Whitman v. State

• Decision Date: 01 June 2012
• Docket Number: No. A12A0425.,A12A0425.
• Citation: 12 FCDR 1809,316 Ga.App. 655,729 S.E.2d 409
• Parties: WHITMAN v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 655

729 S.E.2d 409

12 FCDR 1809

WHITMAN

v.The STATE.

No. A12A0425.

Court of Appeals of Georgia.

June 1, 2012.

Robert Christian Rutledge, for Whitman.

Leigh Ellen Patterson, Rome, Suhirjahaan Sabriyah Morehead, for The State.

ADAMS, Judge.

Ricky Lane Whitman appeals following his conviction on one count of misdemeanor theft by receiving. As his sole enumeration of error, Whitman asserts that the trial court erred in allowing the State to admit similar transaction evidence of a similar pending theft charge. He asserts that the admission of this evidence deprived him of his constitutional right to testify at the trial in this case by endangering his right to remain silent with regard to the similar transaction. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on or about 3:00 p.m. on September 23, 2010, Steve Mullen returned home to discover that his lawn mower and tiller were missing from his front yard. Noticing a rusty wheelbarrow in the lot next door, Mullen suspected that someone collecting scrap had taken his property to sell at PSC Metals, a scrap yard approximately one mile down the street. Mullen went directly to PSC to inquire about the missing equipment. There, employees located Mullen's lawn mower and tiller in a pile of scrap. Based upon interviews with PSC employees, PSC paperwork signed by Whitman, and still surveillance photographs showing scrap being unloaded from Whitman's blue station wagon, police arrested Whitman.

The State also introduced, over objection, similar transaction evidence, in which the victim identified Whitman as the man he caught on May 10, 2011 at a nearby recycling center attempting to sell property stolen from him the same day. The State proffered this evidence for the purpose of showing intent, bent of mind, identification and course of conduct, and the trial court admitted the evidence for the limited purposes of showing intent and course of conduct.

The defense presented evidence from Whitman's fiancée, who testified that the materials taken to PSC on September 23, 2010 were from a yard Whitman and she were cleaning and did not include Mullen's lawnmower and tiller. Whitman chose not to testify in his own defense.

Under Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991), before admitting similar transaction evidence,

the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

(Citations omitted.) Harvey v. State, 284 Ga. 8, 8–9(2), 660 S.E.2d 528 (2008). Our Supreme Court recently approved the following statement setting out two separate standards for appellate courts to apply in reviewing a trial court's admission of similar transaction evidence:

When reviewing the trial court's factual findings regarding whether the state satisfied the three-prong test mandated by Williams, we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court's discretion and will not be disturbed absent an abuse of that discretion.¹

(Citations and punctuation omitted.) Reed v. State, 291 Ga. 10(3), 727 S.E.2d 112 (2012).

Whitman does not contend that the May 10, 2011 transaction failed to meet the Williams three-prong test. He concedes that the transaction is similar to the one in this case, and he does not argue that it was introduced for an improper purpose or that the evidence was insufficient to show that he committed that offense. And this Court has consistently held that similar transactions which occur after the charge for which a defendant is being tried, such as the transaction in this case, are admissible so long as the State demonstrates that the transaction satisfies the Williams test. Whitehead v. State, 287 Ga. 242, 249(3), 695 S.E.2d 255 (2010) (same “test applies whether the similar transaction occurred before or, as here, after the charged crimes”); Ayiteyfio v. State, 308 Ga.App. 286, 290, 707 S.E.2d 186 (2011); Scott v. State, 219 Ga.App. 906, 908(3), 467 S.E.2d 348 (1996). Moreover, “[i]t is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citation and punctuation omitted.) Hill v. State, 298 Ga.App. 677, 680(2), 680 S.E.2d 702 (2009). See also Robinson v. State, 312 Ga.App. 736, 752(5), 719 S.E.2d 601 (2011) (concluding that details of prior arrest were admissible as similar transaction evidence where such involved circumstances similar to those giving rise to defendant's theft charges); Woods v. State, 275 Ga.App. 340, 342(1)(a), 620 S.E.2d 609 (2005) (same).

Rather, Whitman argues that the trial court erred in admitting the evidence because he contends that it presented him with an untenable choice: he could either assert his Sixth Amendment right ² to testify in his own defense in this case, thus endangering his Fifth Amendment right to remain silent in connection with the pending charge in the similar transaction, or he could waive his right to testify in this case in order to preserve his Fifth Amendment rights in the other matter. In other words, Whitman is challenging, “the improper impact that the admission of a similar transaction from a pending case had on his Fifth and Sixth Amendment Rights at a jury trial under the U.S. Constitution.” (Emphasis supplied.) Accordingly, under Reed, we apply an abuse of discretion standard to Whitman's argument.³

It is true that “[a] defendant in a criminal case who voluntarily testifies in his own behalf, waives completely his privilege under the Fifth Amendment.” (Citation and punctuation omitted.) Carter v. State, 161 Ga.App. 734, 736(3), 288 S.E.2d 749 (1982).

[W]hen a defendant voluntarily takes the stand in his own behalf and testifies as to his guilt or innocence as to a particular offense, his waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing. His voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all.

(Footnote omitted.) Braswell v. State, 245 Ga.App. 602, 605(6)(a), 538 S.E.2d 492 (2000). See also Hubbard v. State, 173 Ga.App. 127, 129(7), 325 S.E.2d 799 (1984). Clearly, therefore, if Whitman had chosen to testify in his own defense, he would have waived all Fifth Amendment rights with regard to the crime alleged in this case. But even if a defendant's decision to testify also subjects him to potential cross-examination regarding properly admitted similar transaction evidence,⁴ it does not follow that Whitman's testimony regarding the crime alleged in this case would have resulted in the waiver of his Fifth Amendment rights with regard to the pending charges alleged in the similar transaction.⁵

In Georgia, “[a] party, though introduced as a witness in his own behalf, may, upon cross-examination as to matters not voluntarily testified about on his direct examination, decline to give testimony which would tend to criminate him....” (Citations omitted.) Bishop v. Bishop, 157 Ga. 408(1), 121 S.E. 305 (1924). See also Ga. Const. of 1983, Art. I, Sec. I, Par. XVI; OCGA § 24–9–27(a).⁶ A witness, therefore, may assert a privilege against self-incrimination with respect to matters that “were wholly collateral to and unrelated to her testimony in chief, and w[ere] with respect to separate transactions, in no way shown by her testimony to be connected with the crime with which the defendant here was charged.” Smith v. State, 225 Ga. 328, 331(7), 168 S.E.2d 587 (1969) (holding that trial court need not strike entirety of prosecution witness's testimony where witness asserted privilege as to collateral matter), cert. denied, Smith v. Georgia, 396 U.S. 1045, 90 S.Ct. 695, 24 L.Ed.2d 689, rehearing denied, 397 U.S. 970, 90 S.Ct. 1000, 25 L.Ed.2d 264 (1970).

The right against self-incrimination is retained as to collateral matters, therefore, so long as the defendant does not somehow waive that right in his direct examination. Thus, Whitman's waiver of his Fifth Amendment rights as to the charge in this case would not have automatically resulted in a waiver of his right to remain silent in connection with the similar transaction. Although that evidence was deemed admissible for the limited purpose of establishing intent and course of conduct, the two incidents involved two distinct transactions, with different victims, different property, and different scrap yards, and the events occurred almost eight months apart. As the judge explained to the jury in his limiting instruction regarding the similar transaction, Whitman was on trial only for the offense in this case; he was not on trial “for any other related or connected—or other acts.” If Whitman had confined his testimony to the facts in this case, his Fifth Amendment rights as to the similar transaction should not have been impacted. Cf. Myers v. State, 256 Ga.App. 135, 141(2), 567 S.E.2d 742 (2002) (Georgia case law indicates that “a witness may assert the privilege [against self-incrimination] regarding ‘purely collateral matters' and still testify about events directly relevant to the guilt of the accused.”); Buford v. State, 162 Ga.App. 498, 501(8), 291 S.E.2d 256 (1982) (where defendant admitted participation in crime and identified witness as a participant, defendant suffered no prejudice from witness's refusal on Fifth Amendment grounds to testify regarding collateral matter of the other participants's names).

Of course, if he had...