Starling v. State

McMurray, Presiding Judge,

dissenting.

The majority reverses this criminal case on the theory the defendant was unduly prejudiced when the state placed in evidence certified copies of his conviction of the other crimes as a result of his own counsel opening the character door in the cross-examination of a state witness (the accomplice in this instance), in attempting to impeach him with reference to his testimony against this defendant. The accomplice had told conflicting stories and did not implicate this defendant as being involved in the beginning. On direct examination by the district attorney he was asked why he did not tell the investigator that this defendant was involved at first. His answer was, “I didn’t want to get [him] in trouble.” On cross-examination counsel for defendant proceeded to pursue the question of why he didn’t want to get this defendant in trouble and asked the witness why he wanted to protect this defendant, to which he answered, “well, you know as well as I do he is on parole. If he goes up it is going to be for quite sometime.” Defense counsel immediately moved to strike this from the record as being nonresponsive to his question, but of course, it was in direct response to the question. The state maintained that counsel for defendant had elicited from this witness a response to a question that placed the character of the defendant in issue. The trial court agreed and held that the state might thereafter introduce legal evidence concerning the character of the defendant which the state proceeded to do. The majority is of the opinion that while this “opened the character door” at least for the purpose of explaining or impeaching his testimony, it did not do so to allow all evidence as to character. To this I cannot agree.

In Flannagan v. State, 22 Ga. App. 620 (1) (97 SE 82), this court held that where the defendant on cross-examination of a state witness puts in evidence as to the general character of the defendant this opened the door for other witnesses to testify as to the general reputation of the defendant, that is, whether it is good or bad. It is true that counsel was not attempting to elicit any testimony that the defendant was a person of good character. But in pursuing the issue as to why he refused to implicate this defendant originally, the witness testified positively because he knew the defendant was on parole. In doing so, counsel “opened the character door.”

*683In my view, once the defendant has by means of cross-examination of a witness put his character in issue, as was the case here, it was not error to admit the record of the defendant’s convictions of other offenses. See McKenzie v. State, 8 Ga. App. 124 (2) (68 SE 622); Henderson v. State, 5 Ga. App. 495 (63 SE 535). I cannot agree that defense counsel should be allowed to cross-examine the witness and not take the consequences when he opens the “character door.”

I, therefore, respectfully dissent as I would affirm the conviction in the case sub judice.

I am authorized to state that Presiding Judge Deen and Judge Banke join in this dissent.