Following trial, a jury convicted Darius Oliver of one count each of voluntary manslaughter, aggravated assault, criminal trespass, and possession of a firearm during the commission of a felony. Oliver appeals his convictions and the denial of his motion for new trial, arguing that the trial сourt erred in excluding evidence of the victim’s propensity for violence. For the reasons set forth infra, we affirm Oliver’s convictions.
Viewed in the light most favorable to the jury’s verdict,
A day and a half later, on April 30,2012, Ricardo Reese — who had recently become romantically involved with Donald — and one of his friends were socializing with Donald and one of her friends at Donald’s apartment when someone began knocking angrily on the front door. Looking through the door’s peephole, Reese’s friend, and then Donald, saw that it was Oliver who was demanding entry. Scared and still upset over their fight from the night before last, Donald refused to open the door for Oliver. But this refusal further angered Oliver, and a mоment later, he sprinted around the apartment building to Donald’s back door and kicked it open.
Thereafter, Oliver was charged, via indictment, with one count of malice murder; one count of aggravated assault; one count of burglary; two counts of felony murder, which were predicated upon the aggravated-assault and burglary charges, respectively; and two counts of possession of a firearm during the commission of a felony, which also were predicated upon the aggravated-assault and burglary charges respectively.
Prior to his trial, Oliver filed a notice of his intent to present evidence of Reese’s propensity for violеnce in support of his justification defense, i.e., that he shot Reese in self-defense. And following a pre-trial hearing on the issue, the trial court expressed serious skepticism as to whether such evidence was admissible. Nevertheless, the court reserved ruling on the issue and stated thаt Oliver would be allowed to make a proffer of the expected evidence at the appropriate time.
Oliver was then tried, during which the three witnesses to the shooting testified, as did the law-enforcement officers who investigated the incident. In addition, Oliver testified in his own defеnse, claiming that he shot Reese because he feared that Reese and his friend were about to attack him. And after this testimony, Oliver once again sought to present evidence of Reese’s propensity for violence. Specifically, he proffered that a dеfense witness would testify that Reese shot and injured the witness and his then 18-month-old son in 1992 (for which Reese pleaded guilty to two counts of aggravated assault), and that, subsequently, the witness learned that Reese had a reputation within the community for being prone to violence. But despite this proffer, the trial court ruled that such character evidence was inadmissible.
At the conclusion of the trial, the jury acquitted Oliver on the charges of malice murder, felony murder predicated upon burglary, and possession of a firearm during the commission of a burglary. However, the jury convicted him on the charges of voluntary manslaughter, as a lesser-included offense of the remaining felony-murder count, aggravated assault, criminal trespass, as a lesser-included offense of burglary, and possession of a firearm during the commission of an aggravated assault. Therеafter, Oliver obtained new counsel and filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.
In his sole enumeration of error, Oliver contends that the trial court erred in excluding evidence of Reese’s propensity for violence. Specifically, he argues that the trial court erred in finding that, under OCGA §§ 24-4-404 (a) and 24-4-405, neither evidence of Reese’s reputation for being prone to violence nor his prior, specific violent acts were admissible. We do not agree that the exclusion of this evidence constitutes reversible error.
We first note that, as a general rule, admission of evidence is “a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.”
Oliver was tried in April 2013, and therefore Georgia’s new Evidence Code was applicable.
Evidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for . . . [s]ubject to the limitations imposed by Code Section 24-4-412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the allеged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor . . . .6
In analyzing Federal Rule of Evidence 404 (a) (2), the federal courts
Given the foregoing, Oliver contends that evidence of Reese’s propensity for violence was admissible at trial to support his self-defense claim under OCGA § 24-4-404 (a) (2). He therefore argues that the trial court erred by ruling otherwise and further erred by ruling that this evidence could not be presented via testimony about Reese’s reputation or specific instances of Reese’s violent conduct, pursuant to OCGA § 24-4-405.
It is well established under Georgia law that
[f]or either the victim’s general reputation for violence or specific acts of violence by the victim to be admissible, the defendant must, among other procedural and substantive burdens, make a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant responded with force only to defend himself or herself.11
And here, Oliver failed to make a prima facie showing that he acted in self-defense. As noted supra, the evidence below demonstrates that Reese was a guest of Oliver’s girlfriend, Donald, when Oliver arrived at her apartment uninvited, loudly banged on the front doоr while angrily demanding to be let inside, and then kicked in the back door before chasing Donald upstairs. Thus, when the unarmed Reese began walking up the stairs to confront him, Oliver was already the aggressor in the situation and had precipitated the deadly encounter that ensued.
Given the foregoing circumstances, we conclude that Oliver’s failure to make a prima facie showing that he acted in self-defense necessarily means that hе cannot satisfy OCGA § 24-4-404 (a) (2)’s requirement of demonstrating a “pertinent trait of character of the alleged victim of the crime.” As such, there is no need for us to address Oliver’s contention that the court incorrectly applied OCGA § 24-4-405.
Judgment affirmed.
Notes
See, e.g., Powell v. State,
Martinez v. State,
See State v. Pickett,
See Ga. L. 2011, p. 99, § 101.
See Fed. R. Evid. 404 (a) (2).
OCGA § 24-4-404 (a) (2) (emphasis supplied).
Given the similarity between Georgia’s new Evidence Code and the Federal Rules of Evidence “it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” Jones v. State,
United States v. Keiser,
United States v. Taken Alive,
See Keiser,
Chambers v. State,
OCGA § 24-1-2 (e).
See Milner v. State,
See OCGA § 16-3-23 (1) (“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if. .. [t]he entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence. . . .”).