Jones v. State, 44979

CourtSupreme Court of Georgia
Citation257 Ga. 753,363 S.E.2d 529
Docket NumberNo. 44979,44979
PartiesJONES v. The STATE.
Decision Date06 January 1988

Philip Louis Ruppert, Jonesboro, for Walter Clayton Jones.

Johnnie L. Caldwell, Dist. Atty., J. David Fowler, Asst. Dist. Atty., Thomaston, for the State.

GREGORY, Justice.

Walter Clayton Jones, the petitioner in this case, was convicted of rape and aggravated sodomy. At trial the victim testified on behalf of the State that just prior to the commission of the crimes charged, the petitioner gave her alcohol and marijuana. On cross-examination the petitioner admitted he offered the victim marijuana and further admitted that he was married at the time the sexual acts with the victim took place. The State took the position that by admitting the crimes of possession of marijuana, OCGA § 16-13-30(j), and adultery, OCGA § 16-6-19, the petitioner had admitted less than all of his prior criminal conduct in the attempt to portray his character albeit bad, as better than it actually was. The trial court concluded, under the authority of Phillips v. State, 254 Ga. 370, 329 S.E.2d 475 (1985), that the petitioner had placed his character in issue within the meaning of OCGA § 24-9-20(b), and permitted the State to introduce petitioner's eight prior felony convictions in evidence. A majority of the Court of Appeals affirmed. Jones v. State, 184 Ga.App. 37, 360 S.E.2d 622 (1987).

We granted certiorari to determine the applicability of Phillips, supra, to this case.

1. In Georgia, "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." OCGA § 24-2-2. This code section applies to both civil and criminal cases. See, Grannemann v. Salley, 95 Ga.App. 778, 99 S.E.2d 338 (1957); Anderson v. State, 206 Ga. 527, 57 S.E.2d 563 (1950). OCGA § 24-9-20(b) provides, in part, "If a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except 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." (Emphasis supplied.) OCGA § 24-9-20(b) was not adopted by the legislature until 1962. Ga. Laws 1962, p. 133. To understand the legislature's intent in prohibiting the State from presenting evidence of the defendant's "general bad character or prior convictions" unless the defendant "first put his character in issue," it is necessary to understand the evolution of the role of character evidence in a criminal trial prior to the effective date of this code section.

Until 1895 a criminal defendant was not allowed to speak to the issues for which he was on trial as he was not considered competent to testify. See Code 1868, § 3798(2). The Penal Code of 1895 permitted a defendant, for the first time, to make an unsworn statement to the jury which was not subject to cross-examination. Penal Code 1895, § 1010. However, the defendant was still not considered competent to testify at trial. Penal Code 1895, § 1011. It was not until 1962 that a criminal defendant was considered competent to give sworn testimony at his trial. Ga. Laws, 1962, p. 133, former Code Ann. §§ 38- 415 and 38-416. It was at this time that the legislature enacted that portion of OCGA § 24-9-20(b) which prohibits the state from introducing evidence of a criminal defendant's prior convictions or "general bad character" until that defendant has "first put his character in issue." From 1962 until 1973 the defendant had the option of making an unsworn statement to the jury, or taking the witness stand and testifying in his own behalf subject to cross-examination by the state. In 1973 the legislature repealed that portion of former Code Ann. § 38-415 which permitted a criminal defendant to make an unsworn statement at trial, See Ga. Laws, 1973, p. 292 et seq., leaving OCGA § 24-9-20(b) as it exists today.

Well before a criminal defendant was permitted to speak to the issues against him, either through his unsworn statement or sworn testimony at trial, he was permitted to use his good character as a defense to the crime charged. However, the early cases allowed this defense only where there existed a "doubt" as to the defendant's guilt. Epps v. State, 19 Ga. 102 (1855); Coxwell v. State, 66 Ga. 309 (1880). It was later held that good character could of itself generate a reasonable doubt as to the defendant's guilt, Shropshire v. State, 81 Ga. 589, 8 S.E. 450 (1888); Clarke v. State, 52 Ga.App. 254, 255, 183 S.E. 92 (1935), and was a "substantive fact like any other fact tending to establish the defendant's innocence, and ought to be so regarded by the court and jury." Sims v. State, 84 Ga.App. 753, 757, 67 S.E.2d 254 (1951). It was held that the defense of good character is the reputation surrounding the defendant previous to the charge for which he was on trial. Keener v. State, 18 Ga. 194 (1855); Eidson v. State, 66 Ga.App. 765, 19 S.E.2d 373 (1942). "Reputation for character, good or bad, may be proved by showing what people generally say." Powell v. State, 101 Ga. 9, 29 S.E. 309 (1897).

The state was not allowed to introduce evidence of the character of the accused unless the accused himself "put his character in issue," either through his own unsworn statement or by the testimony of his witnesses as to his reputation in the community. Ward v. State, 14 Ga.App. 110, 111, 80 S.E. 295 (1914); Clarke v. State, 52 Ga.App. 254, 255, 183 S.E. 92 (1935). It was held that where the defendant put his character in issue by introducing witnesses who testified that his reputation was good, the state could "reply by showing on cross-examination or otherwise that [the defendant] had previously been confined in the chain-gang or penitentiary." Henderson v. State, 5 Ga.App. 495, 63 S.E. 535 (1908); see also, McKenzie v. State, 8 Ga.App. 124, 68 S.E. 622 (1910). Or the state could prove that the defendant had been convicted of a crime involving moral turpitude. Smith v. State, 11 Ga.App. 89, 74 S.E. 711 (1912); Giles v. State, 71 Ga.App. 736, 32 S.E.2d 111 (1944).

It was stated that the prosecution was prevented from presenting evidence of the defendant's bad character where the defendant had not placed his character in issue "for reasons rather of policy and humanity than because proof that the defendant has a bad character is not relevant to the case. 4 Chamberlayne, Modern Law of Evidence, § 4526. 'The rule is one of administrative policy. The source of it may be found in the principle of the law of English speaking people, which obtains in criminal actions, that the accused is presumed to be innocent until he is proven guilty. It would clearly be difficult to maintain this presumption of innocence in the minds of the jurors if testimony were given of a long list of crimes alleged to have been committed by the accused. A prejudice against him would naturally be aroused in the minds of the jurors if such a practice were followed.' " Bryant v. State, 65 Ga.App. 523, 530, 16 S.E.2d 241 (1941). See also McCormick, Evidence, § 190, 3rd Ed. (1984).

Prior to the time when the criminal defendant was considered competent to be a witness at trial, see Ga. Laws 1962, p. 133, supra, he was permitted to place his general good character in issue by either his own unsworn statement of his general reputation in the community, or by testimony of witnesses as to his general reputation in the community. See, e.g., Folds v. State, 90 Ga.App. 849, 84 S.E.2d 584 (1954); Smith v. State, 91 Ga.App. 360, 85 S.E.2d 623 (1955). The defendant was not permitted to prove his general good character by eliciting testimony of specific acts of good behavior from his witnesses. Giles v. State, 71 Ga.App. 736, 32 S.E.2d 111 (1944). Likewise, when the defendant put his general good character in issue, the State was permitted to rebut it by evidence as to his general bad character, but not by evidence of specific acts of bad conduct, apart from proof of prior convictions. 1 Doyal v. State, 70 Ga. 134 (1883); Folds v. State, 90 Ga. App. 849, 84 S.E.2d 584 (1954); Giles v. State, supra. However, on cross-examination of character witnesses, both the State and the defendant were permitted to "elicit the witness's information of specific instances of conduct tending to disprove the witness's estimate of [the defendant's] character." Baldwin v. State, 138 Ga. 349, 350, 75 S.E. 324 (1912). 2 This was allowed in order to test "the extent and foundation of the witness's knowledge and the correctness of his testimony on direct examination." May v. State, 185 Ga. 335, 338, 195 S.E. 196 (1938). The character witness could testify only to the general reputation of the defendant in the community and was not permitted to give his personal opinion as to the defendant's character. Powell v State, 101 Ga. 9, 29 S.E. 309 (1897). Testimony by a defense character witness that he had never heard anyone in the community speak ill of the defendant was some evidence that the reputation of the defendant was good. Id.

While defense character witnesses were not allowed to testify to specific acts of good conduct, the defendant was permitted to prove through his character witness a general reputation for a specific trait. The State was then permitted to show "general bad character with respect the particular trait ... in rebuttal." Mimbs v. State, 189 Ga. 189, 192, 5 S.E.2d 770 (1939). 3

While the rule was that the defendant could not prove his general good reputation by a witness's testimony of specific acts of good conduct, the defendant was allowed in his unsworn statement to tell the jury of specific transactions...

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