Ross v. State, S05A0748.

• Citation: 614 S.E.2d 31
• Decision Date: 23 May 2005
• Docket Number: No. S05A0748.,S05A0748.
• Parties: ROSS v. The STATE.
• Court: Supreme Court of Georgia

Page 31

614 S.E.2d 31

ROSS v. The STATE.

No. S05A0748.

Supreme Court of Georgia.

May 23, 2005.

Carl P. Greenberg, Atlanta, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Frank Murray Gaither, Jr., Asst. Atty. Gen., Christopher Michael Quinn, Asst. Dist. Atty., for appellee.

FLETCHER, Chief Justice.

A jury in Fulton County convicted Todrick Ross of malice murder, two counts of felony murder, aggravated assault with a deadly weapon, possession of a weapon by a convicted felon, and possession of a weapon in the commission of a felony.¹ Ross contends that the trial court erred by admitting the name and nature of his prior felony conviction, for purposes of the possession of a weapon by a convicted felon charge, in spite of his offer to stipulate to his status as a convicted felon. We hereby adopt the reasoning set forth by the United States Supreme Court in Old Chief v. United States,² and hold that in the circumstances presented in this case, it was indeed erroneous for the trial court to admit the name and nature of Ross's prior offense. Because the other properly admitted evidence overwhelmingly proves Ross's guilt, however, we hold the error to be harmless and, therefore, affirm.

1. The evidence presented at trial shows that on May 27, 2003, Ross went to the Fulton County home of Tredika Thornton to visit his estranged wife and to return their child in accordance with the couple's visitation schedule. The couple quarreled, and Ross left the house. Four or five minutes later, Ross returned to the home and rushed upstairs to the room where Michael Reese was staying. Ross was aware that his wife had formerly been engaged in a romantic relationship with Reese. Thornton followed Ross upstairs, and saw him fire two shots at Reese, killing him.

After reviewing the evidence in the light most favorable to the jury's verdict, we conclude that there was sufficient evidence for a rational trier of fact to find Ross guilty beyond a reasonable doubt of malice murder and the other crimes for which he was convicted.³

2. In his sole enumeration of error, Ross contends that the trial court abused its discretion by rejecting his offer to stipulate to his status as a convicted felon and admitting the name and nature of his prior conviction. Ross plead guilty in 1997 to a charge of "enticing a minor for indecent purposes," and the State sought to introduce the indictment for that conviction to prove that, under the current indictment, Ross was guilty of possession of a weapon by a convicted felon. Ross offered to stipulate that he was indeed a convicted felon in order to prevent the jury from viewing the particularly prejudicial nature of his prior conviction. The trial court refused Ross's proffered stipulation, however, and allowed the State to introduce the indictment for that prior conviction.

In Old Chief v. United States,⁴ the United States Supreme Court confronted the identical issue — whether it is appropriate to allow a jury to hear the particular nature of a defendant's prior conviction when that defendant offers to stipulate to his status as a convicted felon — and set forth a clear and cogent rule that unambiguously applies to this circumstances of this case. We hereby adopt the limited rule set forth in that case.

Although the Supreme Court in Old Chief was interpreting Federal Rule of Evidence 403, it is similarly the law of this State that "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ..."⁵ The trial court's determination on this issue will not be disturbed absent an abuse of discretion.⁶

"The term `unfair prejudice' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged."⁷ In this case, the specific nature of Ross's prior offense raises the risk that the jury will generalize his "earlier bad act into bad character and tak[e] that as raising the odds the he did the later bad act now charged ...," or that it will convict "because a bad person deserves punishment ..."⁸

Countered against Ross's argument, however, is the well-established rule protecting the State's authority to choose the evidence needed to prove its case. "[M]ore exactly, ... a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the [State] chooses to present it."⁹ It is for this reason that the law in this State properly prevents a defendant from admitting certain crucial facts related to the crime, such as the cause of the victim's death,¹⁰ in order to prevent the admission of evidence tending to prove that fact. A defendant cannot undermine the credibility of the State's story by selectively admitting certain incriminating evidence to prevent the jury from receiving that evidence.

But in the unique case of an offense based on the defendant's status as a person convicted of a prior unrelated crime, the "recognition that the [State] with its burden of persuasion needs evidentiary depth to tell a continuous story has ... virtually no application ..."¹¹ Ross's proffered stipulation provides the jury with all the information it needs for this offense, namely that his prior crime "falls within the class of crimes that [the Legislature] thought should bar a convict from possessing a gun ..."¹² The need to allow the State to choose its evidence to tell a continuous story is inapplicable here because "[p]roving status without telling exactly why that status was imposed leaves no gap in the story of a defendant's subsequent [and currently relevant] criminality ..."¹³ Thus, in this situation, "there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the [State] would prefer to place into evidence."¹⁴

The U.S. Supreme Court thereby struck a proper balance between the State's entitlement to prove its case and the defendant's right to have a jury decide his case free from unnecessary and unfairly prejudicial information. Although this Court has yet to adopt the reasoning set forth in Old Chief, neither has it rejected that approach. In Butler v. State,¹⁵ this court ruled that it was not error FOR THE TRIAL COURT TO REFUse to sever the offense of possession of a firearm by a convicted felon from the other charges against the defendant. But, this Court distinguished Old Chief in that case because (a) Butler had not offered to stipulate as to his status as a convicted felon, and (b) Old Chief did not involve a demand for severance.¹⁶ Unlike in Butler, in this case there are no grounds to distinguish Old Chief, and there is no sound reason not to adopt its reasoning.

Accordingly, we hereby set forth the limited rule that when (1) a defendant's prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations, and (2) the purpose of the evidence is solely to prove the defendant's status as a convicted felon, then it is an abuse of discretion for the trial court to spurn the defendant's offer to stipulate to his prior conviction and admit the evidence to the jury.¹⁷ In this case, the nature of Ross's prior conviction for enticing a child for indecent purposes could raise the risk of a verdict tainted by improper considerations. Because the evidence was unnecessary to prove anything other than Ross's status as a convicted felon, it was an abuse of discretion for the trial court to reject Ross's offer to stipulate to that fact and to admit the name and nature of his prior conviction.

3. Due to the overwhelming evidence of the defendant's guilt, however, we find it highly probable that the improper evidentiary admission did not contribute to the verdict, and thereby constitutes harmless error.¹⁸

Judgment affirmed.

All the Justices concur, except HUNSTEIN, CARLEY and HINES, JJ., who concur specially.

1. The crimes were committed on or around May 27, 2003. On July 22, 2003, a grand jury indicted Ross for malice murder, two counts of felony murder, aggravated assault with a deadly weapon, possession of a weapon by a convicted felon, two counts of possession of a weapon in the commission of a felony, and kidnapping. The kidnapping charge, as well as one count of possession of a weapon in the commission of a felony, were nol prossed. On June 3, 2004, the jury convicted Ross on all remaining counts, and the trial court sentenced Ross to life in prison for malice murder and a consecutive five year term for possession of a weapon in the commission of a felony. The remaining convictions merged into the malice murder conviction. Ross moved for a new trial on June 21, 2004. The trial court denied the motion on October 26, 2004, and Ross filed his timely notice of appeal on November 2, 2004. The case was docketed in this Court on January 12, 2005, and submitted on the briefs on March 7, 2005.

2. 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

3. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

4. 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574.

5. Hicks v. State, 256 Ga. 715, 720(13), 352 S.E.2d 762 (1987). See also Holland v. State, 221 Ga.App. 821, 825, 472 S.E.2d 711 (1996) (trial court must exclude evidence if undue prejudice outweighs legitimate relevance).

6. Carroll v. State, 261 Ga. 553, 554, 408 S.E.2d 412 (1991).

7. Old Chief, 519 U.S. at 180, 117 S.Ct. 644.

8. Id. at 180-181, 117 S.Ct. 644.

9. Id. at 186, 117 S.Ct. 644.

10. See e.g. Null v. State, 261 Ga. 180, 181(4), 402 S.E.2d 721 (1991) (it is not error for the trial court to refuse to accept defendant's stipulation as to the victim's cause of death and to admit photographs of the victim).

11. Old Chief, 519 U.S. at 190, 117 S.Ct. 644.

12. Id. at...