Phillips v. State, 67830

• Decision Date: 16 July 1984
• Docket Number: No. 67830,67830
• Citation: 321 S.E.2d 393,171 Ga.App. 827
• Parties: PHILLIPS v. The STATE.
• Court: Georgia Court of Appeals

Page 393

321 S.E.2d 393

171 Ga.App. 827

PHILLIPS v. The STATE.

No. 67830.

Court of Appeals of Georgia.

July 16, 1984.

Rehearing Denied July 31, 1984.

Certiorari Granted Nov. 8, 1984.

James H. Moore, III, Atlanta, for appellant.

Hobart M. Hind, Dist. Atty., Britt R. Priddy, Asst. Dist. Atty., for appellee.

POPE, Judge.

Jimmy Lee Phillips was convicted of robbery by intimidation. On appeal he contends the trial court erred by denying his motions for a continuance and by allowing the State to introduce a record of a prior conviction to show his bad character. Held:

1. As to appellant's first two enumerations citing as error the trial court's denial of his motions for continuance, our review of the record discloses no abuse of the trial court's discretion in these matters. See generally Gallimore v. State, 166 Ga.App. 601(1), 305 S.E.2d 164 (1983), and Nix v. State, 157 Ga.App. 406(1), 277 S.E.2d 768 (1981).

2. Appellant testified that when the robbery in question occurred he was at his aunt's home in Deerfield, Florida. When his counsel asked appellant why he had gone to Florida, he answered that he was on parole and had violated his parole. On cross-examination the prosecuting attorney was allowed, over objection, to have appellant verify his signature on a certified copy of a prior conviction for armed robbery, and to introduce the document into evidence.

OCGA § 24-9-20(b) provides, in pertinent part: "If a defendant ... wishes to testify ... he may so testify in his own behalf. If a defendant testifies he ... 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." "As a general rule the presumption that one is of good character is included within the general presumption of innocence, or, if not included within it, it at least accompanies the presumption of innocence. Furthermore, the only pertinent question upon the issue raised by an accusation of crime and the defendant's plea of not guilty is whether the defendant is guilty of the crime charged; and if the evidence establishes his guilt, the character of the accused is entirely immaterial." Ward v. State, 14 Ga.App. 110, 111, 80 S.E. 295 (1913). A jury is forbidden, "although they have ... evidence of the character and nature of the defendant, to convict him 'upon general principles,' as that expression is sometimes used in general parlance." Green v. State, 172 Ga. 635, 640, 158 S.E. 285 (1931). Thus, no evidence of a criminal defendant's general bad character or prior convictions shall be admissible against him at trial unless and until such defendant shall have first put his character in issue. See OCGA § 24-9-20(b). It follows that the State cannot rebut or question the presumption of the defendant's good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence of other witnesses or by his own testimony. See Murray v. State, 157 Ga.App. 596(1), 278 S.E.2d 2 (1981).

A problem similar to that presented here was addressed by the Supreme Court in O'Neal v. State, 239 Ga. 532(2), 238 S.E.2d 73 (1977), in which a defendant explained why he fled from the site of an attempted robbery. He stated he was an escapee from a half-way house and feared being recognized by the police. Cross-examination brought out a prior criminal record. It was held that "[u]sually the defendant in a criminal case 'opens the door' to character evidence by claiming to have good character. In such cases, his prior criminal record is then admissible for impeachment purposes. [Cits.] Here the defendant did not assert good character but admitted facts showing lack of good character. Where the defendant seeks to explain flight or concealment by referring to his criminal record, he will not be heard to contend that undue prejudice results when the [S]tate examines him concerning that record. [Cit.]" Id. at 533, 238 S.E.2d 73. Therefore, once appellant placed in evidence his prior parole, it was permissible on cross-examination to question him as to the specific event which gave rise to that testimony. Brown v. State, 237 Ga. 467(2), 228 S.E.2d 853 (1976). Because the State was authorized in this case to inquire into the basis for his parole, appellant could not have been prejudiced by the introduction of the conviction which gave rise to the parole.

It is obvious from the cases in this court and in the Supreme Court that the ways in which a criminal defendant may "put his character in issue" are many and varied. See, e.g., McDaniel v. State, 248 Ga. 494(3), 283 S.E.2d 862 (1981); Brown v. State, 242 Ga. 602(3), 250 S.E.2d 491 (1978); O'Neal v. State, supra; Shepherd v. State, 239 Ga. 28(2), 235 S.E.2d 533 (1977); Brown v. State, 237 Ga. 467, 228 S.E.2d 853, supra; Darden v. State, 236 Ga. 897(2), 225 S.E.2d 904 (1976); Lanham v. State, 233 Ga. 249(1), 210 S.E.2d 770 (1974); Holloway v. State, 164 Ga.App. 589(2), 298 S.E.2d 296 (1982); Walls v. State, 148 Ga.App. 112(1), 251 S.E.2d 103 (1978); Stephens v. State, 144 Ga.App. 779(2), 242 S.E.2d 371 (1978); McKenzie v. State, 8 Ga.App. 124(2), 68 S.E. 622 (1910); Henderson v. State, 5 Ga.App. 495(3), 63 S.E. 535 (1909).

There exists an obvious conflict between the holding of this court in Holloway v. State, supra, and the holding in Carroll v. State, 143 Ga.App. 796(2b), 240 S.E.2d 197 (1977). We are now persuaded that the correct rule is set forth in Scarver v. State, 130 Ga.App. 297(2), 202 S.E.2d 850 (1973): "Once the 'character door' is opened, it is opened for all evidence that bears on the defendant's character--convictions of crimes, guilty and nolo contendere pleas, juvenile offense[s], and incidents which illustrate the defendant's character. [Cits.]." The decision in Holloway is in accord with this rule; the decision in Carroll is not. Accordingly, Division 2(b) of Carroll v. State, supra, is overruled to the extent it is in conflict with the rule set forth in Scarver, supra. For the same reason, the recent decision of Starling v. State, 168 Ga.App. 680, 310 S.E.2d 234 (1983), is overruled.

Judgment affirmed.

McMURRAY, C.J., DEEN and BANKE, P.JJ., and BIRDSONG, J., concur.

CARLEY and BENHAM, JJ., concur specially.

QUILLIAN, P.J., and SOGNIER, J., dissent.

BENHAM, Judge, concurring specially.

While I concur in the judgment of the majority opinion in this case, I cannot agree completely with all that is said in that opinion and therefore feel compelled to file this special concurrence.

At the outset, it is important to consider the reasons behind the general prohibition against the use of character evidence. "As a general rule the presumption that one is of good character is included within the general presumption of innocence, or, if not included within it, it at least accompanies the presumption of innocence. Furthermore, the only pertinent question upon the issue raised by an accusation of crime and the defendant's plea of not guilty is whether the defendant is guilty of the crime charged; and if the evidence establishes his guilt, the character of the accused is entirely immaterial." Ward v. State, 14 Ga.App. 110, 111, 80 S.E. 295 (1913). It is apparent from the quoted language that it is the fact that the defendant's character is immaterial to the question of guilt, coupled with the conjunction of the presumption of innocence and the presumption of good character, that gives rise to the long-standing rule that the character or reputation of a criminal defendant may not be put in issue by the State.

That is not to say that the character of a criminal defendant is never material. "Evidence of good character, when offered by the defendant in a criminal case, is always relevant, and therefore is always material; and if it is material, in our opinion it should go to the jury and have such weight as the jury see proper to give it. If it is material, it should be considered by the jury, not merely where the balance of the testimony in the case makes it doubtful whether the defendant is guilty or not, but where such evidence of good character may of itself generate a doubt as to the defendant's guilt. Good character is 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." Shropshire v. State, 81 Ga. 589, 591, 8 S.E. 450 (1888). Of course, fairness dictates that any fact the defendant is permitted to prove is subject to rebuttal by the State. "A defendant himself may tender proof of his good character, and the prosecution is then permitted to disprove such testimony and to prove that the accused is a person of bad character." Ward v. State, supra.

In my view, it is possible to harmonize most of the decisions of the Supreme Court and this court on this issue by considering the purpose for which character testimony, and especially testimony concerning other offenses or the absence of other offenses, is offered by a criminal defendant. When considered from that point of view, it may be seen that there are two circumstances in which the State may introduce evidence of unrelated and dissimilar criminal transactions involving the defendant and one circumstance in which the State may mount an inquiry into specific instances of prior offenses unrelated and dissimilar to the offense for which the defendant is on trial.

A. The classic situation in which the State is entitled to mount an attack on the character of the defendant by introducing evidence of unrelated and dissimilar criminal conduct is where the defendant has availed himself of the principle of law that "good character may of itself constitute a defense in behalf of an accused so as to generate reasonable doubt of guilt..." Swett v. State, 242 Ga. 228(2), 248 S.E.2d 629 (1978). See Sims v. State, 84 Ga.App. 753(2), 67 S.E.2d 254 (1951)...