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 lawn
Under Williams v. State,
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,
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,
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 transactions satisfy the Williams test. Whitehead v. State,
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
[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 maybe 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,
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,
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,
Of course, if he had chosen to testify, Whitman would have run the risk of inadvertently opening the door to questioning about his May 2011 arrest, but that risk would have existed even if the trial court had excluded the similar transaction evidence. See, e.g., Green v. State,
Although Whitman may have faced a difficult choice in deciding whether to testify, it is well settled that
[t]he criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.... [T]he threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.
(Citations and punctuation omitted.) Chaffin v. Stynchcombe,
Whitman cites no authority to support his argument that adverse evidence must be excluded because its admission might impact a defendant’s decision to testify. To the contrary, even if Whitman was “forced to choose between asserting a defense based upon his own testimony or remaining silent, [that is] a choice that is inherent in any defendant’s decision whether to testify or not, and that does not violate a defendant’s constitutional rights.” United States v. Wright,
Accordingly, we find no abuse of discretion in the trial court’s admission of the similar transaction evidence.
Judgment affirmed.
Notes
The Supreme Court concluded that the “ ‘abuse of discretion’ standard is different from and not quite as deferential as the ‘clearly erroneous’ [or ‘any evidence’] test.” Reed v. State,
“The right to testify on one’s own behalf at a criminal trial [actually] has sources in several provisions of the Constitution” including the Sixth Amendment. Rock v. Arkansas,
The State asserts that Whitman’s argument is speculative because he did not state his reason for not testifying on the record. But this factor does not prevent our review of Whitman’s argument because the trial court ruled on the issue below. See New Jersey v. Portash,
See Johnson v. State,
“This privilege against self-incrimination extends not only to those answers that would in themselves support a conviction, but also to answers creating a ‘real and appreciable’ danger of establishing a link in the chain of evidence needed to prosecute.” (Citations omitted.) In re Tidwell,
the trial court [first] must determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the witness. On the other hand, where the trial court determines that the answers could not incriminate the witness, he must testify (or be subject to the court’s sanction). It is for the court to decide if the danger of incrimination is “real and appreciable.”
(Citations and punctuation omitted; emphasis in original.) Id.
We note that our Supreme Court has limited the exercise of the privilege set out in OCGA § 24-9-27 in cases where the testimony tends only to bring infamy, disgrace or public contempt upon a witness or his family, as follows:
In Brooks v. State,233 Ga. 524 (2) (212 SE2d 355 ) (1975), this court construed the foregoing testimonial privilege, in accordance with the great weight of authority, to require the witness to answer questions tending to bring infamy, disgrace or public contempt upon himself or his family, if the proposed evidence is material to the issues in the case; it is only where the proposed answer has no effect on the case except to impair the witness’ credibility that the witness may fall back on the privilege.
Brown v. State,
Moreover, we note that Whitman’s decision not to testify did not deprive him of his ability to present evidence in support of his defense as his fiancée testified that the property Whitman and she brought to PSC that day came from somewhere other than the victim’s house and did not include the stolen property.
Compare Simmons v. United, States,