Georgia Applies Absence of Public Record Hearsay Exception in Karaoke Robbery Case

Federal Rule of Evidence 803(10) contains one of the more interesting hearsay exceptions. It allows for the admission of the absence of a public record. Georgia’s version of this exception — OCGA Section 24-8-803(10) — describes the exception as follows:

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office, evidence in the form of a certification in accordance with Code Section 24-9-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

Up until recently, however, the Georgia courts had never applied this exception. That all changed, though, with the recent opinion of the Court of Appeals of Georgia in Tran v. State, 2017 WL 939400 (Ga.App. 2017). 

In Tran, Nam Nhu Tran was convicted of two counts of armed robbery and one count each of aggravated sexual battery and possession of a firearm during the commission of a felony. These charges were based upon the State’s theory that Tran was one of two men who committed these crimes after entering a karaoke club while wearing surgical masks and carrying guns.

Tran had a different version of events. According to Tran, on the date in question,

he went to a restaurant for a late dinner with friends and after eating, they decided to go to the karaoke club. He left the restaurant by himself, drove to the club, and waited outside his car for his friends to arrive. While he was waiting, a man he did not recognize pointed a gun at him and told him to get in the car and drive. The man was wearing a mask and was carrying a box and some bags that he put into Tran’s car. Tran drove where he was told to go and, approximately three to four minutes later, he saw a police vehicle behind him with its blue lights illuminated. At that point, Tran stopped the car. The man took a couple of bills from the car’s glove compartment that had Tran’s address on them and told him not to say anything about the incident or he would kill him.

Tran testified that when the man got out of his car and ran, he was in shock and “so scared” because four or five years earlier he had been robbed at his business, a pool hall, in Clayton County. Tran testified that he reported that incident to the police and was subpoenaed to appear in court, but before he was scheduled to appear, someone placed a note on his car telling him not to show up for court. Tran told the police about the note, but they did not do anything. After that happened, he purchased a gun.

To rebut Tran’s claim about the prior crime against him, the State

called a Clayton County police officer as a rebuttal witness and he testified that, at the prosecutor’s request, he had checked Clayton County’s database and found no record of Tran being a victim of a crime in Clayton County. The officer also testified that he checked with the City of Riverdale and they did not have any record in their database of Tran being a crime victim and that they had specifically checked the only Clayton County pool hall within the city limits and found no history of Tran being a victim there.

After he was convicted, Tran moved for a new trial, claiming, inter alia, that his trial counsel was ineffective based upon failing to object to this testimony.

At the motion for new trial hearing, trial counsel testified that the officer’s testimony hurt Tran and that he should have objected to it, but he did not recall whether he considered objecting.

The Court of Appeals of Georgia, however, rejected Tran’s claim, concluding as follows:

Based on the language of OCGA § 24-8-803 (10) and guidance from federal courts construing a very similar statute, Federal Rule of Evidence 803(10), the officer’s testimony about the Clayton County records fell within the hearsay exception.

It does not appear that the Georgia appellate courts have previously applied OCGA § 24-8-803 (10). Because OCGA § 24-8-803 mirrors  Rule 803 of the Federal Rules of Evidence,  we may look to federal case law for guidance in interpreting our statute.

-CM