’s prior testimony satisfied OCGA § 24-3-10, it did not violate [Kilgore’s] right of confrontation,’” quoting Hardeman v. State , 277 Ga.App. 180, 626 S.E.2d 138 (January 9, 2006). Note Hardeman references right of confrontation, but not Crawford; but “the court there satisfied the Crawford requirements,” per Kilgore. Hernandez v. State, 291 Ga.App. 562, 662 S.E.2d 325 (May 19, 2008). Convictions for methamphetamine trafficking and related offenses affirmed. No Crawford violation where defendant’s own statement to police , as interpreted by police employee , was admitted into evidence without the in-court testimony of the interpreter, despite defendant’s contention that the translation was erroneous. “Under the language conduit rule, however, the statements of the translator are considered to be the statements of the declarant, [ citng Crawford ] and Hernandez would not have the right to, in essence, confront himself. [Cit.] Hernandez had a right to inquire into [interpreter] Loredo’s honesty and competency in rendering the translation, but he shows no authority for the proposition that the Sixth Amendment requires that these issues may only be tested through cross-examination of the translator. [Cit.]” “Evidence showed that Loredo had the capacity to translate the interview, and Hernandez fails to demonstrate she had any motive to intentionally mislead or distort the substance of Hernandez’s statements, [cit.] especially in the context of a recorded interview.” Accord, Palencia-Barron v. State , 318 Ga.App. 301, 733 S.E.2d 824 (October 31, 2012).

Made with FlippingBook Ebook Creator