Johnson v. State
| Decision Date | 18 July 1980 |
| Docket Number | No. 59259,59259 |
| Citation | 270 S.E.2d 214,154 Ga.App. 793 |
| Parties | JOHNSON v. The STATE. |
| Court | Georgia Court of Appeals |
Johnson was convicted of a sale of marijuana on testimony of a new member of the Augusta Police Department that on December 20, 1978, while working undercover on the narcotics squad he received a telephone call from one Bobby Mitchell, since deceased, to stop by his place. When the witness arrived Mitchell and the defendant were there and the defendant sold him two tie sticks of marijuana, a tie stick being a thread-wrapped package of marijuana leaves about 3 1/2 inches long wrapped around a stick, the leaves to be used by crumbling them into cigarette paper. He paid the defendant $20 and that was the end of that transaction.
Over objection the witness further testified that on January 16, 1979, he went with one Steve Favors to the defendant's trailer where he was present with his girl friend. On that occasion the defendant went out of the room and got four white tablets which he placed on the counter. Favors "shot up" two of the tablets and the defendant retained his two, which proved to be morphine, paying $60 for them.
Again over objection the witness testified that on January 20 he went alone to the trailer and purchased a kilo brick of marijuana for which he paid the defendant $300.
The defendant then offered the testimony of a well respected attorney who had been district attorney in another county for a number of years. That witness testified that during his tenure the police officer who was the sole witness against the defendant was making cases returnable to his office, that the office personnel referred to him as "seigning I-20," meaning that around 90 percent of the cases made by the officer were all alike-defendants would be young people with long hair; the officer would stop the car for speeding or some other minor traffic offense, would ask the driver to get out of the car, would then state that he smelled marijuana Cases would be made for possession of one or two cigarettes, less than an ounce; the witness could remember no felony drug case being made by this officer. Following this, the state offered evidence in support of the witness attempted to be impeached. The jury returned a verdict of guilty and defendant appeals.
Kenneth R. Chance, Augusta, for appellant.
Richard E. Allen, Dist. Atty., James W. Purcell, Asst. Dist. Atty., for appellee.
1. For the better part of a century the appellate courts of this state have emphasized that evidence showing an accused has committed an offense wholly independent from the crime for which he is on trial is irrelevant, immaterial and prejudicial in that it places the defendant's character in issue in an impermissible fashion. The rule is of course the subject of exceptions, one-indeed the one most frequently quoted-being where the evidence is admissible for the purpose of showing "motive, plan or scheme." Coart v. State, 156 Ga. 536, 119 S.E. 723 (1923). What the appellate courts may not have done, however, is sufficiently to discuss what is meant by an independent crime, and what is meant by motive, intent or bent of mind. Here, the court in passing on testimony regarding subsequent sales, ruled it admissible for the purpose of showing intent because "you might come in and say you had no intent to sell this." The intent the judge was speaking about is the intent to do an act which the state has legislated to be a crime, and his example is correct, but it has no application to this case. See Foster v. State, 70 Ga.App. 305(2), 28 S.E.2d 81 (1943). The defendant was not contending that he did the act for some other reason than that put forward by the state (a straight sale of a controlled substance). In other words, the only probative value to be attached to the later drug sales was that it tended to prove criminal bent of mind. This has been recognized throughout the history of evidentiary law in this state as irrelevant and prejudicial. It was well summed up by Judge Powell in Lee v. State, 8 Ga.App. 413, 416, 69 S.E. 310, 311 (1910): To the same effect see Booth v. State, 160 Ga. 271, 280, 127 S.E. 733, 736 (1925):
Booth cites three cases, all of them landmark opinions, as exemplifying the conditions under which evidence of other crimes is admissible to show plan, motive or intent. Frank v. State, 141 Ga. 243, 80 S.E. 1016 (1913), allowed testimony that the defendant Leo Frank, accused of murdering a young employee, Mary Fagan, had said, "I am not as other men" along with other evidence by a person (since identified by many criminologists as having been the true murderer) tending to show that Frank was a sexual pervert. Sex cases, such as rape, child molestation and the like, are still recognized as being an exception to the exception we are here dealing with for the reason that a tendency toward sexual deviancy if relevant to the crime for which the defendant is on trial is admissible because it is out of the ordinary in that it supplies a motive and makes credible what would otherwise be difficult of belief. Cf. McNeal v. State, 228 Ga. 633(5), 187 S.E.2d 271 (1972).
The second case cited in Booth is Williams v. State, 152 Ga. 498, 110 S.E. 286 (1921), the infamous murder farm case where Williams took prisoners from the Atlanta stockade to work his farm and, when accused of peonage, set out to kill all the remaining prisoners who might have testified against him. The proof of motive was essential to identify the defendant as the perpetrator of a series of otherwise senseless crimes and to connect him with the criminal conduct.
In the third case, Coart v. State, 156 Ga. 536, 119 S.E. 723, supra, evidence of prior acts of intimacy with the victim's wife were held admissible as showing his motive for killing her husband "in order to possess her" as Judge Russell quaintly put it. And in Lee v. State, 8 Ga.App. 413, 69 S.E. 310, supra, motive was involved where the defendant, a physician, regularly prescribed cocaine to habitual users, as against his defense that his prescriptions were for recognized therapeutic purposes only.
From these and like cases there grew up an indiscriminate use of allowing evidence of perpetration by the defendant of like crimes regardless of whether such proof tended to prove guilt of the crime under consideration in any way other than the generic "criminal bent of mind" which Lee and other cases had disapproved. The...
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...of prior criminal activity on the part of the defendant would have been inadmissible even if it were not hearsay. Johnson v. State, 154 Ga.App. 793, 270 S.E.2d 214 (1980). Hearsay has no probative value whether or not it is objected to. Higgins v. Trentham, 186 Ga. 264(1), 197 S.E. 862 (193......
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...Augusta, for appellee. BOWLES, Justice. We granted certiorari to consider the opinion of the Court of Appeals in Johnson v. State, 154 Ga.App. 793, 270 S.E.2d 214 (1980) reversing a conviction for sale of marijuana because evidence of two subsequent sales of drugs from the same defendant to......