Jones v. State

Beasley, Judge,

dissenting.

I respectfully dissent.

OCGA § 24-9-20 (b) provides that “ [i]f a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general *39bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” (Emphasis supplied.) The Phillips case, 254 Ga. 370 (329 SE2d 475), involved a defendant’s statement on direct examination by his counsel that he had been on parole and was visiting his aunt when the charged crime occurred. The prosecutor was then allowed to ask for what crime he was on parole, and later introduced a prior conviction. The Supreme Court held that when a defendant admits some but not all of his prior criminal offenses, he puts his character in issue by attempting to portray his character as better than it actually is. This invites the state to cross-examine on the admitted conduct. It also permits the state to prove other convictions.

Decided July 16, 1987 Rehearing denied July 31, 1987 Philip L. Ruppert, for appellant. Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

That case, and its holding, do not authorize admission of the objected-to evidence. By admitting some aspects of the res gestae which in themselves constituted crimes for which he was not on trial, defendant did not put his character in issue. The state could of course cross-examine him on those subjects. OCGA § 24-9-64; Mason v. State, 180 Ga. App. 235, 237 (3) (348 SE2d 754) (1986). But his prior convictions were not related to any issue in the case. Defendant did not, by his admissions, raise an inference that these current offenses were the only criminal acts he had ever engaged in or that he was generally of good character. See Hall v. State, 180 Ga. App. 210 (348 SE2d 736) (1986). Compare Porter v. State, 254 Ga. 388, 389 (330 SE2d 94) (1985); Language v. State, 169 Ga. App. 649, 650 (1) (314 SE2d 484) (1984). Allowing the jury to consider the prior convictions was error.

Because the evidence was principally the victim’s word against the defendant’s, it cannot be said that it is highly probable that the error did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Therefore the judgment should be reversed.

I am authorized to state that Judge Carley and Judge Benham join in this dissent.