Foster v. State

• Citation: 178 Ga.App. 478,343 S.E.2d 745
• Decision Date: 18 March 1986
• Docket Number: No. 71566,71566
• Parties: FOSTER v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 745

343 S.E.2d 745 178 Ga.App. 478 FOSTER
v.
The STATE. No. 71566. Court of Appeals of Georgia. March 18, 1986.
Rehearing Denied April 1, 1986.
Certiorari Denied June 25, 1986.

[178 Ga.App. 483] William C. Puckett, Jr., Decatur, for appellant.

Page 746

Robert E. Wilson, Dist. Atty., James M. McDaniel, Susan Brooks, Asst. Dist. Attys., for appellee.

[178 Ga.App. 478] CARLEY, Judge.

Appellant and two others were jointly indicted for one count of armed robbery and one count of kidnapping. The two co-indictees entered pleas of guilty and appellant subsequently stood trial alone. The jury returned a verdict of guilty as to both counts and appellant appeals from the judgment of conviction and sentence entered thereon.

1. Prior to trial, appellant filed a written motion in limine seeking to prevent the State from making reference to the guilty pleas of his co-indictees. The trial court granted the motion, "subject ... to [178 Ga.App. 479] other things that could occur during ... the trial that might make that relevant." At trial, the victim, while recounting the details of the crime, testified that he was "a hundred percent sure" that appellant had been one of the three men who had attacked him and that he was "90% certain" that he could identify the other two men. On cross-examination, the victim was subjected to a strong attack on the credibility of his identification testimony. Appellant endeavored totally to discredit the victim's testimony on the basis that he had, in fact, been too physically and emotionally distraught to make any credible identification of his attackers and that he also had an insufficient opportunity to view them clearly.

By way of rebuttal, the State then sought to introduce into evidence the guilty pleas of appellant's co-indictees. The State's contention was that the cross-examination of the victim had rendered the guilty pleas relevant with regard to the credibility of the victim's identification of appellant as one of the three perpetrators. Appellant objected that the admission of the guilty pleas of his co-indictees would deny him a fair trial. The trial court, however, admitted the guilty pleas for their limited relevancy regarding the victim's credibility as an eyewitness. Appellant assigns this ruling as error.

In Georgia, there is a recognized rule of inadmissibility with regard to a non-testifying co-indictee's guilty plea. The cases which apply this rule of inadmissibility rely upon the language of OCGA § 24-3-52 and, based upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, hold that it cannot be used as substantive evidence "against" him. See generally Gray v. State, 13 Ga.App. 374, 79 S.E. 223 (1913); Hayes v. State, 136 Ga.App. 746, 222 S.E.2d 193 (1975); Boggus v. State, 136 Ga.App. 917(1), 222 S.E.2d 686 (1975); Neal v. State, 160 Ga.App. 834, 837(3), 288 S.E.2d 241 (1982). Compare Gary v. State, 156 Ga.App. 856, 858(3), 275 S.E.2d 830 (1980) (Evidence of guilty plea admissible on credibility of testifying co-indictee). But see Golden v. State, 163 Ga.App. 629, 630, 295 S.E.2d 144 (1982).

Accordingly, there would seem to be no controlling authority in Georgia which recognizes the existence of any viable "exception" to our established rule of inadmissibility of the guilty plea of a non-testifying co-indictee. On the other hand, however, there is no authority which forecloses the possibility that such "exceptions" exist. It appears that the applicable procedure in the federal courts is to employ a simple balancing test for determining the admissibility of a co-indictee's guilty plea. "One person's guilty plea or conviction may not be used as substantive evidence of the guilt of another. [Cits.] The introduction of a co-defendant's guilty plea is permissible, however, when its use is limited to proper evidentiary purposes such as to impeach trial testimony or to reflect on a witness' credibility. [Cit.]" [178 Ga.App. 480] United States v. King, 505 F.2d 602, 607 (5th Cir.1974). This general rationale for determining admissibility is persuasive, and we hereby adopt it as the rule to be followed in Georgia courts. Thus, the issue in the instant case becomes whether the two guilty pleas were erroneously admitted as substantive evidence of appellant's guilt or were, instead, correctly admitted for a proper limited evidentiary purpose.

Page 747

As indicated, it was only after the attack on the credibility of the victim's eyewitness testimony that the State sought the admission of the guilty pleas as corroboration for the victim's asserted degree of certitude in his ability to identify appellant as one of his attackers. Compare Branson v. State, 99 Ga. 194(2), 24 S.E. 404 (1896); Fields v. State, 88 Ga.App. 770(2), 77 S.E.2d 751 (1953) (guilty plea of co-defendant not admissible to corroborate his own inculpatory testimony). It is "relevant and proper for the State [to] ... neutralize the effect of the testimony given on cross-examination and attempt to sustain its witness's credibility, which was of course for the jury. [Cits.]" Walton v. State, 65 Ga.App. 124, 128(6) 15 S.E.2d 455 (1941). "[C]onsiderable latitude must be allowed in the admission of...