Jones v. StateJones v. State
- Reporters:
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- Before:
- Gregory
Walter Clayton Jones, the petitioner in this case, was convicted of rape and aggravated sodomy. At trial the victim testified on behalf of the State that just prior to the commission of the crimes charged, the petitioner gave her alcohol and marijuana. On cross-examination
We granted certiorari to determine the applicability of Phillips, supra, to this case.
1. In Georgia, “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.”
Until 1895 a criminal defendant was not allowed to speak to the issues for which he was on trial as he was not considered competent to testify. See Code 1868, § 3798 (2). The Penal Code of 1895 permitted a defendant, for the first time, to make an
unsworn
statement to the jury which was not subject to cross-examination. Penal Code 1895, § 1010. However, the defendant was still not considered competent to testify at trial. Penal Code 1895, § 1011. It was not until 1962 that a criminal defendant was considered competent to give sworn testimony at his trial. Ga. Laws 1962, p. 133, former Code Ann. §§ 38-
Well before a criminal defendant was permitted to speak to the issues against him, either through his unsworn statement or sworn testimony at trial, he was permitted to use his good character as a defense to the crime charged. However, the early cases allowed this defense only where there existed a “doubt” as to the defendant’s guilt. Epps v. State, 19 Ga. 102 (1855); Coxwell v. State, 66 Ga. 309 (1880). It was later held that good character could of itself generate a reasonable doubt as to the defendant’s guilt, Shropshire v. State, 81 Ga. 589 (8 SE 450) (1888); Clark v. State, 52 Ga. App. 254, 255 (183 SE 92) (1935), and was a “substantive fact, like any other fact tending to establish the defendant’s innocence, and ought to be so regarded by the court and jury.” Sims v. State, 84 Ga. App. 753, 757 (67 SE2d 254) (1951). It was held that the defense of good character is the reputation surrounding the defendant previous to the charge for which he was on trial. Keener v. State, 18 Ga. 194 (1855); Eidson v. State, 66 Ga. App. 765 (19 SE2d 373) (1942). “Reputation for character, good or bad, may be proved by showing what people generally say.” Powell v. State, 101 Ga. 9 (29 SE 309) (1897).
The state was not allowed to introduce evidence of the character of the accused unless the accused himself “put his character in issue,” either through his own unsworn statement or by the testimony of his witnesses as to his reputation in the community. Ward v. State, 14 Ga. App. 110, 111 (80 SE 295) (1913); Clark v. State, 52 Ga. App., supra. It was held that where the defendant put his character in issue by introducing witnesses who testified that his reputation was good, the state could “reply by showing on cross-examination or otherwise, that [the defendant] had previously been confined, in the chain-gang or penitentiary.” Henderson v. State, 5 Ga. App. 495 (63 SE 535) (1908); see also McKenzie v. State, 8 Ga. App. 124 (68 SE 622) (1910). Or the state could prove that the defendant had been convicted of a crime involving moral turpitude. Smith v. State, 11 Ga. App. 89 (74 SE 711) (1912); Giles v. State, 71 Ga. App. 736 (32 SE2d 111) (1944).
It was stated that the prosecution was prevented from presenting
Prior to the time when the criminal defendant was considered competent to be a witness at trial, see Ga. Laws 1962, p. 133, supra, he was permitted to place his general good character in issue by either his own unsworn statement of his general reputation in the community, or by testimony of witnesses as to his general reputation in the community. See, e.g.,
Folds v. State,
90 Ga. App. 849 (84 SE2d 584) (1954);
Smith v. State,
91 Ga. App. 360 (85 SE2d 623) (1955). The defendant was not permitted to prove his general good character by eliciting testimony of specific acts of good behavior from his witnesses.
Giles v. State,
71 Ga. App. 736 (32 SE2d 111) (1944). Likewise, when the defendant put his
general
good character in issue, the State was permitted to rebut it by evidence as to his
general
bad character, but not by evidence of specific acts of bad conduct, apart from proof of prior convictions.
1
Doyle v. State,
70 Ga. 134 (1883);
Folds v. State,
90 Ga. App., supra;
Giles v. State,
supra. However, on cross-examination of character witnesses, both the State and the defendant were permitted to “elicit the witness’s information of specific instances of conduct tending to disprove the witness’s estimate of [the defendant’s] character^”
Baldwin v. State,
138 Ga. 349, 350 (75 SE 324) (1912).
2
This was allowed in order to test “the extent and foundation of the witness’s knowledge and the correctness of his testimony on direct examination.”
May v. State,
185 Ga. 335, 338 (195 SE 196) (1938). The character witness could testify only to the general reputation of the defendant in the community and was not permitted
While defense character witnesses were not allowed to testify to specific acts of good conduct, the defendant was permitted to prove through his character witness a general reputation for a specific trait. The State was then permitted to show “general bad character with respect to the particular trait ... in rebuttal.” Mimbs v. State, 189 Ga. 189, 192 (5 SE2d 770) (1939). 3
While the rule was that the defendant could not prove his general good reputation by a witness’ testimony of specific acts of good conduct, the defendant was allowed in his unsworn statement to tell the jury of specific transactions of his good conduct. The State was entitled to rebut such a statement only with regard to the specific transaction addressed by the defendant. Folds v. State, supra. 4 A defendant’s statement as to a specific instance of good conduct would not open the inquiry to his general reputation. Id. In this circumstance the defendant did not place his character in issue. Where the defendant’s unsworn statement included a denial of committing the crime charged, the state could rebut the statement with proof that the defendant had committed the crime charged, and with testimony contradicting the facts addressed by the defendant. The denial of the crime did not place the defendant’s general character in issue. Lee v. State, 197 Ga. 123 (28 SE2d 465) (1943); Robinson v. State, 207 Ga. 337 (61 SE2d 475) (1950).
Prior to 1962 the rule was, as it is today, that where the defendant had not placed his general character in issue, proof of prior offenses or convictions was not admissible unless offered for some proper purpose
5
other than to show the defendant is a person of bad character.
6
Mimbs v. State,
supra;
Chambers v. State
76 Ga. App. 269
This was the law in Georgia when the legislature enacted that portion of
We further hold that a defendant does not put his “character in issue” within the meaning of
(a) Where the defendant testifies in his own behalf and “ ‘falsely denies past criminal conduct [or past misdeeds,] the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of
specific testimony
of the defendant.’ ”
Porter v. State,
254 Ga. 388 (2) (330 SE2d 94) (1985), citing Judge Benham’s special concurrence in
Phillips v. State,
supra. (Emphasis supplied.) In this circumstance the defendant has not placed his character “in issue” within the meaning of
(b) Where the defendant testifies and admits prior criminal conduct, he has not placed his character “in issue” within the meaning of
(c) There are numerous instances where the state may properly offer evidence that the defendant has committed prior crimes for a purpose other than to show the defendant is a person of bad character. See, e.g.,
Rainwater v. State,
256 Ga. 271 (347 SE2d 586) (1986); McCormick, Evidence, § 190, 3rd ed. (1985). The fact that such evidence may reflect adversely on the defendant does not place his character “in issue” within the meaning of
2. As noted above, the Court of Appeals in the case before us held under the authority of Phillips v. State, 254 Ga. 370 (329 SE2d 475) (1985), that the petitioner had placed his character in issue and therefore his prior felony convictions were admissible against him.
In
Phillips,
the defendant testified on direct examination that he had been in Florida at the time the crime with which he was charged was committed in Georgia. When asked by defense counsel why he had gone to Florida, the defendant replied, “Well, I was on parole and I had violated my parole. . . .” The issue before this court was whether the defendant’s testimony placed his character in issue within the meaning of
This holding is inconsistent 10 with the prior decisions and rationale stated herein, and is therefore overruled.
In the case before us the petitioner admitted committing two crimes other than the crime with which he was charged. The State was entitled to fully explore this testimony on cross-examination. However, under the holding of this opinion the petitioner did not place his character in issue within the meaning of
Judgment reversed.
All the Justices concur.
Notes
For example, where the defendant presented evidence of his general good character, the State could not offer testimony by the arresting sheriff that he had previously smelled liquor on the defendant’s breath, or had been called to quell disturbances at the defendant’s house. Smith v. State, 91 Ga. App. 360 (85 SE2d 623) (1955).
Here the State was permitted to ask the defense character witness on cross-examination whether he had ever heard that the defendant beat the victim in the past.
For example, in Mimbs the question was whether the defendant had put his reputation for “peaceableness” in issue such that the state could show the defendant had a reputation for violence. Likewise, in Eidson v. State, 66 Ga. App. 765 (19 SE2d 373) (1942), the defendant was permitted to prove a reputation for “peaceableness.” See also Giles v. State, 71 Ga. App. 736 (32 SE2d 111) (1944).
For example, where the defendant in his unsworn statement stated he had never had “any trouble fighting anyone,” the State was not permitted to rebut this by showing the defendant had previously been convicted of gaming with cards. Carroll v. State, 77 Ga. App. 251 (48 SE2d 491) (1948).
A proper purpose does not include the traditional method of impeaching an ordinary witness by proof that he has been convicted of a crime involving moral turpitude. Agnor, Georgia Evidence, § 5-8 (1976); Powell v. State, 122 Ga. 571 (50 SE 369) (1905).
For example, a prior offense was admissible when “offered for the purpose of proving and tending] to show a common design, scheme, plan or purpose, or some other rational connection with the offense for which [the defendant] is being tried. Mimbs v. State, 189 Ga. 189, 193 (5 SE2d 770) (1939).
In Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351) (1987), this court held that “unless and until the [criminal] defendant elects to make it so, character per se, good or bad, is not an issue in the case.” (Emphasis supplied.)
The rules regarding use of character evidence changed little after the adoption of
In State v. Braddy, 254 Ga. 366 (330 SE2d 338) (1985) (Gregory, J., dissenting), this court held that the defendant placed his character in issue by testifying on direct examination to specific acts of his own good conduct. In that case there was clearly an election by the defendant to place his character in issue. The defendant even requested a charge on character as a defense.
Perhaps it would be helpful if, by statute, a defendant were required to give written notice of an election to put his character in issue. This would clearly distinguish an inadvertent statement from a choice to use character as a defense.
However, the result in this case is consistent with prior decisions of this court because the defendant’s testimony concerning his parole opened the door to cross-examination as to the conviction for which he was on parole.