Little v. State
| Decision Date | 20 November 1991 |
| Docket Number | No. A91A1430,A91A1430 |
| Citation | 413 S.E.2d 496,202 Ga.App. 7 |
| Parties | LITTLE v. The STATE. |
| Court | Georgia Court of Appeals |
J. Bennett Threlkeld, Valdosta, for appellant.
H. Lamar Cole, Dist. Atty., Robert T. Gilchrist, Asst. Dist. Atty., for appellee.
Frederick Little was charged with possession of cocaine with intent to distribute, driving without a license, and attempting to elude a police officer. A Lowndes County jury convicted him of cocaine possession and attempting to elude, and he appeals from the denial of his motion for new trial.
1. The State's case against appellant consisted primarily of the arresting officer's testimony that he observed appellant throw a plastic bag out his car window when the officer pulled up behind the car and turned on his blue lights. The officer testified that after detaining appellant, he retrieved a plastic bag from the roadside, and tests performed on the contents established that it contained 2.5 grams of cocaine. In addition, the State introduced evidence that in 1986 and 1988 appellant had pleaded guilty to possession of small amounts of cocaine. Appellant contends the admission of this similar crimes evidence was error.
In two recent cases, Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991) and Stephens v. State, 261 Ga. 467, 468-469(6), 405 S.E.2d 483 (1991), the Supreme Court outlined the procedure to be followed by the State when seeking to admit evidence of prior criminal transactions. First, the trial court must hold a hearing pursuant to Uniform Superior Court Rule 31.3(B) out of the presence of the jury. At this hearing the State must affirmatively show that (1) it seeks to introduce evidence of an independent crime or offense for an appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) the evidence is sufficient to establish that the accused committed the independent offense; and (3) there is sufficient similarity between the independent offense and the charged crime so that proof of the former tends to prove the latter. Williams, supra at 642(2)(b), 409 S.E.2d 649. The trial court then must make and include in the record a determination that each of these elements has been satisfactorily shown by the State. Id. Second, in its presentation during trial the State must present to the trier of fact "evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter." Id. at 642(2)(c), 409 S.E.2d 649; Stephens, supra, 261 Ga. at 469(6), 405 S.E.2d 483.
In the case at bar, the trial court did hold a hearing at which the State proffered proof of the three elements required by Williams. However, we need not decide whether the court made the required findings thereon or whether that ruling was correct because the State failed to comply with the required showing before the jury. When presenting the similar crimes evidence to the jury, the State merely introduced certified copies of the guilty pleas. In Williams and Stephens that procedure was held to be reversible error because the jury was not presented with any evidence to establish the similarity or connection between the former transactions and the charged crime. Williams, supra at 642(2)(d), 409 S.E.2d 649; Stephens, supra, 261 Ga. at 468-469(6), 405 S.E.2d 483. We note that some evidence concerning the circumstances of the prior offenses was adduced during the prosecutor's cross-examination of appellant during the presentation of his defense. However, given the express statement in Williams that the State bears the burden of presenting the requisite evidence to the jury, we do not believe this duty was obviated by the fortuitous circumstance of appellant having elected to testify concerning the prior offenses. Moreover, we cannot say that the evidence was so overwhelming as to make the erroneous admission of the evidence harmless, see Stephens, supra, and accordingly we reverse.
2. Appellant also maintains the evidence was insufficient to authorize a conviction for attempting to elude...
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