Jones v. State
| Decision Date | 22 September 1981 |
| Docket Number | 61923,Nos. 61922,s. 61922 |
| Citation | 159 Ga.App. 634,284 S.E.2d 651 |
| Parties | JONES v. The STATE (two cases). |
| Court | Georgia Court of Appeals |
Gene Reeves, Jack T. Elrod, Lawrenceville, for appellant.
W. Bryant Huff, Dist. Atty., Johnny R. Moore, Asst. Dist. Atty., for appellee.
Appellant was tried on two separate indictments which were consolidated for trial. In Case Number 61922 appellant was convicted of rape, kidnapping and aggravated sodomy as charged in one indictment. In Case Number 61923 he was convicted of attempted rape as charged under the second indictment. Appellant appeals from the convictions under both indictments, filing the identical enumeration of errors in both cases. Accordingly, the two appeals are consolidated for review.
1. Apparently at the same time that appellant was indicted for the charges which are the subject of the instant appeals, he was also indicted on yet another charge of rape. He was brought to trial on this third indictment before being tried on the instant two. In the trial on this third indictment, the two victims of the crimes for which appellant was subsequently convicted in the instant cases testified concerning appellant's sexual attack upon them. Their testimony was apparently admitted in the earlier trial under the "similar crimes" exception to the "other transactions" rule. Appellant was acquitted of the rape charged in the third indictment.
At the outset of the instant trial on the remaining two indictments, appellant invoked a ruling by the trial court on the admissibility of evidence concerning his former acquittal of the charges in the third indictment. The trial court ruled that the previous trial concerned a "separate transaction" and that the fact that appellant was acquitted of the charges therein would be irrelevant unless the state first sought to introduce into the instant trial evidence concerning the circumstances connected with that "separate transaction." See Rivers v. State, 147 Ga.App. 19(1), 248 S.E.2d 31 (1978). Thus, the trial court ruled that if the state introduced evidence purporting to show that appellant had committed another separate act of rape, appellant would be entitled to show that he had been indicted, tried and acquitted of such an offense, for only then would his prior acquittal of the separate crime be "relevant" in the instant trial.
The instant trial proceeded under this ruling and the state did in fact introduce evidence concerning appellant's commission of the rape for which he had been acquitted in the former trial. This was accomplished when the state called as its witness the prosecutrix in the previous trial who then testified that appellant had raped her. The trial court instructed the jury of the limited purpose for which this testimony was being admitted and that appellant was on trial for and could be convicted of only the offenses set forth in the indictments in the instant case. See Taylor v. State, 174 Ga. 52, 68, 162 S.E. 504 (1931), overruled on other grounds, Woods v. State, 219 Ga. 509, 134 S.E.2d 8 (1963). And, in accordance with the trial court's previous ruling, appellant was afforded the opportunity to demonstrate to the jury that he had been acquitted of the charge or raping the witness.
Appellant urges that the trial court's original ruling, delimiting the circumstances in which evidence concerning his previous acquittal would be admissible in the instant trial, was erroneous. In several related enumerations appellant also asserts that subsequent rulings by the trial court concerning the admissibility or inadmissibility of such evidence constitute the erroneous effectuations of its original ruling on the issue. We find no error in the trial court's original or subsequent rulings on the admissibility of evidence concerning appellant's prior acquittal.
"The general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." Code Ann. § 38-202. Lee v. State, 8 Ga.App. 413(2), 69 S.E. 310 (1910). "[T]he fact of acquittal as to the other crimes does not exclude the right to prove them when the testimony is otherwise relevant." Lee v. State, 8 Ga.App. at 418, 69 S.E. 310, supra. Thus, the only way in which the former prosecutrix's testimony, as proffered in the instant case, concerning appellant's previous acts of sexual misconduct for which he had been tried and acquitted could in any way be relevant and therefore admissible in the instant trial was if those previous acts came within an exception to the "other transactions" rule of inadmissibility. New v. State, 67 Ga.App. 442(1), 20 S.E.2d 617 (1942). Compare Giles v. State, 71 Ga.App. 736, 739(c), 32 S.E.2d 111 (1944). The obvious corollary is that the exculpatory fact of appellant's previous acquittal on a separate charge of rape was irrelevant in the instant subsequent trial until the state successfully sought to introduce, as coming within the evidentiary exception, inculpatory evidence concerning appellant's commission of that "separate offense." This was the original ruling of the trial court and its subsequent rulings were made in the proper furtherance thereof.
We find meritless appellant's contention that his previous acquittal was "relevant" in the instant trial in ways other than that contemplated in the general rule concerning "separate transactions" discussed above and that he was denied the opportunity to present an effective defense because the general rule was adhered to. The essence of appellant's argument in this regard is that he was denied the opportunity to impeach the former prosecutrix and the two prosecutrixes in the...
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