State v. Hobbs

705 S.E.2d 147, 288 Ga. 551, 2011 Fulton County D. Rep. 78, 2010 Ga. LEXIS 885

• Court: Supreme Court of Georgia
• Decided: November 22, 2010
• Docket: S09G2078
• Status: Published

Opinions

BENHAM, Justice.

In October 2005, appellee James Odell Hobbs was tried and convicted of crimes related to the sexual abuse of his daughter. During the trial, two witnesses testified as to appellee’s good character in the community and so appellee timely requested the pattern jury charge on good character as promulgated by the Council of Superior Court Judges.¹ The trial court gave a charge on good character, but not the pattern charge requested by appellee. The Court of Appeals found that the charge given was deficient and constituted reversible error. Hobbs v. State, 299 Ga. App. 521 (2) (682 SE2d 697) (2009). We granted certiorari to determine whether the Court of Appeals correctly decided the issue.

The trial court gave the following charge on good character: “Now, members of the jury, by law, good character of the accused must be proved by evidence of the accused’s reputation. When evidence of good character is admitted, you may consider it in determining whether or not you have a reasonable doubt about the guilt of the accused.” The Court of Appeals found this charge to be reversible error because

it stated that the jury “may”2 consider evidence of good character[,] it failed to inform the jury that “[t]he good character of an accused person is a substantive fact, and evidence of such good character should be³ weighed and considered by the jury in connection with all the other evidence in the case,”

and it “failed to instruct the jury that ‘good character in and of itself may be sufficient to create a reasonable doubt as to the guilt of the accused.’ ” Hobbs v. State, supra, 299 Ga. App. 521 (2). For the reasons below, we affirm.

“Good character is a substantive fact at trial, and can by itself create a reasonable doubt as to a defendant’s guilt and lead to an acquittal.” Sapp v. State, 271 Ga. 446, 449 (3) (520 SE2d 462) (1990) (citing to Duvall v. State, 259 Ga. 801, 802 (387 SE2d 880) (1999)). Whenever a defendant’s good character is introduced at trial and the defendant timely requests a charge on good character, the trial court must instruct the jury that it “may consider good character evidence in its deliberations.” Sapp, supra, 271 Ga. 446 (3). Thus, the trial court’s use of the word “may” is not erroneous. However, when instructing on good character, the trial court is expected to tell the jury that good character is a substantive fact which may create reasonable doubt leading to an acquittal. Id. See also Kettman v. State, 257 Ga. 603 (6) (362 SE2d 342) (1987) (a charge that stated that good character was evidence of a positive fact and may itself create reasonable doubt producing an acquittal was proper); Nunnally v. State, 235 Ga. 693 (8) (221 SE2d 547) (1975) (charge was proper where it “clearly instructed [the jury] that good character in and of itself may be sufficient to create a reasonable doubt as to the guilt of the accused”); Phillips v. State, 171 Ga. App. 827, 829 (321 SE2d 393) (1984) (Benham, J., concurring specially). The trial court may also instruct that, notwithstanding evidence of good character, a jury may still convict if there is evidence beyond a reasonable doubt of the defendant’s guilt. Morrow v. State, 166 Ga. App. 883 (3) (305 SE2d 626) (1983).

While it was not necessary for the trial court to give the pattern jury charge verbatim⁴ as requested, the charge given in this case was insufficient because it failed to explain the role such evidence would play in the jury’s deliberations. Duvall v. State, supra, 259 Ga. at 802. Although the charge mentioned that good character evidence could be used to determine “whether or not [the jury has] reasonable doubt about the accused,” the charge failed to (1) explain how good character was a positive and/or substantive fact and to (2) explain how good character evidence could generate reasonable doubt sufficient to acquit. The trial court should have given a charge that incorporated the minimal elements of the pattern jury charge. See n. 1, supra. Specifically, a proper good character charge should effectively advise the jury that it has a duty to consider good character evidence along with any other evidence in the case; that good character is a positive and/or substantive fact; that good character evidence may generate a reasonable doubt sufficient to acquit; and that a conviction is warranted if the jury believes beyond a reasonable doubt that the defendant is guilty. Since the jury charge in question did not include these minimal elements, it was improper.

The error was prejudicial and warranted a new trial for the reasons set forth by the Court of Appeals. Hobbs v. State, supra, 299 Ga. App. 521, 524 (2). Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Ml the Justices concur, except Thompson, Melton, and Nahmias, JJ., who dissent.

1 The pattern charge provides as follows:

When evidence of the good character of the defendant is offered, the jury has the duty to consider that testimony, along with all of the other evidence in the case, in determining the guilt or innocence of the defendant. Good character is a positive, substantive fact and may be sufficient to produce in the minds of a jury a reasonable doubt about the guilt of the defendant. You have the duty to consider any evidence of general good character along with all of the other evidence in the case, and, if in doing so, you should entertain a reasonable doubt about the guilt of the defendant, it would be your duty to acquit. However, if you should believe that the defendant is guilty beyond a reasonable doubt, you would be authorized to convict, despite the evidence about general good character.

Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.35.10.

2 (Emphasis supplied.)

3 (Emphasis in original.)

4 “There is no requirement that only verbatim pattern charges are permissible.” Bailey v. Edmundson, 280 Ga. 528 (7) (630 SE2d 396) (2006) (citing Scott v. State, 274 Ga. 153, 154 (2) (549 SE2d 338) (2001)).