Phillips v. State

321 S.E.2d 393, 171 Ga. App. 827, 1984 Ga. App. LEXIS 2345

Opinions

Pope, Judge.

Jimmy Lee Phillips was convicted of robbery by intimidation. On appeal he contends the trial court erred by denying his motions for a continuance and by allowing the State to introduce a record of a prior conviction to show his bad character. Held:

1. As to appellant’s first two enumerations citing as error the trial court’s denial of his motions for continuance, our review of the record discloses no abuse of the trial court’s discretion in these matters. See generally Gallimore v. State, 166 Ga. App. 601 (1) (305 SE2d 164) (1983), and Nix v. State, 157 Ga. App. 406 (1) (277 SE2d 768) (1981).

2. Appellant testified that when the robbery in question occurred he was at his aunt’s home in Deerfield, Florida. When his counsel asked appellant why he had gone to Florida, he answered that he was on parole and had violated his parole. On cross-examination the prosecuting attorney was allowed, over objection, to have appellant verify his signature on a certified copy of a prior conviction for armed robbery, and to introduce the document into evidence.

OCGA § 24-9-20 (b) provides, in pertinent part: “If a defendant . . . wishes to testify ... he may so testify in his own behalf. If a defendant testifies he . . . may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” “As a general rule the presumption that one is of good character is included within the general presumption of innocence, or, if not included within it, it at least accompanies the presumption of innocence. Furthermore, the only pertinent question upon the issue raised by an accusation of crime and the defendant’s plea of not guilty is whether the defendant is guilty of the crime charged; and if the evidence establishes his guilt, the character of the accused is entirely immaterial.” Ward v. State, 14 Ga. App. 110, 111 (80 SE 295) (1913). A jury is forbidden, “although they have . . . evidence of the character and nature of the defendant, to convict him ‘upon general principles,’ as that expression is sometimes used in general parlance.” Green v. State, 172 Ga. 635, 640 (158 SE 285) (1931). Thus, no evidence of a criminal defendant’s general bad character or prior convictions shall be admissible against him at trial unless and until such defendant shall have first put his character in issue. See OCGA § 24-9-20 (b). It follows that 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 his actual character in issue by evidence of other witnesses or by his own testimony. See Murray v. State, 157 Ga. App. 596 (1) (278 ) (1981).

A problem similar to that presented here was addressed by the Supreme Court in O’Neal v. State, 239 Ga. 532 (2) (238 SE2d 73) (1977), in which a defendant explained why he fled from the site of an attempted robbery. He stated he was an escapee from a half-way house and feared being recognized by the police. Cross-examination brought out a prior criminal record. It was held that “[u]sually the defendant in a criminal case ‘opens the door’ to character evidence by claiming to have good character. In such cases, his prior criminal record is then admissible for impeachment purposes. [Cits.] Here the defendant did not assert good character but admitted facts showing lack of good character. Where the defendant seeks to explain flight or concealment by referring to his criminal record, he will not be heard to contend that undue prejudice results when the [S]tate examines him concerning that record. [Cit.]” Id. at 533. Therefore, once appellant placed in evidence his prior parole, it was permissible on cross-examination to question him as to the specific event which gave rise to that testimony. Brown v. State, 237 Ga. 467 (2) (228 SE2d 853) (1976). Because the State was authorized in this case to inquire into the basis for his parole, appellant could not have been prejudiced by the introduction of the conviction which gave rise to the parole.

It is obvious from the cases in this court and in the Supreme Court that the ways in which a criminal defendant may “put his character in issue” are many and varied. See, e.g., McDaniel v. State, 248 Ga. 494 (3) (283 SE2d 862) (1981); Brown v. State, 242 Ga. 602 (3) (250 SE2d 491) (1978); O’Neal v. State, supra; Shepherd v. State, 239 Ga. 28 (2) (235 SE2d 533) (1977); Brown v. State, 237 Ga. 467, supra; Darden v. State, 236 Ga. 897 (2) (225 SE2d 904) (1976); Lanham v. State, 233 Ga. 249 (1) (210 SE2d 770) (1974); Holloway v. State, 164 Ga. App. 589 (2) (298 SE2d 296) (1982); Walls v. State, 148 Ga. App. 112 (1) (251 SE2d 103) (1978); Stephens v. State, 144 Ga. App. 779 (2) (242 SE2d 371) (1978); McKenzie v. State, 8 Ga. App. 124 (2) (68 SE 622) (1910); Henderson v. State, 5 Ga. App. 495 (3) (63 SE 535) (1909).

There exists an obvious conflict between the holding of this court in Holloway v. State, supra, and the holding in Carroll v. State, 143 Ga. App. 796 (2b) (240 SE2d 197) (1977). We are now persuaded that the correct rule is set forth in Scarver v. State, 130 Ga. App. 297 (2) (202 SE2d 850) (1973): “Once the ‘character door’ is opened, it is opened for all evidence that bears on the defendant’s character — convictions of crimes, guilty and nolo contendere pleas, juvenile offense [s], and incidents which illustrate the defendant’s character. [Cits.]” The decision in Holloway is in accord with this rule; the decision in Carroll is not. Accordingly, Division 2 (b) of Carroll v. State, supra, is overruled to the extent it is in conflict with the rule set forth in Scarver, supra. For the same reason, the recent decision of Starling v. State, 168 Ga. App. 680 (310 SE2d 234) (1983), is overruled.

Decided July 16, 1984 Rehearing denied July 31, 1984 James H. Moore III, for appellant. Hobart M. Hind, District Attorney, Britt R. Priddy, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, C. J., Deen, P. J., Banke, P. J., and Birdsong, J., concur. Carley and Benham, JJ., concur specially. Quillian, P. J., and Sognier, J., dissent.