(Code 1981, §24-5-506, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Prohibition against compelled self-incrimination, Ga. Const. 1983, Art. I, Sec. I, Para. XVI.
Testimony by defendant in pretrial hearing, § 17-7-28.
Law reviews.- For article on the effect of a conviction that is based on a nolo contendere plea, see 13 Ga. L. Rev. 723 (1979). For article, "Court Ordered Surgery to Retrieve Evidence in Georgia in Light of the Supreme Court Decision in Winston v. Lee," see 37 Mercer L. Rev. 1005 (1986). For annual survey on criminal law, see 71 Mercer L. Rev. 69 (2019). For note, "Defendant as a Witness in a Criminal Proceeding," see 3 Mercer L. Rev. 335 (1952). For note on the Georgia right against self-incrimination, see 15 Ga. L. Rev. 1104 (1981). For comment criticizing Lovett v. State, 108 Ga. App. 478, 133 S.E.2d 595 (1963), as to right of accused to assistance of counsel in making an unsworn statement, see 15 Mercer L. Rev. 512 (1964).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- Prior to the 1962 amendment of former Code 1933, § 38-415, a defendant in a criminal case could not give sworn testimony but could make an unsworn statement in the defendant's behalf. Between 1962 and 1973, a defendant had the option of making an unsworn statement or giving sworn testimony. Effective July 1, 1973, unsworn statements were abolished. Although many of the cases noted below pertain to the making of unsworn statements, the notes have been retained as those cases seem to have continued validity under the present law.
In light of the similarity of the statutory provisions, decisions under Ga. L. 1866, p. 138, § 2, Ga. L. 1868, p. 24, § 1, former Code 1868, § 3798, former Code 1873, §§ 3854 and 4637, Ga. L. 1874, § p. 22, § 1, Ga. L. 1878-79, p. 53, § 1, former Code 1882, §§ 3854, 4637, former Penal Code 1895, §§ 1010, 1011, former Penal Code 1910, §§ 1036, 1037, former Code 1933, §§ 38-415 and 38-416, and former O.C.G.A. § 24-9-20 are included in the annotations for this Code section.
Constitutionality.
- See Williams v. State, 220 Ga. 766, 141 S.E.2d 436 (1965) (decided under former Code 1933, §§ 38-415 and 38-416).
Grand jury proceedings.
- Grand jury has no lawful right to call the accused before the grand jury while considering the bill of indictment against the accused, and swear or question the accused regarding such charge. It is against the public policy of this state. Jenkins v. State, 65 Ga. App. 16, 14 S.E.2d 594 (1941) (decided under former Code 1933, §§ 38-415 and 38-416).
Former statute was not relevant to a probation revocation hearing since such a hearing was not a criminal trial. Sellers v. State, 107 Ga. App. 516, 130 S.E.2d 790 (1963) (decided under former Code 1933, §§ 38-415 and 38-416).
Right to testify did not apply to hearing on motion to withdraw guilty plea.
- Trial court did not deny the defendant's constitutional right to testify on the defendant's own behalf at the hearing on the defendant's motion to withdraw the defendant's guilty plea because the right to testify applied to a trial on the question of guilt or innocence, not to a hearing on a motion to withdraw a guilty plea. Lavendar v. State, 306 Ga. App. 257, 701 S.E.2d 892 (2010) (decided under former O.C.G.A. § 24-9-20).
Former statute not implicated when defendant not in police custody.
- Because the defendant was not in police custody at the time of the defendant's secretly taped telephone conversation with a coconspirator, former O.C.G.A. § 24-9-20 was not implicated. Thorpe v. State, 285 Ga. 604, 678 S.E.2d 913 (2009) (decided under former O.C.G.A. § 24-9-20).
Testimony not under oath.
- Defendant should not have testified without being under oath; however, because the defendant could not show that the defendant was harmed, the error did not require a new trial. Bell v. State, 226 Ga. App. 271, 486 S.E.2d 422 (1997) (decided under former O.C.G.A. § 24-9-20).
If defendant chose to testify in an effort to make defendant's prima facie case of justification, the defendant was subject to cross examination as are other witnesses. Walden v. State, 267 Ga. 162, 476 S.E.2d 259 (1996) (decided under former O.C.G.A. § 24-9-20).
When a defendant voluntarily testifies to matters on direct examination, the defendant can be cross-examined, and required to give a physical demonstration concerning the matters to which the defendant testified on direct examination. Scott v. State, 270 Ga. 93, 507 S.E.2d 728 (1998) (decided under former O.C.G.A. § 24-9-20).
Sobriety test.
- Defendant was not in custody nor compelled by force or threats to perform roadside sobriety tests in violation of the defendant's right against self incrimination. Sisson v. State, 232 Ga. App. 61, 499 S.E.2d 422 (1998), recons. denied; overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-9-20).
Cited in Elliott v. State, 305 Ga. 179, 824 S.E.2d 265 (2019); Bullard v. State, 307 Ga. 482, 837 S.E.2d 348 (2019).
Self-Incrimination
1. In General
Defendant's right to testify.
- Trial court did not err by allowing the defendant to testify at trial because, although the defendant contended that the defendant was not sufficiently competent to knowingly waive the right to remain silent, the record showed that experts found the defendant competent to stand trial prior to the proceedings; the trial court engaged in a full and extensive colloquy with the defendant about the right to remain silent before the defendant took the stand at trial; and the defendant rejected counsel's strong recommendation that the defendant should not testify; thus, the defendant knowingly waived the right against self-incrimination and exercised the right to testify at trial after being fully informed of the consequences. Owens v. State, 298 Ga. 813, 783 S.E.2d 611 (2016), cert. denied, 137 S. Ct. 143, 196 L. Ed. 2d 110 (U.S. 2016).
Failure to give Miranda warnings.
- Since the driver was only given a breath test, but was not given Miranda warnings while the driver was in custody, evidence of the driver's refusal to undergo additional testing was inadmissible. State v. Warmack, 230 Ga. App. 157, 495 S.E.2d 632 (1998) (decided under former O.C.G.A. § 24-9-20).
Arrestee was not, under Georgia constitutional or statutory law, entitled to Miranda warnings before deciding whether to submit to the state's request for an additional test of breath, blood, or urine. State v. Coe, 243 Ga. App. 232, 533 S.E.2d 104 (2000), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019), overruling State v. Warmack, 230 Ga. App. 157, 495 S.E.2d 632 (1998) (decided under former O.C.G.A. § 24-9-20).
Trial court's suppression of urine test results could not be sustained on the ground that Miranda warnings were not given to a DUI arrestee before the arrestee decided to submit to a urine test after taking a breath or blood test. State v. Coe, 243 Ga. App. 232, 533 S.E.2d 104 (2000), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019), overruling State v. Warmack, 230 Ga. App. 157, 495 S.E.2d 632 (1998) (decided under former O.C.G.A. § 24-9-20).
Officer's comment to defendant that "I'm just going to shut your car door so some other drunk doesn't take it off," was insufficient to cause a reasonable person to believe that defendant's detention would not have been temporary, and a trial court erred in excluding on the basis of a Miranda violation evidence of the results of roadside sobriety tests performed on defendant thereafter. State v. Pierce, 266 Ga. App. 233, 596 S.E.2d 725 (2004), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-9-20).
Noncustodial defendant.
- Defendant whose license was taken and who was placed temporarily in a patrol car for the defendant's own safety was not in custody and, therefore, evidence of the defendant's statements was admissible as was evidence of the defendant's refusals to submit to alco-sensor and HGN tests and of the defendant's failure of other tests administered before the defendant's arrest. Turner v. State, 233 Ga. App. 413, 504 S.E.2d 229 (1998) (decided under former O.C.G.A. § 24-9-20).
After defendant was stopped for a traffic violation and before defendant's Miranda rights were read defendant was told that a DUI task force officer had been called because defendant was under suspicion of DUI, defendant was allowed to walk around, and was not placed in the back of the police car nor handcuffed, defendant's detention had not ripened into an arrest before the sobriety tests were conducted. Harper v. State, 243 Ga. App. 705, 534 S.E.2d 157 (2000) (decided under former O.C.G.A. § 24-9-20).
Striking testimony after claim.
- When the defendant asserted a possessory interest in a suit case, the ownership of the suit case was not a collateral matter and was a proper subject of cross-examination but once the defendant claimed the defendant's privilege against self-incrimination, it was proper to strike testimony concerning the case. Rasnake v. State, 164 Ga. App. 765, 298 S.E.2d 42 (1982), cert. denied, 462 U.S. 1132, 103 S. Ct. 3114, 77 L. Ed. 2d 1368 (1983) (decided under former O.C.G.A. § 24-9-20).
Refusal to consent to urine test inadmissible.
- In a prosecution for driving under the influence, when defendant was deprived by the totality of the inaccurate, misleading, and/or inapplicable information given to the defendant by the arresting officer of making an informed choice under the implied consent statute, the defendant's refusal to consent to a urine test was rendered inadmissible. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994) (decided under former O.C.G.A. § 24-9-20).
Use of substances excreted from the body.
- Use of a substance naturally excreted by the human body did not violate a DUI suspect's constitutional rights, and therefore there was no requirement that the suspect be informed of the suspect's right against self-incrimination by a police officer giving the suspect the implied consent notice. Nawrocki v. State, 235 Ga. App. 416, 510 S.E.2d 301 (1998) (decided under former O.C.G.A. § 24-9-20).
Evidence voluntarily produced from body cavity.
- After a small piece of plastic containing cocaine residue was produced by defendant from a body cavity in acquiescence to a search warrant for the defendant's person while the defendant was in lawful detention, the evidence was admissible. Scott v. State, 216 Ga. App. 692, 455 S.E.2d 609 (1995) (decided under former O.C.G.A. § 24-9-20).
Implied consent warnings administered.
- Implied consent warnings administered to motorists suspected of driving under the influence need not inform the motorists of the privilege against self-incrimination. Heller v. State, 234 Ga. App. 630, 507 S.E.2d 518 (1998) (decided under former O.C.G.A. § 24-9-20).
Field sobriety tests given to a person under arrest, without first giving a Miranda warning, were inadmissible under former O.C.G.A. § 24-9-20. State v. O'Donnell, 225 Ga. App. 502, 484 S.E.2d 313 (1997), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-9-20).
After defendant agreed to submit to field sobriety tests, which defendant understood to be voluntary, defendant was not therefore under arrest and the results of the officer's investigation should not be suppressed because defendant was not given the Miranda warnings prior to the tests. Lyons v. State, 244 Ga. App. 658, 535 S.E.2d 841 (2000) (decided under former O.C.G.A. § 24-9-20).
Defendant was not in custody when the officer administered field sobriety tests, nor was defendant compelled by force or threats to perform roadside field sobriety tests in violation of defendant's right against self-incrimination; the officer's admonishment as defendant left the bar that defendant would be arrested if defendant drove was insufficient to turn the subsequent stop into a custody situation. State v. Foster, 255 Ga. App. 704, 566 S.E.2d 418 (2002), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-9-20).
Breath test results.
- Admission into evidence of the defendant's consent to a chemical breath test and the results of that test did not violate the statute since, although the defendant was in custody, the defendant was not charged in a criminal proceeding when the defendant consented to take and took the chemical breath test. Scanlon v. State, 237 Ga. App. 362, 514 S.E.2d 876 (1999), cert. denied, 528 U.S. 1078, 120 S. Ct. 795, 145 L. Ed. 2d 671 (2000), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err in admitting the results of the defendant's portable alco-sensor test because even though the defendant was in custody for purposes of Miranda, the portable test was administered in response to a demand from the defendant, not the officer; thus, the situation was more akin to a spontaneous outburst from an unwarned suspect or a test conducted pursuant to the Georgia Implied Consent Statute, O.C.G.A. § 40-6-392. Hale v. State, 310 Ga. App. 363, 714 S.E.2d 19 (2011), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019) (decided under former O.C.G.A. § 24-9-20).
DNA tests.
- In convictions of aggravated sodomy, kidnapping, burglary, and aggravated assault, use of evidence comparing DNA on lip balm found at the crime scene with defendant's blood sample and with evidence retained from a prior rape prosecution that resulted in defendant's acquittal pursuant to former O.C.G.A. § 24-4-60 et seq. (see now O.C.G.A. § 35-3-160 et seq.) did not violate defendant's right against self-incrimination under former O.C.G.A. § 24-9-20(a). Fortune v. State, 300 Ga. App. 550, 685 S.E.2d 466 (2009) (decided under former O.C.G.A. § 24-9-20).
Database match of DNA profile admissible.
- Testimony concerning a CODIS database match of the defendant's DNA profile was relevant and admissible because the DNA evidence did not, in and of itself, constitute impermissible character evidence since no reference was made as to why the matching sample was collected or stored and no reference was made linking the defendant's DNA profile to other criminal activity. Scales v. State, 310 Ga. App. 48, 712 S.E.2d 555 (2011) (decided under former O.C.G.A. § 24-9-20).
Waiver of privilege.
- Allowing a codefendant to give testimony regarding the substance of defendant's prior testimony at a probation revocation hearing, after defendant elected not to take the stand at trial, did not violate the defendant's privilege against self-incrimination since defendant waived the privilege by testifying voluntarily on the defendant's behalf at the prior hearing. Bobbitt v. State, 215 Ga. App. 131, 449 S.E.2d 674 (1994) (decided under former O.C.G.A. § 24-9-20).
Corporate document not protected by self-incrimination privilege.
- Defendant in a criminal case, an attorney who was the sole shareholder of a professional corporation, was properly held in civil contempt for not producing a noncompetition agreement between the corporation and a former employee. The agreement was a corporate document, and the defendant had been subpoenaed to produce the document as a corporate agent; thus, the defendant could not assert the defendant's personal right against self-incrimination and the small size of the corporation was immaterial. Thompson v. State, 294 Ga. App. 363, 670 S.E.2d 152 (2008) (decided under former O.C.G.A. § 24-9-20).
No coercion by requiring consent or refusal of breath test before allowing phone call.
- Trial court's grant of appellee's motion in limine to suppress the results of a breath test was reversed because refusing to allow the appellee to make a phone call did not constitute coercion as there was no evidence to support the trial court's finding that the appellee's consent to the breath test was obtained after a DUI officer told the appellee that a call to the appellee's daughter could not be made unless the appellee took a breath test, so that finding was clearly erroneous. State v. Council, 348 Ga. App. 497, 823 S.E.2d 817 (2019).
2. Compelling Evidence
Courts should liberally construe provision against compelling the accused to be a witness against oneself, and refuse to permit any first or doubtful steps which may invade one's rights in this respect. Underwood v. State, 13 Ga. App. 206, 78 S.E. 1103 (1913) (decided under former Penal Code 1910, §§ 1036 and 1037).
Law embodies constitutional right against self-incrimination. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), vacated as to sentence sub nom., 243 Ga. 244, 253 S.E.2d 707 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
Law was governed by same standards as U.S. Const., amend. 5. Jordan v. State, 239 Ga. 526, 238 S.E.2d 69 (1977) (decided under former Code 1933, §§ 38-415 and 38-416); Classic Art Corp. v. State, 245 Ga. 448, 265 S.E.2d 577 (1980);(decided under former Code 1933, §§ 38-415 and 38-416).
Scope of statute.
- Constitutional guarantee protects one from being compelled to furnish evidence against oneself, either in the form of oral confessions or incriminating admissions of an involuntary character, or of doing an act against one's will which is incriminating in its nature. Day v. State, 63 Ga. 667 (1879) (decided under former Code 1873, §§ 3854 and 4637); Calhoun v. State, 144 Ga. 679, 87 S.E. 893 (1916); Smith v. State, 17 Ga. App. 693, 88 S.E. 42 (1916) (decided under former Penal Code 1910, §§ 1036 and 1037); Walter v. State, 131 Ga. App. 667, 206 S.E.2d 662; 233 Ga. 10, 209 S.E.2d 605 (1974) (decided under former Penal Code 1910, §§ 1036 and 1037);appeal dismissed,(decided under former Code 1933, §§ 38-415 and 38-416).
Compelled evidence was inadmissible.
- Evidence of guilt which a defendant, either directly or indirectly, was compelled to disclose was not admissible in a criminal prosecution against the defendant. Hughes v. State, 2 Ga. App. 29, 58 S.E. 390 (1907) (decided under former Penal Code 1905, §§ 1010 and 1011); Davis v. State, 4 Ga. App. 318, 61 S.E. 404 (1908);(decided under former Penal Code 1905, §§ 1010 and 1011).
Forcing defendant to submit to act permitted.
- Although evidence may be compulsorily adduced from an accused, it was constitutionally impermissible to compel an accused to perform an act which resulted in the production of incriminating evidence; the distinction was between forcing an accused to do an act against the accused's will and requiring an accused to submit to an act; the latter "takes evidence from the defendant" and was constitutionally acceptable, the former compelled the defendant, in essence, to give evidence which violated an individual's right not to incriminate oneself. State v. Armstead, 152 Ga. App. 56, 262 S.E.2d 233 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
Although evidence may be compulsorily adduced from an accused, it was constitutionally impermissible to compel an accused to perform an act which resulted in the production of incriminating evidence. The distinction was between forcing an accused to do an act against one's will and requiring an accused to submit to an act. Hambrick v. State, 204 Ga. App. 668, 420 S.E.2d 308, cert. denied, 204 Ga. App. 921, 420 S.E.2d 308 (1992) (decided under former O.C.G.A. § 24-9-20).
Direct tendency to incriminate not required.
- Protection was not limited to cases when the question or answer had a direct tendency to incriminate defendant, or to expose the defendant to a penalty or forfeiture; the defendant was protected from answering any question which may form a link in the chain by which such cases were to be established. Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611 (1974) (decided under former Code 1933, §§ 38-415 and 38-416).
Provision applied when fine, forfeiture, or penalty involved.
- In a proceeding against road commissioners for neglect of duty, it was error to compel the defendants to answer under oath questions, the answer to which may subject the defendants to a fine, forfeiture, or penalty. Bryan v. State, 40 Ga. 688 (1870) (decided under former Code 1868, § 3798).
Right applied during pendency of new trial motion.
- In the trial of a codefendant, it was not error for the court to refuse to require a defendant who had been previously tried and convicted, and whose motion for new trial was then pending, to answer a question tending to incriminate that defendant. Stallings v. State, 136 Ga. 131, 70 S.E. 1015 (1911) (decided under former Penal Code 1910, §§ 1036 and 1037).
Fact defendant had a pending motion for new trial which, if granted by the trial court or required by the appellate court, would have subjected the defendant to the self-incrimination choice once again, did not preclude compelled testimony via immunity in the codefendant's trial. Lee v. State, 191 Ga. App. 882, 383 S.E.2d 366 (1989) (decided under former O.C.G.A. § 24-9-20).
Use of incriminating statement on second trial.
- When a witness was informed that the witness would not be required to give any answer that would tend to incriminate the witness in reference to a given transaction, and the circumstances were such as to indicate that the witness appreciated the prejudicial effect that might result from an answer to a given question, the statement in the answer was admissible against the witness in a subsequent trial, although it tended to connect the witness with the transaction which was the foundation of the indictment upon which the witness was being tried. Davis v. State, 122 Ga. 564, 50 S.E. 376 (1905) (decided under former Penal Code 1895, §§ 1010 and 1011).
Witness decided whether question was incriminating.
- When the witness was otherwise competent, the witness may decline to answer questions which tend to incriminate the witness; and in this event the witness, and not the judge, was to determine whether the answer to the question propounded to the witness will have the effect of subjecting the witness to punishment for crime. Empire Life Ins. Co. v. Einstein, 12 Ga. App. 380, 77 S.E. 209 (1913) (decided under former Penal Code 1910, §§ 1036 and 1037). Wilburn v. State, 141 Ga. 510, 81 S.E. 444 (1914) See also (decided under former Penal Code 1910, §§ 1036 and 1037).
Defendant compelled to reenact crime.
- It was erroneous to admit testimony that the accused, while in the custody of the sheriff under arrest made without a warrant, was carried by the sheriff to the house alleged to have been burglarized, and there placed by the sheriff in a position at a window through which the house had been entered, and in which position an occupant of the house claimed to be able to identify the accused as the burglar, although the occupant was unable to do so before the accused was placed in this position, and that the sheriff placed the accused there at the occupant's request, for the purpose of enabling the occupant to identify the accused as the burglar. Aiken v. State, 16 Ga. App. 848, 86 S.E. 1076 (1913), later appeal, 17 Ga. App. 721, 88 S.E. 210 (1916) (decided under former Penal Code 1910, §§ 1036 and 1037).
To compel handwriting exemplar was to impermissibly compel the defendant to do an act, not to submit to an act. State v. Armstead, 152 Ga. App. 56, 262 S.E.2d 233 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
When defendant was asked to submit to a handwriting exemplar act, which defendant readily agreed to do and was not compelled to do so, there was no violation of the Georgia constitutional right nor of subsection (a) of former O.C.G.A. § 24-9-20. Hambrick v. State, 204 Ga. App. 668, 420 S.E.2d 308, cert. denied, 204 Ga. App. 921, 420 S.E.2d 308 (1992) (decided under former O.C.G.A. § 24-9-20).
Removal of bullet from defendant.
- Constitutional rights of defendant were not violated by the state in requiring removal of a bullet from the defendant's body. Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972), cert. dismissed, 410 U.S. 975, 93 S. Ct. 1454, 35 L. Ed. 2d 709 (1973) (decided under former Code 1933, §§ 38-415 and 38-416).
Compulsion by threat of force.
- When a police officer compelled the defendant to produce, against the will of the defendant, illegal lottery tickets by threat and by placing the officer's hand on a pistol, the method of forcing defendant to produce this evidence violated defendant's constitutional rights in that it compelled the defendant to produce evidence to incriminate oneself. Grant v. State, 85 Ga. App. 610, 69 S.E.2d 889 (1952) (decided under former Code 1933, §§ 38-415 and 38-416).
Drug testing provision of probationary sentence.
- Defendant's probation officer was authorized to request defendant to produce a blood specimen for analysis under the terms of a drug testing provision of defendant's probationary sentence. Toth v. State, 213 Ga. App. 247, 444 S.E.2d 159 (1994) (decided under former O.C.G.A. § 24-9-20).
Submitting to blood-alcohol tests.
- Since, under the Constitution of Georgia, the state may constitutionally take a blood sample from a defendant without the defendant's consent, O.C.G.A. §§ 40-5-55 and40-6-392 grant, rather than deny, a right to a defendant by providing for refusal to take such a test. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985) (decided under former O.C.G.A. § 24-9-20).
Choice provided to a DUI defendant under Georgia law - submitting to a blood-alcohol test or refusing to submit, with resultant sanctions - was not so painful, dangerous, or severe, or so violative of religious beliefs, that no choice actually existed, and did not amount to compulsion on behalf of the state or a violation of due process. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985) (decided under former O.C.G.A. § 24-9-20).
Miranda like warnings not required for persons arrested for DUI before asking to submit to breath test.
- Supreme Court of Georgia held that neither Georgia's right against compelled self-incrimination, Georgia's right to due process, nor Georgia's statute prohibiting compelled self-incrimination, O.C.G.A. § 24-5-506, requires law enforcement to provide Miranda warnings to persons arrested for DUI before asking a person to submit to a breath test. State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Grant of the defendant's motion to suppress based on the officer not providing a Miranda warning before seeking consent for a breath sample was vacated because the state successfully argued that the Georgia Supreme Court's recent decision in State v. Turnquest, 305 Ga. 758 (2019) overruled Price v. State, 269 Ga. 222 (1998) and, thus, neither O.C.G.A. § 24-5-506(a) nor the Georgia Constitution required law enforcement to warn suspects in custody of the suspect's right to refuse to perform an incriminating act. State v. Blazek, 353 Ga. App. 127, 836 S.E.2d 213 (2019).
Field sobriety tests may be asked of noncustodial defendant.
- There was no violation of defendant's right against self-incrimination since the defendant was not formally arrested until after the field sobriety test. Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993) (decided under former O.C.G.A. § 24-9-20); State v. Sumlin, 224 Ga. App. 205, 480 S.E.2d 260 (1997);(decided under former O.C.G.A. § 24-9-20).
Driver could not assert right against self-incrimination to suppress results of field sobriety test, since the driver was not a person "charged in a criminal proceeding" at the time the test was given, the driver was not in police custody at that time, and no force or threat of penalty was used against the driver. Montgomery v. State, 174 Ga. App. 95, 329 S.E.2d 166 (1985) (decided under former O.C.G.A. § 24-9-20); Keenan v. State, 263 Ga. 569, 436 S.E.2d 475 (1993); Bravo v. State, 249 Ga. App. 433, 548 S.E.2d 129 (2001) (decided under former O.C.G.A. § 24-9-20);(decided under former O.C.G.A. § 24-9-20).
Alco-sensor screening.
- Defendant's refusal to submit to the alco-sensor screening could be admitted without proof that the device had been approved by the Georgia Bureau of Investigation. Johnson v. State, 268 Ga. App. 426, 602 S.E.2d 177 (2004) (decided under former O.C.G.A. § 24-9-20).
Alphabet test and physical dexterity tests were not inadmissible under the fifth amendment of the United States Constitution because those tests were not evidence of a testimonial or communicative nature. Smith v. State, 202 Ga. App. 701, 415 S.E.2d 495 (1992) (decided under former O.C.G.A. § 24-9-20); Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992); 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993), cert. denied,(decided under former O.C.G.A. § 24-9-20).
Blood and urine analysis admissible.
- Admitting the results of blood and urine analysis into evidence in the defendant's felony murder trial did not violate U.S. Const., amend. V, Ga. Const. 1983, Art. I, Sec. I, Para. XVI, or former O.C.G.A. § 24-9-20(a) because the removal of a substance from the body through a minor intrusion did not cause the defendant to be a witness against oneself within the meaning of the Fifth Amendment and similar provisions of Georgia law. Bowling v. State, 289 Ga. 881, 717 S.E.2d 190 (2011) (decided under former O.C.G.A. § 24-9-20).
Defendant who entered plea of nolo contendre could not be forced to testify in the sentencing hearing. Fuller v. State, 244 Ga. App. 618, 536 S.E.2d 296 (2000) (decided under former O.C.G.A. § 24-9-20).
Nontestifying defendant need not be advised of right.
- Since defendant did not testify and was not cross-examined, there was no harm in the trial court's failure to advise defendant of the defendant's right not to be compelled to testify under oath. Coonce v. State, 171 Ga. App. 20, 318 S.E.2d 763 (1984) (decided under former O.C.G.A. § 24-9-20).
Grand jury testimony.
- Trial court committed reversible error by granting defendant's plea in abatement to an indictment charging defendant with reckless conduct, based on the ground that defendant was forced by the grand jury to give testimony against oneself, where the only proposed indictment before the grand jury at the time defendant was called as a witness was for the offense of feticide, allegedly committed by defendant's spouse, and the defendant did not claim defendant's privilege against self-incrimination. State v. Butler, 177 Ga. App. 594, 340 S.E.2d 214 (1986) (decided under former O.C.G.A. § 24-9-20).
Burden on defendant to show self-incrimination.
- When three defendants, one of whom was plaintiff in error, were charged in the indictment with arson, and that defendant's name along with six other names appeared on the back of the indictment, there was no presumption that the defendant was examined against oneself, and the burden was on the defendant to show that the defendant gave evidence to incriminate oneself. Cowart v. State, 51 Ga. App. 199, 179 S.E. 823 (1935) (decided under former Code 1933, §§ 38-415 and 38-416).
Jury instructions.
- It was proper for the court to give a charge on defendant's failure to testify without a request and it was not reversible error to fail to give the charge if defendant did not request the charge. Stapleton v. State, 235 Ga. 513, 220 S.E.2d 269 (1975) (decided under former Code 1933, §§ 38-415 and 38-416).
Waiver.
- If a defendant is fully apprised of the defendant's fifth amendment rights by the trial judge and by the defendant's attorney prior to the defendant's taking the stand for cross-examination, any objection to the procedure must be considered as waived at trial. Everett v. State, 238 Ga. 80, 230 S.E.2d 882 (1976) (decided under former Code 1933, §§ 38-415 and 38-416).
3. Comments
It was error for a prosecutor to comment to the jury on defendant's exercise of the defendant's constitutional right to remain silent. Marlow v. State, 152 Ga. App. 218, 262 S.E.2d 460 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
Rigid adherence to rule.
- Rule that defendant's failure to make a statement cannot be commented upon has been rigidly adhered to since it was laid down in Bennet v. State, 86 Ga. 401, 12 S.E. 806, 22 Am. St. R. 465, 12 L.R.A. 449 (1890); Moore v. State, 10 Ga. App. 805, 74 S.E. 315 (1912) (decided under former Penal Code 1910, §§ 1036 and 1037).
Rule applied to judge as well as prosecutor.
- Law prohibited any comment on the failure of defendant to testify in a criminal case; this inhibition applied to both the prosecutor and judge. Thomas v. State, 234 Ga. 615, 216 S.E.2d 859, answer conformed to, 136 Ga. App. 165, 220 S.E.2d 736 (1975) (decided under former Code 1933, §§ 38-415 and 38-416).
Comment by prosecutor cuts down on privilege against self-incrimination by making its assertion costly. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977) (decided under former Code 1933, §§ 38-415 and 38-416).
Rule applies only if defendant fails to testify.
- Statutory prohibitions upon comment on defendant's failure to testify are applicable only when defendant fails to testify. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977) (decided under former Code 1933, §§ 38-415 and 38-416).
Former statute plainly prohibited any attempt to discredit defendant in the eyes of the jury by the making of any comment upon the exercise of defendant's right not to be sworn. Ward v. State, 123 Ga. App. 216, 180 S.E.2d 280 (1971) (decided under former Code 1933, §§ 38-415 and 38-416).
What was prohibited was a comment on the failure to testify. Roberts v. State, 231 Ga. 395, 202 S.E.2d 43 (1973) (decided under former Code 1933, §§ 38-415 and 38-416).
What was prohibited was a comment that the defendant could have denied, explained, or otherwise disputed the state's case against the defendant. Woodard v. State, 234 Ga. 901, 218 S.E.2d 629 (1975) (decided under former Code 1933, §§ 38-415 and 38-416); Graham v. State, 156 Ga. App. 538, 275 S.E.2d 114 (1980);(decided under former Code 1933, §§ 38-415 and 38-416).
Remarks made by the court to defendant in presence of jury which serve to invite attention and emphasize the defendant's failure to defend oneself under oath were precisely what the statute prohibited, even if the remarks were intended to insure that defendant understood defendant's rights. Roberts v. State, 231 Ga. 395, 202 S.E.2d 43 (1973) (decided under former Code 1933, §§ 38-415 and 38-416).
Indirect reference to defendant's silence.
- When the district attorney directly referred to silence as an indication of guilt, error had obviously been committed; when an indirect reference to this fact was made a more marginal question was involved. Redding v. State, 151 Ga. App. 140, 259 S.E.2d 146 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
Prosecutor's comments were not on defendant's silence.
- Counsel's failure to object to the prosecutor's comments on the ground that the prosecutor improperly commented on the defendant's exercise of the defendant's right to remain silent by remarking on the defendant's failure to testify at trial did not amount to deficient performance because the challenged remarks were not improper; the prosecutor made the comments while seeking to persuade the jury that the defendant's statements and behavior shortly after the crimes were inconsistent with the defendant's theory of self-defense, and the remarks were not intended to comment on the defendant's failure to testify or would have been received as such by the jury. Lacey v. State, 288 Ga. 341, 703 S.E.2d 617 (2010) (decided under former O.C.G.A. § 24-9-20).
Reference to defendant's contentions through counsel or by defendant's plea was not a comment on defendant's failure to testify. Bailey v. State, 142 Ga. App. 202, 235 S.E.2d 650 (1977) (decided under former Code 1933, §§ 38-415 and 38-416).
Comment on failure to rebut incriminating evidence.
- Prosecution was not permitted to refer to the fact that defendant had not made a statement, but may properly comment upon the fact that defendant had failed to adduce testimony in rebuttal of evidence introduced by the state, tending to show defendant's guilt. Saffold v. State, 11 Ga. App. 329, 75 S.E. 338 (1912) (decided under former Penal Code 1910, §§ 1036 and 1037). Caesar v. State, 125 Ga. 6, 53 S.E. 815 (1906) See also Battle v. State, 155 Ga. App. 541, 271 S.E.2d 679 (1980) (decided under former Penal Code 1895, §§ 1010 and 1011);(decided under former Code 1933, §§ 38-415 and 38-416).
It was not error for the prosecutor to reflect upon failure of the defense to present any evidence to rebut the proof adduced by the state. Brown v. State, 157 Ga. App. 473, 278 S.E.2d 31 (1981) (decided under former Code 1933, §§ 38-415 and 38-416).
Trial judge did not violate former O.C.G.A. § 24-9-20 when the court's instruction given prior to the closing statements by either side merely informed the jury of the general procedure to be followed and did not amount to a comment on the defendant's failure to testify and defendant raised no objection. Fletcher v. State, 157 Ga. App. 707, 278 S.E.2d 444 (1981) (decided under former Code 1933, §§ 38-415 and 38-416).
Comment on failure of defendant as witness to rebut evidence.
- When defendant testifies in defendant's own behalf, there is no violation of U.S. Const., amend. 5 when the district attorney comments upon defendant's failure, when the defendant testified, to explain or deny the testimony of particular witnesses. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527 (1977).
Prosecutor's statement that defendant had no excuse constituted an impermissible comment upon defendant's failure to testify. Spann v. State, 126 Ga. App. 370, 190 S.E.2d 924 (1972) (decided under former Code 1933, §§ 38-415 and 38-416).
Prosecutor's statement that only two people knew what went on in the room where an assault occurred, the victim and the defendant, did not violate defendant's rights against self-incrimination. Neal v. State, 198 Ga. App. 518, 402 S.E.2d 114 (1991) (decided under former O.C.G.A. § 24-9-20).
Prosecutor's comment that defendant "didn't take the stand" was an improper comment on defendant's failure to testify under former O.C.G.A., § 24-9-20(b). Raheem v. State, 275 Ga. 87, 560 S.E.2d 680 (2002), cert. denied, 537 U.S. 1021, 123 S. Ct. 541, 154 L. Ed. 2d 429 (2002); overruled on other grounds, Patel v. State, 282 Ga. 412, 651 S.E.2d 55 (2007) (decided under former O.C.G.A. § 24-9-20).
Impermissible comment mitigated by ample alternative evidence.
- Since defendant offered no evidence on a robbery trial and the statement of the district attorney in closing argument was that the testimony of the victim stood unrefuted, this language did not constitute reversible error if other evidence was ample to support a guilty verdict. Redding v. State, 151 Ga. App. 140, 259 S.E.2d 146 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
Comment that defendant's testimony would exculpate codefendant.
- Statement by counsel for codefendant when counsel sought to call defendant as a witness after objection was sustained was not a prohibited comment since counsel said that nothing would come from counsel's questions that would do anything other than exculpate the codefendant. Graham v. State, 156 Ga. App. 538, 275 S.E.2d 114 (1980) (decided under former Code 1933, §§ 38-415 and 38-416).
Prosecutor's acknowledgement that defendant had the right to present evidence and subpoena witnesses was not a comment upon defendant's failure to testify. Hutchinson v. State, 179 Ga. App. 485, 347 S.E.2d 315 (1986) (decided under former O.C.G.A. § 24-9-20).
Prosecutor's questions constituted an improper comment upon the criminal defendant's failure to produce evidence. Creamer v. State, 168 Ga. App. 790, 310 S.E.2d 560 (1983) (decided under former O.C.G.A. § 24-9-20); Brewster v. State, 205 Ga. App. 770, 424 S.E.2d 8 (1992);(decided under former O.C.G.A. § 24-9-20).
Comment on failure to take test proper.
- Prosecutor's comment on the defendant's failure to take a chemical test at the time of defendant's arrest was not an impermissible reference to the defendant's right to remain silent under the Fifth Amendment and was a proper subject for comment in closing argument. Givens v. State, 199 Ga. App. 709, 405 S.E.2d 898 (1991) (decided under former O.C.G.A. § 24-9-20).
Proper instructions.
- Charge that the jury was to make no assumption or draw any conclusions from defendant's failure to testify would not have been error. Woodard v. State, 234 Ga. 901, 218 S.E.2d 629 (1975) (decided under former Code 1933, §§ 38-415 and 38-416).
It was permissible for the trial court to charge that the jury was to make no assumption or draw any conclusions from defendant's failure to testify. Also permissible would be a charge that defendant's failure to testify created no presumption against the defendant and the burden of proving defendant's guilt beyond a reasonable doubt cannot be presumed to be carried because of the defendant's failure to testify. Marlow v. State, 152 Ga. App. 218, 262 S.E.2d 460 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
It was error for court to deny defendant's request for a charge that the defendant's failure to testify created no presumption against the defendant. Marlow v. State, 152 Ga. App. 218, 262 S.E.2d 460 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
Impermissible comment cured by instructions.
- While counsel for the state should not argue to the jury from the omission of defendant to make a statement, the effect of such impropriety may be obviated by an appropriate charge from the court. Robinson v. State, 82 Ga. 535, 9 S.E. 528 (1889) (decided under former Code 1882, §§ 3854 and 4637). Minor v. State, 120 Ga. 490, 48 S.E. 198 (1904) See also (decided under former Penal Code 1895, §§ 1010 and 1011).
After one of the state's counsel remarked that defendant did not even make a statement in the defendant's own behalf, and the court immediately rebuked counsel and thereafter during the charge instructed the jury that it should not take into consideration the fact that the defendant did or did not make a statement, the refusal of the trial court to grant a mistrial would not be reversed. Parks v. State, 208 Ga. 508, 67 S.E.2d 716 (1951) (decided under former Code 1933, §§ 38-415 and 38-416).
Evidence of Character or Other Crimes
1. In General
Nature of good character defense.
- Defense of good character, which the law designated as a substantive fact, and which may itself alone be sufficient to generate a reasonable doubt, was that reputation for good character which surrounded the defendant previous to the transaction under consideration; it was the reputation for previous good character. Eidson v. State, 66 Ga. App. 765, 19 S.E.2d 373 (1942) (decided under former Code 1933, §§ 38-415 and 38-416).
Probative connection required.
- Evidence of prior difficulties between the defendant and the alleged victim was not admissible because the evidence did not have a probative connection with the incident giving rise to the case being tried. Carr v. State, 267 Ga. 701, 482 S.E.2d 314 (1997) (decided under former O.C.G.A. § 24-9-20). Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (1999) But see (decided under former O.C.G.A. § 24-9-20).
Character evidence generally inadmissible.
- Evidence regarding the character of a defendant was generally inadmissible unless the defendant put the defendant's character in issue, and evidence of independent offenses committed by a defendant was generally inadmissible due to its inherently prejudicial nature and minimal probative value. Henderson v. State, 204 Ga. App. 884, 420 S.E.2d 813 (1992) (decided under former O.C.G.A. § 24-9-20).
In criminal trials, state cannot introduce evidence of defendant's character unless the defendant had personally first put it in issue; the state may then disprove or rebut, by competent evidence, that which the defendant had seen cause to assert. Clarke v. State, 52 Ga. App. 254, 183 S.E. 92 (1935) (decided under former Code 1933, §§ 38-415 and 38-416); Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940); Posey v. State, 152 Ga. App. 216, 262 S.E.2d 541 (1979) (decided under former Code 1933, §§ 38-415 and 38-416);(decided under former Code 1933, §§ 38-415 and 38-416).
In a criminal case, the state cannot rebut or question the presumption of the defendant's good character unless the defendant discards the presumption thus afforded and elects to put the defendant's actual character in issue by evidence or by the defendant's statement to the jury. Murray v. State, 157 Ga. App. 596, 278 S.E.2d 2 (1981) (decided under former Code 1933, §§ 38-415 and 38-416).
State cannot rebut or question the presumption of a defendant's good character unless the defendant first chose to place the defendant's character in issue. Arnold v. State, 193 Ga. App. 206, 387 S.E.2d 417 (1989) (decided under former O.C.G.A. § 24-9-20).
Unless and until the accused introduced evidence of the accused's own character or reputation, the state could not show that the accused's general reputation for peaceableness and violence was bad, and evidence of the accused's general reputation for violence was legally irrelevant and the testimony was inadmissible. Ledford v. State, 202 Ga. App. 694, 415 S.E.2d 693 (1992) (decided under former O.C.G.A. § 24-9-20).
Impeachment by cross-examination.
- Use of cross-examination in a good faith attempt to impeach a defendant, who on direct examination had voluntarily given testimony on direct examination obviously calculated to impress the jury as to certain traits of defendant's character, was not prohibited. Butts v. State, 193 Ga. App. 824, 389 S.E.2d 395 (1989) (decided under former O.C.G.A. § 24-9-20).
Even though defendant did not, merely by volunteering that defendant had been incarcerated, put defendant's character "in issue" within the meaning of subsection (b) of former O.C.G.A. § 24-9-20 so as to permit rebuttal by the state, defendant nevertheless raised an issue which could be fully explored by the state on cross-examination. Wilkey v. State, 215 Ga. App. 354, 450 S.E.2d 846 (1994) (decided under former O.C.G.A. § 24-9-20); Roman v. State, 245 Ga. App. 225, 537 S.E.2d 684 (2000);(decided under former O.C.G.A. § 24-9-20).
Testimony of defendant on direct examination regarding prior criminal conduct did not place defendant's character in issue, but did raise issues which could be fully explored by the state on cross-examination. Franklin v. State, 224 Ga. App. 578, 481 S.E.2d 852 (1997) (decided under former O.C.G.A. § 24-9-20).
Evidence that defendant knew that defendant would be incarcerated for 90 days beginning one week after the offense charged contradicted defendant's testimony that defendant expected to be steadily employed in the weeks following the offense; accordingly, the trial court did not abuse the court's discretion in allowing the evidence to impeach defendant's testimony. Cooper v. State, 272 Ga. App. 209, 612 S.E.2d 42 (2005) (decided under former O.C.G.A. § 24-9-20).
Proof of other crimes to show bad character generally.
- Proof of other crimes was never admissible (except in cases when defendant has personally put one's character in issue) when its chief or only probative value consisted in showing that defendant was, by reason of defendant's bad character (demonstrated through a criminal career), more likely to have committed the crime than defendant otherwise would have been; to admit such evidence, it must have relevancy and probative value from some other point of view. Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947) (decided under former Code 1933, §§ 38-415 and 38-416); Carroll v. State, 155 Ga. App. 514, 271 S.E.2d 650 (1980);(decided under former Code 1933, §§ 38-415 and 38-416).
Good character was a substantive fact, like any other fact tending to establish defendant's innocence, and ought to be so regarded by the court and jury; like all other facts proved in the case, it should be weighed and estimated by the jury, for it may render that doubtful which otherwise would be clear. Sims v. State, 84 Ga. App. 753, 67 S.E.2d 254 (1951) (decided under former Code 1933, §§ 38-415 and 38-416).
Good character may of itself generate reasonable doubt in the minds of the jury as to defendant's guilt, and for this reason defendant was allowed when defendant saw fit to offer defendant's good character in issue. Clarke v. State, 52 Ga. App. 254, 183 S.E. 92 (1935) (decided under former Code 1933, §§ 38-415 and 38-416); Walker v. State, 199 Ga. 418, 34 S.E.2d 446 (1945); Sims v. State, 84 Ga. App. 753, 67 S.E.2d 254 (1951) (decided under former Code 1933, §§ 38-415 and 38-416);(decided under former Code 1933, §§ 38-415 and 38-416).
Evidence admissible despite tendency to introduce character.
- Evidence showing intent, motive, plan, scheme, and bent of mind was admissible although such evidence may also place in issue the character of the defendant. Causey v. State, 154 Ga. App. 76, 267 S.E.2d 475 (1980) (decided under former Code 1933, §§ 38-415 and 38-416).
Evidence admissible to show motive was not rendered inadmissible because it incidentally placed the defendant's character in issue. Brock v. State, 179 Ga. App. 519, 347 S.E.2d 230 (1986) (decided under former O.C.G.A. § 24-9-20).
Defendant's response about whether it took a long time to make a drug transaction did not place defendant's character in issue since the defendant only hypothetically referred to a criminal act; such testimony was relevant to the alibi defense maintained by the defendant at the hearing and was not evidence of general bad character admitted in violation of subsection (b) of former O.C.G.A. § 24-9-20. Johnson v. State, 204 Ga. App. 277, 419 S.E.2d 118 (1992) (decided under former O.C.G.A. § 24-9-20).
Evidence that was material in explaining the conduct of the witness did not become inadmissible simply because defendant's character was incidentally put in issue. Hall v. State, 264 Ga. 85, 441 S.E.2d 245 (1994) (decided under former O.C.G.A. § 24-9-20).
In a prosecution for simple assault, rape and battery, although defendant did not place defendant's character in question when defendant testified on cross-examination that "it wasn't in my nature to hurt [the victim]," testimony of a police officer that the officer had dealt with defendant two or three times, and that one time it took four officers to control defendant without their getting hurt, was admissible to prove the falsity of defendant's specific testimony. Height v. State, 214 Ga. App. 570, 448 S.E.2d 726 (1994) (decided under former O.C.G.A. § 24-9-20).
Testimony of the only witness who could identify defendant that the witness had spent time in jail with defendant was admissible. Kellibrew v. State, 239 Ga. App. 783, 521 S.E.2d 921 (1999) (decided under former O.C.G.A. § 24-9-20).
Testimony of victim that, before shooting the victim, defendant stated that defendant "can't go back to jail" was clearly admissible as part of the res gestae even if such evidence incidentally placed defendant's character in evidence. Kellibrew v. State, 239 Ga. App. 783, 521 S.E.2d 921 (1999) (decided under former O.C.G.A. § 24-9-20).
Evidence of defendant's financial problems and money mismanagement was admissible to show defendant's alleged financial motive for the murders of defendant's children by burning down defendant's trailer, and evidence about defendant's marital problems and romantic relationships was admissible to show that defendant viewed the children as a source of friction between defendant and a girlfriend and to establish how defendant's wife and previous live-in girlfriend were able to see the relationship with the girlfriend, hear defendant's threats towards the children, and see how defendant treated the children; testimony as to prior difficulties between defendant and defendant's children, such as threats to kill the children made to other people and defendant's indifference to the children's welfare, was admissible to show motive and intent. Riley v. State, 278 Ga. 677, 604 S.E.2d 488 (2004) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err in denying defendant's motion in limine to exclude evidence of defendant's prior incarceration in a criminal trial on new charges, although evidence of prior conviction or general bad character was generally inadmissible under former O.C.G.A. § 24-9-20(b), as the criminal history record was redacted, and the evidence was submitted for the relevant purpose of establishing a timeline in order to refute defendant's alibi that defendant was in another state at the time of the new incident, and further, to show that defendant was called by an alias name, which was used during the incident as well. Copprue v. State, 279 Ga. 771, 621 S.E.2d 457 (2005) (decided under former O.C.G.A. § 24-9-20).
Evidence of specific acts to show bad character.
- When defendant puts defendant's general good character in issue, the state may rebut it by evidence as to defendant's general bad character but not by specific acts apart from proof of prior convictions. Folds v. State, 90 Ga. App. 849, 84 S.E.2d 584 (1954) (decided under former Code 1933, §§ 38-415 and 38-416); Smith v. State, 91 Ga. App. 360, 85 S.E.2d 623 (1955);(giving certain exceptions) (decided under former Code 1933, §§ 38-415 and 38-416).
When defendant puts defendant's character in issue in defendant's statement regarding a specific transaction and place, the state can then rebut a statement regarding such transaction and place referred to. Folds v. State, 90 Ga. App. 849, 84 S.E.2d 584 (1954) (decided under former Code 1933, §§ 38-415 and 38-416).
While the impeachment of a defendant's general credibility by proof of general bad character and of prior convictions was prohibited, impeachment of the specific testimony of a criminal defendant (e.g., "I never hurt nobody") may be accomplished by testimony that defendant did, in fact, hurt another, or by a certified copy of a conviction for a crime of physical violence. Williams v. State, 257 Ga. 761, 363 S.E.2d 535 (1988) (decided under former O.C.G.A. § 24-9-20).
Evidence showing intent, bent of mind, and disposition.
- Evidence of defendant's lawful consensual sexual relationship with a minor could be used as similar transaction evidence to establish defendant's intent, bent of mind, and lustful disposition. Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), cert. denied, 522 U.S. 1128, 118 S. Ct. 1079, 140 L. Ed. 2d 136 (1998) (decided under former O.C.G.A. § 24-9-20).
General reputation of one held by community in which one lives is of the best evidence going to show general character. Clarke v. State, 52 Ga. App. 254, 183 S.E. 92 (1935) (decided under former Code 1933, §§ 38-415 and 38-416).
Good character may be proved only by testimony of a witness as to the reputation of the person whose character was in issue; subject to minor exceptions, the opinion of a witness as to character based on personal observation was not an approved way of introducing evidence of character. Taylor v. State, 176 Ga. App. 567, 336 S.E.2d 832 (1985) (decided under former O.C.G.A. § 24-9-20).
Voluntary statement by defendant.
- Regardless of whether a statement by the defendant about defendant's sexual relationship with someone not connected with the case was voluntarily given, since the evidence was not relevant nor admissible for impeachment or for any other proper purpose (e.g., to show motive, scheme, or plan), its only purpose was to attempt to show bad character, and, in the absence of interjection of the issue of character by the defendant, this evidence was inadmissible and the admission required reversal. Duke v. State, 256 Ga. 671, 352 S.E.2d 561 (1987) (decided under former O.C.G.A. § 24-9-20).
Defendant's testimony regarding never being in trouble.
- It was not error to admit evidence of defendant's prior assault conviction because the conviction was offered as impeachment evidence rather than as evidence of bad character after defendant testified, and defendant's counsel emphasized, that defendant had "never been in trouble." Walker v. State, 260 Ga. App. 241, 581 S.E.2d 295 (2003) (decided under former O.C.G.A. § 24-9-20).
When the defendant testified that the defendant had previously been convicted of theft by receiving because the defendant was an innocent victim of circumstance, the defendant opened the door to the prosecution's cross examination concerning the defendant's other convictions for giving a false name and entering an auto. Cobb v. State, 251 Ga. App. 697, 555 S.E.2d 79 (2001) (decided under former O.C.G.A. § 24-9-20).
Statement by ex-wife/victim's mother inadmissible.
- In a child molestation prosecution, testimony by defendant's ex-wife, who was also the victim's mother, regarding her fear of defendant was not evidence of similar transactions as provided in former O.C.G.A. § 24-9-20. Keanum v. State, 212 Ga. App. 662, 442 S.E.2d 790 (1994) (decided under former O.C.G.A. § 24-9-20).
Conduct of family members.
- Trial court erred in allowing the state's attorney to cross-examine the defendant, who was accused of possession of marijuana, as to whether other members of the defendant's family had "been in trouble for marijuana." Hill v. State, 176 Ga. App. 509, 336 S.E.2d 276 (1985) (decided under former O.C.G.A. § 24-9-20).
State's reference in the opening statement to defendant's wife's employment as an exotic dancer was followed with testimony about that employment, which was relevant to the question of the couple's need for money, and therefore, the apparent motive for the crimes, which the state was authorized to present even if the evidence directly involved the defendant's wife's participation in an unsavory activity. Thomas v. State, 274 Ga. 156, 549 S.E.2d 359 (2001) (decided under former O.C.G.A. § 24-9-20).
Testimony concerning marital status.
- Trial court did not abuse the court's discretion by allowing testimony concerning defendant's marital status, the number of times the defendant was divorced, and the fact that the defendant did not maintain a checking account. Grady v. State, 212 Ga. App. 118, 441 S.E.2d 253 (1994) (decided under former O.C.G.A. § 24-9-20).
Statement in defendant's pretrial statement that defendant had a "drinking problem" and that defendant had been "busted for burglary" did not violate the prohibition in subsection (b) of former O.C.G.A. § 24-9-20 against admission of evidence of a defendant's general bad character unless the defendant puts defendant's character in issue. Stitt v. State, 256 Ga. 156, 345 S.E.2d 578 (1986).
District attorney's reference to an indictment was an inappropriate means of impeaching, by contradictory evidence, defendant's statement that defendant had never hurt anyone. Williams v. State, 257 Ga. 761, 363 S.E.2d 535 (1988) (decided under former O.C.G.A. § 24-9-20).
Gang membership.
- Prosecutor's questions to an officer regarding defendant's gang affiliation and attire worn in committing the crime was properly allowed as such was relevant to the issue of identity and defendant's gang membership was admissible to show motive. Johnson v. State, 261 Ga. App. 98, 581 S.E.2d 715 (2003) (decided under former O.C.G.A. § 24-9-20).
Duty to instruct when character evidence wrongly admitted.
- It was error in a criminal case for the state to place the defendant's character in issue when the defendant had not voluntarily chosen to do so. If the prosecutor solicited excluded testimony, the trial court was, upon objection and if it chose not to declare a mistrial, required to direct the jury to disregard such testimony. Harris v. State, 251 Ga. App. 879, 555 S.E.2d 485 (2001) (decided under former O.C.G.A. § 24-9-20).
Proper instruction should be given in every case when the defendant puts the defendant's character in issue; but in the absence of a timely request, an omission to give a specific charge on the subject would not require a new trial. It was only in exceptional cases where the court failed to charge relatively to the good character of defendant that a new trial should be granted. Widner v. State, 197 Ga. 542, 30 S.E.2d 97 (1944) (decided under former Code 1933, §§ 38-415 and 38-416); Mangrum v. State, 155 Ga. App. 334, 270 S.E.2d 874 (1980);(further holding that if defendant asserted another defense, denial of the instruction on character was not error) (decided under former Code 1933, §§ 38-415 and 38-416).
Written request to charge.
- Barring exceptional circumstances, there must be a written request to charge on principles of law regarding good character; otherwise, the failure to do so will not require a new trial. Taylor v. State, 176 Ga. App. 567, 336 S.E.2d 832 (1985) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err in denying defendant's motion for mistrial after witness made statements about defendant dealing in drugs on previous occasions as the statements were unsolicited, the trial court gave immediate instructions to disregard the testimony, the witness did not tell the jury anything it did not already know about defendant, and defendant did not show the harm necessary to require the reviewing court to reverse based on the failure to grant the motion for mistrial. McCollum v. State, 258 Ga. App. 574, 574 S.E.2d 561 (2002) (decided under former O.C.G.A. § 24-9-20).
Instructions when defendant's character evidence was uncontradicted.
- When defendant puts the defendant's character in issue and offered testimony in support thereof, and the state offered no evidence in contradiction, and no contradiction had arisen from within defendant's testimony, it was error for the court to charge the jury that "the state has introduced evidence to the contrary." Eidson v. State, 66 Ga. App. 765, 19 S.E.2d 373 (1942) (decided under former Code 1933, §§ 38-415 and 38-416).
Even if the denial of mistrial was error, it was highly probable that the complained-of character evidence did not contribute to the verdict because the evidence against defendant was overwhelming; the state presented two police officer witnesses who identified defendant as the gunman shown in the videotape of the armed robbery and the state introduced defendant's statement, wherein defendant admitted that defendant robbed the store. Torres v. State, 258 Ga. App. 393, 574 S.E.2d 438 (2002), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-9-20).
2. Putting Character in Issue
In general.
- Only when the defendant makes an election to place defendant's good character in issue may the state offer evidence of the defendant's general bad character or defendant's prior convictions. Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988) (decided under former O.C.G.A. § 24-9-20).
When the defendant offers testimony of a witness as to defendant's general good reputation in the community, the state may prove the defendant's general bad reputation in the community and may additionally offer evidence that the defendant has been convicted of prior offenses. Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988) (decided under former O.C.G.A. § 24-9-20).
When the defendant testifies in the defendant's 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. Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988) (decided under former O.C.G.A. § 24-9-20).
When the defendant elected to place defendant's character in evidence within the meaning of subsection (b) of former O.C.G.A. § 24-9-20, the state could offer evidence of the defendant's prior convictions. Strong v. State, 263 Ga. 587, 436 S.E.2d 213 (1993) (decided under former O.C.G.A. § 24-9-20).
Character not "put in issue" by inadvertent statements.
- It was not necessary to determine whether defendant's testimony on direct examination had "opened the character door," since it was defendant who introduced the defendant's character into evidence by discussing the defendant's criminal record in the response defendant chose to give to the prosecutor's proper cross-examination as to defendant's direct examination testimony. Mitchell v. State, 193 Ga. App. 214, 387 S.E.2d 425 (1989) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err in failing to give a jury charge on the defendant's good character. Character was not "put in issue," within the meaning of subsection (b) of former O.C.G.A. § 24-9-20 (see O.C.G.A. § 24-5-506) by inadvertent statements regarding the defendant's good conduct. Character, in order to be charged, should have been placed in evidence as an affirmative defense. Johnson v. State, 261 Ga. 419, 405 S.E.2d 686 (1991) (decided under former O.C.G.A. § 24-9-20); Keef v. State, 220 Ga. App. 134, 469 S.E.2d 318 (1996);(decided under former O.C.G.A. § 24-9-20).
Trial court correctly refused to allow defendant to impeach codefendants by proof of the codefendants' prior convictions since the codefendants had not placed the codefendants' own character into evidence. Morris v. State, 204 Ga. App. 437, 419 S.E.2d 733 (1992) (decided under former O.C.G.A. § 24-9-20).
When reference to defendant's criminal history was fleeting and incomplete, and the trial court immediately instructed the jurors to disregard the reference, the court did not abuse the court's discretion in electing to give curative instructions rather than granting a mistrial. Smith v. State, 244 Ga. App. 165, 534 S.E.2d 903 (2000) (decided under former O.C.G.A. § 24-9-20).
It was error under earlier provisions of former O.C.G.A. § 24-9-20(b) to question the defendant about the defendant's history of misdemeanor arrests as the defendant's remark that the defendant was not a violent person was at best an inadvertent statement of the defendant's good character, not an election to place the defendant's character in evidence; furthermore, the defendant had not testified untruthfully about the defendant's criminal record and had not testified that the defendant had no prior arrests. Lindsey v. State, 282 Ga. 447, 651 S.E.2d 66 (2007) (decided under former O.C.G.A. § 24-9-20).
Defendant was not entitled to a mistrial simply because a state's witness, in a nonresponsive answer, mentioned that defendant did not want to go back to jail. The mere mention that the defendant had been in jail did not place defendant's character at issue, and a nonresponsive answer to a question impacting negatively on the defendant's character did not place the defendant's character in issue under former O.C.G.A. § 24-9-20(b). Mathis v. State, 299 Ga. App. 831, 684 S.E.2d 6 (2009) (decided under former O.C.G.A. § 24-9-20).
Testimony of previous "trouble" did not place character in issue.
- Defendant's testimony on direct examination that defendant had previously been in "some trouble" did not place defendant's character in issue. Richardson v. State, 173 Ga. App. 695, 327 S.E.2d 813 (1985) (decided under former O.C.G.A. § 24-9-20).
Subsequent conduct did not place character in issue.
- Trial court erred in admitting detective's testimony that, when the detective questioned defendant seven weeks after the shooting, defendant appeared "to be high" and told the detective that the defendant had been smoking marijuana-laced cigars. Weems v. State, 269 Ga. 577, 501 S.E.2d 806 (1998) (decided under former O.C.G.A. § 24-9-20).
Evidence used to impeach specific testimony.
- There were numerous instances when the state may offer evidence of prior crimes or bad acts committed by a defendant for a purpose other than to show that the defendant was a person of bad character, including instances when such evidence was necessary and relevant to impeach the defendant's specific testimony. Crane v. State, 263 Ga. 518, 436 S.E.2d 216 (1993) (decided under former O.C.G.A. § 24-9-20).
Trial court properly allowed a prosecutor to question defendant about any prior positive drug screens as the purpose was to impeach defendant's unsolicited assertion that the drug screen that was the basis of defendant's prosecution was defendant's only positive drug screen; accordingly, although character and conduct in other transactions was generally irrelevant unless defendant first puts defendant's character in issue, pursuant to former O.C.G.A. §§ 24-2-2 and24-9-20(b) (see now O.C.G.A. §§ 24-4-405 and24-5-506), evidence may be used for impeachment purposes in order to disprove facts testified to by defendant pursuant to former O.C.G.A. § 24-9-82 (see now O.C.G.A. § 24-6-621). Lockaby v. State, 265 Ga. App. 527, 594 S.E.2d 729 (2004) (decided under former O.C.G.A. § 24-9-20).
Since, in cross-examining a friend of the defendant, defense counsel engaged in questioning about the defendant's church attendance, and since the only purpose of these questions was to elicit testimony about the defendant's character, the trial court properly allowed evidence of defendant's previous license suspensions and insurance cancellations as rebuttal evidence on the same subject. Donaldson v. State, 279 Ga. App. 407, 631 S.E.2d 443 (2006) (decided under former O.C.G.A. § 24-9-20).
Negative impact of nonresponsive answer.
- Even when a witness's nonresponsive answer impacted negatively on the defendant's character, it did not place the defendant's character in issue under subsection (b) of former O.C.G.A. § 24-9-20. Williams v. State, 214 Ga. App. 834, 449 S.E.2d 532 (1994) (decided under former O.C.G.A. § 24-9-20); Williams v. State, 269 Ga. 827, 504 S.E.2d 441 (1998); Watkins v. State, 241 Ga. App. 251, 526 S.E.2d 155 (1999) (decided under former O.C.G.A. § 24-9-20);(decided under former O.C.G.A. § 24-9-20).
Evidence of prior difficulties between defendant and victim was admissible to show the relationship between the defendant and the victim, and did not place the defendant's character in evidence within the meaning of former O.C.G.A. § 24-9-20. McKissick v. State, 263 Ga. 188, 429 S.E.2d 655 (1993) (decided under former O.C.G.A. § 24-9-20). Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (1999) But see (decided under former O.C.G.A. § 24-9-20).
Eliciting evidence on direct examination that defendant had been "ripped off" by the victim in previous drug dealings was not an improper introduction of bad character evidence, but was evidence of motive for the crimes committed. Holcomb v. State, 268 Ga. 100, 485 S.E.2d 192 (1997) (decided under former O.C.G.A. § 24-9-20).
Testimony that a photograph was a "mug shot" from the files of the police department did not put the defendant's character in issue. Seals v. State, 176 Ga. App. 67, 335 S.E.2d 306 (1985) (decided under former O.C.G.A. § 24-9-20).
Admission of photograph from website.
- In a defendant's trial for vehicular homicide, for which the defendant was convicted, the trial court did not abuse the court's discretion in permitting the state to introduce photographs of the defendant in jail clothing, playfully posing for the camera from a website created by the defendant as the defendant testified how remorseful the defendant was for killing the victim and referenced the specific date that the website photographs were taken; therefore, the defendant opened the door for the state to admit the photographs of the defendant. Merritt v. State, 288 Ga. App. 89, 653 S.E.2d 368 (2007) (decided under former O.C.G.A. § 24-9-20).
Evidence that an accused was presently confined or was in jail did not place the accused's character in evidence. Fields v. State, 176 Ga. App. 122, 335 S.E.2d 466 (1985) (decided under former O.C.G.A. § 24-9-20).
Copies of sexually oriented magazines were not inadmissible at defendant's trial for child molestation and sodomy on grounds the magazines placed defendant's character in issue since the evidence was admitted to show defendant's motive generally and defendant's state of mind and lustful disposition. Stamey v. State, 194 Ga. App. 305, 390 S.E.2d 409 (1990), cert. denied, 194 Ga. App. 912, 390 S.E.2d 409 (1990), 498 U.S. 843, 111 S. Ct. 123, 112 L. Ed. 2d 91 (1990) (decided under former O.C.G.A. § 24-9-20).
Defendant's character incidentally put in issue.
- When testimony of a witness for the state of what defendant stated to the witness shortly after the homicide was admissible to show the state of mind and intentions of defendant toward the deceased, the fact that such testimony incidentally put defendant's character in issue did not render the testimony inadmissible. Tiller v. State, 196 Ga. 508, 26 S.E.2d 883 (1943) (decided under former Code 1933, §§ 38-415 and 38-416).
In prosecution of defendant for the shooting death of his wife, testimony of defendant's sister-in-law to effect that she had seen defendant strike victim on two separate occasions was relevant to issue of defendant's motive in killing his wife, and was not rendered inadmissible because it incidentally placed defendant's character in issue. Hales v. State, 250 Ga. 112, 296 S.E.2d 577 (1982) (decided under former O.C.G.A. § 24-9-20).
Defendant, in prosecution for armed robbery, injected defendant's character into issue after defendant stated defendant did not commit "wrong" which, viewed in the totality of defendant's testimony, was a general declaration of defendant's own good character. Johnson v. State, 169 Ga. App. 102, 311 S.E.2d 537 (1983) (decided under former O.C.G.A. § 24-9-20).
Armed robbery defendant's statement that the reason defendant took a car was because defendant thought there was a warrant for defendant and defendant would "disappear for a while" was relevant to motive, intent, and course of conduct and was not rendered inadmissible because the statement incidentally placed the defendant's character in issue. Millis v. State, 196 Ga. App. 799, 397 S.E.2d 71 (1990) (decided under former O.C.G.A. § 24-9-20).
In prosecution for armed robbery and related crimes, evidence of defendant's prior negotiations about the sale of a machine gun only incidentally placed defendant's character in evidence. Samuels v. State, 223 Ga. App. 275, 477 S.E.2d 414 (1996) (decided under former O.C.G.A. § 24-9-20).
Trial court did not violate former O.C.G.A. § 24-9-20 by admitting evidence which suggested that defendant had lied to friends about age and background and that defendant failed to grieve for the victim because the evidence was relevant to the case and was not rendered inadmissible by the fact that the evidence incidentally placed defendant's character in issue. Mullinax v. State, 273 Ga. 756, 545 S.E.2d 891 (2001) (decided under former O.C.G.A. § 24-9-20).
Trial court properly admitted evidence of defendant's conversations with a police officer, wherein the defendant related that the defendant was carjacked, in an attempt to retrieve the defendant's car that had been involved in a high speed chase with police after robbery and other crimes had been committed, as the conversations were relevant to show that the defendant had given a false account to police; although character evidence that reflected poorly on the defendant was also admitted with those statements, such as the defendant's admission to police that the defendant spent a night with a female who was not defendant's wife, such admission was proper despite the fact that the defendant had not first put the defendant's character in issue, pursuant to former O.C.G.A. § 24-9-20(b). Nashid v. State, 271 Ga. App. 202, 609 S.E.2d 106 (2004) (decided under former O.C.G.A. § 24-9-20).
Evidence admissible as part of res gestae.
- Rape victim's statement, in response to a prosecutor's question regarding whether the defendant had threatened to kill the victim during the attack, that "He told me that he was going to kill me. He told me that he'd done it before and that he had no problem doing it," was admissible as part of the res gestae. Even if it placed the defendant's character in issue, the defendant's counsel agreed to a curative instruction, and it was highly probable that the statement did not contribute to the verdict. Dixon v. State, 303 Ga. App. 517, 693 S.E.2d 900 (2010) (decided under former O.C.G.A. § 24-9-20).
Character questioned by drug evidence.
- Improper admission of witness's character evidence indicating that defendant was a "source" of cocaine was harmless error in light of evidence that defendant was observed giving the witness a package containing cocaine. Baptiste v. State, 190 Ga. App. 451, 379 S.E.2d 165, cert. denied, 190 Ga. App. 897, 379 S.E.2d 165 (1989) (decided under former O.C.G.A. § 24-9-20).
Although defendant did not put defendant's character into issue within the meaning of former O.C.G.A. § 24-9-20, it was proper to allow evidence of defendant's prior drug possession charge to disprove statements that the defendant did not use drugs. King v. State, 203 Ga. App. 287, 416 S.E.2d 842 (1992) (decided under former O.C.G.A. § 24-9-20).
While it was error to allow reference by a witness to defendant's purported need for cocaine after committing a crime, in view of the unintentional nature of the statement and overwhelming evidence of defendant's guilt, the motion for mistrial was properly denied. White v. State, 268 Ga. 28, 486 S.E.2d 338 (1997) (decided under former O.C.G.A. § 24-9-20).
Fact that the defendant possessed a bag of marijuana at the time of defendant's arrest was admissible in defendant's prosecution for robbery and kidnapping, even though this evidence incidentally put the defendant's character in evidence. Reynolds v. State, 234 Ga. App. 884, 508 S.E.2d 674 (1998) (decided under former O.C.G.A. § 24-9-20).
Defendant's testimony that "I don't carry no drugs" clearly implied that defendant was neither in possession of drugs at the time in question nor on other occasions and, thus, defendant's prior convictions involving possession of cocaine were properly admitted as impeachment evidence. Porter v. State, 240 Ga. App. 554, 524 S.E.2d 259 (1999) (decided under former O.C.G.A. § 24-9-20).
Admission of evidence relevant to every aspect of crime charged.
- Custodial statement in which the defendant admitted having turned over an electric meter used in the manufacture of drugs was properly admitted at the defendant's trial and did not improperly introduce character evidence against the defendant since even though a defendant is not charged with every crime committed during a criminal transaction, every aspect relevant to the crime charged may be presented at trial. Ward v. State, 285 Ga. App. 574, 646 S.E.2d 745 (2007) (decided under former O.C.G.A. § 24-9-20).
Defense counsel opening door.
- When defense counsel first opened door pertaining to circumstances surrounding appellant's purchase of vehicle from witness by first asking the latter whether or not the vehicle had been stolen, the state's inquiry on rebuttal as to whether appellant knew that the vehicle had been stolen simply informed jury of true nature of that transaction, and the fact that this testimony may have incidentally placed appellant's character in issue did not render the testimony inadmissible. Mulkey v. State, 250 Ga. 444, 298 S.E.2d 487 (1983) (decided under former O.C.G.A. § 24-9-20).
When defense counsel initiated the issue of defendant's propensity for violence during cross-examination of a witness, the prosecution was authorized to further explore that area. Jordan v. State, 267 Ga. 442, 480 S.E.2d 18 (1997) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err when the court allowed the admission of evidence of the defendant's bad character since the defendant opened the door to such evidence when, during cross-examination of the witness, defense counsel introduced three letters from the witness to the defendant and one of those letters referred to the defendant having stolen a car. Thomas v. State, 247 Ga. App. 798, 545 S.E.2d 354 (2001) (decided under former O.C.G.A. § 24-9-20).
Defense counsel opened the door to the prosecution exploring defendant's criminal history at trial based on the cross-examination of an investigating officer in which counsel asked the officer if defendant had ever been convicted of child molestation previous to the allegations of child molestation that were then pending against defendant; the exploration was not limited to defendant's criminal history with respect to sex crimes. Kimmons v. State, 267 Ga. App. 790, 600 S.E.2d 783 (2004) (decided under former O.C.G.A. § 24-9-20).
While a criminal defendant was not subject to impeachment by proof of general bad character or prior convictions, when defense counsel opened the door to asking about the defendant's being in trouble before, the prosecutor could then impeach the defendant with other convictions that the defendant neglected to mention. Scruggs v. State, 309 Ga. App. 569, 711 S.E.2d 86 (2011) (decided under former O.C.G.A. § 24-9-20).
Defense of entrapment.
- Defendant's assertion of defense of entrapment, in and of itself, did not have the effect of placing the defendant's character in issue. Johns v. State, 164 Ga. App. 133, 296 S.E.2d 638 (1982) (decided under former O.C.G.A. § 24-9-20).
Character put in issue.
- Defendant in prosecution for illegal possession of alcohol in defendant's statement injected defendant's character into issue after defendant stated: "I work for a living and I don't now fool with the liquor business." Dukes v. State, 90 Ga. App. 50, 81 S.E.2d 864 (1954) (decided under former Code 1933, §§ 38-415 and 38-416).
After a witness testified that the witness had identified appellant to police from the witness's picture in "some mug books," and after the prosecutor thereafter asked the police officer to explain what "mug books" were, defendant's character was placed in evidence. Stanley v. State, 250 Ga. 3, 295 S.E.2d 315 (1982) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err by allowing the state to introduce evidence of two prior convictions of defendant after defendant testified that defendant was in Tallahassee, Florida, purchasing drugs to sell, at the time the offenses charged were committed, although defendant argued that this was alibi evidence, not character evidence, and was not offered to show that defendant was of such good character that defendant could not have committed the offense charged. Laidler v. State, 180 Ga. App. 213, 348 S.E.2d 739 (1986) (decided under former O.C.G.A. § 24-9-20).
When a defendant admitted any prior criminal conduct less than all defendant's criminal offenses, defendant had put defendant's character in issue within the meaning of former O.C.G.A. § 24-9-20, with the result that the prosecutor could cross-examine the defendant as to such conduct and may prove other prior convictions. Spencer v. State, 180 Ga. App. 498, 349 S.E.2d 513 (1986) (decided under former O.C.G.A. § 24-9-20).
When during counsel's cross-examination of the victim, defense counsel elicited testimony from the victim that when the victim was two years old the victim's family's house caught on fire because the victim's father had been sniffing gas, and the victim and the victim's mother then left him, and where, in cross-examining defendant, the prosecuting attorney began asking him about the victim's testimony in regard to his sniffing gas, defendant opened the door to such evidence through defense counsel's cross-examination of the victim and the testimony given by the defendant on direct. Atwell v. State, 204 Ga. App. 187, 419 S.E.2d 77 (1992) (decided under former O.C.G.A. § 24-9-20).
When prior to the state's questioning of defendant about defendant's demotion, defendant's trial counsel, upon inquiry by the trial court, told the court that counsel anticipated putting defendant's character into evidence, the facts demonstrated that defendant, by way of counsel's statements voluntarily elected to place defendant's character in issue prior to any introduction of character evidence on the part of the state. Canup v. State, 216 Ga. App. 828, 456 S.E.2d 215 (1995) (decided under former O.C.G.A. § 24-9-20).
Defendant cannot intentionally testify regarding defendant's community volunteer work with the youth and the elderly in the community and then argue that defendant did not intentionally put defendant's character in issue. Campbell v. State, 221 Ga. App. 105, 470 S.E.2d 503 (1996) (decided under former O.C.G.A. § 24-9-20).
With numerous questions to the state's and defendant's own witnesses, defendant opened the door to defendant's character; thus, the state was permitted to respond with evidence of the prior conviction. Hill v. State, 243 Ga. App. 124, 532 S.E.2d 491 (2000) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err in permitting the admission of evidence during cross-examination of the defendant about a prior conviction based on a nolo contendere plea to the offense of giving false information to an officer since, on direct examination, the defendant stated that the defendant had the "most respect for police officers" and that the defendant used to be a corrections officer. Payne v. State, 248 Ga. App. 158, 545 S.E.2d 336 (2001) (decided under former O.C.G.A. § 24-9-20).
When defendant testified that defendant never confronted anyone, always walked away from violent confrontations, and was known in the community as a nonviolent person, defendant placed defendant's character in issue, allowing the admission of defendant's prior convictions for violent crimes under former O.C.G.A. § 24-9-20(b). Carswell v. State, 263 Ga. App. 833, 589 S.E.2d 605 (2003) (decided under former O.C.G.A. § 24-9-20).
By stating that the defendant was a person who tried not to hurt anyone, the defendant put the defendant's character into issue under former O.C.G.A. § 24-9-20(b). Accordingly, it was not error to allow the state to introduce evidence of the defendant's armed robbery convictions. Allen v. State, 292 Ga. App. 133, 663 S.E.2d 370 (2008), aff'd, 286 Ga. 273, 687 S.E.2d 417 (2009) (decided under former O.C.G.A. § 24-9-20).
Mistrial required.
- Trial court erred in denying a mistrial for the injection of character after a state's witness was allowed to state that defendant told the witness that the defendant had been in court "too many times before." Ochle v. State, 218 Ga. App. 69, 459 S.E.2d 560 (1995) (decided under former O.C.G.A. § 24-9-20).
Jury instruction on good character.
- While testimony as to specific acts may not always be used to raise the character issue, after a defendant personally provides such testimony and is available to the state for cross-examination as to the defendant's own actions and disposition, the defendant's testimony is admissible to show the defendant's good character. As the testimony was admissible and sufficient to raise the character issue, a substantive issue in the case, the trial court should have given a jury charge, following the defendant's request, to consider evidence of the defendant's good character in reaching the jury's decision. State v. Braddy, 254 Ga. 366, 330 S.E.2d 338 (1985) (decided under former O.C.G.A. § 24-9-20).
Character not put in issue.
- Testimony by one of the officers who had a search warrant that the officer was there because complaints had been made against defendant was not harmful to defendant, and did not tend to put defendant's character in issue. Lester v. State, 90 Ga. App. 43, 81 S.E.2d 894 (1954) (decided under former Code 1933, §§ 38-415 and 38-416).
Defendant's statement that defendant lived in a certain county all defendant's life and had not had any whisky trouble there, that defendant had never been arrested for whisky, never been searched, and defendant's house had never been searched, did not put defendant's general character in issue. Folds v. State, 90 Ga. App. 849, 84 S.E.2d 584 (1954) (decided under former Code 1933, §§ 38-415 and 38-416).
Since defendant did not by defendant's statement put defendant's character in issue but merely denied guilt of the crime with which defendant was charged, the introduction into evidence of defendant's prior guilty pleas was error. Smith v. State, 141 Ga. App. 64, 232 S.E.2d 401 (1977) (decided under former Code 1933, §§ 38-415 and 38-416).
Defendant's character was not impermissibly placed in issue when a police officer testified at trial that the officer found an available photograph of the subject to show to certain potential witnesses for purposes of identifying defendant, on grounds that such testimony indicated that defendant's photograph was already in police records, implying that defendant had been previously arrested or convicted of another crime. Woodard v. State, 155 Ga. App. 533, 271 S.E.2d 671 (1980) (decided under former Code 1933, §§ 38-415 and 38-416).
Detective's testimony that the police identified defendant's fingerprint by comparing the fingerprint to a print that the police already had on file did not inject defendant's character into evidence. Lewis v. State, 255 Ga. 681, 341 S.E.2d 434 (1986) (decided under former O.C.G.A. § 24-9-20).
During a trial for possession of cocaine, the state offered the defendant's prior conviction for forgery into evidence, arguing that defendant's admission of possessing a gun was illegal by a convicted felon, which was prior criminal conduct and defendant had thus placed defendant's character in issue, but no criminal conduct could be shown until after the prior conviction was admitted into evidence over the objection of the defense counsel, because possession of a gun is presumptively lawful, allowing the prior conviction into evidence in order to place the defendant's character in issue demanded circular logic and defied even the broad parameters of the "simple rule" that when a defendant admits any prior criminal conduct, the prosecutor may cross-examine the defendant as to such conduct and may prove other prior convictions. Hall v. State, 180 Ga. App. 210, 348 S.E.2d 736 (1986) (decided under former O.C.G.A. § 24-9-20).
Prosecution did not place a rape defendant's character in issue by questioning the defendant about information in a police accident report on which defendant relied and based defendant's alibi but merely exercised the prosecution's right to cross-examine and attempt to impeach defendant as any other witness could be impeached. Middlebrooks v. State, 184 Ga. App. 791, 363 S.E.2d 39 (1987) (decided under former O.C.G.A. § 24-9-20).
When the defendant testified and admitted prior criminal conduct, defendant had not placed defendant's character "in issue" within the meaning of subsection (b) of former O.C.G.A. § 24-9-20. Rather, the defendant raised an issue which may be fully explored by the state on cross-examination. Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988) (decided under former O.C.G.A. § 24-9-20); Weston v. State, 216 Ga. App. 806, 456 S.E.2d 214 (1995); Warren v. State, 232 Ga. App. 488, 502 S.E.2d 336 (1998) (decided under former O.C.G.A. § 24-9-20);(decided under former O.C.G.A. § 24-9-20).
It was only when a defendant had "put his character in issue," as that term was defined in the context of O.C.G.A. §§ 24-2-2 and24-9-20(b) (see now O.C.G.A. §§ 24-4-404 and24-5-506), that the court is required to give a charge on good character, and when, in a trial for aggravated battery, the defendant's statement that defendant never shot anybody was not responsive to the direct question relating to defendant's defenses of accident and self-defense, which the court did fully charge, the volunteered additional statement, merely repeated on redirect, was not legally sufficient to put defendant's character in issue. Williams v. State, 187 Ga. App. 355, 370 S.E.2d 210 (1988) (decided under former O.C.G.A. § 24-9-20).
Defendant's statement that defendant was "not that kind of person" did not operate to place defendant's character in issue so as to open the door to proof of defendant's past criminal record at defendant's trial for rape and aggravated sodomy. McGuire v. State, 188 Ga. App. 891, 374 S.E.2d 816 (1988) (decided under former O.C.G.A. § 24-9-20).
When, on direct examination, defendant attempted to explain that defendant possessed marijuana for medicinal purposes, and that defendant smoked marijuana on occasion to relieve headaches and eye problems, this testimony did not place defendant's character in issue within the meaning of subsection (b) of former O.C.G.A. § 24-9-20. Houston v. State, 192 Ga. App. 73, 383 S.E.2d 571 (1989) (decided under former O.C.G.A. § 24-9-20).
Defendant's testimony that defendant had smoked marijuana and that "I ain't done no burglary. I never have." did not put defendant's character in issue at defendant's trial for burglary so as to permit the introduction of convictions for shoplifting and marijuana-related violations. Hurston v. State, 189 Ga. App. 748, 377 S.E.2d 519 (1989) (decided under former O.C.G.A. § 24-9-20).
When defendant appeals convictions of possession of cocaine, possession of less than one ounce of marijuana, and driving under the influence of alcohol, the trial court erred in allowing the state to introduce evidence that the defendant had been convicted, some three years previously, of the offense of possession of marijuana with intent to distribute, since the state asserted that the prior conviction was admissible to impeach the defendant's testimony, elicited both on direct and on cross-examination, that defendant did not smoke marijuana, despite defendant's objection. Moses v. State, 190 Ga. App. 699, 379 S.E.2d 819 (1989) (decided under former O.C.G.A. § 24-9-20).
Witnesses' testimony of prior difficulties between defendant and the victim may have reflected negatively on defendant, but did not place defendant's character in evidence within the meaning of former O.C.G.A. § 24-9-20. Rotino v. State, 259 Ga. 295, 380 S.E.2d 261 (1989) (decided under former O.C.G.A. § 24-9-20).
In prosecution for armed robbery, questioning directed at defendant's reasons for defendant's "flight" was not rendered improper by the defendant's disclosure that defendant was on parole. Jones v. State, 205 Ga. App. 711, 423 S.E.2d 393 (1992) (decided under former O.C.G.A. § 24-9-20).
Because defendant had not placed defendant's character "in issue" within the meaning of former O.C.G.A. § 24-9-20, the state properly introduced evidence of a prior drug conviction to negate defendant's specific testimony that defendant had never been in the drug business. Howard v. State, 206 Ga. App. 610, 426 S.E.2d 181 (1992) (decided under former O.C.G.A. § 24-9-20).
In a trial for sex offenses, denial of the defendant's motion for a mistrial was proper since the motion was based upon the improper placement of defendant's character in issue when a detective testified about one victim's speculation that the defendant devised defendant's plan to molest the victim while the defendant was in jail. Shropshire v. State, 210 Ga. App. 241, 435 S.E.2d 700 (1993) (decided under former O.C.G.A. § 24-9-20).
When defendant did not testify either on direct- or cross-examination in such a way as to admit prior criminal conduct and did not testify in a manner implying that the defendant had no criminal record, the defendant did not place the defendant's character in issue and the trial court erred in admitting the records of defendant's previous convictions. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993) (decided under former O.C.G.A. § 24-9-20).
When the apparent intent of the questioning was not to impugn defendant's character but rather to cast doubt on the witness's credibility, including the witness's denial that any money bag was brought into the witness's apartment, by showing the witness's bias in favor of the witness's brother and the witness's history of coming to the brother's aid, the defendant's character was not put in issue; moreover, even if the jury could infer from the colloquy that defendant had a prior brush with the law, it did not improperly place defendant's character in evidence. Norman v. State, 212 Ga. App. 105, 441 S.E.2d 94 (1994) (decided under former O.C.G.A. § 24-9-20).
Defendant did not open the door to evidence of prior convictions when, in a rambling, somewhat unresponsive answer to a question about the defendant having enough money to live on defendant's own, defendant said defendant didn't "convert himself to a criminal life." Stinson v. State, 221 Ga. App. 758, 472 S.E.2d 538 (1996) (decided under former O.C.G.A. § 24-9-20).
In a prosecution for trafficking in cocaine, defendant's character was not placed in issue when a police officer was asked if it would have been unusual to find a razor blade in defendant's pocket and the officer replied "No, not in this particular incident." Menefee v. State, 226 Ga. App. 725, 487 S.E.2d 489 (1997) (decided under former O.C.G.A. § 24-9-20).
When the defendant testified and admitted prior criminal conduct, the defendant had not placed defendant's character in issue within the meaning of subsection (b) of former O.C.G.A. § 24-9-20; rather, defendant raised an issue which may be fully explored by the state on cross-examination. Davidson v. State, 231 Ga. App. 605, 499 S.E.2d 697 (1998) (decided under former O.C.G.A. § 24-9-20).
In a prosecution for Medicaid fraud, testimony of defendant's employee that defendant put too much pressure on the employee and didn't respect the employee as a person did not rise to the level of general bad character evidence. Bullard v. State, 242 Ga. App. 843, 530 S.E.2d 265 (2000) (decided under former O.C.G.A. § 24-9-20).
Police officer's testimony that the officer understood an informant's reference to defendant as "Man" to be the use of defendant's street name did not place defendant's character in evidence as there was no evidence indicating how the officer knew defendant's nickname or that defendant had any history with the officer's drug task force, and, thus, did not require the mistrial defendant requested. Carter v. State, 261 Ga. App. 204, 583 S.E.2d 126 (2003) (decided under former O.C.G.A. § 24-9-20).
Defendant claimed that another person agreed to pay defendant to take that person to an informant's home, and denied that drugs found in the defendant's cell phone cover belonged to the defendant or that the defendant went to the informant's home to sell drugs; these responses at trial did not raise the question of the defendant's character, and the trial court improperly admitted defendant's prior convictions. King v. State, 270 Ga. App. 399, 606 S.E.2d 616 (2004) (decided under former O.C.G.A. § 24-9-20).
Jury was improperly charged that a witness could be impeached by proof that the witness had been convicted of a crime involving moral turpitude since the defendant was the only witness for whom a certified copy of a previous conviction was introduced into evidence and the defendant's conviction should not have been admitted as the defendant had not placed the defendant's character into issue. However, there was not reversible error as the defendant requested the charge on impeachment that included the language the defendant challenged. Miller v. State, 281 Ga. App. 354, 636 S.E.2d 60 (2006), cert. denied, No. S07C0087, 2007 Ga. LEXIS 106 (Ga. 2007) (decided under former O.C.G.A. § 24-9-20).
Child molestation defendant did not put the defendant's good character into issue so as to require a jury charge; the defendant's testimony regarding the defendant's attempts to help the victim was more reasonably construed as an explanation for the inordinate amount of time the defendant spent with the victim than as evidence of good character, and the defendant's testimony regarding the defendant's two part-time jobs only inadvertently placed the defendant's good character into issue. Kurtz v. State, 287 Ga. App. 823, 652 S.E.2d 858 (2007), cert. denied, No. S08C0321, 2008 Ga. LEXIS 184 (Ga. 2008) (decided under former O.C.G.A. § 24-9-20).
In a joint trial wherein a defendant and two codefendants were convicted of armed robbery, the trial court did not err by denying the defendant's motion for a new trial based on the trial court allegedly erroneously admitting character evidence of the defendant as the mere mention that the defendant had been in jail fell short of placing the defendant's character at issue, and a witness's nonresponsive answer to a question did not impact negatively on the defendant's character nor placed defendant's character in issue. Mathis v. State, Ga. App. , S.E.2d (May 20, 2009) (decided under former O.C.G.A. § 24-9-20).
Character not in issue but allowed admission of prior conviction.
- Defendant's statement that defendant did not sell drugs did not place defendant's character in issue, but did provide a basis for the admission of evidence of defendant's prior conviction for possession of cocaine with intent to distribute. Jester v. State, 229 Ga. App. 490, 494 S.E.2d 284 (1997) (decided under former O.C.G.A. § 24-9-20).
Defendant's character put in issue by prosecution witness.
- Rule which permitted the prosecution to rebut evidence adduced for the purpose of proving defendant's good character was not affected by the fact that the witness used for the purpose of showing good character was called to the stand by the state. Johnson v. State, 84 Ga. App. 745, 67 S.E.2d 246 (1951) (decided under former Code 1933, §§ 38-415 and 38-416).
Defendant placing character in issue.
- When, during cross-examination, defendant described defendant's characteristics and testified to the lack of past misdeeds, the state was entitled to explore the truth of the statements regardless of whether defendant placed defendant's character in issue within the meaning of subsection (b) of former O.C.G.A. § 24-9-20. Bryant v. State, 226 Ga. App. 135, 486 S.E.2d 374 (1997) (decided under former O.C.G.A. § 24-9-20).
Defendant's statement on crossexamination that defendant "didn't rob nobody" opened the door to defendant's character and inquiries about defendant's prior armed robbery convictions. Morrison v. State, 232 Ga. App. 846, 502 S.E.2d 470 (1998) (decided under former O.C.G.A. § 24-9-20).
Because defendant admitted to using drugs on direct examination, the state was entitled to fully explore this issue on cross-examination and was entitled to explore the possibility of defendant's desire for drugs as a motive for robbery, even if it incidentally put defendant's character in issue. Maddox v. State, 238 Ga. App. 598, 521 S.E.2d 581 (1999) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err in allowing evidence of defendant's prior conviction into evidence because the fact that defendant was on probation was brought out on direct examination by defendant's own attorney and the defense informed the court that they would call the probation officer as a witness. Williams v. State, 246 Ga. App. 347, 540 S.E.2d 305 (2000) (decided under former O.C.G.A. § 24-9-20).
Questions and responses alluding to prior arrests impermissibly placed defendant's character in issue, and when the trial court failed to take any corrective action in fulfillment of the court's duty, the defendant was denied a fair trial. Richardson v. State, 199 Ga. App. 10, 403 S.E.2d 877 (1991) (decided under former O.C.G.A. § 24-9-20).
Trial court erred in allowing the state's attorney to question the defendant regarding several previous occasions on which defendant had been arrested on the theory that defendant's character had been placed in issue during an exchange between the state's attorney and the defendant's grandfather. Parker v. State, 198 Ga. App. 838, 403 S.E.2d 897 (1991) (decided under former O.C.G.A. § 24-9-20).
Instructions.
- It was reversible error for the court to charge the jury that the defendant had "undertaken" to put the defendant's character in issue, when as a matter of fact the defendant in the defendant's statement did put the defendant's character in issue. Spikes v. State, 72 Ga. App. 537, 34 S.E.2d 561 (1945) (decided under former Code 1933, §§ 38-415 and 38-416).
Charge on impeachment by proof of conviction was not reversible error even though defendant had not placed defendant's character in issue because of the overwhelming evidence of the appellant's guilt. Peterson v. State, 212 Ga. App. 147, 441 S.E.2d 481 (1994) (decided under former O.C.G.A. § 24-9-20).
Whenever there is evidence to support a charge on good character and defendant requests that such a charge be given, the jury must be instructed that the jury may consider good character evidence in the jury's deliberations. Sapp v. State, 271 Ga. 446, 520 S.E.2d 462 (1999) (decided under former O.C.G.A. § 24-9-20).
Tendency to put character in issue mitigated by instructions.
- Upon the trial of one accused of murder, it was not error to admit signatures to pleas of guilty on two indictments admittedly signed by the defendant as a standard for comparison with handwriting on an envelope and letter also introduced in evidence by the state and contended by the state to be in the handwriting of the defendant, but denied by the defendant, over the objection that this evidence would put the defendant's character in issue, even though the indictments themselves also went out to the jury, since the jury was instructed that the jury was not to consider anything in the two indictments other than signatures of the defendant appearing thereon, and only for the purpose of comparison, and that the indictments and pleas of guilty should not be considered by the jury as affecting the character or reputation of the defendant. Hyde v. State, 196 Ga. 475, 26 S.E.2d 744 (1943) (decided under former Code 1933, §§ 38-415 and 38-416).
It was not erroneous for the trial judge to overrule a motion for a mistrial, when, in answer to a question propounded by the prosecution, evidence was elicited from a witness (regarding a prior shooting by the accused) which tended to put the character of the accused in issue, when, upon objection by counsel for the accused, such evidence was excluded and the jury was instructed to disregard the question and the responsive answer. Joyner v. State, 208 Ga. 435, 67 S.E.2d 221 (1951) (decided under former Code 1933, §§ 38-415 and 38-416).
When during cross-examination counsel for defendant asked a question, the answer to which was complained of as tending to put defendant's character in evidence, and the trial judge, acting immediately, ruled out the evidence, thereby removing the evidence from consideration of the jury, court would not say, under the circumstances, that this action by the trial judge did not afford defendant all the protection to which defendant was entitled under law. Hubbard v. State, 208 Ga. 472, 67 S.E.2d 562 (1951) (decided under former Code 1933, §§ 38-415 and 38-416).
Evidence of victim's character.
- In a homicide prosecution, defendant could introduce proof that deceased was a person of violent and turbulent character only when it was shown prima facie that defendant had been assailed by deceased and was honestly seeking to defend oneself. Robertson v. State, 124 Ga. App. 119, 183 S.E.2d 47 (1971) (decided under former Code 1933, §§ 38-415 and 38-416).
Victim's violent character and general reputation for violence were admissible after the codefendant arguably made a showing that the defendant was honestly seeking to defend oneself rather than to act as the aggressor. Smith v. State, 267 Ga. 372, 477 S.E.2d 827 (1996), overruled on other grounds, 287 Ga. 646, 697 S.E.2d 757 (2010) (decided under former O.C.G.A. § 24-9-20).
Harmless error.
- Evidence showing that defendant was willing to be a "bigtime" cocaine dealer was erroneously admitted, but, when the evidence of defendant's guilt was ample and it was highly probable that the placing of defendant's character in issue did not contribute to the jury's verdict, the error was not harmful. Hargrove v. State, 188 Ga. App. 336, 373 S.E.2d 44 (1988) (decided under former O.C.G.A. § 24-9-20).
Failure to give defendant's requested charge on good character was harmless error since it was likely that the jury would not have relied upon defendant's good character to acquit defendant since the state presented evidence of defendant's prior convictions and the evidence of defendant's guilt was overwhelming. Duvall v. State, 259 Ga. 801, 387 S.E.2d 880 (1990) (decided under former O.C.G.A. § 24-9-20).
Improper admission of testimony placing defendant's character in evidence was not reversible error since the trial judge gave adequate curative instructions, and the evidence against defendant was overwhelming. Ayers v. State, 194 Ga. App. 301, 390 S.E.2d 432 (1990) (decided under former O.C.G.A. § 24-9-20).
When a defendant did not voluntarily place defendant's character in issue, the particular facts and circumstances of this case made it highly probable that testimony regarding the defendant's violent character when drinking did not contribute to the verdict. The erroneously-admitted evidence was cumulative of a fact which had already been established beyond a reasonable doubt. Washington v. State, 194 Ga. App. 756, 391 S.E.2d 718 (1990) (decided under former O.C.G.A. § 24-9-20).
Although the defendant's prior burglary conviction, admitted by stipulation of counsel for the purpose of establishing modus operandi, could not be considered by the jury for purposes of impeaching the defendant's testimony, the error did not require reversal due to the overwhelming evidence of the defendant's guilt. Howard v. State, 202 Ga. App. 574, 415 S.E.2d 45 (1992) (decided under former O.C.G.A. § 24-9-20).
Any error in instructing the jury that a witness could be impeached upon proof of general bad character was harmless as the only person possibly impeached was defendant, who testified that defendant had been admitted to a club although defendant was underage because defendant knew the bouncer; the testimony was so innocuous as to not amount to evidence of bad character as defendant did not state that defendant lied to get in, cheated to get in, or broke any laws. Young v. State, 272 Ga. App. 304, 612 S.E.2d 118 (2005) (decided under former O.C.G.A. § 24-9-20).
In the absence of evidence connecting the defendant to the injuries depicted in a photograph of the defendant's love interest, the photo was not appropriate impeachment evidence, and the trial court erred in admitting it; however, the error was harmless because eyewitness testimony identified the defendant as the person who shot the victim multiple times while the victim lay on the ground partially paralyzed, and it was highly probable that the erroneous admission of the photograph into evidence did not contribute to the jury's verdict and the judgment of conviction entered against the defendant. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009) (decided under former O.C.G.A. § 24-9-20).
It was error for the trial court to refuse to charge the jury on impeachment by prior conviction for a crime of moral turpitude because the inmate who testified to the defendant's jailhouse confession was a convicted felon; however, the error was harmless because even disregarding the inmate's testimony, the evidence of defendant's guilt was overwhelming, and the trial court gave the pattern jury instruction on credibility. Brown v. State, 289 Ga. 259, 710 S.E.2d 751, cert. denied, 132 S. Ct. 524, 181 L. Ed. 2d 368 (2011) (decided under former O.C.G.A. § 24-9-20).
3. Use of Evidence of Other Crimes
Evidence of codefendant's transactions admissible.
- There was no call for a mistrial based on evidence of similar transactions since the state never suggested, nor would it be inferable from any of the evidence, that defendant was implicated in any way in the second count in which defendant's codefendant was charged. Ealy v. State, 203 Ga. App. 219, 416 S.E.2d 559 (1992) (decided under former O.C.G.A. § 24-9-20).
Prior conviction admissible to rebut specific testimony.
- Although the defendant did not put the defendant's "character into issue" within the meaning of subsection (b) of former O.C.G.A. § 24-9-20, it was proper to allow evidence of a prior drug possession charge to disprove defendant's statement that the defendant did not use drugs. The introduction of the prior conviction was permissible since the state was rebutting specific testimony. Sanders v. State, 199 Ga. App. 671, 405 S.E.2d 727 (1991) (decided under former O.C.G.A. § 24-9-20); Thrasher v. State, 243 Ga. App. 702, 534 S.E.2d 439 (2000);(decided under former O.C.G.A. § 24-9-20).
Evidence of independent crimes was admissible for limited purposes if two conditions were met: first, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tended to prove the latter. If these conditions were satisfied, evidence concerning the independent crimes could be admitted for the purposes of showing, among other things, identity, motive, plan, scheme, bent of mind, intent, and course of conduct. Kilgore v. State, 251 Ga. 291, 305 S.E.2d 82 (1983) (decided under former O.C.G.A. § 24-9-20); Lord v. State, 199 Ga. App. 814, 406 S.E.2d 137 (1991);(decided under former O.C.G.A. § 24-9-20).
Evidence of independent offenses may be admitted if the state introduces the evidence for a proper purpose, if there is sufficient evidence to establish that the defendant actually committed the independent offenses, and if there is sufficient similarity between the charged offense and the independent offenses. Henderson v. State, 204 Ga. App. 884, 420 S.E.2d 813 (1992) (decided under former O.C.G.A. § 24-9-20).
Conviction improperly admitted for impeachment.
- Defendant's prior conviction was improperly admitted as the timing of defendant's prior conviction was not inconsistent with defendant's trial testimony that defendant was "in the Persian Gulf" at the time of the codefendant's prior drug offense; the error was not harmless as the evidence of defendant's cocaine trafficking conviction, while sufficient, was not overwhelming. Patten v. State, 275 Ga. App. 574, 621 S.E.2d 550 (2005) (decided under former O.C.G.A. § 24-9-20).
Use of evidence of other crimes held proper.
- Question to one of defendant's witnesses who had testified as to defendant's good character, on cross-examination by counsel for the state, as to whether it would affect the witness's opinion of defendant's reputation if the witness knew that the defendant carried a pistol in defendant's bosom since there was evidence by at least one witness that defendant was carrying a pistol around in the bosom of the defendant's dress prior to the homicide, was a proper one under the circumstances in which it was asked. Jones v. State, 88 Ga. App. 330, 76 S.E.2d 810 (1953) (decided under former Code 1933, §§ 38-415 and 38-416).
When defendant was on trial for the offense of murder, and there was evidence tending to show that the defendant killed the deceased in the commission of a robbery, and also that on the occasion in question the defendant came to the home of the deceased in an automobile and left by the same conveyance, evidence that the defendant later admitted stealing the automobile in a different county tended to illustrate defendant's state of mind at the time of the homicide, and to corroborate the other evidence tending to show robbery as the motive, and was not subject to objection on the grounds that it was irrelevant and prejudicial, and placed defendant's character in issue. Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, cert. denied, 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 2d 464 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, §§ 38-415 and 38-416).
In the defendant's prosecution for the murder of his present wife, evidence that the defendant had shot his former wife in the shoulder with a pistol was admissible to show malice, intent, motive, and bent of mind and did not impermissibly place the defendant's character in issue. Clark v. State, 255 Ga. 370, 338 S.E.2d 269 (1986) (decided under former O.C.G.A. § 24-9-20).
Evidence of similar crimes held to be properly admitted.
- See Anderson v. State, 184 Ga. App. 293, 361 S.E.2d 270 (1987) (decided under former O.C.G.A. § 24-9-20); Flowers v. State, 191 Ga. App. 396, 381 S.E.2d 768 (1989);(decided under former O.C.G.A. § 24-9-20).
When a defendant, on trial for trafficking in cocaine, volunteered that the defendant tried to flee in a prior similar transaction case because the defendant was on parole, the trial court did not err in permitting the state to ask what crime the defendant had been paroled from, once the defendant had interjected the fact. Head v. State, 195 Ga. App. 445, 393 S.E.2d 730 (1990) (decided under former O.C.G.A. § 24-9-20).
When defendant was prosecuted for a drug offense arising out of defendant's attempt to deliver cocaine concealed in a box of toothpaste to a jail inmate, evidence of a similar transaction involving the defendant's codefendant at the jail five months later was admissible. Riley v. State, 196 Ga. App. 148, 395 S.E.2d 394 (1990) (decided under former O.C.G.A. § 24-9-20).
In a prosecution for driving under the influence, failure to stop at a stop sign, violating the open container law, and improper lane usage, evidence that defendant previously drove while under the influence of alcohol, and with an open container in the car, was admissible as circumstantial evidence of the defendant's bent of mind and course of conduct on the night in question. McCullough v. State, 230 Ga. App. 98, 495 S.E.2d 338 (1998) (decided under former O.C.G.A. § 24-9-20).
Mistrial was not required in a prosecution for selling and trafficking in cocaine since the defendant testified at length on direct examination that the defendant arranged numerous drug buys for the police and that the defendant was threatened and attacked by individuals who were arrested as a result of the defendant's aid and such testimony opened the door to the prosecutor's questions about how the defendant was able to arrange those drug buys and whether any danger the defendant faced could have come from the defendant's involvement in other drug transactions. Satterfield v. State, 248 Ga. App. 479, 546 S.E.2d 859 (2001) (decided under former O.C.G.A. § 24-9-20).
Because defendant's prior guilty pleas were made with assistance of counsel and were voluntary, the trial court did not err in admitting the pleas to show aggravating circumstances during sentencing. Sampson v. State, 271 Ga. App. 206, 609 S.E.2d 110 (2004) (decided under former O.C.G.A. § 24-9-20).
Evidence of more convictions than defendant testified to.
- When defendant testified to three prior convictions, the court properly allowed evidence of a fourth conviction as impeachment. Bounds v. State, 207 Ga. App. 665, 428 S.E.2d 673 (1993) (decided under former O.C.G.A. § 24-9-20). Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999) But see (decided under former O.C.G.A. § 24-9-20).
Evidence of incarceration admissible.
- Evidence introduced regarding defendant's incarceration under another name was relevant to the charge of giving a false name and was not objectionable based upon former O.C.G.A. § 24-9-20. Agony v. State, 226 Ga. App. 330, 486 S.E.2d 625 (1997) (decided under former O.C.G.A. § 24-9-20).
Under former O.C.G.A. § 24-9-20(b), state did not elicit improper character evidence from the defendant regarding the defendant's prior incarceration during cross-examination because the defendant mentioned the prior incarceration during the defendant's testimony. Baker v. State, 307 Ga. App. 884, 706 S.E.2d 214 (2011), cert. denied, No. S11C0940, 2011 Ga. LEXIS 517 (Ga. 2011) (decided under former O.C.G.A. § 24-9-20).
Evidence of parole status.
- Assuming that the defendant did not, merely by volunteering that the defendant was on parole, place the defendant's character "in issue" within the meaning of subsection (b) of former O.C.G.A. § 24-9-20 so as to permit rebuttal by the state, the defendant nevertheless subjected oneself to a through and sifting cross-examination by the state on that point. Wilson v. State, 231 Ga. App. 525, 499 S.E.2d 911 (1998) (decided under former O.C.G.A. § 24-9-20).
Similarity to previous offenses.
- There was no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make the offense admissible. Blige v. State, 205 Ga. App. 133, 421 S.E.2d 547 (1992), aff'd, 263 Ga. 244, 430 S.E.2d 761 (1993) (decided under former O.C.G.A. § 24-9-20).
Similarity to other conduct.
- Showing excerpt of a videotape found in defendant's possession which depicted the conduct with which defendant was charged was not error since it was relevant to defendant's bent of mind and modus operandi. Rushin v. State, 269 Ga. 599, 502 S.E.2d 454 (1998) (decided under former O.C.G.A. § 24-9-20).
Trial court did not err in admitting the similar transaction evidence as the evidence described acts remarkably similar to those with which defendant was charged; the victims' older sister testified that defendant had forced her to have intercourse with him in a manner similar to that testified to by the victims, and defendant's wife testified that he performed the same deviant sexual act upon her that the victims testified he performed upon them, thus, the evidence was admissible to show defendant's bent of mind, course of conduct, and lustful disposition with respect to the offenses alleged against him. Beck v. State, 263 Ga. App. 256, 587 S.E.2d 316 (2003) (decided under former O.C.G.A. § 24-9-20).
Remoteness in time.
- Testimony concerning a prior shooting incident (six years before the killing) involving the defendant and the defendant's subsequent murder victim was not too remote in time to have been admissible. Thurman v. State, 255 Ga. 286, 336 S.E.2d 746 (1985) (decided under former O.C.G.A. § 24-9-20).
Permitting the prosecutor to ask defendant if the defendant had been arrested on a sex charge subsequent to the incident in question at defendant's trial for child molestation and enticing a child for indecent purposes was reversible error since the sole issue in the case was the credibility of the defendant and the alleged victim. Thomas v. State, 178 Ga. App. 674, 344 S.E.2d 496 (1986) (decided under former O.C.G.A. § 24-9-20).
Proof of forgery conviction prejudicial.
- When evidence of defendant's prior conviction of forgery was admitted during defendant's trial for possession of a controlled substance, since forgery was a crime of moral turpitude which went directly to the defendant's truthfulness and veracity, the Court of Appeals could not say with certainty that the defendant's conviction for possession of a controlled substance was not unduly influenced by inadmissible evidence of defendant's prior criminal record, and the judgment was reversed. Hall v. State, 180 Ga. App. 210, 348 S.E.2d 736 (1986) (decided under former O.C.G.A. § 24-9-20).
Relevance of evidence concerning a previous altercation between defendant and defendant's subsequent murder victim wherein defendant cut the victim with a knife many times on the face and arm (for which defendant was convicted of simple battery) outweighed the possible prejudicial effect of such evidence since it shed light on the defendant's conduct toward the victim. Cooper v. State, 256 Ga. 234, 347 S.E.2d 553 (1986) (decided under former O.C.G.A. § 24-9-20).
Possession of firearm by convicted felon.
- It was proper under former O.C.G.A. § 24-9-20 to try a firearms possession charge, which required evidence of a prior felony conviction, together with a marijuana and a burglary charge. State v. Santerfeit, 163 Ga. App. 627, 295 S.E.2d 756 (1982) (decided under former O.C.G.A. § 24-9-20).
In a prosecution for assault and possession of a pistol by a convicted felon, the testimony of an officer to show defendant's possession of the pistol prior to the date of the assault was admissible. Fulton v. State, 232 Ga. App. 898, 503 S.E.2d 54 (1998) (decided under former O.C.G.A. § 24-9-20).
Evidence of defendant's narcotic use admissible to show motive for burglaries.
- When a defendant was charged with the robbery or burglary of a pharmacy or drug store, evidence that the defendant used narcotics was admissible since that evidence was relevant to the defendant's motive for committing the crime. Brock v. State, 179 Ga. App. 519, 347 S.E.2d 230 (1986) (decided under former O.C.G.A. § 24-9-20).
Court's admission of evidence of prior sexual contact was not error since both the prior incident and the charged crime involved nonconsensual sexual conduct related to younger females in defendant's household, and the prior incident occurred in the same time frame as the onset of the charged crimes. Yelverton v. State, 199 Ga. App. 41, 403 S.E.2d 816 (1991) (decided under former O.C.G.A. § 24-9-20).
Proof of crimes involving moral turpitude was admissible to impeach witness who placed the witness's character in issue through testimony given by the witness on direct examination. Emmett v. State, 199 Ga. App. 650, 405 S.E.2d 707, cert. denied, 199 Ga. App. 905, 405 S.E.2d 707 (1991) (decided under former O.C.G.A. § 24-9-20).
Admission of fingerprint card was error.
- In a prosecution for possession of marijuana, it was reversible error to introduce a fingerprint card of defendant that showed the date of a prior arrest and listed charges against the defendant. Jinks v. State, 229 Ga. App. 18, 493 S.E.2d 214 (1997) (decided under former O.C.G.A. § 24-9-20).
Parole records admissible.
- It was not error to allow the state to introduce into evidence defendant's parole documents after these were taken from defendant's person upon arrest. Dowdy v. State, 209 Ga. App. 95, 432 S.E.2d 827 (1993) (decided under former O.C.G.A. § 24-9-20).
Evidence of probation violation.
- Record did not support defendant's claim that the state violated former O.C.G.A. § 24-9-20 by introducing the issue of defendant's probation violation during cross-examination to show that the defendant had prior convictions, and the appellate court found that the trial court did not abuse the court's discretion by denying the defendant's motion for a mistrial. Fernandez v. State, 263 Ga. App. 750, 589 S.E.2d 309 (2003) (decided under former O.C.G.A. § 24-9-20).
Admissible in cross-examination when defendant raised probation status on direct.
- When defendant admitted that defendant was on probation for prior criminal conduct during defendant's direct testimony, it was admissible for the trial court to allow the state, on cross-examination, to explore the nature of defendant's prior probation, including the fact that the defendant was on probation for having previously fled from the police, which was what the present trial was about; accordingly, there was no error in this admission of evidence pursuant to former O.C.G.A. § 24-9-20(b). Dyer v. State, 261 Ga. App. 289, 585 S.E.2d 81 (2003) (decided under former O.C.G.A. § 24-9-20).
No cross-examination on unproved crimes, violent acts.
- When the state cross-examines a character witness, the prosecutor may not ask questions as to unproved crimes or acts of violence which are inflammatory, prejudicial, and suggestive of facts not in evidence. Chisholm v. State, 199 Ga. App. 746, 406 S.E.2d 112 (1991) (decided under former O.C.G.A. § 24-9-20).
Evidence of specific acts to rebut defendant's character evidence held harmless error.
- When defendant's character had been put in issue, it was not permissible in rebuttal to prove specific acts of bad character, except on cross-examination for the purpose of testing the witness's knowledge or to impeach defendant's statement; nevertheless, admission of evidence that the police officer had received reports concerning liquor violations by defendant in rebuttal of evidence that defendant had never been previously arrested for liquor violations, the defendant conceding that the defendant had placed defendant's character in issue as to liquor violations, was not such error as to require reversal. Johnson v. State, 84 Ga. App. 745, 67 S.E.2d 246 (1951) (decided under former Code 1933, §§ 38-415 and 38-416).
Because the trial court did not commit reversible error when the court erroneously allowed the state to introduce evidence of defendant's prior misdemeanor convictions under former O.C.G.A. §§ 24-2-2 and24-9-20(b) (see now O.C.G.A. §§ 24-4-404 and24-5-506), defendant failed to show that counsel's trial strategies constituted ineffective assistance. Harris v. State, 279 Ga. 522, 615 S.E.2d 532 (2005) (decided under former O.C.G.A. § 24-9-20).
Argument to Jury
Rules generally applicable.
- Defendant in a criminal case has the right to make, without interruption, such statement to the jury in the defendant's defense as the defendant sees fit and proper to make. Defendant was not circumscribed, governed, or restricted by the rules controlling admissibility of evidence. It was error to interrupt the defendant and exclude from consideration of the jury a portion of defendant's statement, so long as the defendant confines oneself to the transaction under investigation. The court may, however, prevent the defendant from making wholly irrelevant statements entirely inapplicable to the case. Bradford v. State, 67 Ga. App. 462, 21 S.E.2d 108 (1942), later appeal, 69 Ga. App. 856, 26 S.E.2d 848 (1943) (decided under former Code 1933, §§ 38-415 and 38-416).
Right to make a statement in the defendant's behalf was a personal right granted to defendant by law, and extended no further than to permit defendant personally to make to the court and jury such statement as defendant deemed proper in the defendant's defense. Defendant's counsel had no right to ask the defendant questions while defendant was making defendant's statement. The trial judge, however, in the judge's discretion can permit the defendant's counsel to ask the defendant questions or make suggestions to defendant relating to the defendant's statement, while defendant was making it or when the defendant had concluded it. Williams v. State, 220 Ga. 766, 141 S.E.2d 436, answer conformed to, 111 Ga. App. 588, 142 S.E.2d 409 (1965) (decided under former Code 1933, §§ 38-415 and 38-416).
Failure of a defendant's wife to testify was not a legitimate subject matter of argument for counsel for the state; although such a comment did not constitute reversible error when the trial court rebuked the prosecuting attorney immediately in the presence of the jury, instructs the jury that it was not necessary for any defendant or the defendant's spouse ever to take the stand, and that the burden was always upon the state to prove a defendant's guilt beyond a reasonable doubt. Casey v. State, 167 Ga. App. 437, 306 S.E.2d 683 (1983) (decided under former O.C.G.A. § 24-9-20).
Denial of right was reversible error.
- Making of a statement by defendant, when the defendant introduced no other evidence, entitled the defendant to conclude the argument in the case. This is an important right, and the right's denial would generally cause a reversal of the decision of the lower court. The presumption arising from denial of the right was that the party thus deprived was injured. Kelly v. State, 149 Ga. App. 388, 254 S.E.2d 737 (1979) (decided under former Code 1933, §§ 38-415 and 38-416).
Denying defendant the right to make the closing argument was not error since a codefendant had tendered an exhibit into evidence that was admitted without objection during cross-examination of a police officer. Boston v. State, 185 Ga. App. 740, 365 S.E.2d 885 (1988) (decided under former O.C.G.A. § 24-9-20).
Defendants may not suggest in argument what defendants saw fit not to put on stand, that there was other witness testimony favorable to their defense, and to nevertheless have benefit of privilege to open and conclude argument to jury. Sanders v. State, 156 Ga. App. 44, 274 S.E.2d 88 (1980) (decided under former Code 1933, §§ 38-415 and 38-416).
Suggestion that defendants sacrificed testimony to preserve argument.
- It would not be proper to intimate to jury that defendants had sacrificed valuable defense witness testimony to preserve procedural right to open and conclude argument to jury. Sanders v. State, 156 Ga. App. 44, 274 S.E.2d 88 (1980) (decided under former Code 1933, §§ 38-415 and 38-416).
Comment on lack of remorse.
- Because there was sufficient evidence for a rational trier of fact to find defendant guilty and a prosecutor's closing argument simply made a reasonable inference based on defendant's lack of remorse, there was no prosecutorial misconduct under former O.C.G.A. § 24-9-20(b). Smith v. State, 279 Ga. 48, 610 S.E.2d 26 (2005) (decided under former Code 1933, §§ 38-415 and 38-416).
In charging jury upon defendant's right to make statement, it was preferable to confine the instruction to the language of the former statute. Garrett v. State, 203 Ga. 756, 48 S.E.2d 377 (1948) (decided under former Code 1933, §§ 38-415 and 38-416).
Treatment of Defendant as Witness
Defendants' testimony should be given the same weight and credit and be considered on the same basis and under the same rules as any other witness in the case. Burgan v. State, 59 Ga. App. 524, 1 S.E.2d 603 (1939) (decided under former Code 1933, §§ 38-415 and 38-416).
Sworn testimony of defendant has same evidentiary value as testimony of any other witness. Robertson v. State, 124 Ga. App. 119, 183 S.E.2d 47 (1971) (decided under former Code 1933, §§ 38-415 and 38-416); Black v. State, 230 Ga. 614, 198 S.E.2d 314 (1973); Jester v. State, 131 Ga. App. 269, 205 S.E.2d 444 (1974) (decided under former Code 1933, §§ 38-415 and 38-416);(further holding that instruction on weight to be given defendant's testimony was unnecessary) (decided under former Code 1933, §§ 38-415 and 38-416).
Jury was authorized to believe part of defendant's statement, though the whole statement was not credible to the jury; and the same thing was true as to the testimony of each and every witness who appeared before the jury. Gray v. State, 77 Ga. App. 747, 49 S.E.2d 829 (1948) (decided under former Code 1933, §§ 38-415 and 38-416); Stembridge v. State, 82 Ga. App. 214, 60 S.E.2d 491 (1950); King v. State, 151 Ga. App. 762, 261 S.E.2d 485 (1979) (decided under former O.C.G.A. § 24-9-20);(decided under former O.C.G.A. § 24-9-20).
Cross-examination generally.
- Former statute specifically permitted a defendant to be cross-examined as any other witness except as to general bad character or prior convictions. Such cross-examination may be thorough and sifting. Leonard v. State, 146 Ga. App. 439, 246 S.E.2d 450 (1978) (decided under former Code 1933, §§ 38-415 and 38-416).
Counsel's errors in opening door to damaging testimony.
- Defendant's convictions were reversed because the defendant showed the required prejudice to prevail on an ineffective assistance claim based on trial counsel's errors of opening the door to damaging testimony that introduced evidence into the record that directly contradicted the defendant's trial testimony and allowed the admission of other evidence that further challenged the defendant's credibility, the combined effect of which was to severely undercut the defense's case. Tran v. State, 340 Ga. App. 546, 798 S.E.2d 71 (2017).
Permissible questions.
- In a shoplifting prosecution, the trial court did not err in permitting the state's attorney, over an objection that the state shifted the burden of proof, to ask defendant whether the defendant attempted to contact anyone at the store who could corroborate the defendant's testimony that the defendant entered the store with a stolen CD player in order to return the CD player. Singleton v. State, 240 Ga. App. 240, 522 S.E.2d 734 (1999) (decided under former O.C.G.A. § 24-9-20).
Permitting cross-examination of defendant before defendant testified was not necessarily error. Everett v. State, 238 Ga. 80, 230 S.E.2d 882 (1976) (decided under former Code 1933, §§ 38-415 and 38-416).
Defendant may offer to subject oneself to cross-examination.
- While the prosecution may refuse to cross-examine defendant and defendant had the right to refuse to answer any questions asked of the defendant, defendant, nevertheless, had the right to offer to subject oneself to cross-examination. Smith v. State, 215 Ga. 51, 108 S.E.2d 688 (1959) (decided under former Code 1933, §§ 38-415 and 38-416).
Striking defendant's testimony when defendant refused to be cross examined.
- Once the defendant withdrew the defendant's consent to be cross-examined as a witness, the defendant could no longer be treated as a witness at all; thus, the trial court properly struck all of the defendant's direct testimony. McKoy v. State, 303 Ga. 327, 812 S.E.2d 293 (2018).
Striking of the defendant's testimony for refusing to be cross-examined did not deprive the defendant of the defendant's rights to present a defense and to due process because five other witnesses testified for the defense in support of the defendant's self-defense claim; the procedure the trial court followed before striking the defendant's testimony gave the defendant due process as the court clearly informed the defendant of the consequence if the defendant refused to retake the stand, allowed the defendant to consult with counsel, and then asked the defendant to make an informed decision; and the defendant elected not to retake the stand and thereby suffer the consequence of the defendant's testimony being excluded from the evidence. McKoy v. State, 303 Ga. 327, 812 S.E.2d 293 (2018).
Impeachment generally.
- While a criminal defendant was not subject to impeachment by proof of general bad character or prior convictions until the defendant puts the defendant's general good character in evidence, defendant was subject to impeachment the same as any other witness. Favors v. State, 145 Ga. App. 864, 244 S.E.2d 902 (1978) (decided under former Code 1933, §§ 38-415 and 38-416).
Trial court did not err by allowing the state to question the defendant regarding a prior domestic dispute with the defendant's wife because under former O.C.G.A. § 24-9-20(b), the trial court properly allowed the state to confront the defendant with evidence that the defendant beat the wife after an argument in order to impeach the defendant's testimony on direct that the defendant did not beat women with whom the defendant argued. Ridley v. State, 290 Ga. 798, 725 S.E.2d 223 (2012) (decided under former O.C.G.A. § 24-9-20).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29A Am. Jur. 2d, Evidence, § 715.
Involuntary Confession - Psychological Coercion, 22 POF2d 539.
Custodial Interrogation Under Miranda v. Arizona, 23 POF2d 713.
Invalidity of Suspect's Waiver of Miranda Rights, 42 POF2d 617.
Invalidity of Confession or Waiver of Miranda Rights by Mentally Retarded Person, 42 POF3d 147.
ALR.
- Constitutional immunity against giving incriminating testimony as affecting contractual stipulation to submit to examination, 18 A.L.R. 749.
Admissibility of evidence of refusal of accused to comply with order or request to do an act which might aid in establishing his guilt, 35 A.L.R. 1236.
Plea of privilege by the woman concerned in violation of White Slave Act, 48 A.L.R. 991.
Privilege against self-incrimination as applicable to answer to pleadings, 52 A.L.R. 143.
What amounts to violation of statute forbidding comment by prosecuting attorney on failure of accused to testify, 68 A.L.R. 1108.
Constitutional provision against self-incrimination as applicable to questions asked or testimony given in proceeding before nonjudicial officer or body, 68 A.L.R. 1503.
Waiver of immunity from testifying and constitutional provision against self-incrimination, by accomplice testifying for prosecution, 87 A.L.R. 882.
Burden of proof as to outlawry by limitation or otherwise of criminal prosecution when relied upon to defeat claim of privilege against self-incrimination, 101 A.L.R. 389.
Constitutionality, construction, and effect of statutes in relation to conduct of driver of automobile after happening of accident, 101 A.L.R. 911.
Right to cross-examine accused as to previous prosecution for or conviction of crime as affecting his credibility, 103 A.L.R. 350; 161 A.L.R. 233.
Admissibility of plea of guilty at preliminary hearing, 141 A.L.R. 1335.
Disclosure by witness of fact or transaction as waiver of his privilege against self-incrimination in respect of details and particulars which will elucidate it, 147 A.L.R. 255.
Privilege against self-incrimination as available to member or officer of unincorporated association as regards its books or papers, 152 A.L.R. 1208.
Testimony of incriminating character which witness was compelled to give, by virtue of immunity statute or otherwise, as admissible in a prosecution of the witness for an offense subsequently committed, 157 A.L.R. 428.
Constitutional or statutory provision permitting comment on failure of defendant in criminal case to explain or deny by his testimony, evidence or facts against him, 171 A.L.R. 1267.
Suppression before indictment or trial of confession unlawfully obtained, 1 A.L.R.2d 1012.
Waiver of privilege against self-incrimination in exchange for immunity from prosecution as barring reassertion of privilege on account of prosecution in another jurisdiction, 2 A.L.R.2d 631.
Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 A.L.R.2d 1404.
Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination, 13 A.L.R.2d 1438.
Right of witness to refuse to answer, on the ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group, 19 A.L.R.2d 388.
Right of witness to claim privilege against self-incrimination on subsequent criminal trial after testifying to same matter before grand jury, 36 A.L.R.2d 1403.
Privilege against self-incrimination as to testimony before grand jury, 38 A.L.R.2d 225.
Cross-examination of character witness for accused with reference to particular acts or crimes, 47 A.L.R.2d 1258.
Party's waiver of privilege as to communications with counsel by taking stand and testifying, 51 A.L.R.2d 521.
Sufficiency of witness's claim of privilege against self-incrimination, 51 A.L.R.2d 1178.
Adequacy of immunity offered as condition of denial of privilege against self-incrimination, 53 A.L.R.2d 1030, 29 A.L.R.5th 1.
Right of state in criminal contempt case to obtain data from defendant by interrogatories or pretrial discovery as permitted in civil actions, 72 A.L.R.2d 431.
Admissibility of inculpatory statements made in presence of accused to which he refuses to reply on advice of counsel, 77 A.L.R.2d 463.
Duty of court to inform accused who is not represented by counsel of his right not to testify, 79 A.L.R.2d 643.
Comment on accused's failure to testify by counsel for codefendant, 1 A.L.R.3d 989.
Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question, 9 A.L.R.3d 990.
Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation, 10 A.L.R.3d 1054.
Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused's failure to testify, 14 A.L.R.3d 723.
Permissibility of impeaching credibility of witness by showing former conviction, as affected by pendency of appeal from conviction or motion for new trial, 16 A.L.R.3d 726.
Violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused's failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093; 32 A.L.R.4th 774.
Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification, 24 A.L.R.3d 1261.
Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona, 25 A.L.R.3d 1076.
Privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege, but owned by another, 37 A.L.R.3d 1373.
Propriety of requiring accused to give handwriting exemplar, 43 A.L.R.3d 653.
Witness's refusal to testify on ground of self-incrimination as justifying reception of evidence of prior statements or admissions, 43 A.L.R.3d 1413.
Censorship and evidentiary use of unconvicted prisoners' mail, 52 A.L.R.3d 548.
Refusal to answer questions before state grand jury as direct contempt of court, 69 A.L.R.3d 501.
Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.
Admissibility, in state probation revocation proceedings, of incriminating statement obtained in violation of Miranda rule, 77 A.L.R.3d 669.
Nonverbal reaction to accusation, other than silence alone, as constituting adoptive admission under hearsay rule, 87 A.L.R.3d 706.
Admissibility in evidence of confession made by accused in anticipation of, during, or following polygraph examination, 89 A.L.R.3d 230.
Requiring defendant in criminal case to exhibit self, or perform physical acts, during trial and in presence of jury, 3 A.L.R.4th 374.
Cross-examination of character witness for accused with reference to particular acts or crimes - modern state rules, 13 A.L.R.4th 796.
Admissibility of evidence as to other offense as affected by defendant's acquittal of that offense, 25 A.L.R.4th 934.
Failure to object to improper questions or comments as to defendant's pretrial silence or failure to testify as constituting waiver of right to complain of error - modern cases, 32 A.L.R.4th 774.
Admissibility of evidence of accused's membership in gang, 39 A.L.R.4th 775.
Requirement that defendant in state court testify in order to preserve alleged trial error in rulings on admissibility of prior conviction impeachment evidence under Uniform Rule of Evidence 609, or similar provision or holding - post-Luce cases, 80 A.L.R.4th 1028.
Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 A.L.R.5th 465.
Propriety of using prior conviction for drug dealing to impeach witness in criminal trial, 37 A.L.R.5th 319.
Admissibility, under Rule 404(b) of Federal Rules of Evidence (28 USC Appx.) of evidence of accused's prior use of illegal drugs in prosecution for conspiracy to distribute such drugs, 114 A.L.R. Fed. 511.