Phillips v. State
| Decision Date | 30 April 1985 |
| Docket Number | No. 41540,41540 |
| Citation | 254 Ga. 370,329 S.E.2d 475 |
| Parties | PHILLIPS v. The STATE. |
| Court | Georgia Supreme Court |
James H. Moore III, Gardner, Willis & Sweat, Albany, for Jimmy Lee phillips.
Hobart M. Hind, Dist. Atty., Britt R. Priddy, Asst. Dist. Atty., Albany, for the State.
We granted certiorari in Phillips v. State, 171 Ga.App. 827, 321 S.E.2d 393 (1984), to determine whether a defendant in a criminal case who introduces evidence tending to show his bad character has "put his character in issue" within the meaning of OCGA § 24-9-20(b). 1
Jimmy Lee Phillips was indicted for and convicted of a robbery by intimidation which occurred in Dougherty County, Georgia, on May 17, 1982. His defense was that he was at his aunt's home in Deerfield, Florida, from May 6 until June 1, 1982. On direct examination, his attorney asked him, "[W]hy did you go down there?" He responded, "Well, I was on parole and I had violated my parole and[254 Ga. 371] --." aT tHat point his attorney interrupted and asked, "were you going down there to visit your family members?" Defendant answered, "I was going down there to visit with my father."
On cross-examination, the district attorney asked, "What are you on parole for?" When the defendant's attorney objected that the defendant had not placed his character in issue, the court overruled the objection, noting that the defendant had placed his character in issue when he testified that he went to Florida because he had violated his parole. The district attorney subsequently introduced into evidence a 1975 conviction for armed robbery.
On appeal, the Court of Appeals affirmed in an en banc opinion. Phillips v. State, supra. The majority opinion held that the defendant had put his character in issue within the meaning of OCGA § 24-9-20(b), supra. In a concurring opinion, two judges concluded that the defendant's testimony did not put his character in issue, but did open the door for cross-examination regarding the parole pursuant to OCGA § 24-9-64, which provides that "The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him." 2 One judge dissented, on the ground that defendant's testimony did not put his character in issue, and unless a defendant does so, OCGA § 24-9-20(b) prohibits evidence of prior convictions, notwithstanding OCGA § 24-9-64.
The majority of jurisdictions treat the defendant's election to testify as a decision to put his character in issue. 81 AmJur2d 587 "Witnesses" § 582, see also § 569 (1970). For example, the Federal Rules of Evidence allow impeachment of a witness, including the accused, by evidence of conviction of crime, albeit with certain exceptions. Fed.Rules Evid., Rule 609.
OCGA § 24-9-20(b), supra, provides, in relevant part, as follows:
The issue is whether a defendant who testifies that he previously has committed a single criminal violation may be cross-examined (1) as to it and other criminal convictions, or (2) only as to that particular violation, or (3) not at all regarding the admitted violation.
May a defendant testify that although he was present at the scene of the crime he did not participate in it and that he ran from police because he was on probation, but nonetheless deprive the prosecutor of proving that in fact he was an escapee? We find that he may not.
May a defendant admit to having been a juvenile offender during his youth, and deprive the prosecutor of proving he had a record of convictions as an adult? Or, may a defendant admit to having committed the offense of shoplifting (thereby implying that this was his only offense) and deprive the prosecutor of proving that, in addition to the one shoplifting offense, the defendant had been convicted of several burglaries? We conclude that he may not.
We therefore hold that where a defendant admits any prior criminal conduct less than all his criminal offenses, he has put his character in issue within the meaning of OCGA § 24-9-20(b), supra, by attempting to portray his character, albeit bad, as being better than it actually is. Thus, when a defendant admits any prior criminal conduct, the prosecutor may cross-examine him as to such conduct and may prove other prior convictions. This holding provides a simple rule, in the direction taken by a majority of jurisdictions.
To the extent that O'Neal v. State, 239 Ga. 532, 238 S.E.2d 73 (1977), is narrower than this decision, this decision controls.
The majority opinion of the Court of Appeals is therefore affirmed.
Judgment affirmed.
All the Justices concur, except SMITH, GREGORY and BELL, JJ., concur specially.
1
"Does it have to be said that the half-baked notion that the defendant has 'opened the door' cannot by itself explain or justify the prosecutor's right to submit evidence of bad character because the defendant has done so?" Wigmore on Evidence, § 58 at 1210 (Tillers Revision, 1983). Obviously it has to be said in this state, as the majority has concluded that a defendant who introduces evidence of less than all of his prior criminal acts puts his character in issue "by attempting to portray his character, albeit bad, as being better than it really is."
A defendant's prior acts bear no direct relationship to the question of whether that defendant committed a subsequent crime. In order to relate prior acts to subsequent conduct, a party must draw from the acts a preliminary conclusion as to, for example, the defendant's motive, intent, or state of mind. A jury may then follow that preliminary conclusion to determine whether a defendant committed a crime. See Wigmore, supra, § 55.1 at 1160.
A defendant may attempt to bridge the gap between his prior acts and his innocence through the use of character evidence. He may want the jury to conclude from the use of third-party reputation evidence, for example, that: a) This defendant has a good reputation; b) Therefore, this defendant has a good character, and; c) No one with such a good character would have committed this crime. In holding that the defendant in this case has put his character in issue, the majority totally ignores the second step in this process.
Though the defendant's testimony was exculpatory, the connection he drew between his prior acts and his innocence did not rest upon his character. The connection rested upon the assumption that if he was not present at the crime scene, he could not have committed the crime. The testimony actually reflected badly upon his character.
Under the majority's logic, however, a defendant, through introduction of only a few of his prior criminal convictions, attempts to convince the jury that: a) This defendant's character is worse than we thought it was before he told us about that crime, but; b) His character, "albeit bad," could be even worse, so; c) We conclude from our view of...
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Jones v. State
...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 ......
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Hancock v. State
...OCGA § 24-9-20(b)." Jones, supra 257 Ga. at 759(1c), 363 S.E.2d 529. Moreover, the Supreme Court overruled its holding in Phillips v. State, 254 Ga. 370, 329 S.E.2d 475 to the effect that where a defendant admits to any prior criminal conduct which is less than all his criminal offenses, he......
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Williams v. State
...evidence of other witnesses or by his own testimony. (Cit.)' Phillips v. State, 171 Ga.App. 827 (321 SE2d 393) (1984), [aff'd 254 Ga. 370 (329 S.E.2d 475) (1985) ]." Richardson v. State, 173 Ga.App. 695, 696, 327 S.E.2d 813 (1985). Contrary to the trial court's finding, we do not believe th......
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Goodman v. State
...the prosecution to question him as to various criminal activities in which he had been involved. We find no error. Phillips v. State, 254 Ga. 370, 329 S.E.2d 475 (1985). 9. The appellant asserts that the trial court should have made an in camera inspection of the police files in this case p......