Williams v. State, 45011

• Decision Date: 15 January 1988
• Docket Number: No. 45011,45011
• Citation: 363 S.E.2d 535,257 Ga. 761
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Supreme Court

Page 535

363 S.E.2d 535

257 Ga. 761

WILLIAMS v. The STATE.

No. 45011.

Supreme Court of Georgia.

Jan. 15, 1988.

Reconsideration Denied Feb. 4, 1988.

John W. Lawson, Lawson & Fuller, Decatur, for Elester williams.

E. Byron Smith, Dist. Atty., Barnesville, Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., for the State.

WELTNER, Justice.

Elester Williams shot and killed Richmond Johnson with a handgun. He was convicted of malice murder and sentenced to life imprisonment. ¹

Williams and his wife were married in 1969, but lived together for less than a year before they separated. They were not divorced, and over the years maintained a friendly relationship. On the evening of the killing, Williams went to his wife's residence to retrieve some of his personal property. Johnson and Williams' wife were in a vehicle parked near the wife's home. A confrontation took place. Williams testified that Johnson cursed him; that he saw a pistol in Johnson's hand; and that he thought Johnson was going to shoot him. Williams then shot Johnson one time with his handgun, and fled. The abandoned weapon was found and turned over to police. Williams left the area for several days, eventually surrendering himself when he learned that Johnson was dead.

Mrs. Williams testified that while she was with Johnson, Williams ran up to them, cursed Johnson, and then shot him. She testified that Johnson had no weapon. The investigating officers found none.

Johnson's widow testified that her husband owned a weapon, and that she found it after his death in its accustomed place.

1. The evidence is such that a rational trier of fact could have found Williams guilty beyond a reasonable doubt of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In the course of cross-examination, Williams testified: "No, sir, I've never killed nobody. I've never hurt nobody." The district attorney then asked if Williams had not been charged with aggravated assault in 1979, and Williams stated that he had not. The district attorney asked, "You were not?" Again receiving a negative response from Williams he asked, "You were not charged with aggravated assault by the grand jury?" At this point there was both an objection to the question and a motion for a mistrial.

The trial court denied the motion for mistrial, and then gave the following instructions: "The court will instruct the jury, though, to disregard any question to the witness, Defendant, concerning any prior charges, if any, that he may have had against him and any response the witness made concerning that question." Williams assigns error on the trial court's refusal to grant his motion for mistrial.

3. The following authorities control this question:

(a) OCGA § 24-2-2 provides: "The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." This code section applies both to criminal and civil cases. Hartley v. State, 159 Ga.App. 157, 161, 282 S.E.2d 684 (1981).

(b) OCGA § 24-9-20 provides in part: "If a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and 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." ²

(c) "Good character is a substantive fact, like any other fact tending to establish the defendant's innocence, and ought to be so regarded by court and jury.... [cit.] Evidence of good character is not admitted as mere make-weight, but as evidence of a positive fact, which may of itself, by the creation of a reasonable doubt, produce an acquittal. [cit.]" Seymour v. State, 102 Ga. 803, 805, 90 S.E.2d 263 (1897).

4. In the light of precedents, it is apparent that some clarification is needed--principally by distinguishing the types of evidence admissible for the purpose of impeaching testimony.

(a) We held in Brown v. State, 237 Ga. 467, 468, 228 S.E.2d 853 (1976), as follows: " 'The general character of the defendant and his conduct in other transactions is irrelevant unless the defendant chooses to put his character in issue.' [cit.] In this case the [defendant] on direct examination put his character in issue. He denied his involvement in the crime for which he was being tried and went further by adding that he had 'never robbed anybody' nor 'stolen anything from home or my mother.' These additional averments by the appellant placed his character in issue and justified cross-examination on this point. Once a defendant 'opens the door' for character evidence, specific events may be used in testing the extent and foundation of the defendant's knowledge and the correctness of his testimony on direct examination. [cit.]"

(b) In Brown, supra, the defendant made a statement of fact, i.e., that he had never robbed anybody and he had never stolen anything from home or his mother. Upon the making of that assertion, he became subject to impeachment as to its veracity. "If a defendant testifies, he may be cross-examined by the prosecution like any other witness." Hooks v. State, 253 Ga. 141, 143, 317 S.E.2d 531 (1984).

(c) That impeachment may proceed in the following manner:

(1) If the defendant in fact had robbed someone or stolen from home or mother, then evidence establishing such a fact would be admissible for the purpose of impeaching his credibility; and

(2) If he had been convicted of such a crime, then a certified copy of such conviction would be admissible, not primarily for the purpose of demonstrating bad character, but specifically to establish the falsity of the assertion. This latter showing would be relevant, as impeachment evidence, because it would bear directly upon the credibility of his denials.

(d) Neither of these means of impeachment is "character" evidence as prohibited by OCGA § 24-9-20, nor as contemplated by Seymour, supra. Thus, the evidence offered by the state in Brown was permissible--notwithstanding that the statement of the defendant (denying prior robbery or theft) did not "first put his character in issue," as prohibited by OCGA § 24-9-20.

5. Four types of impeachment evidence are set out in Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases, published by The Council of Superior Court...