Farley v. State

• Decision Date: 30 June 1995
• Docket Number: No. S95A0277,S95A0277
• Citation: 458 S.E.2d 643,265 Ga. 622
• Parties: FARLEY v. The STATE.
• Court: Georgia Supreme Court

Page 643

458 S.E.2d 643

265 Ga. 622

FARLEY v. The STATE.

No. S95A0277.

Supreme Court of Georgia.

June 30, 1995.

Reconsideration Denied July 28, 1995.

Joe Frank Harris, Cartersville, for David James Farley.

T. Joseph Campbell, Dist. Atty., Calhoun, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Marla-Deen Brooks, Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

CARLEY, Justice.

Appellant, David James Farley, was tried before a jury and found guilty of the simple battery of Sarah Davis and of the felony murder of Joseph Croft while in the commission of an aggravated battery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. ¹

1. Appellant enumerates the general grounds. When the evidence is construed most favorably for the State and most strongly against appellant, the jury was authorized to find the following: Appellant and James Benefield drove from Chicago to the Bartow County home of Croft and Ms. Davis. Benefield knew Croft, but appellant did not. According to Davis, the next day appellant became "real hateful and ill" after drinking several beers and he accused Croft of stealing money from his wallet. Appellant then began to beat Croft about the head and, although Croft did not fight back, appellant continued to beat and kick him even after he lost consciousness and fell to the ground. When Ms. Davis tried to intervene, appellant struck her and exclaimed that he "ought to finish killing him, and I ought to kill you." Croft died from brain injuries.

This evidence was sufficient to authorize a rational trier of fact to find proof of appellant's guilt of simple battery and of felony murder while in the commission of an aggravated battery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In 1986, appellant was convicted of an aggravated battery. After a hearing which complied with the mandate of Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991), the trial court found that evidence of this prior aggravated battery would be admissible to show appellant's "course of conduct" or "bent of mind." Several of appellant's enumerations of error relate to this evidentiary ruling.

OCGA § 24-9-20(b) deals with the testimony of a criminal defendant and provides, in part, "that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue." However, OCGA § 24-9-20(b) has no applicability here, since we do not deal with any issue concerning appellant's testimony or the evidentiary consequences of his opening of the "character" door. The issue for resolution is the admissibility of "other transactions" evidence without regard to whether appellant testified or put his own character in issue. Thus, the applicable authority is OCGA § 24-2-2 which provides that "other transactions" evidence is "irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." Unlike evidence which is relevant solely to "character" and admissible under OCGA § 24-9-20(b) only if the "character" door has been opened by the defendant himself, relevant "other transactions" evidence is admissible notwithstanding its tendency to discredit the character of the defendant. Childs v. State, 257 Ga. 243, 247(3)(c), 357 S.E.2d 48 (1987). "Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged." (Emphasis in original.) State v. Johnson, 246 Ga. 654, 655, 272 S.E.2d 321 (1980).

Appellant was being tried for a felony murder in which an aggravated battery was the underlying offense and his defense was justification. One is not justified in using force which is either intended or is likely to cause death or great bodily harm if he is the aggressor or if he was engaged in combat by agreement unless he withdraws and effectively communicates to the victim that he intends to do so. Lancaster v. State, 250 Ga. 871, 873(3), 301 S.E.2d 882 (1983). It is clear, therefore, that this case necessarily involved appellant's propensity for initiating or continuing an encounter wherein he "maliciously cause[d] bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof." OCGA § 16-5-24(a). Accordingly, evidence of appellant's commission of the prior aggravated battery would be admissible if it was so sufficiently similar to the instant aggravated battery as to be relevant to his "bent of mind" or "course of conduct" in initiating or continuing such encounters. Under those circumstances, the evidence of his prior commission of a sufficiently similar aggravated battery would tend to rebut his claim of justification by showing a "bent of mind" or "course of conduct" in initiating or continuing such encounters, as contrasted to acting in self-defense. Gentry v. State, 250 Ga. 802, 803(1), 301 S.E.2d 273 (1983). See also Edwards v. State, 261 Ga. 509(1), fn. 2, 406 S.E.2d 79 (1991) ("propensity to use firearms to avenge himself against someone who he thought had wronged him"); Haywood v. State, 256 Ga. 694, 696(2), 353 S.E.2d 184 (1987) ("bent of mind and his propensity for the use of a gun when intoxicated"); Brock v. State, 254 Ga. 682, 683(2), 333 S.E.2d 593 (1985) ("habit of periodically firing a gun" admissible to rebut claim of self-defense); Sport v. State, 253 Ga. 689, 690(1), 324 S.E.2d 184 (1985) ("bent of mind and propensity for use of a pistol"); Saylors v. State, 251 Ga. 735, 738(7), 309 S.E.2d 796 (1983) ("prior conduct involving knives").

In urging that the evidence was inadmissible, appellant erroneously focuses upon the differences between the prior and instant aggravated batteries, rather than correctly focusing upon their similarities. In both occurrences, appellant was shown to have initiated an unprovoked attack upon one with whom he was ostensibly sharing a friendly drink. When he succeeded in subduing both victims, appellant persisted in beating and kicking them in the head, thereby inflicting serious injuries. After each encounter, appellant was boastful about his acts.

The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence "may be admitted if it ' "is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character...." ' " [Cit.]

Maggard v. State, 259 Ga. 291, 293(2), 380 S.E.2d 259 (1989). Under numerous decisions of this court, the prior aggravated battery committed by appellant was relevant to rebut his claim of self-defense in this case by showing that he has a propensity for initiating and continuing unprovoked encounters which result in bodily harm to those whom he attacks. "Since appellant claimed self-defense, evidence of previous unprovoked attacks was relevant to show malice, intent, motive, and bent of mind." Gentry v. State, supra, 250 Ga. at 803(1), 301 S.E.2d 273.

The testimony was not admitted to show a probability that [appellant] committed the crime charged because [he] has a criminal character but was properly admitted to show a similarity that tends to prove a peculiar bent of mind or course of conduct. [Cit.]

Stephens v. State, 261 Ga. 356, 357(2), 405 S.E.2d 470 (1991). See also Edwards v. State, supra at 509(1), fn. 2, 406 S.E.2d 79; Haywood v. State, supra 256 Ga. at 696(2), 353 S.E.2d 184; Brock v. State, supra, 254 Ga. at 683(2), 333 S.E.2d 593; Sport v. State, supra 253 Ga. at 690(1), 324 S.E.2d 184; Saylors v. State, supra 251 Ga. at 738(7), 309 S.E.2d 796. To hold, as the special concurrence proposes, that the evidence of Farley's commission of a prior aggravated battery was erroneously admitted would require that we overrule not only Gentry, Stephens, Edwards, Haywood, Brock, Sport, and Saylors, but that we also overrule a host of other cases in which this court has held "other transactions" evidence to be admissible under comparable circumstances. See generally Ward v. State, 262 Ga. 293, 295(2), 417 S.E.2d 130 (1992); Starks v. State, 262 Ga. 244, 245(2), 416 S.E.2d 520 (1992); Chastain v. State, 260 Ga. 789, 790(3), 400 S.E.2d 329 (1991); Bromley v. State, 259 Ga. 377, 381(6), 380 S.E.2d 694 (1989); Mincey v. State, 257 Ga. 500, 505(7), 360 S.E.2d 578 (1987); Byrd v. State, 255 Ga. 674(2)(a), 341 S.E.2d 453 (1986); Harris v. State, 255 Ga. 500, 502(3), 340 S.E.2d 4 (1986); Goodman v. State, 255 Ga. 226, 227(5), 336 S.E.2d 757 (1985); Cunningham v. State, 255 Ga. 35, 37(4), 334 S.E.2d 656 (1985); Rich v. State, 254 Ga. 11, 13(1), 325 S.E.2d 761 (1985); Hooks v. State, 253 Ga. 141, 142(2), 317 S.E.2d 531 (1984).

After conducting a hearing in full compliance with the mandate of Williams v. State, supra, the trial court found that the prior aggravated battery was relevant and admissible for a limited purpose in determining appellant's guilt of the aggravated battery which was the underlying felony for the felony murder with which appellant was charged. That having been done, there is no further requirement that the record reflect the trial court's express balancing determination as between the probative value of the evidence and its prejudicial impact. Such an express determination would be entirely superfluous, since evidence which "is otherwise relevant ... does not become inadmissible simply because it incidentally puts a defendant's character or reputation into evidence. [Cit.]" Jones v. State, 263 Ga. 835, 839(3), 439 S.E.2d 645 (1994). If a trial court finds that "other transactions" evidence is so attenuated and dissimilar as to lack relevancy, then that evidence should be excluded because...