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State v. Gunn

Under the particular facts and circumstances of this case, the trial court erred in excluding a 911 call the non-testifying purported victim made and relying on transcripts of the call instead.

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The State appeals the trial court’s order granting Shawn Gunn’s motion to exclude a 911 call made by the purported victim in the State’s prosecution of Gunn for family-violence battery. Gunn filed his motion after the victim informed the State that she would not return to Georgia to testify, and the trial court agreed with Gunn that admission of the recorded call at trial would violate his Sixth Amendment right to confrontation. Because the trial court reviewed a transcript of the call, and accordingly, because a recording of the call does not appear in the record before us, we vacate the trial court’s order and remand to the trial court to reconsider the motion after listening to the recorded call.

The record reflects that the alleged victim called 911 following an altercation with Gunn and that, during the course of the call, the victim drove away from the scene of the altercation and to a location where she could meet with law enforcement. The record contains two transcripts that purport to memorialize the conversation between the victim and the 911 operator—one prepared by the State and one prepared by Gunn, and both of which were attached to the parties’ post-motion-hearing briefs filed for the trial court’s consideration.

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