Ailstock v. State, 61822

• Decision Date: 10 September 1981
• Docket Number: No. 61822,61822
• Citation: 159 Ga.App. 482,283 S.E.2d 698
• Parties: AILSTOCK v. The STATE.
• Court: Georgia Court of Appeals

Page 698

283 S.E.2d 698

159 Ga.App. 482

AILSTOCK v. The STATE.

No. 61822.

Court of Appeals of Georgia.

Sept. 10, 1981.

Michael C. Garrett, Augusta, for appellant.

Patricia Warren, Augusta, for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of simple battery.

1. The state, asserting that it expected appellant to "attempt to introduce testimony as to the character of the victim," filed a motion in limine to exclude "any reference to the character of the victim of the crime absent [appellant's] prima facie showing that the victim was assailing the [appellant] at the time the crime was committed." [Emphasis supplied.] The state, in support of its motion, cited several cases for the "well settled principle of law that evidence regarding the character of a victim of a violent crime is inadmissible absent" such a prima facie showing. (Emphasis supplied.) The cases cited by the state did not, however, support the overly broad contention that, absent a showing that the victim was the aggressor, evidence of his character may not be introduced. Rather, those murder cases merely stand for the "well settled principle of law" that the victim's character for violence "is admissible only when there has been a prima facie showing that three elements are present: that the deceased was the assailant; that deceased assailed defendant; and that defendant was honestly seeking to defend himself. [Cits.]" Curtis v. State, 241 Ga. 125, 126(1), 243 S.E.2d 859 (1978). See also Maynor v. State, 241 Ga. 315, 245 S.E.2d 268 (1978); Music v. State, 244 Ga. 832, 262 S.E.2d 128 (1979). Despite defense counsel's repeated protestations that "character is one of the enumerated ways to impeach under Georgia law" and that should the victim of the battery take the stand he would be subject to impeachment under Code Ann. § 38-1804, the trial court granted the state's motion and excluded "any reference" to the victim's character absent a prima facie showing that he was the assailant. During the course of appellant's trial the victim testified. Appellant urges that the trial court, by granting the state's motion in limine, erroneously precluded the defense from offering evidence which would impeach the victim.

We agree with appellant that the trial court erred in granting the state's overly expansive motion. Obviously the "character" of the victim for purpose of impeachment is not at issue in murder cases, such as those cited by the state in support of its motion in limine. But where, as here, the "victim" can be and is a witness, he is subject to impeachment, as would be any other witness, "by evidence as to his general bad character." Code Ann. § 38-1804. Code Ann. § 38-1804 does not require that before a victim-witness in a battery case may be impeached by evidence of his bad character there must be a prima facie showing that he was the assailant. All the statute requires is that "[t]he impeaching witness should be first asked as to his knowledge of the general character of the witness, and next as to what that character is, and lastly he may be asked if, from that character, he would believe him on his oath." Therefore, insofar as the trial court's grant of the motion in limine prohibited "the introduction of properly offered evidence of [the victim-witness' bad character] which would otherwise be admissible [for purposes of impeachment], it was erroneous." Gunthorpe v. Daniels, 150 Ga.App. 113, 114, 257 S.E.2d 199 (1979).

The error was, however, harmless in the instant case. Appellant made a proffer of the impeaching witness' testimony which demonstrated conclusively that it was not "properly offered evidence" of impeachment under Code Ann. § 38-1804. Under that statute "[a] witness whom it is sought to impeach because of bad character must be shown to be of general bad character; special acts are not admissible. [Cit.]" Davis v. State, 60 Ga.App. 772, 774, 5 S.E.2d 89 (1939). Applying this standard to the proffered testimony of the "impeaching" witness in the instant case shows that it related to specific acts by, not the general bad character of, the victim and was not admissible for the purpose of impeachment. Andrews v. State, 196 Ga. 84, 105, 26 S.E.2d 263 (1943). Moreover, it is questionable whether the proffered testimony was in fact truly offered for impeachment purposes. A close review of the transcript reveals that there was no material discrepancy between the victim's version of the incident and that offered by the appellant himself. The sole issue made by the evidence at trial was apparently whether, under a relatively undisputed set of facts appellant was "justified" in striking the victim. This being so, the question arises whether the "impeaching" testimony would in fact have been offered to the jury only for the legitimate purpose of assessing the victim's credibility concerning the matters testified to and not to demonstrate to them that because of certain specific past occurrences he was a "bad" person. Cf. Peters v. State, 55 Ga.App. 870, 871(3, 4), 192 S.E. 84 (1937). In general, whether the victim is a "bad" person is irrelevant because it is as unlawful to commit a crime against a "bad" person as against a "good" one. Cf. Doyal v. State, 70 Ga. 134, 148 (1883). We find any error in the grant of the state's motion in limine was, under the unique circumstances of the instant case, harmless beyond question.

2. Appellant urges that the trial court erroneously excluded testimony by a defense witness concerning the victim's reputation for using opprobrious or abusive language. Appellant contends that, under Code Ann. § 26-1306, he was relying upon the victim's "opprobrious or abusive language" as justification for the attack and that, by analogy to the "deceased aggressor" rule in homicide cases, he was entitled to present evidence that the victim had a general reputation for using such language. Under the "deceased aggressor" rule, evidence of the victim's general reputation for violence is admissible if a prima facie showing of self-defense is made. " ' "Proof of violent and turbulent character of the deceased is admissible only when it is shown prima facie that the deceased was the assailant, that the accused had been assailed, and that the defendant was honestly seeking to defend himself." [Cits.]' [Cit.]" Black v. State, 230 Ga. 614, 615(3), 198 S.E.2d 314 (1973). Where such a prima facie showing is made, testimony concerning the victim's general reputation for violence is "admissible to corroborate the testimony of the accused that the deceased was violent on the occasion in question on the theory that a person with a general reputation for violence is more likely to have been violent toward the accused than a person with a gentle reputation." Henderson v. State, 234 Ga. 827, 830, 218 S.E.2d 612 (1975).

Assuming without deciding that there is an "opprobrious provoker" rule under Code Ann. § 26-1306 analogous to the "deceased aggressor" rule in homicide cases, there was no error in excluding appellant's evidence in this regard in the instant case. If such an analogous rule exists, there must be an analogous foundation laid before it may be invoked. In other words, under such a rule there should be a prima facie showing that at the relevant time (Haygood v. State, 137 Ga. 168(1), 73 S.E. 81 (1911)) the victim first used language opprobrious or abusive to the defendant (Davis v. State, 153 Ga.App. 528, 265 S.E.2d 857 (1980)) and that the defendant acted out of the sudden provocation and passion occasioned by the victim's utterance of such language. Berry v. State, 105 Ga. 683, 31 S.E. 592 (1898). No such showing was made in the instant case. There was no evidence that the victim used language which could be considered opprobrious or abusive immediately before he was struck by appellant. See Davis v. State, 153 Ga.App. 528, 265 S.E.2d 857, supra. Consequently, there was no evidence showing that the blow was delivered as the result of appellant's sudden passion at being provoked by hearing such language. Cowart v. State, 9 Ga.App. 169, 70 S.E. 891 (1911). Indeed, at most, the evidence showed that the physical attack was the result of the victim's long standing humiliating treatment of appellant culminating in certain derogatory remarks and actions directed toward appellant by the victim several hours earlier on the day of the incident. This does not raise the justification defense of Code Ann. § 26-1306. See generally Berry v. State, 105 Ga. 683, 31 S.E. 592, supra. "It is never a lawful act to commit an assault and battery because of past opprobrious words ..." Cawley v. State, 74 Ga.App. 214, 215, 39 S.E.2d 427 (1946). We therefore conclude that, even assuming an "opprobrious provoker" rule exists under Code Ann. § 26-1306, appellant failed in this case to lay the proper foundation for the invocation of such a rule. See Dasher v. State, 146 Ga.App. 118(1), 245 S.E.2d 476 (1978). There was no error in excluding testimony by a defense witness that the victim had a general reputation for using opprobrious and abusive language. Furthermore, even if the proper foundation for such evidence had been laid, the proffer of the witness' testimony in this regard demonstrates that it would otherwise have been excludable as going to specific acts by the victim rather than his general character for "opprobrium." See generally Borders v. State, 114 Ga.App. 90(3), 150 S.E.2d 306 (1966).

3. "When the defendant, in the trial of a criminal case, puts his character in issue the State (a) may cross-examine the witnesses offered by him in order to test their knowledge of his character, and (b) may also offer witnesses to prove his general bad character ..., and (c) the State may, where the defendant has been previously convicted of a crime involving moral turpitude, introduce the record of such conviction in the manner provided by law." Giles v. State, 71 Ga.App. 736, 32 S.E.2d 111 (1944). Appellant made a ...