Harris v. State

455 S.E.2d 387, 216 Ga. App. 672, 95 Fulton County D. Rep. 1269, 1995 Ga. App. LEXIS 251

Opinions

Andrews, Judge.

The appellant, Michael Harris, was convicted of burglary. On appeal, he complains of various evidentiary rulings and the trial court’s jury instructions.

During the early afternoon of September 17, 1993, the next-door neighbor of the victim looked out his window and noticed a man coming off the victim’s porch, carrying the bicycle of the victim’s son. He asked the man what he was doing and the stranger replied that he lived there. When the neighbor indicated that he knew that was untrue, the stranger yelled out “Mike.” This individual disappeared while the neighbor called for the police.

Police officers who responded to the call patrolled the area and observed Harris on a nearby street, wearing a tee shirt and blue shorts and carrying a black and silver duffle bag bearing the “Wilson” sporting goods logo. One officer stopped Harris and noticed that he was slightly out of breath and perspiring heavily as if he had been jogging. After another officer arrived at the scene, Harris identified himself and showed them a tattoo on his chest with the name “Michael” on it, which reminded one of the officers of the neighbor’s report about the individual who called out for “Mike.” They obtained Harris’s consent to search the duffle bag and found items of clothing and a pillow case; they also felt something hard in the bottom of the bag but did not check to see what it was. Harris explained that he had picked up the clothing from his cousin, and the officers allowed him to leave.

However, the officers stopped Harris again moments later when one of the officers remembered that a video game may have been taken during the burglary. They again obtained Harris’s permission to search the duffle bag, and discovered a cordless telephone in the bottom of the bag. Because the victim had also reported a cordless phone missing from her home, the officers then arrested Harris and transported him to the victim’s house. The victim identified the cordless telephone and the pillow case, and also indicated that the clothing worn by Harris belonged to her son.

1. The state was allowed to present evidence of similar transactions solely by producing certified copies of indictments and convictions obtained against Harris in 1980, 1984, and 1990 for burglaries of residential dwellings in Richmond County. Harris contends that the admission of such evidence was error, and we are constrained to agree.

“[I]n its presentation to the trier of fact, the state must do more than merely introduce a certified copy of a conviction and/or indictment into evidence. The state must present the trier of fact with evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter.” Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991).

At a pretrial hearing to determine the admissibility of similar transaction evidence, the prosecutor may establish a prima facie case of admissibility by introducing certified copies of the defendant’s previous convictions and stating in his place the relevant facts of the conviction, but such does not satisfy the state’s obligation to present proof on that issue at trial. Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991).

In the instant case, the state only presented certified copies of three previous indictments of Harris for burglary bearing the finding of guilt or a guilty plea by Harris. Under these circumstances, the state failed to satisfy the requirements of Stephens and Williams regarding the showing of similarity, and we are unable to dismiss the error as harmless. See Faulkner v. State, 206 Ga. App. 3 (424 SE2d 287) (1992).

2. Harris’s remaining enumerations of error are without merit.

Judgment reversed.

Johnson, J., concurs. Beasley, C. J., concurs specially.