Bailey v. State

427 S.E.2d 612, 207 Ga. App. 283, 93 Fulton County D. Rep. 538, 1993 Ga. App. LEXIS 152

• Court: Court of Appeals of Georgia
• Decided: February 5, 1993
• Docket: A92A2123
• Status: Published

Opinions

Johnson, Judge.

Hilliard Bailey was convicted of aggravated assault. On appeal, his sole enumeration of error is the trial court’s admission of similar transaction evidence.

Bailey believed that the victim, Harold Hall, was having an affair with his wife. The evidence presented at trial reveals that on the night of the assault, Bailey was waiting for the victim, Harold Hall, in the parking lot of the post office where Hall worked the evening shift. Bailey had threatened Hall on numerous occasions. Earlier that evening, Hall had received a call at work warning him that Bailey might be waiting for him. Hall notified his superintendent, who checked the parking lot and confirmed that someone was sitting in a gray Horizon, a car which matched the description of the car Bailey was driving. Hall and two of his co-workers left work about midnight.

The co-workers observed a Horizon pull behind Hall’s truck as it left the parking lot and witnessed gunfire followed by a high-speed chase. Hall eluded the car and pulled into a nearby restaurant parking lot, as did his co-workers. The Horizon appeared again and Hall drove off. Several more shots were fired and Hall’s vehicle stopped in the middle of the road. The co-workers approached Hall’s truck, observed a bullet hole through the windshield and saw that Hall had been shot in the shoulder. Both co-workers identified Bailey as the person sitting in the back seat of the Horizon holding what appeared to be a weapon. Hall testified that he was able to identify Bailey in the Horizon after seeing him in his rear-view mirror.

After conducting a hearing pursuant to Uniform Superior Court Rule 31.3, the trial court allowed the State to introduce evidence of a prior incident in which Bailey pled guilty to simple battery after beating his wife. Evidence of prior crimes committed by the defendant is generally inadmissible. Exceptions to this rule have developed which permit the introduction of evidence of other crimes committed by a defendant to be admitted for limited purposes such as to show identity, plan, scheme, bent of mind, and course of conduct. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Additionally, the proffered similar transaction evidence must satisfy the tests set forth in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), that is: (1) that the State intends to introduce evidence of the independent act for an appropriate purpose; (2) there is sufficient evidence to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

The State clearly intended the evidence to establish Bailey’s state of mind, an appropriate purpose satisfying the first prong of the Williams test. The second element of the Williams test is clearly met, in that Bailey pled guilty to the prior crime. We must determine, then, if there was sufficient connection or similarity between the offenses to establish that the commission of the battery of his wife tends to prove the aggravated assault of Hall. We find it does not.

Bailey’s previous conviction involved a different offense, a different victim, was committed at a different time and in a different manner. In the first instance, Bailey did not use a weapon and was acting while enraged. In the present case, the act was clearly premeditated and a gun was used. The only similarity between the offenses is that in both instances Bailey was motivated by his belief that his wife and Harold Hall were having an affair. Even if we argue that both acts were provoked by Bailey’s jealousy, this alone does not render the conviction on a completely dissimilar offense admissible. Its admission was error.

In light of the overwhelming evidence presented in this case regarding Bailey’s guilt, however, we find the introduction of the previous conviction to be harmless error. “[Assuming there was error . . . where, as here, the evidence was overwhelming, it is highly probable that the error did not contribute to the judgment. Therefore, the error, if any, is harmless. [Cit.]” Mims v. State, 180 Ga. App. 3, 5 (2) (348 SE2d 498) (1986).

Judgment affirmed. Carley, P. J., concurs. Pope, C. J., concurs specially.