After being convicted of “keeping a place of prostitution
and possession of less than one ounce of marijuana,” Ebony Shaun Smoot
appealed. Smoot v. State, __ S.E.2d __, 2012 WL 1994711 (Georgia Court of
Appeals 2012).
According to the opinion, the case began when, “on the
afternoon of September 27, 2010”, two police officers who had “receiv[ed]
complaints from the community about suspicious activity,” conducted “surveillance
of a residence” in Clayton County where Smoot lived “along with several other
women.” Smoot v. State, supra. The officers observed “a car pull into the
driveway.” Smoot v. State, supra.
An unidentified male got out of the car
and entered the residence. He remained inside for a short period of time and
left. . . . After initiating a traffic stop and speaking with him, the two
officers, along with a police lieutenant, conducted an independent
investigation of certain websites by personally viewing their content.
Smoot v. State, supra.
More precisely, the officers and the lieutenant reviewed
advertisements posted on
Backpage.com and Craigslist.org, in
addition to a . . . website with the URL address of www.ifshewontiwill.com (the
`ifshewontiwill website’). [They] later testified that the web pages included
`provocative’ and `risque photographs of semi-nude and nude women advertising `sexual
services’ and `sexual behaviors’ for money and providing contact phone numbers.
The Ifshewontiwill website included photographs of Smoot, and the
advertisements posted on Backpage.com and Craigslist.org listed contact phone
numbers linked to Smoot.
Smoot v. State, supra.
They got a search warrant for the house, which they executed
on September 30, 2010. Smoot v. State, supra. When the officers entered the house, they
found
several occupants in the residence,
including Smoot. She was discovered `somewhat’ undressed in the closet in the
upstairs master bedroom. The police found marijuana in the master bedroom on a
dresser in a closed wooden box and in plain view in several other areas
upstairs, on the kitchen counter, and on a computer desk in the living room. .
. . [A] `stripper pole’ was set up in the living room as well.
Smoot v. State, supra.
They also found two types of business cards in
the residence. The first . . .
contained the heading `Adult Social Network.’ The card listed the web address
of the Ifshewontiwill website and contained the statements `True Freaks
ONLY!!!!,’ `Ready to Have Some Fun,’ and `Created by Gold,’ which Smoot
admitted was her nickname.
The second business card listed `Ms. Shauna Gold’ as
the `HBIC/CEO’ of `All You Need Entertainment.’ The card included the address
of the residence and claimed `10–20 Entertainers always available’ and
`Appointments taken 24/7.’
Smoot v. State, supra.
Smoot was arrested and charged with keeping a place of
prostitution in violation of Georgia law.
Smoot v. State, supra. To
commit the crime, a person must “`(1) knowingly grant or permit the use (2) of
a place that offers seclusion or shelter (3) over which [s]he has or exercises
control (4) to be used for the purpose of prostitution.’” Smoot v. State, supra (quoting Robert E. Cleary, Jr., Kurtz
Criminal Offenses and Defenses in Georgia, Prostitution and Related Offenses,
p. 1379 (2011 ed.)). She was also, as
noted above, charged with possessing less than an ounce of marijuana. Smoot
v. State, supra.
Smoot pled not guilty and went to trial on both
charges. Smoot v. State, supra. At trial, and over her objection, the
officers testified to what they did and observed, as outlined above, and the prosecution also introduced “printouts of the Ifshewontiwill website and of the advertisements
posted on Craigslist.org.” Smoot v.
State, supra. After she was convicted, Smoot moved for a new trial but the
trial judge denied her motion. Smoot v. State, supra. She then appealed. Smoot
v. State, supra.
Smoot raised several issues on appeal, but we’re only
concerned with three of them, the first of which was that the trial judge erred
in allowing the prosecutor to
elicit testimony from the investigating
officers and the police lieutenant describing the photographs and
advertisements contained in the web pages that they reviewed as part of their
investigation. According to Smoot, the witness's description of the photographs
and advertisements viewed on the websites constituted inadmissible hearsay.
Smoot v. State, supra.
As Wikipedia explains, hearsay is
information gathered by one person from
another person concerning some event, condition, or thing of which the first
person had no direct experience. . . . For example, a witness says `Susan told
me Tom was in town’ as her evidence to the fact that Tom was in town. Since the
witness does not offer in this statement the personal knowledge of the fact,
this witness statement would be hearsay evidence to the fact that
Tom was in town, and not admissible.
Hearsay, then, is an out of court statement that is admitted
for the truth of the facts included in it. And as I’ve explained in other posts,
including a recent one, hearsay is not admissible unless it falls into one of a number of
recognized exceptions because the defendant, the person against whom
the hearsay is offered, cannot test the credibility of the original declarant,
i.e., Susan in the example above, by cross-examining him/her.
In ruling on Smoot’s argument regarding the officers’
testimony, the court therefore noted that hearsay “relates to an out-of-court
statement made by someone other than the witness.” Smoot
v. State, supra. It then explained
that the officers’ testimony was properly admitted:
We have pointed out that `testimony
describing contents of a photograph [does] not refer to any statements and thus
[is] not hearsay.’ Hammock v. State, 311 Ga.App. 344, 715
S.E.2d 709 (2011). . . .
Testimony regarding the content of photographs does
not `ask the jury to assume the truth of out-of-court statements made by
others, and instead the value of the testimony rest[s] on the [testifying
witness's] own veracity and competence.’ . . . [McClain
v. State, 311 Ga. App. 750, 716 S.E.2d 829 (2011).] Thus, the testimony of
the officers and lieutenant describing the content of the photographs on the
web pages was not hearsay.
Smoot v. State, supra.
The Court of Appeals then addressed the officers’ testimony
describing the web page advertisements as “offer[ing] `services’ in return for
money”. Smoot v. State, supra. It explained that an
offer of services in return for money
is in the nature of a `verbal act’ or `performative utterance’ rather than a
declarative assertion, and, therefore, has probative value arising from the
very fact that it was said, rendering it admissible as original evidence. See Stubbs v. Dubois, 306 Ga.App. 171, 702 S.E.2d 32 (2010). . . .
It follows that the trial court did not abuse its discretion in
admitting the testimony regarding the content of the web pages.
Smoot v. State, supra. (More on verbal acts below.)
Finally, Smoot also argued that the trial judge erred in
admitting printouts from the Ifshewontiwill website and from Craigslist.org “because
(a) the State failed to lay a proper foundation for their admission and (b) the
content of the printouts constituted inadmissible hearsay.” Smoot
v. State, supra. The first issue went to authentication, i.e., the need for
the party offering evidence to prove that it is what it is claimed to be.
As to whether the prosecution established the necessary
foundation for the printouts, the court explained that
printouts from electronic computer
sources are subject to the same rules of authentication as other documents. . .
. . `As a general rule, a writing will not be admitted into evidence unless the
offering party tenders proof of the authenticity . . . of the writing.' . . . Hollie
v. State,298 Ga.App. 1, 679 S.E.2d 47 (2009).
`Printouts
of [w]eb pages must first be authenticated as accurately reflecting the content
of the page and the image of the page on the computer at which the printout was
made' before they can be introduced into evidence. Kenneth S. Broun, 2
McCormick on Evidence § 227 (6th ed.2006). . . . Then, to be relevant and
material to the case at hand, the printouts often will need to be further `authenticated
as having been posted by a particular source.' 2 McCormick on Evidence,
supra, § 227.
Smoot v. State, supra.
The court found that the prosecution properly authenticated the
printouts of the Ifshewontiwill website:
[O]ne of the investigating officers
testified that he made the printouts of the website, which were `a fair and
accurate representation of the actual things’ that he personally viewed on the
website as part of his investigation.
Moreover, the State presented circumstantial
evidence that Smoot was the source of the website by introducing business cards
found in her residence that were entitled `Adult Social Network,’ listed the
web address for the Ifshewontiwill website, and contained the statement
`Created by Gold,’ which Smoot admitted to police was her nickname. . . .
Smoot v. State, supra.
The Court of Appeals also found that the prosecution had not
properly authenticated the printouts of the Craigslistorg website:
These printouts were introduced through
the police lieutenant, but there was no testimony from her that the printouts
fairly and accurately represented the contents of the website she personally
viewed as part of her investigation.
Accordingly, the State failed to elicit
testimony sufficiently authenticating the printouts from Craigslist.org. . . .
Smoot v. State, supra.
As to whether the printouts constituted hearsay, the court
found that
the content of the Ifshewontiwill
website consisted of photographs of women, the first names or nicknames of the
women, and advertising content, including a list of the `services’ offered. The
photographs and first names or nicknames appearing on the website were not
hearsay. See . . . Weems v. State, 295
Ga. Appl. 680, 673 S.E.2d 50 (Ga. App. 2009) (testimony regarding nickname was
`verbal act’ not introduced to prove the truth of the matter asserted). . . .
Furthermore, the advertising content of the website expressed an offer to
perform certain `services’ for money, and, as such, was admissible as a `verbal
act’ or `performative utterance.’
Smoot v. State, supra.
As one source explains, statements that constitute “verbal
acts” are not hearsay because
they are not offered for their
truth. In other words, the uttering of certain words has independent
legal significance . . .e.g., words of a contract, libel, slander,
threats, and the like. Thus, we only care that these words
were said, not that they are true.)
The court therefore held that the printouts from the
Ifshewontiwill site were properly admitted.
Smoot v. State, supra. It reversed her conviction for keeping a house
of prostitution, though, because it found that the trial judge erroneously
admitted “highly prejudicial statements from a neighborhood group” at her
trial. Smoot v. State, supra. It noted that double jeopardy prevented her
from being retried on that issue, and affirmed her conviction for possessing
marijuana. Smoot v. State, supra.
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