Lindsey v. State

• Decision Date: 24 September 2007
• Docket Number: No. S07A1220.,S07A1220.
• Citation: 282 Ga. 447,651 S.E.2d 66
• Parties: LINDSEY v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 447

651 S.E.2d 66

LINDSEY v. The STATE.

No. S07A1220.

Supreme Court of Georgia.

September 24, 2007.

Mark Allen Yurachek, Mark Allen Yurachek & Associates, Bruce Steven Harvey, Atlanta, for Lindsey.

Daniel J. Craig, Dist. Atty., Madonna Marie Little, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., for State.

THOMPSON, Justice.

Lorenzo Dexter Lindsey was convicted of malice murder and criminal solicitation in the fatal shooting of Marcus Taylor.¹ Because we find that the trial court committed error in allowing the prosecution to inform the jury of Lindsey's extensive misdemeanor arrest history, and because we do not deem the error to be harmless, we reverse and grant a new trial.

Viewed in a light most favorable to the verdict, the evidence showed that co-defendant John Vincson Lawton, Jr. approached Taylor in the parking lot of a Citgo store where he fatally shot Taylor and then fled the scene. Lawton's conviction was affirmed on appeal to this Court. Lawton v. State, 281 Ga. 459, 640 S.E.2d 14 (2007).

The evidence established that Lindsey previously had been prosecuted for the murder of 83-year-old Rosa Barnes in a drive-by shooting. Taylor testified against Lindsey in that case, which resulted in Lindsey's conviction. Lindsey's conviction was reversed on appeal to this Court, Lindsey v. State, 271 Ga. 657, 522 S.E.2d 459 (1999), and on retrial, he was acquitted of the shooting. Nonetheless, while Lindsey was incarcerated pending the outcome of the Barnes prosecution, he plotted with co-defendants Lawton and Charles Hankerson to kill Taylor.

Hankerson testified that Lindsey "came to me and said that Mr. Taylor had snitched on them in the [Barnes] case, and that he wanted to get somebody to knock off Mr. Taylor." In an attempt to insulate himself from the crime, Lindsey gave Hankerson the murder weapon with instructions to pass it along to Lawton. Hankerson was present when Lawton approached Taylor at the Citgo store and shot him repeatedly in the head. Hankerson also confirmed that Lindsey gave Lawton $500 plus one ounce of crack cocaine as payment for the shooting.

In addition to the testimony of co-indictee Hankerson, an inmate housed in the Richmond County Jail on unrelated charges testified that he overheard Lawton tell another inmate that Lindsey had paid Lawton to kill Taylor, and that they had concealed the murder weapon in a place where it would never be found.²

1. The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Lindsey was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Lindsey testified in his own defense at trial. When asked on direct examination whether he had ever been convicted of a felony, he responded that he had not. Defense counsel then inquired whether Lindsey had been convicted of any crimes of violence. Lindsey replied, "no sir. I'm not violent." On cross-examination, the prosecutor attempted to question Lindsey about his criminal history. Defense counsel objected on the ground that the inquiry constituted improper character evidence.

Outside the presence of the jury, the prosecutor argued that Lindsey opened the door to cross-examination about his misdemeanor arrest history by testifying that he was not violent, and by his counsel's remark in opening statement that Lindsey had never previously been in trouble.³ Lindsey further objected on the ground that his arrest record constituted improper impeachment evidence. The trial court overruled the objections allowing the State to offer evidence to rebut the claim (asserted either by defense counsel in opening statement or by Lindsey on direct testimony), that Lindsey had never been in trouble before. Defense counsel moved for mistrial. Cross-examination resumed and the prosecutor questioned Lindsey about two dozen separate misdemeanor arrests spanning the previous seven years. No documentation was offered to substantiate the arrests and no limiting instructions were given to the jury. The prosecutor then asked Lindsey whether his arrest record is "consistent with someone who's never been in trouble before." Lindsey acknowledged that he, in fact, had been arrested on many occasions.

"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. Under the version of OCGA § 24-9-20(b) applicable to Lindsey's trial,⁴ "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." See also Harris v. State, 279 Ga. 522(5), 615 S.E.2d 532 (2005) (State is authorized to present evidence of prior convictions when a defendant makes his good character an issue at trial). "A defendant makes [his] good character an issue by offering testimony of a witness as to the defendant's general good reputation in the community, or by testifying to [his] own general good reputation or to specific acts of past good conduct." Id. at 526, 615 S.E.2d 532. But "a defendant does not put his `character in issue' within the meaning of OCGA § 24-9-20(b) by inadvertent statements regarding his own good conduct." Jones v. State, 257 Ga. 753, 758(1), 363 S.E.2d 529 (1988). Only where a defendant "makes an election to place his good character in issue may the State offer evidence of the defendant's general bad character or his prior convictions under the authority of OCGA § 24-9-20(b)." Id.

Here, there was no intentional election on Lindsey's part to place his character in evidence — his testimony on direct was that he had never been convicted of a felony or any crimes of violence. His remark that he is not a violent person is at best an inadvertent statement of his good character.⁵ It follows that evidence of Lindsey's prior arrests cannot come in under OCGA § 24-9-20(b).

Where a defendant has not placed his character in evidence within the meaning of OCGA § 24-9-20(b), but testifies and "falsely denies past criminal conduct . . . the State may introduce evidence reflecting negatively on the defendant's character only insofar as that evidence proves the falsity of specific testimony of the defendant." (Punctuation omitted.) Porter v. State, 254 Ga. 388, 389(2), 330 S.E.2d 94 (1985). In that situation, the State is permitted to rebut statements of a defendant who testifies falsely at trial by disproving the facts testified to. But the law is clear that where "a defendant testifies he has no prior convictions, his testimony is not subject to rebuttal by proof of prior arrests." Jones, supra at 759(1)(a), 363 S.E.2d 529. See also McGuire v. State, 238 Ga. 247, 232 S.E.2d 243 (1977) (testimony of no prior convictions does not open door to cross-examination about prior arrests); Whitley v. State, 188 Ga. 177(5), 3 S.E.2d 588 (1939) (mere indictment, charge, arrest, or a trial and acquittal are not legal methods of impeachment); Harris, supra at 537 (where defendant testifies she had no felony convictions, it was error to allow the State to impeach with evidence of misdemeanor convictions).

Here, Lindsey did not testify untruthfully about his criminal record and he did not testify that he had no prior arrests. Compare Walker v. State, 260 Ga.App. 241, 581 S.E.2d 295 (2003) and Williams v. State, 171 Ga.App. 927, 321 S.E.2d 423 (1984). Accordingly, introduction of evidence of his arrest record was not a proper method of impeachment. See McGuire, supra; Jones, supra; Whitley, supra; King v. State, 194 Ga.App. 770(1), 391 S.E.2d 769 (1990) (defendant's status as an arrestee is inadmissible for general impeachment purposes). It follows that the trial court erred in allowing the State to question Lindsey about his misdemeanor arrests.

The question remains as to whether reversible error occurred. The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976). "If the error is relevant to the issues in dispute, not cumulative of other evidence, not beneficial to the defendant and uncorrected by the trial court, then there is perhaps no reason for saying it is harmless, but it may nevertheless be harmless in the context of the entire case." Id. at 61, 230 S.E.2d 869. Lindsey's arrest history was pervasive and breathtaking in scope, and was admitted without any limiting instruction. Thus, the jury was allowed to infer that Lindsey was a person of bad character and that he had the propensity to commit the charged crimes based on nothing more than unproven allegations. "[C]onsidering the gravity and prejudicial character of the error, we cannot say that it is highly probable that the error did not contribute to the jury's verdict." Id. at 61-62, 230 S.E.2d 869.

3. The investigating officer was asked on direct examination by the State about the facts surrounding the shooting of Rosa Barnes. Lindsey's counsel objected on the ground that he had been given no notice of the State's intent to offer evidence of independent crimes, as required by Uniform Superior Court Rule 31.3. The court overruled the objection and instructed the jury that the evidence may be considered for the limited purpose of establishing motive. The investigator was then questioned extensively about the details of the Barnes shooting over Lindsey's objections as to the scope of the examination.

It is well established that "[o]n the trial of one charged with murder, evidence of the defendant's motive for the homicide is always relevant." Boone v. State, 145 Ga. 37, 39(1), 88 S.E. 558 (1916). See also OCGA § 24-2-1 (evidence is relevant and, therefore, admissible if it bears on a material issue in the case); Wall v....