Evans v. State

434 S.E.2d 148, 209 Ga. App. 606, 93 Fulton County D. Rep. 3000, 1993 Ga. App. LEXIS 957

Opinions

Smith, Judge.

Jamal Grady Evans was tried before a jury and found guilty of selling crack cocaine, in violation of OCGA § 16-13-30 (b). He appeals from the judgment of conviction and life sentence entered by the trial court on the jury’s verdict of guilt.

1. Three policemen were called by the State. One of these three testified on cross-examination that he was on active duty. Appellant attempted to impeach this witness by asking him whether he was not actually on administrative leave pending an investigation of some un specified misconduct. The trial court disallowed this questioning on the ground that any discrepancy was not material.

Assuming, without deciding, that it was error for the trial court to prohibit Evans from attempting to impeach this witness as to the complete truthfulness of his previous testimony under oath, such error was plainly harmless. It was not this witness but the other two who identified Evans as the seller. It is highly probable that the lack of this desired cross-examination did not contribute to the verdict. See Minter v. State, 258 Ga. 629, 630 (2) (373 SE2d 359) (1988). See also Brown v. State, 260 Ga. 153, 156 (4) (391 SE2d 108) (1990).

2. After the hearing mandated by Uniform Superior Court Rule 31.3, the trial court permitted the State to introduce into evidence two instances of “similar transactions.” These evidentiary rulings are enumerated as error.

In Williams v. State, 261 Ga. 640, 641-643 (409 SE2d 649) (1991), the Supreme Court outlined a three-pronged inquiry which must be satisfied before evidence of similar transactions may be admitted as an exception to the general rule excluding as irrelevant evidence that the accused has committed separate offenses. On appeal, Evans urges that his guilty pleas to a prior cocaine sale and a possession charge arising out of a prior attempt to sell cocaine were not sufficiently similar to warrant admission.

The true test of admissibility is not the number of similarities between the prior act and the act for which the accused is on trial, but whether the evidence of prior incidents is substantially relevant for some purpose other than to show that the accused was likely to commit the crime because he is a person of bad character. Bohannon v. State, 208 Ga. App. 576 (2b) (431 SE2d 149) (1993). The prior guilty plea to the charge of selling cocaine was substantially relevant to corroborate the identification of Evans as the seller here. Testimony by an eyewitness of his previous attempt to sell, which he broke off upon spotting a uniformed policeman, was substantially relevant to establish his guilty knowledge. The determination that such evidence is more probative than prejudicial is implicit in the trial court’s determination that the similar transactions are substantially relevant for an appropriate purpose. The trial court did not abuse its discretion in determining that these prior similar acts were sufficiently similar and substantially relevant for some appropriate purpose.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., and Andrews, J., concur. Beasley, P. J., Cooper and Blackburn, JJ., dissent. Johnson, J., not participating.