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Lowenthal v. State1/23/2004
re's testimony from the first trial.
FN4. Lowenthal does not challenge the trustworthiness of the testimony.
3. Finally, Lowenthal argues that the trial court erred in allowing the 911 dispatcher to testify to what Maples told him when she called to report a drunk driver on the road. The trial court overruled defense counsel's objection, finding that the testimony fell within the res gestae exception to the hearsay rule. On appeal, "a *271 trial court's determination that evidence is admissible as part of the res gestae will not be disturbed unless that finding is clearly erroneous." (Punctuation omitted.) Davison v. State, 241 Ga.App. 685, 687(3), 527 S.E.2d 285 (1999), citing Copeland v. State, 235 Ga.App. 682, 684(2)(a), 510 S.E.2d 124 (1998). Res gestae declarations are those "accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought." OCGA § 24-3-3. In light of their relationship and the events of the evening, Lowenthal argues that Maples had ample time and motive to fabricate the call to 911. [FN5]
FN5. During the first trial, Maples testified that she called 911 from Laura Skidmore's cell phone while she was standing outside of her house. Maples denied following Lowenthal, and she denied calling 911 from the car. Maples did not testify at the second trial because the state "[did not want to] make the same mistake of calling her to the stand again." During the first trial, both Maples and Lowenthal testified that they were still together.
Maples's declarations are substantially contemporaneous with the event. The 911 dispatcher testified that he received a call from a woman who identified herself as Michelle Maples. Maples advised the dispatcher that she was following a drunk driver on Interstate 75. Maples gave the dispatcher the drunk driver's tag number and her cell phone number, and then advised the dispatcher that the driver was exiting the interstate and pulling into a Shoney's parking lot. The dispatcher remained on the phone with Maples until she advised him that a police officer had arrived on the scene. Maples's statements to the dispatcher were corroborated by Jessie Skidmore's testimony. Moreover, there is no evidence that Maples's statements to the 911 dispatcher were the result of afterthought. The trial court did **731 not err in allowing the 911 dispatcher to testify as to Maples's statements.
Judgment affirmed.
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