Barrett v. State

• Decision Date: 22 November 1993
• Docket Number: No. S93A0719,S93A0719
• Citation: 436 S.E.2d 480,263 Ga. 533
• Parties: BARRETT v. The STATE.
• Court: Georgia Supreme Court

Page 480

436 S.E.2d 480

263 Ga. 533

BARRETT v. The STATE.

No. S93A0719.

Supreme Court of Georgia.

Nov. 22, 1993.

Danny W. Crabbe, Rome, for Barrett.

Stephen J. Cox, Asst. Dist. Atty., Stephen F. Lanier, Dist. Atty., Rome, for the State.

Fred R. Simpson, Chief Asst. Dist. Atty., Rome, for other appellee.

FLETCHER, Justice.

Louis Barrett, Jr. appeals from his convictions for the felony and the malice murder of his common law wife, Janice Gibbons. ¹ We affirm the malice murder conviction.

1. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Barrett contends that the trial court erred in admitting evidence concerning purported prior difficulties between himself and the deceased when the state had not first complied with Uniform Superior Court Rules 31.1 and 31.3. We agree.

In recent years, we have focused considerable attention on the use of prior act evidence, whether that evidence has taken the form of prior acts involving the accused and the victim (prior difficulties) or prior acts involving the accused but not involving the victim (independent/extrinsic/other/similar acts/transactions/occurrences ²). The renewed attention which we have addressed to this type of evidence has been in response to an increased use of such evidence in criminal prosecutions and to the fact that, while we were observing such evidence being offered and introduced with greater frequency, all too often there was very little prior analysis as to its admissibility.

We have also tried to more carefully and more thoroughly enunciate the law with respect to this type of evidence in order to assist both the bench and the bar in how to approach this type of evidence. Accord Loggins v. State, 260 Ga. 1(2), 388 S.E.2d 675 (1990); Hamilton v. State, 260 Ga 3[ (2)(b)(ii) ], 389 S.E.2d 225 (1990); Chastain v. State, 260 Ga. 789(3), 400 S.E.2d 329 (1991); Stephens v. State, 261 Ga. 467(6), 405 S.E.2d 483 (1991); Edwards v. State, 261 Ga. 509, 510-511, (Justices Benham and Smith dissenting) 406 S.E.2d 79 (1991); Williams v. State, 261 Ga. 640(2), 409 S.E.2d 649 (1991); Gilstrap v. State, 261 Ga. 798(1), 410 S.E.2d 423 (1991); Kemp v. State, 261 Ga. 804(2), 411 S.E.2d 711 (1992); Maxwell v. State, 262 Ga. 73(2), 414 S.E.2d 470 (1992); Ward v. State, 262 Ga. 293(2), 417 S.E.2d 130 (1992); Edwards v. State, 262 Ga. 470(2), 422 S.E.2d 424 (1992) (see also this author's special concurrence to Division 2 of Edwards, 262 Ga. at 472-473, 422 S.E.2d 424); Kerlin v. State, 262 Ga. 497(2), 422 S.E.2d 183 (1992).

All prior act evidence, whether the prior act involves the accused and the victim or the accused but not the victim, is inherently prejudicial because it raises an inference that an accused who acted in a certain manner on one occasion is more likely to have committed the crime for which he is on trial. As a result, unless there is a reason for the introduction of such evidence, apart from the raising of that inference, prior act evidence will be inadmissible because evidence of the accused's character is not admissible unless and until the accused puts his character in evidence. McCormick on Evidence, 4th Edition, § 190.

There are a number of legitimate reasons for the introduction of prior act evidence, all of which involve some sort of probative connection between the crime charged and the prior act. A non-exhaustive list of what prior act evidence might demonstrate includes: that the crime charged is one in a series of mutually dependent crimes (the antique automobile-bank robbery example contained in footnote 2); guilty knowledge on the part of the accused; the identity of the person who has committed the crime charged; prior attempts by the accused to commit the same crime against the victim of the crime charged; that the crime charged was not committed accidentally as is contended by the accused; the motive for the crime charged; and the requisite specific intent for the crime charged. Cawthon v. State, 119 Ga. 395, 409, 46 S.E. 897 (1904); McCormick, supra.

However, without some sort of probative connection between the prior act and the crime charged, the prejudicial nature of the prior act evidence will outweigh its probative value. As a result, the party seeking to introduce such evidence is required to demonstrate, among other things, the probative connection before he is allowed to mention the prior act in the presence of a jury.

As we have held in Loggins, 260 Ga. 1(2), 388 S.E.2d 675; Hamilton, 260 Ga. 3[ (2)(b)(ii) ], 389 S.E.2d 225; and Maxwell, 262 Ga. 73(2), 414 S.E.2d 470; compliance with Uniform Superior Court Rules 31.1 and 31.3 for all prior acts, those involving the accused and the victim as well as those involving the accused but not the victim, is mandatory. ³ That compliance ensures that, at a hearing outside of the presence of the jury, either prior to trial or prior to any mention of such evidence before the jury, the party offering the prior act evidence must show and the court must affirmatively find: (a) that there is sufficient evidence that such an act occurred; (b) that the party offering the evidence has an appropriate purpose for seeking its introduction into evidence and is not seeking to try and show that, because of an unconnected act in the accused's past, the accused should be convicted of the present charge; and (c) that there is a sufficient probative connection between the crime charged and the prior act to justify admission of the prior act into evidence. Williams, 261 Ga. at 642, 409 S.E.2d 649.

As a result of the compliance with Rules 31.1 and 31.3, all of these questions are resolved prior to any mention of prior act evidence before the jury. In this fashion, the trial court ensures that those prior acts of which there is not sufficient evidence, which are being offered for an inappropriate purpose, or which do not have a sufficient probative connection to the crimes charged, will not be mentioned in the presence of the jury, thereby preventing any unnecessary prejudice to the accused from such inadmissible evidence. In addition, the trial court ensures that the accused is put on notice of those instances of prior acts which are deemed to be relevant to the crime charged and of why a prior act is deemed to be relevant.

Because of the state's failure to comply with Rules 31.1 and 31.3 of the Uniform Superior Court Rules, the trial court erred when it allowed the state to introduce evidence concerning prior acts involving Barrett and the deceased. However, we hold that in light of the overwhelming evidence against Barrett, it is highly probable that the admission of the evidence in question did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976).

3. Barrett argues that the trial court erred in permitting the state to introduce a video tape of the crime scene. He maintains that the audio portion of the video tape, which was narrated by the police officer who made the video tape, was prejudicial and misleading. However, we have not been provided with a transcript of the audio portion, with the video tape itself, or with any explanation of why the audio portion was prejudicial and misleading. As a result, we have nothing to review.

4. We have reviewed the remaining enumerations of error and hold that Barrett has presented no grounds entitling him to a new trial.

5. Because the felony murder charge stands vacated by operation of OCGA § 16-1-7, Barrett's conviction and sentence for felony murder must be vacated.

Judgment affirmed with direction.

All the Justices concur, except HUNT, P.J., and HUNSTEIN and CARLEY, JJ., who specially concur.

CARLEY, Justice, concurring specially.

I concur in Divisions 1, 3, 4 and 5 of the majority opinion and in the affirmance of appellant's conviction for the malice murder of his wife. I cannot, however, concur in Division 2 of the majority opinion which addresses the admission of evidence of appellant's "prior difficulties" with the victim. At trial, appellant objected to the admission of this evidence on the procedural ground that the State had not complied with Uniform Superior Court Rules 31.1 and 31.3. The trial court, relying on Rainwater v. State, 256 Ga. 271, 272(1), 347 S.E.2d 586 (1986) and Towns v. State, 260 Ga. 423, 424(2), 396 S.E.2d 215 (1990), overruled appellant's objection. Appellant enumerates this evidentiary ruling as error. The majority finds this enumeration to be meritorious, but affirms appellant's conviction by applying the principle of harmless error. I can agree that, if there were any error, it would be harmless beyond a reasonable doubt. In my opinion, however, there was no error at all in the admission of the evidence. Accordingly, I must specially concur.

In Rainwater, supra 256 Ga. at 272(1), 347 S.E.2d 586, the defendant was charged with murder of his wife and we held that evidence of his previous acts of abuse committed against his wife was admissible, not "under the rule governing proof of independent crimes, but as evidence of the relationship between the defendant and the victim."

Subsequent to Rainwater, we held that Uniform Superior Court Rules 31.1 and 31.3 do apply "to acts which are categorized as similar transactions, as well as to those acts or occurrences which are categorized as prior difficulties." Loggins v. State, 260 Ga. 1, 2(2), 388 S.E.2d 675 (1990). However, Loggins was not a case wherein the "prior difficulties" were between the defendant and the victim and Rainwater, which had held that prior difficulties between the defendant and the victim were not subject to the rules governing admissibility of independent crimes, was not overruled.

Subsequent to Loggins, we followed Rainwater and held that, notwithstanding the State's non-compliance with Uniform Superi...