Thomas v. State

• Decision Date: 07 April 1986
• Docket Number: No. 71951,71951
• Citation: Thomas v. State, 344 S.E.2d 496, 178 Ga.App. 674 (Ga. App. 1986)
• Parties: THOMAS v. The STATE.
• Court: Georgia Court of Appeals

Page 496

344 S.E.2d 496

178 Ga.App. 674

THOMAS v. The STATE.

No. 71951.

Court of Appeals of Georgia.

April 7, 1986.

J. Douglas Willix, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard E. Hicks, Asst. Dist. Attys., for appellee.

SOGNIER, Judge.

Appellant was convicted of child molestation and enticing a child for indecent purposes. In his sole enumeration of error appellant contends the trial court erred by denying his motion for a mistrial.

On direct examination appellant testified that he had never been arrested and charged with a crime prior to the incident involved in this case. On cross-examination the prosecutor asked: "Since this incident, you have been arrested on a sex charge; haven't you?" Appellant asked immediately for a hearing outside the presence of the jury at which he objected to the question and moved for a mistrial on the ground that appellant's testimony related to prior arrests, and he could not be impeached by an arrest subsequent to the incident here because the proper method of impeachment is through introduction of certified copies of convictions.

No evidence of a defendant's general bad character or prior convictions shall be admissible against him at trial unless and until the defendant shall have first put his character in issue. OCGA § 24-9-20(b). Assuming that appellant's testimony about the absence of prior arrests placed his character in issue, we must determine whether any basis existed for the State's question on cross-examination. While OCGA § 24-9-82 provides that a witness may be impeached by disproving the facts testified to by him, the State's question about an arrest subsequent to the incident in question would not serve to disprove or impeach appellant's testimony concerning arrests prior to the alleged incident involved here.

A witness may also be impeached by evidence as to his general bad character. OCGA § 24-9-84. However, it is not competent to discredit a witness by showing that he has committed, been arrested for, confined for, or even indicted for such an offense. McCarty v. State, 139 Ga.App. 101, 103(1), 227 S.E.2d 898 (1976); Henderson v. State, 161 Ga.App. 211, 212(1), 288 S.E.2d 284 (1982). "Our law is that conviction impeaches; accusation does not." Johnson v. State, 144 Ga.App. 406(1), 240 S.E.2d 919 (1977); Strickland v. State, 166 Ga.App. 702, 703, 305 S.E.2d 434 (1983). Thus, asking appellant if he had been arrested subsequent to the incident in question was not a proper method of impeaching appellant. McCarty, Strickland, supra. Since both the transcript and appellee's brief show that the State's question was for the purpose of impeachment, it was error to allow the question. The error was compounded by the prosecutor...